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What does Clause 78H do?

Clause 78H of the Deemed Provisions (Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations, 2015) came into effect on 3 April 2020 in response to the current State of Emergency resulting from the COVID-19 pandemic (the Pandemic).

The new clause provides the Minister for Planning with the ability to issue a notice to temporarily exempt planning requirements of local planning schemes, if such an exemption is considered necessary to respond to a State of Emergency, or to assist with the recovery. The exemptions must address issues within the planning framework that inhibit the response to, and recovery from, the emergency. A notice can apply to the entire State or only a part.

The legislation has also been drafted to account for future natural disasters as well as the COVID-19 Pandemic. For example, the Regulations would permit the Minister to issue planning exemptions over a part of the State that has been impacted seriously by a bushfire, cyclone or flood.

In November 2022, the Regulations were amended to also allow the Minister to issue a notice if the State Emergency Coordinator makes a COVID-19 declaration under the Emergency Management Act 2005. No such COIVD-19 declaration has been made by the State Emergency Coordinator (as of November 2022).  

When can a Notice of Exemption be issued under Clause 78H of the Regulations and how long does a Notice last?

A notice can only be issued when a State of Emergency has been declared or COVID-19 declaration is made under the Emergency Management Act 2005 and temporary exemptions from certain planning requirements are considered necessary to respond to, or assist with the recovery from, an emergency.

Under the Regulations, a notice can be in place for up to a maximum of five (5) years from the day in which the notice is signed, or when the State of Emergency Declaration ceases to be in force.

Conditions can be applied to a particular exemption contained within a notice. Column 3 within the current Notice of Exemption (4 March 2022) includes conditions associated with the exemptions. Most of the exemptions under the current Notice of Exemption (4 March 2022) have either expired or will expire by 2 February 2023. 

Why was introducing Clause 78H necessary?

The Pandemic has highlighted three major issues with Western Australia’s planning system where a State of Emergency declaration is in place:

• an immediate crisis response can be inhibited when existing conditions of development approvals either prohibit or constrain actions that are in the State or national interest (for example, the delivery of goods to supermarkets if loading and unloading is restricted to certain hours of the day)
• existing businesses can be prevented from responding to sudden changes in circumstances (for example, a restaurant which can only serve takeaway food during a lockdown may be in breach of the development approval)
• local governments may be constrained in responding rapidly to a crisis, and not sufficiently supported by the State in terms of a central coordinated response (for example, having to advertise planning applications physically from a council building).

These issues affect the ability for businesses and local governments to adapt easily in crisis situations.

Measures to stimulate the economy and make it as easy as possible for businesses to continue to operate, and commence operating, are also important during the recovery phase. Greater flexibility, greater speed, and greater State ���������� coordination may be required for the planning and development system to respond to the Pandemic and future States of Emergency.

What happens when a notice is no longer necessary?

Under the provisions of the Regulations, the Minister is able to revoke or amend a notice at any time.  

While the State of Emergency Declaration ended on 4 November 2022, the Notice of Exemption (signed on 4 March 2022) has not been revoked as several of the exemptions have either expired or will expire in due course under the specific conditions for the exemptions. 

What planning requirements can a notice exempt?

Clause 78H allows for a notice to temporarily exempt the following planning requirements:

• a requirement to obtain development approval
• a requirement under a condition of approval
• a requirement relating to certain works
• a provision that a non-conforming use is no longer permitted because of a discontinuance of that use
• a requirement in relation to time limits.

A notice may exempt one or more of the above requirements, and in doing so temporarily suppresses those aspects of the planning framework identified in the notice.

When does the Notice of Exemption take effect? 

The Notice of Exemption came into effect on 4 March 2022, when the Minister of Planning signed it. Refer to the ‘Summary of Exemptions’ table above for reference to the exact dates that each clause ceased to have effect.

Does the updated Notice of Exemption signed on the 4 March 2022 replace the previous notices dated 8 April 2020 and 30 April 2020? 

Yes. The Notice of Exemption, signed by Minister of Planning on 4 March 2022, replaces the previous Notice of Exemptions (dated 30 April and 8 April 2022).

How is the Notice of Exemption structured?

The Notice of Exemption includes exemptions and corresponding conditions for those exemptions. Four types of exemptions apply:

• Exemption from requirement to obtain approval (Schedule 1)
• Exemptions relating to non-conforming uses (Schedule 2)
• Exemptions from requirements regarding time limits and conditions of approval (Schedule 3)
• Exemptions of a type that may fall within multiple categories (Schedule 4)
• Exemptions that are only applicable during a Lockdown (Schedule 5)
• Exemptions that expire 90 days after the signing of the Notice

Conditions may apply (refer to Column 3 in the Notice of Exemption).

Are local governments and proponents bound by the exemptions in the Notice of Exemption?

No, the exemptions are discretionary. There is no obligation for a local government or proponent to use an exemption if they do not wish to do so. However, the discretion only applies to the ‘party’ specified in the exemption (refer to Column 4 in the Notice of Exemption). That is, if the exemption specifies that it applies to the proponent, then only the proponent has discretion to decide whether or not to use the exemption. Likewise, if the exemption specifies that it applies to the local government, then only the local government has the discretion to decide whether or not to use the exemption.

If a local government or proponent wish to rely upon an exemption, all relevant conditions must be complied with. As explained in the above section, most of the exemptions contained within the Notice of Exemption have either expired or will expire by 2 February 2023.

When does the Notice of Exemption expire/stop having effect?

The Notice of Exemption specifies when specific exemptions for development approval for works or land uses expire, with most of these exemptions expiring 90 days after the date upon which the State of Emergency Declaration ceases to have effect or is revoked (refer to Column 3 in the Notice of Exemption). For those land uses listed in Schedule 6 of the Notice of Exemption, their exemption will expire on 2 June 2022, being 90 days from the date the Minister for Planning signed the Notice (4 March 2022). As explained in the above section, most of the exemptions contained within the Notice of Exemption have either expired or will expire by 2 February 2023.

What happens after the exemptions within the Notice of Exemption expire?

An exemption provided through a Notice of Exemption issued under Clause 78H are temporary. A Notice of Exemption cannot provide a permanent exemption from a planning requirement under a scheme. Once an exemption expires, the existing planning framework requirements, including existing conditions of approval, will apply. That means without a new or amended development approval:

• Any exempt condition of approval will be reinstated.
• Any uses that were exempt from planning approval requirements under the Notice of Exemption will need to seek approval through the appropriate processes if no similar exemption applies under the existing planning framework.
• Any requirements that were exempt from applying, such as cash in lieu or the provision of car bays are not permanently waived.
• Any temporary works associated with any exemption will need to be removed.

For this reason, many of the conditions set out in the Notice of Exemption have a 90-day transitional period from the end of the State of Emergency to the end of the exemption. This period gives time for a proponent who wishes to continue the particular use or regularise any particular work to obtain new or amended development approval.

An application for approval can be submitted and determined at any point while the exemption is in place if it is intended that the activity continues beyond the Notice of Exemption period, or condition of the specific exemption.

The Notice of Exemption refers to temporary works, what does this mean?

Any reference to temporary works in the Notice of Exemption refers to a temporary structure or building that is able to be removed at the end of the Notice of Exemption period.

The intent is that at the end of the exemption period covered by the Notice of Exemption, any structure or building will need to be removed without new or amended planning approval, otherwise it will constitute unlawful development. This means, for example, a traditional bricks-and-mortar building on a concrete pad could not be covered by the Notice of Exemption, as it could not easily be removed at the end of the exemption period.

As no new non-conforming use rights are afforded for any use or work arising out of the exemption, the effect would be an illegal building that could not be removed without great cost to the landowner. The Notice of Exemption is framed in such a way as to avoid this.

Is any new use or work carried out under a Notice of Exemption afforded a non-conforming use right when the exemption ends?

No. The effect of clause 78J(5) is to prevent any non-conforming use resulting from the Notice of Exemption during the exemption period.

The effect of the exemptions under a Notice of Exemption are temporary. For example, if a landowner changes the use of a business without new development approval, by relying on the exemption under this Notice of Exemption, this ends when the exemption ends. The landowner will have no non-conforming use right to continue with that new use, nor will the landowner be entitled to any injurious affection claim for being directed to stop the new use.

As outlined above, for similar reasons only temporary works are permitted under the exemptions. Any structure or building erected under the Notice of Exemptions will have to be removed when the exemption ends, unless new or amended development approval is achieved.

The Notice of Exemption uses land use and zoning terminology from the Model Provisions. What if a local planning scheme terminology differs?

The intent of the Notice of Exemption is to apply to all or as many local governments as possible. However, it is also acknowledged that across some 137 different local governments, not all schemes use the exact same terminology. To address that, the Notice of Exemption is intended to apply flexibly and as broadly as possible and to this end, adopts terminology set out in the Model Provisions of the LPS Regulations.

For example, in many cases a reference to a “centre” zone in the Notice of Exemption would be intended to cover “local centres”, “district centres”, ”neighbourhood centres” and other similar terminology. It is useful to compare the objectives of the zone described in the Notice of Exemption and set out in the Model Provisions with the objectives of the zone however it is described in a particular local planning scheme. A similar approach should be used when examining uses.

Which development approvals does the exemption for substantial commencement timeframes apply to?

Clause 3.1 of the Notice of Exemption dated 4 March 2022 provides the ability for a proponent to utilise a 2-year extension to the time within which to substantially commence a development approved by a local government that was current prior to and during the State of Emergency Declaration (ie decisions made prior to 5 November 2022). For example, if a development approval was granted by a local government on 3 November 2022, and substantial commencement was due by 3 November 2024, the effect of clause 3.1 would be an extension to the due date for substantial commencement to 3 November 2026 (being the date that is 2 years after the original due date for substantial commencement). The exemption would not apply to a development approval that was granted by a local government on 5 November 2022 as this was after the date that Clause 3.1 of the Notice of Exemption ceased to have effect.

Development approvals under other schemes (region or improvement) or that have expired are not subject to this exemption. This is because the exemption is issued under the Planning and Development (Local Planning Schemes) Regulations 2015 and specifically refers to an ‘approved development application’. An expired approval is not considered to be ‘approved’ as the approval has expired. Any expired approvals will need to follow the usual processes for seeking an extension of time.

How does the Notice of Exemption affect the decisions made by the Development Assessment Panel (DAP)?

The exemptions within the Notice of Exemption dated 4 March 2022 do not apply to development approvals granted by a DAP. The Planning and Development (Development Assessment Panel) Regulations 2011 now provide for a 4-year term (rather than 2 years) as of right, noting that the decision-maker can apply a term longer if considered appropriate. 

The exemptions within the previous Notice of Exemption dated 30 April 2020 do apply to development approvals granted by a DAP. 

What this means is that an approved DAP application that expired before 8 March 2020 or that was granted after 4 March 2022 is not eligible for the 2 year extension.
 

How does the Notice of Exemption affect the DAP approvals that were relying on the extension to the substantial commencement period under the previous Notice of Exemption (dated 30 April 2020)? 

If an approval issued by a DAP was current (i.e. had not expired) between 8 April 2020 and 4 March 2022 and was relying on the 2 year extension to the substantial commencement period provided in the previous Notice of Exemption, the 2 year extension can continue to apply. 

For example, if a DAP approval was granted on 3 March 2022, with a substantial commencement period of 2 years (expiring on 3 March 2024) the previous Notice still applies, as the approval was valid between 8 April 2020 and 4 March 2022. This means that the original deadline of 3 March 2024 is replaced with an additional 2 years (being 3 March 2026). The exemption would not apply to a DAP approval that was granted on 5 March 2022 as this was after the date that the Notice of Exemption dated 30 April 2020 was replaced by the Notice of Exemption dated 4 March 2022 and clause 4.2 of the Notice dated 30 April 2020 ceased to have effect.

Does Clause 78H affect the ability to seek amendments to the substantial commencement period under regulation 17 or regulation 17A of the Planning and Development (Development Assessment Panel) Regulations 2011? 

No. Clause 78H does not affect the provisions in the Planning and Development (Development Assessment Panel) Regulations 2011 and the ability to seek an amendment under r.17 or r.17A to extend the period within which any development approved must be substantially commenced.

Does the Notice of Exemption, mean that Clause 78H can apply more than once? 

No. The Notice specifies that the 2-year extension is effective from the day the development approval would have ceased. Therefore, there is no ability to have a 2-year extension under the previous Notice and then a further 2-year extension under this Notice.

What date did the Schedule 6 exemptions expire?

Schedule 6 specifies that these exemptions expire 90 days after the signing of the notice by the Minister (being 4 March 2022). This means that these exemptions expired on 2 June 2022. However, some of these exemptions have been replaced by permanent exemptions contained in the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015. Refer to Clause 61 of the Deemed Provisions. 

Proponents who utilised these exemptions should contact their relevant local government to ascertain what approvals may be required to continue such operations.

Do I need an approval if I was relying on an exemption for a land use that has not been included in the Deemed Provisions?

Yes. A development approval is required by 2 June 2022 for those uses that are not captured by the exemptions the Deemed Provisions.