Planning & Development
Planning & Development
Throughout Australia there are planning instruments, schemes and policies that control development and regulate land use. Our planning and development lawyers advise on the planning system.
In Western Australia, for example, the planning system is regulated by four main bodies:
1. Minister for Planning and Infrastructure: the Minister authorises or may direct that the state planning policy or a local planning scheme be amended, consolidated or repealed by the WAPC;
2. Western Australian Planning Commission: responsible for planning and development controls relating to land regulated by region planning schemes, however it may delegate its authority to the local authority;
3. Development Assessment Panels (DAP): responsible for certain development approvals that meet various criteria, including type and value thresholds. Local DAPs determine development applications concerning an individual local authority area. Joint DAPs determine development applications relating to two or more local authority areas; and
4. Local authorities: responsible for planning and development approvals of land within the local planning scheme area of the local authority.
Planning policies contain requirements relating to the approval of proposed development applications and in some instances require proposed structure plans to be advertised prior to the grant of an approval. Local authorities may refer your application for comment to various other agencies, such as the Department of Environment Regulation, Department of Parks and Wildlife, Department of Water and the Planning Commission.
During the approval phase a number of issues need to be considered to determine whether a proposed structure plan is consistent with proper planning, including the environmental attributes of the land and nearby land, for example the existence of a classified wetland on the land the subject of the proposed structure plan and whether or not the classification of the wetland is reflective of its environmental attributes.
The Geomorphic Wetlands Swan Coastal Plains Dataset is used as a guiding tool by Western Australian government agencies and local authorities in the development approval phase and can have a serious adverse impact on the ability of a landowner to develop their land where the wetland classification is incorrect. The Environmental Protection Authority has estimated that over the years approximately 80% of wetlands on the Swan Coastal Plain have disappeared and the remainder have been substantially modified. Therefore, it is imperative to undertake your own assessment as to whether a classified wetland overlapping your land is in fact functioning as a wetland in circumstances where the classification may adversely impact your proposed development.
The Planning and Development Act 2005 (WA) also contains provision for obtaining “retrospective approval” or a “validating approval” in circumstances where development has been carried out without first obtaining an approval or is a variation to an approval previously granted.
If you are dissatisfied with a planning decision, you have a right to a review of the decision by making an application to the State Administrative Tribunal. We can assist you in challenging a planning decision and can provide you with advice regarding the various avenues of appeal available to you. We have experienced solicitors with expertise in conducting review proceedings before the State Administrative Tribunal and judicial review proceedings in the Supreme and Federal Courts.
Our planning and development lawyers also have experience in dealing with a variety of regulatory bodies including the Department of Environment Regulation, Department of Parks and Wildlife, the Planning Commission, Department of Water and local government agencies.
Some examples of recent planning and development matters our planning and development lawyers have dealt with are review by the SAT of:
- a local government refusal to advertise a local structure plan because of the presence on the land of an area of alleged conservation category wetland;
- a refusal by local government to issue a demolition permit for an old residence because of alleged heritage value; and
- a decision by a local government to refuse to issue a building licence.