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The Development Approval Process

The Development Approval Process. UWA – EART4413 – Planning Law Week 9 22 April. Lecture overview. The requirement of approval Different approval bodies The approval process under MRS The approval process under an LPS Conditions. 1. Requirement of approval.

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The Development Approval Process

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  1. The Development Approval Process UWA – EART4413 – Planning Law Week 9 22 April

  2. Lecture overview • The requirement of approval • Different approval bodies • The approval process under MRS • The approval process under an LPS • Conditions

  3. 1. Requirement of approval • What requires development approval? • Section 162 of P&D Act • “Development” s.4 of P&D Act • Development approval is separate to: • Subdivision • Building licence • Other licences – extractive, environmental, health etc.

  4. Requirement of approval • Any exceptions to rule?

  5. 2. Approval Bodies • Land falling within Scheme • Local Planning Scheme • Almost all land in state • Regional Scheme • In addition to LPS • Other approval bodies • Redevelopment Schemes (s.71 P&D Act) • Minister responsible for SCRM Act

  6. 3. Approvals under MRS • Clause 10 – general obligation • Clause 5 “responsible authority” • Different to “Commission” • Delegation under 16 of P&D Act • Clause 32 of MRS • Notice of resolution • Gov Gaz 19/12/2008 pp.5401-5457

  7. 3. Approval under MRS (cont) Current notice of delegation in Gov Gaz states all development on land zoned under MRS to be determined by LG except: • Land is subject to a resolution under cl.32 • Land is a planning control area under s.112 of P&D Act • Land is within SCRM Act • LG is of opinion that the application is of state significance • Public works

  8. 3. Approval under MRS (cont) • Uses that must be referred to the WAPC under clause 32 of MRS • Development of Regional Significance • Development in Rural Zone • Poultry Farms • Development of Metropolitan Centres • Development in certain areas also referred to WAPC: • Stirling train station area; Kwinana Industrial area, etc.

  9. 3. Approval under MRS (cont) Reserved land - PART II of MRS • Clause 13 - any reserved land • Clause 16 - land vested in public authority • Clause 18 - land not vested in authority • Clause19 - injurious affection

  10. 3. Approval under MRS (cont) Zoned land – MRS PART III • Clause 24(1) approval of responsible authority required, subject to 24(2) • Clause 24(2) set out when approval not required under MRS: • Single dwelling or public works; and • Land is not subject to notice under clause 32 • Clause 26 - approval under LPS is approval under MRS

  11. 3. Approval under MRS (cont) Approval process – PART IV of MRS • Clause 28 – All MRS development applications to be submitted to local government • Clause 29 – LG to forward application to WAPC if: • Land is reserved or in the Swan DCA • Land is called in under cl.32

  12. 4. Approval under LPS • What is the difference between a local planning scheme (LPS) and development scheme? • Development schemes are now largely superseded by structure planning provisions in LPSs • What are the 4 mains types of development control used in LPSs • Incorporation of R Codes

  13. 4. Approval under LPS • Requirement for approval in scheme (eg. MST cl.8.1) • Exempt development (MST 8.2 – note word ‘permitted’ can be confusing) • Interior works • Single dwelling • Home office • Fences (not retaining wall)

  14. 4. Approval under LPS (cont) • Formalities • Form (e.g. MST cl.9.1) • Plans (e.g. MST cl.9.2) • Fees (Part 7 of Planning and Development Regulations)

  15. 4. Approval under LPS (cont) • What is the use applied for? • Check against uses in zoning table and definitions • Opinion may differ between LG and Applicant • May be more than one • What is the permissibility? • Check zoning table • Is there a discretion to refuse a ‘P’ use? • Is there a discretion to approve an ‘X’ use?

  16. 4. Approval under LPS (cont) Advertising • E.g. clause 9.4 of MST • Usually in case of a A (SA,AA) – (MST cl.4.3.2) • Also, ‘use not listed’ (MST 4.4.2(b)) • Sometimes for ‘D’ or even ‘P’ use is there is community sensitivity

  17. 4. Approval under LPS (cont) Assessment • May be on going negotiations • 60 days to assess (MST 10.9.1) • Consultation with authorities (MST 10.1) • Matter to be considered (MST 10.2) • Provisions of scheme • Planning Policy (Local, State, Enviro) • OPP • Amenity of locality, compatibility • Submissions (residents/authorities) • Others…

  18. 4. Approval under LPS (cont) Determination • By Council or delegated officer (LG Act) • 3 possible outcomes (MST 10.3) • Approve without conditions • Approve with conditions • Refuse • 4th possibility? (MST 10.9) • Notification (MST 10.4) • Duration or approval (MST 10.5, 10.6)

  19. 4. Approval under LPS (cont) • Can local government approve development on LPS reserve?

  20. 5. Conditions • Condition runs with land • Conditions must be imposed by same body who gave approve • i.e. Council can’t approve and then delegate to officers to impose conditions • Applicant can be prosecuted for non compliance (s.218 P&D Act) • Can be challenged by applicant in court or SAT

  21. 5. Conditions continued Validity of conditions • A planning condition will be valid if • it has a planning purpose • it fairly and reasonably relates to the development • it is not so unreasonable that no reasonable planning authority could have imposed it; and • the condition is certain and final

  22. 5. Conditions continued • What can local government do if conditions are not complied with or if approval is never sought?

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