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APRIL UPDATE – COVID-19

Apr 23, 2020

NOTICE OF EXEMPTION FROM PLANNING REQUIREMENTS DURING STATE OF EMERGENCY 

To our valued clients and colleagues, 

Rowe Group continue our ‘business as usual’ approach to servicing clients and colleagues in what are unusual times. As part a key part of this service, we continue to respond to enquiries regarding the recent amendment to Schedule 2 of the Planning and Development (Local Planning Schemes Regulations) 2015 (Deemed Provisions), published on 3 April 2020.  

The amendment included a new Part 10B to the Deemed Provisions which provides for exemptions from planning requirements under a local planning scheme in a declared state of emergency. A State of Emergency was declared in Western Australia on 16 March 2020 and on 8 April 2020, the Minister for Planning signed an exemption which now grants landowners exemptions from certain planning requirements (‘Notice of Exemption’). 

The exemptions apply from 8 April 2020 and will continue to have effect until midnight on 1 May 2023, unless otherwise stated in the notice. It should be noted that some exemptions (generally relating to uses and activities which do not require Development Approval) expire 90 days after the date the State of Emergency Declaration ceases to have effect or is revoked. 

We note that the Exemptions apply only to the requirements of local planning schemes, as below:  

An exemption provided for under this Notice only relates to planning requirements applicable pursuant to a local planning scheme (including under the Deemed Provisions), and does not exempt any other requirement that might apply under any other law. For example, a proponent seeking to rely upon an exemption set out in this Notice may still require approvals under health, building, environment, liquor licencing and other statutory requirements. (Guidance note 12). 

The Notice contains six (6) schedules with relevant conditions which, together, outline the circumstances where an exemption may be applied. Rowe Group has summarised the six (6) schedules in Table 1 below. We note that conditions apply to each schedule which are to be satisfied in order for the relevant exemption to apply (further information can be found within the attached Notice of Exemption in full).  

Table 1 – Overview of Notice of Exemption Schedule 

It is important to be cognisant of the effect of Schedule 4.2 which provides an extension to the substantial commencement period of all Development Approvals. An extension for a period of two (2) years is permitted from the substantial commencement original deadline. The extension will only apply to Development Approvals granted on, or before, the date upon which the State of Emergency Declaration ceases to have effect or is revoked.  

As an example of the effect of Schedule 4.2, Rowe Group is of the view that Development Approvals which have received an ‘extension of time’ will therefore be granted an additional two (2) year period in which the development is to be substantially commenced. Though we continue to encourage clients to discuss their circumstances with us and seek the necessary advice. 

 Table 2 – Indicative Case example where an extension of time already applies

Rowe Group will provide further updates on related matters as the State Government issues additional guidance, including any possible further notices of exemption. For our land development clients considering the currency of subdivision approvals, we encourage you to liaise with us as many are. Extension to these approvals would, we believe, require a separate change to legislation though may well be considered. However, in the absence of such change we welcome the opportunity to discuss. 

Rowe Group encourages you to seek further information or clarification regarding how theses exemptions may affect you or your clients on 9221 1991. 

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