State of Emergency planning changes

In the event that the Western Australian Government declares a State of Emergency, the Minister for Planning can apply exemptions against local planning schemes.

Overview

The Planning and Development (Local Planning Schemes) Regulations 2015 provide the Minister for Planning with the authority to temporarily override requirements of local planning schemes, and existing conditions of planning approvals, for a single council, across a specific region or across the State. 

These changes provide a critical option for Government in a State of Emergency to safeguard the supply of essential goods and services, help maintain civil order and lessen the demands for local councils in favour of direct frontline support in their communities.

Notice of exemption

Background

Regulatory changes came into effect on 3 April 2020 in response to the current State of Emergency for the Coronavirus (COVID-19) pandemic.

Media Statement – Planning changes support COVID-19 response and recovery

The new Regulations include provision for the Minister to issue a Notice of Exemption to support the Government’s response to, or recovery from, a State Emergency.

The Notice of Exemption provides specific guidance to both proponents and local government on a range of temporary exemptions for certain approvals and requirements within the local planning framework. The exemptions remove barriers within the planning system to ensure flexible and speedy responses to a changing crisis environment, support business and guarantee the provision of essential community services.

Initial Notice of Exemptions were signed by the Minister on 8 April 2020 and 30 April 2020, and these have now been superseded by the current Notice of Exemption that was gazetted on 22 April 2022. This came into effect on 4 March 2022 when the Minister of Planning signed it. 

Current Notice

The latest changes respond to the changes in Western Australia’s COVID-19 response, as well as Regulatory changes which have replaced certain exemptions in the Notice. The updates made to the Notice of Exemption are summarised below:  

  • Certain exemptions have been removed as these have now been replaced by exemptions under the Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations). These include: 
    • Removal of exemptions relating to the need to obtain approval for certain land uses.
    • Removal of exemptions relating to car-parking and the payment of cash-in-lieu.
    • Removal of the need to obtain approval for changes to existing signage and new signage relating to hotel, tavern, restaurant/café (or similar land uses).
    • Removal of the exemption from the requirement to obtain approval to make changes to existing approved signage.
  • Specifying that the exemptions to ‘Home Businesses’ only apply during a Lockdown. 
  • Extending the applicability of the exemption for agricultural workers accommodation to all local government areas. 
  • Clarifying the exemptions applicable to non-conforming uses will expire on the day after the State of Emergency Declaration ends.
  • Removal of exemptions relating to consultation, advertisement, applications and/or forms for particular planning proposals/plans. 
  • Removal of the 2-year extension to the substantial commencement period for DAP approvals. This does not affect development approvals that were previously relying on this extension (see further explanation below).

The Notice of Exemption is intended to be self-explanatory but additional information regarding the intent and terms of the Notice has been prepared to help guide planners and decision-makers with its application (refer to the Explanatory Notes for Planners, and frequently asked questions). 

Ongoing revisions and updates

The Emergency provisions (clause 78H of the Deemed Provisions) allow the Minister to amend the Notice of Exemption to ensure the exemptions are achieving their intended purpose of facilitating a response to or recovery from a State of Emergency. Given the continually evolving nature of the current State of Emergency, reviews of the practical implementation of the Notice of Exemption will continue to be undertaken in consultation with key stakeholders. 

Frequently asked questions

Clause 78H of the Regulations

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What does Clause 78H do?

A new clause 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 regulations provide the Minister for Planning with the ability to issue a notice (the 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. This Notice can apply to the entire State or only a part either through the local government boundary or suburb locality.

The legislation has also been drafted to account for future natural disasters as well as the 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.

When can clause 78H be used and how long does a Notice of Exemption last?

This clause can only be issued when a State of Emergency is declared 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.

However, while a Notice can only be issued by the Minister during a State of Emergency, it can be in place for up to five years. The five-year maximum is intended to assist with the recovery phase, although at this stage, the Notice provides an end date of 1 May 2023.

As discussed in further detail below, any exemption provided under this clause is only a temporary exemption.

Why was this new clause necessary?

The Pandemic has highlighted three major issues with Western Australia’s planning system:

  • 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 now only serve takeaway food 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 Government coordination may be required for the planning and development system to respond to the Pandemic and future States of Emergency.

Clause 78H provides this flexibility, speed and coordination.

What happens when a Notice is no longer necessary?

Given the very fast nature of change and uncertainty surrounding the Pandemic, it is impossible to forecast when the State of Emergency will finish, and when any necessary recovery phase might also conclude.

As an in-built safeguard, the Minister must revoke the Notice if considered no longer necessary to respond to or recover from the emergency.  

Similarly, because of the dynamic changing nature of the Pandemic and other potential future disasters, the Minister also retains power to amend a notice.

What scheme 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.
 

Notice of Exemption – General

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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. 

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

Yes. The revised Notice, signed by Minister of Planning on 4 March 2022, replaces the previous Notices. Therefore, the previous Notices are superseded by the current notice and in the event of inconsistency, the latest Notice of Exemptions prevail.

How is the Notice structured?

The Notice 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

There are also explanatory conditions, and interpretation and guidance notes.

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

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). 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.

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

The Notice 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. For those land uses listed in Schedule 6 of the Notice, their exemption will expire on 2 June 2022, being 90 days from the date the Minister for Planning signed the Notice (4 March 2022).

Under the previous Notice of Exemption signed on 30 April 2020, there is a declaration by the Minister that that Notice will remain in effect until midnight, 1 May 2023 and that the exemptions detailed in that Notice will expire at midnight 1 May 2023, unless other stated in the Notice (see declaration ‘D’ of the previous Notice). However, this Notice was replaced by the updated Notice signed on 4 March 2022. In the updated Notice, there is no declaration about the expiry of the current Notice and it will therefore remain in effect until such time as a further revised Notice is issued or the Notice is revoked.

What happens after the exemptions in the Notice expire?

Exemption provided through a Notice issued under clause 78H are temporary. This Notice 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 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 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 period.

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

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

The intent is that at the end of the exemption period covered by the Notice, 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, 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 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 during the exemption period.

The effect of the exemptions under the Notice 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, 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 uses land use and zoning terminology from the model provisions - what if a local planning scheme terminology differs?

The intent of the Notice 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 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 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 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.

Notice of Exemption – Exemptions Regarding Time Limits

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

The exemptions within the Notice (dated 4 March 2022) do not apply to development approvals granted by a DAP. 

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

The exemption only applies to current development approvals under a Local Planning Scheme. 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. 

The exemption does not apply to Development Assessment Panel (DAP) approvals. 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.   

How does the current Notice (dated 4 March 2022) affect the DAP approvals that were relying on the extension to the substantial commencement period under the previous Notice (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. Approvals that had expired before 8 April 2020 or that were granted after 4 March 2022 are not eligible for the 2 year extension.  

For example, if a DAP approval was granted on 10 February 2020, with a substantial commencement period of 2 years (expiring on 10 February 2022) 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 10 February 2022 is replaced with an additional 2 years (being 10 February 2024). 

Applicability of Exemptions to DAP Approvals
Was the DAP application valid (had not expired) on or before 8 April 2020 and up to 4 March 2022? Applicable Notice Is an extension available under Clause 78H?
Yes Previous Notice of Exemption (30 April 2020) applies. The DAP application is subject to an additional 2-year substantial commencement period from the original deadline. 
No Amended Notice of Exemption (4 March 2022) applies. The DAP application is NOT subject to an additional 2-year substantial commencement period. 

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 clause 78H apply to development approvals prior to 4 March 2022? 

Yes, for those approvals granted by any other regulatory body other than the DAPs. 

Does the updated Notice (dated 4 March 2022), 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.

Notice of Exemption – Applicable During a Lockdown

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Do the previous exemptions to the requirement to obtain a Home Business approval still apply?

The exemption to operate a home business, without the need to obtain approval, is now only applicable during a lockdown. This means that landowners that were exempted under the previous Notice are no longer exempt under the latest Notice and will need to contact their local government to ascertain if a development application is required. 

Notice of Exemption – Expire 90 days after the signing of the Notice

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A ‘sunset clause’ for certain exemptions that applied under the previous Notice, but are no longer applicable under the current Notice, has been included.

What date do 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 the exemptions will expire on 2 June 2022. Proponents who utilised these exemptions should contact their relevant local government to ascertain what approvals may be required to continue such operations. 

How do the exemptions in clause 78H interact with the Deemed Provisions? 

The temporary exemptions for shops, restaurants/cafes, convenience stores, consulting rooms and offices under Schedule 6 of the latest Notice will conclude on 2 June 2022, being 90 days after the Minister signed the Notice on 4 March 2022. These exemptions have been replaced by permanent exemptions in the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.

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. 
 

Exemptions from Requirements under Clause 4 of the Deemed Provisions

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Are Local Planning Policies, that were adopted under the previous Notice of Exemption relating to cl.4 of the Deemed Provisions (Schedule 2) of the Planning and Development (Local Planning Schemes) Regulations 2015, still considered valid?

If a local planning policy was prepared and adopted by the Council of local government in accordance with the ‘direct conditions’ under Schedule 4.1 of the previous Notice of Exemption signed by the Minister for Planning on 4 March 2020, then the policy and exemptions under the local planning policy remain valid.
 

Notice of Exemption

CURRENT – 4 March 2022 – Signed notice of exemption
CURRENT - 4 March 2022 - Explanatory Notes for Planners
SUPERSEDED - 30 April 2020 - Signed notice of exemption
SUPERSEDED - 08 April 2020 - Signed notice of exemption

Letters

Changes that result from the Notice of Exemption may impact neighbours and local communities. For example, businesses can now operate within residential areas.

Business owners/operators are encouraged to advise neighbours about any relevant changes to their residence, and intention to operate a business, to avoid any misunderstanding or negative response. Draft letters that can be adapted to suit individual circumstances have been prepared to assist with this communication.

Letter - Change of business use (including takeaway services)

More information

Please note: this website will be updated with additional information on the implementation of the notice of exemption as it becomes available.

For further assistance and enquiries about the Notice of Exemption, please contact the Department’s Reform Delivery Team on (08) 6551 8002 or planningreform@dplh.wa.gov.au.

Page reviewed 18 May 2022