Former Subiaco Councillor | Certified Financial Planner | Western Australia Party Convenor
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A quote by Chief Justice David Malcolm on using discretion to approve or refuse development applications:
“The ambit of the discretion available to a local authority under its own town planning scheme and under the MRS arose for consideration in Camfield Nominees Pty. Ltd. v. Town of Claremont”‘ and Jobalin Pty. Ltd. v City of Subiaco. In both of those cases the proposed development met all the technical requirements of the relevant local authority schemes and of the Uniform Building By-Laws 1974 in relation to such matters as plot ratio, height, setbacks, density, carparking, open space and landscaping. In each case the appellant required an approval both under the local authority scheme and under c1.30 of the MRS. The Tribunal held that the mere fact that a proposal conformed with a town planning scheme created no right to have it approved. In each case the proposal had to be considered having regard to the matters referred to in c1.30 of the MRS. Thus, the Council was entitled to find that the proposed development would be out of context with the surrounding residential area and have an adverse impact upon amenity, although it complied with the technical requirements of the scheme.
Activity Centre Plans: The policy reflects the Western Australian Planning Commission’s intention to encourage and consolidate residential and commercial development in activity centres so that they contribute to a balanced network. These plans provide the planning framework for managing land use and development in the Town Centre of a local government. It requires an extensive community engagement process with the residents and business owners within the relevant area. A Local Development Plan is required for landmark sites to address building heights, setbacks and heritage fabric retention, page 25.
Civil Liability Act 2002, Part 1C: Duty of care by “(f) a local government, regional local government or regional subsidiary; or (h) a body or officer prescribed (or of a class prescribed) by the regulations as a public body or officer to which this Part applies (in respect of all or specified functions)”. Planning officers are duty bound to formulate those opinions ‘reasonably’ and on the basis of proper material and owe a specific duty of care to affected property owners and residents to act reasonably in their assessments and not to mis represent facts as set out s. 5B of the Act.
Civil Liability Act 2002: Damages or harm caused to a person by parties prescribed under s. 5U of the Act. These damages or harm are founded on the principles laid out in s. 5X of the Act; whereby a defence falls away where “the decision was so unreasonable that no reasonable public body or officer in the defendant’s position could have made it”. [Section 5X inserted: No. 58 of 2003 s. 8.]
DAP Agenda and Minutes of Meeting: http://www.planning.wa.gov.au/About-DAPs.asp
DAP Code of Conduct details impartiality rules of the panel: Click here:
DAP Regulations 2011 : http://www.austlii.edu.au/au/legis/wa/consol_reg/padapr2011650/
DAP Responsible Authority Reports should only be prepared by an officer if they have delegated authority from the Council (elected members): Click here
DAP Standing Orders: See pages 6 to 16 relating to advertising and conduct of meetings: http://www.planning.wa.gov.au/daps/data/Publications/Guidances%20Notes%20-%20Code%20of%20Conduct%20-%20Standing%20Orders/Standing%20Orders.pdf
DAP Training Notes: How to make a planning decision: http://www.planning.wa.gov.au/daps/data/Member%20Training/DAP%20Member%20Training%20Notes.pdf
Planning and Development Act 2005: http://www.austlii.edu.au/au/legis/wa/consol_act/pada2005236/
SAT Act 2004: Section 31 invites the DAP to engage in secret meetings with the developer: http://www.austlii.edu.au/au/legis/wa/consol_act/sata2004320/s31.html
SAT Act 2004: Section 54 is used to have the meetings with the developer in secret where changes are made to the application without public scrutiny: http://www.austlii.edu.au/au/legis/wa/consol_act/sata2004320/s54.html
SAT Regulations 2004: http://www.austlii.edu.au/au/legis/wa/consol_reg/satr2004429/
SAT Rules 2004: http://www.austlii.edu.au/au/legis/wa/consol_reg/satr2004369/
SAT Bill 2003: Explanatory Memorandum: Accessible one-stop shop with minimal formality and costs http://www.parliament.wa.gov.au/Parliament/Bills.nsf/7B8FF57617C5408048256D4F0009D907/$File/EM%2B-%2BBill%2B213-1.pdf
Scheme Amendments: If the zoning of a local area has an adverse impact on amenity, the landowners can request their elected members of Council to put up a scheme amendment. WAPC Form is required. Link to form
Scheme Review: One of the reasons to request a Local Planning Scheme review is population management of the area. WAPC requests details of the current population of the local government area, as well as the predicted population change (population projections available from the WAPC’s WA Tomorrow publication). Where will this population be located? What demands will the population create in regard to land development, infrastructure and services? Link to form
The Heritage of Western Australia Act 1990 Local Planning Policy: Link to policy document. requires local government to implement local planning policy “to ensure that development does not adversely affect the significance of heritage places and areas.”
State Planning Policy 3.5 requires: The identification of places and areas of local heritage significance is provided for in the Heritage of Western Australia Act 1990, which requires all local governments to identify heritage places in local government inventories (formerly ‘municipal inventories’). The conservation and protection of places and areas of local heritage significance is provided for in the Planning and Development Act 2005, which enables local governments to protect heritage places and objects in local planning schemes.
WA Planning Commission’s State Planning Policy 3.5 Historic Heritage Conservation: Link to policy document If a proposed development requires demolition of some or all of the existing building, and the development is out of character for the neighbourhood, use clause 6.3 URBAN CHARACTER AREAS which states “Urban character is essentially identified by built form and age, topography, open space, streetscape, land use and activity, and all areas exhibit some form of urban character. However planning controls in urban character areas do not necessarily require restrictions on demolition or building design.”
Planning and Development (Local Planning Schemes) Regulations 2015, August 2015. See Part 9 Clause 67, pages 3562 – 3565, Matters to be considered by local government especially (t) to (zb). This clause is particularly helpful to protect amenity, yet is being ignored by some councils and the DAP. Better use needs to be made: Planning and Development Regs 2015
R-Codes, State Planning Policy 3.1, Residential Design Codes, 2015 which also refers to Regulations 2015. This policy has discretionary clauses which allows anything to approved using “R-Codes approval process – design principles and judgement of merit“. This Code is particularly damaging to the amenity of existing communities which have yet to describe the URBAN CHARACTER of the area. What may be acceptable to the decision maker (the DAP) may be outrageous to the local community. Also the R-Codes permit the demolition of a single house without planning permission. This allowance is particularly outrageous to most existing communities with character homes and buildings. http://www.planning.wa.gov.au/dop_pub_pdf/State_Planning_Policy_3.1-Residential_Design_Codes-P.pdf
Justification of excess R-Code development: See this link which has many examples of why the DAP approved excess development in areas using Judgement of Merit and discretion clauses from Town Planning Schemes.
Streetscape: This federal government link describes streetscape as more than the front view. Streetscape should encourage community interaction and exchange. It should convey a sense of openness and sharing while offering a degree of privacy. Designing a new home should reflect the character, natural environment, heritage significance, density, style and cultural mix.
Active Open Space: If the MRA are proposing Singapore density in your community, make sure there is plenty of Active Open Space and quote this report by Cardo, Future Requirements for Sports Space, November 2016.
Metropolitan Region Improvement Tax Act 1959 (land tax) to fund planning for roads, rail and reserves for public open space: https://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_584_homepage.html
Reasons for keeping land tax: http://www.planning.wa.gov.au/dop_pub_pdf/MRIT_Sept_07_Reprint.pdf
How land tax is to be used: http://www.finserv.uwa.edu.au/tax/state/land