The Minister for Planning introduced some important and welcomed ‘exemptions’ to certain planning requirements on 8 April 2020 in response to the State of Emergency that was declared on 16 March 2020.
These exemptions are only temporary in nature and there has already been much analysis by planners and lawyers that provides guidance and clarity in respect to their application.
The greatest impact (and benefit) to our clients has been for those that were in the process of preparing change of use applications prior to the outbreak of COVID-19. All of a sudden, many proponents were advised that their planning application for shop, restaurant, consulting rooms or various industrial proposals, were potentially no longer required. More information on the specific exemptions can be found here.
Whilst it has been universally accepted that these changes have provided some welcome relief in this time of great uncertainty, we emphasise 3 points that might need to be considered when advising a local government that you intend on commencing a use under the new exemptions.
Should I be applying for permanent approval anyway?
Given the exemptions generally have effect until midnight on 1 May 2023 or otherwise expire 90 days after the date the State of Emergency Declaration ceases to have effect or is revoked, consideration must be given to the need for a planning application being made thereafter for those that wish to continue with their use after this time. For example, this may be particularly important for any proponent who also intends on purchasing a site and is seeking surety that they can remain in the longer-term. In addition, there may be considerations such as insufficient parking (in accordance with scheme and/or policy requirements) which may render achieving planning approval difficult, or in the worst-case scenario, impossible. In such circumstances, it is recommended that a proponent seek further advice from the local government or a consultant before they proceed with any exemption.
Do I still need other approvals?
The guidance notes to the exemptions make clear that a proponent may still require approvals under health, building, environment, liquor licencing and/or other statutory requirements.
In respect to change of use applications, this is as relevant now as it was in the pre-COVID-19 environment. Notably, requirements for universal access and ablutions under the Building Code of Australia (BCA) should be given consideration at the same time as planning approval, particularly when an older building is being retrofitted for a use that it has never before accommodated. A proponent can be caught out by requirements for lifts, toilets and/or showers in circumstances where they have not been contemplated and are not practically required. This is particularly prevalent when, for example, a multi-storey building changes from a Class 7B/8 (Warehouse/Factory) to a Class 9B (Educational Establishment/Public Building). In such an example, you are effectively going from a building with the lowest BCA requirements to one where there is a greater focus on occupant amenity and access, as well as greater requirements in terms of fire detection and suppression.
Even in the situation where there is a new build and development proposed, we strongly recommend that BCA and other statutory provisions be considered at planning application stage to avoid going back to amend planning approvals at a later date to accommodate these other requirements. Accordingly, we strongly suggest that a proponent seek professional advice not only from town planners but also other relevant experts such as building certifiers and assessors, where necessary, to avoid unexpected cost and time delays in the long run.
Should I sign a lease ahead of planning approval?
In a situation where a proponent is required to enter a lease for a site and planning approval is required for the intended use of that land (either immediately or in the longer term), assuming that approval will be granted and in a timely way, is fraught with danger. It is generally recommended that any offer to enter in a formal lease be made conditional upon planning and other statutory approvals being granted. In addition, such clauses need to allow sufficient time for application processing (generally 60 to 90 days after the lodgement of the planning application). Equally, we often recommend that a proponent who is also a prospective lessee, seek legal advice on such conditional or contractual matters involving leases.
Notwithstanding the incentives currently being offered by the Minister that encourage the wheels of the economy to keep turning, here at Altus Planning we always recommend a diligent and considered approach to your next project that may require planning approval. For your longer-term piece of mind, you may need to look beyond any current exemption.
For further information or to discuss how this may impact your next project, please do not hesitate to contact the team at Altus Planning.
