PLANNING LAW –
DUE: COB 20 November 2020
To complete this assignment, you will need to review and be familiar with:
- the City of Vincent – Local Planning Scheme No 2 (LPS 2) which is available to download at www.planning.wa.gov.au under ‘local planning schemes’;
- the scheme legend for LPS 2 (which can be viewed when you view the scheme maps);
- the Metropolitan Region Scheme which is available to download at www.planning.wa.gov.au;
- any applicable City of Vincent and Western Australian Planning Commission (WAPC) policies. To this end students may need to visit the City’s webpage at www.vincent.wa.gov.au; and
- the relevant provisions of the Planning and Development Act 2005, the Environmental Protection Act 1986 and any relevant regulations which are all available to download at www.legislation.wa.gov.au.
Students are instructed to assume that any recent amendments to the planning framework under cl 78H of the Planning and Development (Local Planning Scheme) Regulations 2015, in relation to exemptions from planning requirements during a state of emergency, do not apply.
The City of Vincent is NOT to be contacted by students. The City has had no involvement in the drafting of this assignment and I will be marking this assignment based on the course materials I have prepared (with no input from the officers from the City officers as to what they may consider to be the correct answer).
Please also note that this is an INDIVIDUAL assignment comprising 30% of the marks in this unit.
The word limit for this assignment is 2000 words. On the cover sheet to the assignment, students are required to advise on the number of words used. Students should be guided by the marks on offer in each question as to how detailed answers need to be.
The assessment criteria (drawn from the Unit Outline) includes:
- Ability to identify and understand legal and planning issues and principles that arise;
- Reasoning and problem solving skills, analytical skills;
- Presentation/expression in written presentation; and
- Referencing (where applicable).
All references to lots, proposals, applications and characters are fictional. There is no need for any salutations in any report, memorandum or note that is required to be prepared. Please read the questions carefully (and then re-read them) and then focus on the questions that are being asked and the town planning issues that arise.
FACTS
You have commenced work as a town planner at the City of Vincent and have been allocated the following files:
File 1
Isaac loves baking pies. He wants to open a bakery. He owns Lot 6 which is zoned ‘mixed use’ under LPS 2 and which contains a vacant building. He applies for development approval under LPS 2. The bakery intends for the majority of the pies to be consumed off-site but two tables (8 seats) will be provided inside the premises. Isaac and Sam will run the bakery. Sam, Isaac’s brother and a qualified baker, signs the application form under LPS 2 and arranges for the payment of the relevant fee. Detailed plans are lodged with the City. The file is allocated to you.
Question 1: Outline (in a short memorandum to the Director) if there are any preliminary issues that need to be resolved before the application for development approval can be assessed under LPS 2. Explain your reasoning.
[1 Mark]
Question 2: Prepare a short planning report on the proposed bakery. Your report should address:
- How the bakery should be classified under LPS 2;
- The relevant factors that need to be considered by the City in making an assessment under LPS 2;
- Any conditions that should be imposed in the event that an approval is granted;
- Any other relevant matters.
[5 Marks]
Assume the following further facts. The City grants approval to the bakery. There is a vacant room at the back of the bakery where Isaac and Sam’s sister, Greta, does the company books. Following an inspection by the City’s Health and Safety Officer, it is reported back to the Planning Department there may be more than one land use operating on Lot 6 as part of the premises looks like they are being used for the purposes of an ‘office’ land use. The Director comes and asks your advice as to whether the use of the vacant room to do the company books requires development approval under LPS 2.
Question 3: Prepare a short memorandum outlining your views as to whether the vacant room can be used to do the company bookkeeping without development approval or is development approval required? Your reasoning should be set out.
[1 Mark]
Assume the following further facts. The City’s Health and Safety Officer reports back after a further inspection that Greta is not only doing the bakery’s bookkeeping in the vacant office, but she is doing general bookkeeping in that office. Some clients are even attending the premises for the bookkeeping service.
Question 4: Prepare a short memorandum as to whether Greta can use the vacant room at Lot 6 for general bookkeeping without development approval or is development approval required? Your reasoning should be set out.
[2 Marks]
Assume the following further facts. Isaac and Sam create a new pie (called the ‘Collingwood Victory Pie’) that becomes extremely popular across Perth. Many hundreds of people start visiting the bakery every day. To cater with the increase in demand, and to enhance capacity, Sam and Isaac add additional ovens into empty rooms at Lot 6. The new pies fly off the shelf. Literally hundreds of people are turning up each day to purchase their Collingwood Victory Pies. However, neighbours are becoming increasingly agitated. They complain that people are parking in their car bays, are making noise and are leaving litter behind. The neighbours contact the City asking for action to be taken against Isaac and Sam on the basis that they’re acting contrary to their approval by way of the increased in-store sales that are far beyond that reasonably anticipated. The Director of Planning comes to see you to ascertain whether the City can take action against Isaac and Sam on account of the sales related to the Collingwood Victory Pie.
Question 5: Prepare a short memorandum as to whether Isaac and Sam needed approval under LPS 2 to place additional ovens in the bakery to boost capacity. Your reasoning should be set out.
[2 Marks]
File 2
The Department of Communities lodges an application for a new public housing project on residential land (zoned R30) within the City. The land is zoned ‘Urban’ in the Metropolitan Region Scheme (MRS). The public housing project is at a proposed density of R80. However, the Department says that approval under LPS 2 is not required for its project. The Director is exasperated and does not believe the Department that the City has no role in the project as it is plainly ‘development’. The Director comes to see you.
Question 6: Prepare a short memorandum as to whether the Department is correct and whether any approval is required for the project. Include any relevant considerations that must be taken account of.
[4 Marks]
File 3
Brad and Kimmy are physiotherapists. They seek and obtain development approval to use their residential zoned land for the purpose of a two-practitioner physiotherapy practice (approved as ‘consulting rooms’ under LPS 2). Brad and Kimmy realise that yoga is popular. They decide to convert a front room to conduct group yoga classes. They run group yoga classes all day while still consulting in the two consulting rooms. Classes start at 6.00am and the last class finishes at 9.00pm. A yoga instructor takes the classes.
Neighbours start to complain because of the traffic, parking and noise associated with the group yoga classes. Brad and Kimmy are adamant that the group yoga classes are part and parcel of the consulting rooms. The Director comes to see you.
Question 7: Prepare a memorandum as to whether the group yoga classes should be considered to be part of the ‘consulting rooms’ use that has been approved or whether the yoga classes are a separate use requiring approval. Explain the reasoning for your view.
[4 Marks]
Assume the following further facts. The City reaches the view that a further approval is required for the group yoga classes. However, Brad and Kimmy are adamant that no further approval is required for the group yoga sessions. The Director comes to see you.
Question 8: Prepare a short memorandum as to what options the City has in dealing with Brad and Kimmy in terms of ensuring compliance with LPS 2. You are also required to recommend a proposed course of action.
[4 Marks]
File 4
Mark owns Lot 4 which is zoned residential R30 in LPS 2. Lot 4 is 2000m2. Mark subdivides Lot 4 into two equal lots which become Lots 1 and 2. He intends to keep Lot 1 but sell Lot 2. As part of the subdivision, he places a restrictive covenant on Lot 2 which is in the following terms:
Only one residential dwelling is permitted on this Lot.
Scott purchases Lot 2 and immediately makes an application to develop three grouped dwellings. Mark contacts the city and advises that the City is barred from approving the proposed development because of the restrictive covenant which clearly limits new residential dwellings on Lot 2 to only one. The Director comes to see you.
Question 9: Having regard to LPS 2 advise the Director on the capacity of the City to assess Scott’s application and include any other steps or requirements you consider to be relevant.
[2 Marks]
File 5
Bigdeal Pty Ltd develop shopping centres. It owns Lot 10 which is 1ha in size and which is zoned ‘Commercial’ under LPS 2 and ‘Urban’ under the MRS. There is an existing shopping centre on Lot 10 which has 2,000m2 of shop-retail. Bigdeal’s planning consultant lodges a development application with the City to increase the amount of shop-retail by 5,500m2. The file is referred to you for preliminary assessment only.
Question 10: Having reviewed the application, please prepare a brief note advising the City as to whether there are any preliminary steps that need to be taken with the application.
[2 Marks]
File 6
Jim owns Lot 5 and wants to develop it as a hardware store. Jim has applied for planning approval under LPS 2. During the advertising period Sam makes a submission to the City in the following terms:
I own two hardware stores in the City of Vincent and have done since 1977. I have invested in this locality and have been a significant supporter of our community. Each year I donate a substantial sum to the City’s library and also I am the major sponsor of the Vincent Social & Leagues Club. However, times are tough. Last week I had to lay-off a long-standing employee. Unless things improve, next month I will have to lay-off another employee with three children under 5. If this new hardware store is approved I will be forced to shut down both stores. 43 years of history and community support will disappear. Six employees and their families will likely leave the City. This new hardware store is not needed and is not in the public interest. Furthermore, everyone knows that Jim is a drug dealer. Do you really want that kind of business in the City? I urge the Council to refuse the proposed development.
Question 11: Having regard to LPS 2 and general planning law principles, draft an memorandum to the Director as to whether and what extent the City can have regard to Sam’s submission.
[2 Marks]
File 7
Max owns Lot 9 which is zoned residential (R 30) in LPS 2. Lot 9 is 2000m2 in size and contains a house built in the 1980s. Max obtains subdivision approval to subdivide Lot 9 into 7 lots. Neighbours start to complain that there are bulldozers on Lot 9 making an awful noise demolishing the 1980s house. The Director comes to see you.
Question 12: Did Max need to get approval under LPS 2 to demolish the single house on Lot 9? Explain your reasoning.
[1 Mark]
-End of Paper-
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