Bulletin (PDF 18.3 MB) - City of Armadale

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Information BulletinInformation Items from the Development Services DirectoratePageD-7INFORMATION ITEM – COMMENTS ON ASPECTS OF THE APPROVALS ANDRELATED REFORMS (PLANNING) ACTThe DG went on to conclude that “The reason for the amendment to section 76 was to clarify thatthe section could be applied to local planning scheme amendments, as there was some legalargument that the section already contained that power.”Indeed the discussion paper does include the suggestion, (without any justification), that anamendment to section 76 of the PD Act could result in the Minister being able to direct a localgovernment to amend its scheme. Hardly grounds to change the planning system.21 submissions of objection were received on the grounds of fear of spot rezonings, removal oflocal autonomy and being contrary to the views of the local community. These objections wereignored and the only argument supporting the amendment appeared to be the questionable statementthat “legally there has been some question as to whether the wording of section 76 extends toamendments.”There is not, and never has been, any legal doubt that section 76 refers to schemes not to schemeamendments. If there has ever been this legal doubt, it has been kept very quiet despite it beingforensically and repeatedly scrutinised over the years. This fiction has been extended in the recentlyreleased Planning Bulletin 102 with the claim that the amendment is a welcome remedy to thefailure to put the provision in the 2005 Act. This is a complete fabrication as Section 76 is a replicaof section 18(1) of the preceding Town Planning and Development Act and was never suggested tobe otherwise.What we have is a significant change to local government powers triggered by an erroneousassertion in a discussion document. From this Parliament was advised that there was a need for“clarification” implying that there was doubt before (which there wasn’t) and that the proposedwording would reflect a meaning that had been historically intended (which it already did). Whetherthis is a deception or being economical with the truth I’ll leave you to decide. The legal advice uponwhich the view of the need for clarification was based has not been made available. One doubts itsexistence. If it does exist, then we have unequivocal contrary legal advice.There is no other explanation than that there is a desire to undermine local government and strip itof autonomy from yet another area and obfuscate Parliament in doing so.Perhaps the reason for the amendment was that the original Bill’s DAP provisions would haveenabled the Minister, upon the recommendation of a DAP, to direct a local government to amend itsscheme.Although there was no mention of such a provision in the DAP Discussion Paper, it was containedin the original Bill but was roundly criticised and the Minister therefore agreed to delete it andindeed wrote to the President of WALGA (and thereby all local government) giving the undertakingthat it had been deleted, only to have it quietly slipped in via a different section – a trick of whichMachiavelli would have been proud!
Information BulletinInformation Items from the Development Services DirectoratePageD-8INFORMATION ITEM – COMMENTS ON ASPECTS OF THE APPROVALS ANDRELATED REFORMS (PLANNING) ACTSimilar proposals to allow the Minister to dictate to local governments over scheme amendmentshave been proposed in the past and have been headed off after concerted local government andcommunity opposition. This time this did not happen because it was snuck in at bed-time indisguise, as a formality, a clarification, alluding to some legal advice that did not exist. Those whowould have known the significance were not alerted.Perhaps the aphorism “be careful what you wish for” has currency here. Giving the Minister powersover amendments puts the Minister and the Department in the invidious position of adjudicatingover a host of dubious claims. The circulation to DoP staff of a 35 page guidance document and anavalanche of incomprehensible Planning Bulletins might tell you something! Defining what are“proper planning grounds” is not self evident. It has clearly opened up a can of worms.Why was this particular additional amendment required hot on the heals of the DAP provisionswhen powers already exist to require local governments to respond to regional needs and actresponsibly?Statutory provisions to ensure local governments do the right thing:• Minister may order a local government to prepare or adopt a local planning scheme (s. 76).• The Minister can require the local government to include scheme modifications imposed by theMinister (s. 76).• Local government in preparing or amending a scheme is required to take account of any SPP(s.77).• Minister may order local government to amend local planning scheme to be consistent withstate planning policy (new s.77A).• Power of Commission to bring down an improvement scheme over a local area (new s. 122A-M).• Schemes are required to be amended to be consistent with the MRS (s. 124 and s. 125).• Obligations under the Town Planning Regulations 1967 to ensure that an amendment oncecommenced continues to finalisation.• Power of the WAPC to approve a subdivision contrary to a scheme where the local governmenthas failed to update its scheme (s. 138).• Power of the Minister for Local Government to undertake inquiries and intervene under Part 8of the Local Government Act where a particular local government is acting improperly.All these checks and balances have existed for some time or were agreed in the 2009 version of theApprovals Bill – so why the draconian underhand addition?I suggest the only logical explanation for these nonsensical and unjustified changes to s. 76 and theintroduction of DAPs is nothing more than “to send a message” as to who is boss. As we have seen,it is not to reprimand or even assist under-performing local governments. It is to punish the wholesector!
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Bulletin (PDF 18.3 MB) - City of Armadale

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