Change of use exemptions during COVID-19 and beyond

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In response to the COVID-19 Pandemic the Town of Victoria Park and the State Government have introduced a series of changes to the local and state planning legislation, frameworks and schemes.

These changes aim to remove barriers within the planning system to support businesses and enable flexible responses in a changing environment.

What is the Town of Victoria Park doing in response to COVID-19?

Council adopted a Local Planning Policy (at its meeting held 21 April 2020) to make it easier for businesses to adapt during the declared emergency period and beyond. This policy, Local Planning Policy No. 41, exempts certain changes of use within existing buildings located within the Town’s local centre zones and the Albany Highway precinct from the need to obtain development approval. By exempting a range of compatible land uses, the Town aims to make it easier for businesses to adapt while supporting economic recovery and local employment.

Land uses that can, subject to location, be exempt from a ‘change of use’ development approval under this policy (irrespective of an increase to the car parking shortfall) include the following:

  • Amusement parlour
  • Art gallery
  • Consulting rooms
  • Exhibition centre
  • Fast food outlet
  • Lunch bar
  • Office
  • Restaurant/café
  • Shop
  • Small bar

This Local Planning Policy, adopted for a 12 month trial period, also permits a variety of existing approved food premises (restaurants, small bars, taverns etc) to carry out activities that are consistent with a service industry and/or fast food outlet use for the for the preparation, sale, distribution and/or delivery of food and/or beverages. This particular exemption will be in effect until 21 September 2020. It is important to note uses which are exempt under LPP 41 are permanent in nature.

Local Planning Policy 41 – Exemption Policy for Specified Changes of Use and Activities Carried Out From Existing Buildings, can be found on the Town’s website here.

Local Planning Policy 32 – Exemptions from Development Approval (link here) is an existing Local Planning Policy that should also be referred to by businesses, landowners and prospective applicants. Please note that these exemptions from development approval are in addition to the temporary exemptions afforded by the Minister for Planning’s notice as detailed below.

 

What is the State Government doing in response to COVID-19?

On 8 April 2020 the Minister for Planning issued a Notice of Exemption in response to COVID-19 which outlines a range of temporary exemptions from certain approvals and requirements, including for the following:

  • Businesses seeking to adapt by changing their current approved use and associated temporary works.
  • Restaurants and cafés required to sell takeaway in contravention of current planning conditions.
  • People operating their businesses from their homes in residential zones.
  • A two-year time frame extension for all current development approvals.
  • Parking shortfalls associated with non-residential development.
  • Businesses needing to change signs.
  • Companies needing to deliver goods but currently with restricted loading and unloading times.
  • Parking commercial vehicles on residential properties.
  • Medical or health-related facilities required in response to the COVID-19 pandemic.

Please note that the above listed exemptions have associated conditions and are only temporary in nature. 90 days after the current (COVID-19) State of Emergency ends, these exemptions will no longer be applicable.

On 30 April 2020 the Minister for Planning issued an updated version of the Notice of Exemption. The updated Notice of Exemption is largely consistent with the notice released on 8 April 2020, but includes additional clarification and minor changes. For more information, please refer to the State Government COVID-19 Planning Changes Information online.

How should these exemptions be used?

The Town recommends that applicants firstly check if their proposed works/land use may be exempt under Local Planning Policies 32 and 41. If an exemption under those policies seems to be applicable, please check this with the Town’s Urban Planning Team and (if necessary) seek written confirmation on the exemption. There are no fees and charges applicable to receiving an exemption under Local Planning Policy 32 and 41.

If no exemptions are applicable under these Local Planning Policies, then referring to the Minister's Notice of Exemption is the next recommended step. Exemptions under that notice, however, are only temporary in nature. 90 days after the current (COVID-19) State of Emergency ends, these exemptions will no longer be applicable. Applications for development approval may therefore be necessary if the proponent wishes to retain works or continue land uses that were (temporarily) exempt from development approval under the Minister’s notice. The Town recommends applying for such permanent approval(s) as soon as practicable rather than waiting until the end of the State of Emergency period.

Most exemptions under Local Planning Policies 32 and 41 are permanent and are recommended as a first point-of-reference for applicants. Where possible, the Town seeks to avoid unnecessary red tape and minimise administrative work for applicants and the general public. In this regard, a seeking permanent exemption under the Local Planning Policies is a more efficient approach than seeking a temporary exemption that is followed by a development application (or a separate exemption).


Please note that an exemption from development approval, whether temporary or permanent, does not exempt the requirements of other legislation. All uses and/or works are still required to comply with the relevant health and building requirements and legislation.

If you have any queries please contact the Town’s health and building teams via admin@vicpark.wa.gov.au or 9811 8188 between 8:30am to 5pm so we can provide assistance.

FAQs

Where can I see exactly what is exempt?

For the State Government exemptions please refer to the explanatory notes available here.

For the Town of Victoria Park exemptions please refer to Local Planning Policies 32 and 41, available here.

 

If I intend to utilise any of the planning exemptions do I need to do anything?

Yes. If utilising the State Government exemptions you must notify the Town within seven days of taking up the exemption. Please do this by sending an email to admin@vicpark.wa.gov.au including your name, property address and the exemption you are proposing to use e.g. restaurant now operating takeaway.

If utilising exemptions afforded by Town of Victoria Park Local Planning Policies 32 and 41, then written confirmation of the exemption may (or may not) be required. Further detail on the requirements can be found within the policies, both of which are available here.

 

Should I notify my neighbours that I’m taking advantage of these exemptions?

Yes. Business owners are encouraged to advise neighbours about any intended changes. They should be notified in writing and this should include the following:

  • The nature of the use, change or works that is occurring.
  • The details of any operations or any operational changes.
  • The business or property owner/occupier’s contact details in case of any issues arise.

Draft letters that can be adapted to suit individual circumstances have been prepared to assist with this communication and are linked below:

 

What if I decide to continue the business after the State of Emergency has ended?

If you want to continue operating a business that is only exempt during the State of Emergency then you will need to lodge for development approval. It is recommended that you apply as soon as possible to avoid any delays.

It is noted that the Minister's exemption notice is one of several planning instruments that may provide an exemption to development approval. The Town of Victoria Park has two local planning policies that provide additional/further exemptions to development approval, irrespective of the State of Emergency, many of which are permanent in nature. These are:

Do I need development approval for temporary works associated with the change to my business or my new business?

Development approval is not required for temporary works associated with the following uses:

  • Shop;
  • Restaurant/café;
  • Convenience store (excluding those selling petroleum products);
  • Consulting rooms; and
  • Office.

This is subject to following:

  • No new permanent structures are required (with the exception that car parking bays are permitted);
  • The land is connected to all reticulated utility services, and does not depend on any onsite effluent disposal;
  • The property is not heritage listed; and
  • Compliance with the relevant health and building requirements and legislation.

This exemption expires 90 days after the State of Emergency declaration ceases to have effect or is revoked, after this a planning application is required if you do not want to remove the temporary works.

Do I need approval to setup a home business or work from home?

No. Temporary home businesses can be set up without planning approval from the Town provided that:

  1. you are operating in a residential zone or
  2. where a dwelling (single, multiple, grouped) is a permitted land use.

You may require approval from the Town’s health team for any food or skin penetration businesses.

Please be aware that this approval is temporary for 90 days or until the date the State of Emergency declaration ceases to affect or revoked. A planning application will be required to submit a following this to continue operating a home business. 

I have a commercial vehicle that, to facilitate social distancing, I would like to park at home. Do I need development approval?

No. However, any proponent who wishes to commence use of this exemption must notify the local government within seven days. Additionally please be aware that this approval is temporary for 90 days or until the date the State of Emergency declaration ceases to affect or revoked.

Furthermore, please be advised this only provides an exemption to development approval under the Town’s planning scheme. Requirements under separate legislation, such as the Road Traffic Act, remain unaffected.

Example: If you are a delivery driver or have a similar service and need to temporarily park your vehicle at home in response to COVID-19 requirements. 

My approval has a condition limiting delivery times for my business, can I now receive deliveries of good and services for my business at any time?

Yes. Loading and unloading of goods and petroleum, however, is to still be undertaken in accordance with other relevant legislation (such as health, road traffic) with regards to matters such as noise, odour, traffic management and the like. 

I don’t think I will be able to substantially commence my development within the two year timeframe, what can I do?

Any development approval that was still valid on 8 April 2020 is eligible for an additional two years to commence development.

Example: This means if your approval was due to expire 10 April 2020 your new expiration date is the 10 April 2022.

This applies to any development approval granted on or before the date upon which the State of Emergency declaration ceases to have effect or is revoked. 

Do I still need to comply with the car parking requirements if I want to establish a temporary use?

You do not need to meet the parking requirements for a temporary business if:

  1. You are proposing non-residential development; and
  2. The shortfall is not more than 10 parking bays.

Example: I am proposing a takeaway café and required eight parking bays but have no onsite parking.

This exemption expires 90 days after the State of Emergency declaration ceases to have effect or is revoked. After this a development application may be required to continue operating.

I have a condition to pay cash-in-lieu for parking on my existing approval, I cannot afford this right now what can I do?

The Town wants to help ease financial burdens during this time. Until the State of Emergency declaration ceases to have effect or is revoked you do not need to continue to make payment.

This applies only to non-residential development that has a condition to pay cash-in-lieu. 

This exemption expires 90 days after the State of Emergency declaration ceases to have effect or is revoked. 

Do I need a development approval to start serving takeaway food at my business (restaurant/cafe, tavern, hotel or similar venue)?

Depending on the location, no.

Exemptions exist under both Local Planning Policy 41 (link here) and the Ministers Notice of Exemptions (link here) to facilitate takeaway food at (previously) non-takeaway food venues. For further details please refer to each document.

In either case, the applicable exemption is temporary. If you would like to continue operating this additional portion of your business after the exemption period you may be required to lodge a development application. 

I have an existing liquor license for my business and want to offer takeaway, what do I need to do?

Proponents are advised to visit the Department of Racing Gaming and Liquor website - which details the parameters in place and application form. 

What if I want to get a liquor license for my business?

Proponents are required to lodge an application with Department of Racing Gaming and Liquor. Details regarding the application form, fees and licensing types are available on their website

I need to make some alterations and additions to my building to be able to operate a takeaway food service, what do I need to do?

You do not require development approval for any such works as long as they are minor and temporary in nature. To ensure that the works contemplated are minor and temporary in nature, please contact the Town’s Urban Planning Team.

Please note you are still required to obtain a building permit.

Once the State of Emergency declaration period ceases, the works are to be removed and the building made good (returned to its previous appearance). Should you wish to make these works permanent, a development application is required.

This exemption does not apply to heritage protected places. If your building or tenancy is heritage listed/protected by the State or local government, please contact your local government to discuss the application process.  

I want to modify my existing business signage to reflect the changes to my business operations as a result of COVID-19 do I need any approvals?

No. You can make modifications to your existing approved signage to reflect changes to your business provided that:

  • The signage is not located in a residential zone.
  • The signage is not displayed on a Heritage-Protected place.
  • The signage relates only to the businesses conducted on the premises.
  • The changes do not
    • alter the size of the approved sign
    • contain any illumination, animation, movement, reflective, retro-reflective or fluorescent materials in its design structure.

Example: You have a café/restaurant business and you wish to alter your existing approved signage to specify ‘takeaway only’, or similar. You are exempt from requiring development approval provided the changes meet the above requirements.

This exemption expires 90 days after the State of Emergency declaration ceases to have effect or is revoked after this a planning application is required to continue operating.