Planning and Development (Local Planning Schemes) Amendment Regulations 2015 (WA)

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7 December 2015 GOVERNMENT GAZETTE, WA 4883

Planning and Development Act 2005

Planning and Development (Local Planning

Schemes) Amendment Regulations 2015

Made by the Minister under Part 15 Division 1 of the Act.
1. Citation

These regulations are the Planning and Development (Local
Planning Schemes) Amendment Regulations 2015.

2. Commencement
These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b) regulations 3 and 4 — on the day after that day;
(c) regulation 5 — on the day on which the Fire and Emergency Services (Bush Fire Prone Areas) Order 2015 comes into operation.

3. Regulations amended

These regulations amend the Planning and Development (Local
Planning Schemes) Regulations 2015.

4. Schedule 2 clause 61 amended

(1) Delete Schedule 2 clause 61(1)(b) and insert:

(b)

the carrying out of internal building work which does not materially affect the external appearance of

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Regulations 2015
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the building unless the development is located in a
place that is —
(i)      entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990; or
(ii)      the subject of an order under the Heritage of Western Australia Act 1990 Part 6; or
(iii)      included on a heritage list prepared in accordance with this Scheme and identified on that list as having an interior with cultural heritage significance; or
(iv)      the subject of a heritage agreement entered into under the Heritage of Western Australia Act 1990 section 29;

(2) Delete Schedule 2 clause 61(3) and insert:

(3) Despite subclause (1) development approval may be
required for certain works carried out —

(a) in a special control area; or
(b) on land designated by an order made under the Fire and Emergency Services Act 1998 section 18P as a bush fire prone area.

5. Schedule 2 Part 10A inserted
After Schedule 2 Part 9 insert:

Part 10A — Bushfire risk management

78A. Terms used
In this Part, unless the contrary intention appears —
AS 3959 means Australian Standard AS 3959 —
Construction of buildings in bushfire-prone areas, as

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Regulations 2015

r. 5

adopted from time to time as a referenced document for the
purposes of the Building Code;
BAL contour map, in relation to a development site, means a scale map of an area that includes the development site —

(a)

prepared in accordance with State planning policy 3.7: Planning in Bushfire Prone Areas as part of a plan of subdivision that has been approved under Part 10 of the Act for the area; and

(b)

that shows the indicative bushfire attack levels (BAL) for the area;

bushfire attack level assessment means an assessment
prepared in a manner and form set out in AS 3959 to
determine a bushfire attack level (BAL) as set out in
AS 3959;
construction of a building includes the erection, assembly
or placement of a building but does not include the
renovation, alteration, extension, improvement or repair of a
building;
development approval means development approval of the
local government obtained under Part 8;
development site means that part of a lot on which a
building that is the subject of development stands or is to be
constructed;
habitable building means a permanent or temporary
structure on land that —

(a) is fully or partially enclosed; and

(b)

has at least one wall of solid material and a roof of solid material; and

(c)

is used for a purpose that involves the use of the interior of the structure by people for living, working, studying or being entertained;

specified building means a structure of a kind specified in
this Scheme as a kind of structure to which this Part applies
in addition to its application to habitable buildings.

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GOVERNMENT GAZETTE, WA

7 December 2015

Planning and Development (Local Planning Schemes) Amendment
Regulations 2015
r. 5

78B. Application of Part to development

(1) This Part does not apply to development unless the
development is —

(a) the construction or use, or construction and use, of a single house or ancillary dwelling on a lot or lots with a total area of 1 100 m2 or more; or
(b) the construction or use, or construction and use, of —
(i) a habitable building other than a single house or ancillary dwelling; or
(ii) a specified building.

(2) The requirements in this Part are in addition to any
provisions relating to development in a bushfire prone area
that apply in a special control area.

78C. Determining whether development site is in a bushfire
prone area
For the purposes of this Part, a development site is subject,
or likely to be subject, to bushfires and is referred to as
being in a bushfire prone area if the development site is on
land designated by an order made under the Fire and
Emergency Services Act 1998 section 18P as a bush fire
prone area.
78D. Proposed development in a bushfire prone area

(1) Unless subclause (2) applies, before commencing any
development on a development site a person (the developer)
must cause to be prepared a bushfire attack level assessment
for the development site if the development site —

(a) is in a bushfire prone area; and

(b)

has been in a bushfire prone area for a period of at least 4 months.

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(2) A developer is not required under subclause (1) to cause to
be prepared a bushfire attack level assessment for a
development site if —

(a)

a BAL contour map has been prepared in relation to the development site; or

(b)

because of the terrain of the development site it is not possible to calculate the bushfire attack level of the development site.

(3) The developer must have development approval to
commence any development on the development site if —

(a)

the bushfire attack level assessment prepared under subclause (1) calculates the bushfire attack level of the development site as BAL - 40 or BAL - Flame Zone; or

(b)

a bushfire attack level assessment has not been prepared under subclause (1) but a BAL contour map prepared in relation to the development site indicates that the bushfire attack level of the development site is BAL - 40 or BAL - Flame Zone; or

(c)

because of the terrain of the development site it is not possible to calculate the bushfire attack level of the development site.

(4) Subclause (3) applies —

(a)

in addition to any requirement in this Scheme for development approval to be obtained; and

(b)

despite any exemption in this Scheme from the requirement to obtain development approval.

78E. Matters to be considered for development approval

(1) In considering an application for development approval for
development to which this Part applies, the local
government is to have regard to the bushfire resistant
construction requirements of the Building Code.

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GOVERNMENT GAZETTE, WA

7 December 2015

Planning and Development (Local Planning Schemes) Amendment
Regulations 2015
r. 5

(2) The matters referred to in subclause (1) are in addition to
any other matters that the local government is to have regard
to in considering the application in accordance with this
Scheme.

78F. Transitional provisions for sites in new bushfire prone
areas

(1) In this clause, each of these terms has the meaning given in
the Building Act 2011 section 3 —
building permit
building work
(2) In this clause —
application means an application under the Building
Act 2011 for a building permit;
transitional permit means a building permit granted in
respect of an application to do building work on a
development site if —

(a)

the site was not in a bushfire prone area when the application was made; or

(b)

the site had been in a bushfire prone area for a period of less than 4 months when the application was made.

(3)

Clause 78D does not apply to the commencement of development to which a transitional permit applies.

78G. Transitional provisions relating to Planning and
Development (Local Planning Schemes) Amendment
Regulations 2015

(1) In this clause —
commencement day means the day on which the Planning
and Development (Local Planning Schemes) Amendment
Regulations 2015 clause 5 comes into operation;
previous bushfire provisions means any provisions in this
Scheme that, immediately before commencement day,
required a developer in an area that was identified under this

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Scheme as being an area that is subject, or likely to be subject to bushfires to —

(a) cause to be prepared a bushfire attack level assessment for a development site; or
(b) to have development approval to commence development on a development site because —
(i) a bushfire attack level assessment prepared for the development site calculates the bushfire attack level of the development site as BAL - 40 or BAL - Flame Zone; or
(ii) it is not possible to calculate the bushfire attack level of the development site because of the terrain of the development site;

transitional development site means a development site that
is located in an area that —

(a) is a bushfire prone area; and
(b) immediately before commencement day was an area identified in any way under this Scheme as being an area that is subject, or likely to be subject, to
bushfires;

transition period means the period of 4 months beginning
on commencement day.

(2) Clause 78D(1) applies in respect of development on a
transitional development site if —

(a)

the development is commenced within the transition period; and

(b)

a developer would have been required under the previous bushfire provisions to prepare a bushfire attack level assessment for the development site.

(3) Clause 78D(3) applies in respect of development on a
transitional development site if —

(a)

the development is commenced within the transition period; and

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7 December 2015

Planning and Development (Local Planning Schemes) Amendment
Regulations 2015
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(b)

a developer would have been required under the previous bushfire provisions to have development approval to commence the development.

(4) For the purposes of paragraph (b) of the definition of
transitional permit in clause 78F(2), an area that
immediately before commencement day was identified in
any way under this Scheme as being an area that is subject,
or likely to be subject, to bushfires is to be taken on and
from commencement day to have been in a bushfire prone
area for a period of at least 4 months.

J. DAY, Minister for Planning.

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Planning and Development (Local Planning Schemes) Amendment Regulations 2015 (WA)

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(a)	regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b)	regulations 3 and 4 — on the day after that day;
(c)	regulation 5 — on the day on which the Fire and Emergency Services (Bush Fire Prone Areas) Order 2015 comes into operation.

(a)	in a special control area; or
(b)	on land designated by an order made under the Fire and Emergency Services Act 1998 section 18P as a bush fire prone area.

78A.	Terms used
In this Part, unless the contrary intention appears —
*AS 3959* means Australian Standard AS 3959 — Construction of buildings in bushfire-prone areas, as

(a)	prepared in accordance with State planning policy 3.7: Planning in Bushfire Prone Areas as part of a plan of subdivision that has been approved under Part 10 of the Act for the area; and
(b)	that shows the indicative bushfire attack levels (BAL) for the area;

(a)	is fully or partially enclosed; and
(b)	has at least one wall of solid material and a roof of solid material; and
(c)	is used for a purpose that involves the use of the interior of the structure by people for living, working, studying or being entertained;

(a)	the construction or use, or construction and use, of a single house or ancillary dwelling on a lot or lots with a total area of 1 100 m2 or more; or
(b)	the construction or use, or construction and use, of —

78C.	Determining whether development site is in a bushfire prone area
For the purposes of this Part, a development site is subject, or likely to be subject, to bushfires and is referred to as being *in a bushfire prone area* if the development site is on land designated by an order made under the Fire and Emergency Services Act 1998 section 18P as a bush fire prone area.
78D.	Proposed development in a bushfire prone area

(a)	is in a bushfire prone area; and
(b)	has been in a bushfire prone area for a period of at least 4 months.

(a)	a BAL contour map has been prepared in relation to the development site; or
(b)	because of the terrain of the development site it is not possible to calculate the bushfire attack level of the development site.

(a)	the bushfire attack level assessment prepared under subclause (1) calculates the bushfire attack level of the development site as BAL - 40 or BAL - Flame Zone; or
(b)	a bushfire attack level assessment has not been prepared under subclause (1) but a BAL contour map prepared in relation to the development site indicates that the bushfire attack level of the development site is BAL - 40 or BAL - Flame Zone; or
(c)	because of the terrain of the development site it is not possible to calculate the bushfire attack level of the development site.

(a)	in addition to any requirement in this Scheme for development approval to be obtained; and
(b)	despite any exemption in this Scheme from the requirement to obtain development approval.

(1)	In this clause, each of these terms has the meaning given in the Building Act 2011 section 3 —
*building permit*
*building work*
(2)	In this clause —
*application* means an application under the Building Act 2011 for a building permit;
*transitional permit* means a building permit granted in respect of an application to do building work on a development site if —

(a)	the site was not in a bushfire prone area when the application was made; or
(b)	the site had been in a bushfire prone area for a period of less than 4 months when the application was made.

(1)	In this clause —
*commencement day* means the day on which the Planning and Development (Local Planning Schemes) Amendment Regulations 2015 clause 5 comes into operation;
*previous bushfire provisions* means any provisions in this Scheme that, immediately before commencement day, required a developer in an area that was identified under this

(a)	cause to be prepared a bushfire attack level assessment for a development site; or
(b)	to have development approval to commence development on a development site because —

(a)	is a bushfire prone area; and
(b)	immediately before commencement day was an area identified in any way under this Scheme as being an area that is subject, or likely to be subject, to

(a)	the development is commenced within the transition period; and
(b)	a developer would have been required under the previous bushfire provisions to prepare a bushfire attack level assessment for the development site.