New Planning and Development Bill signals significant shake up for WA’s planning system

21 May 2020

In a significant day for anyone who works with or relies on WA’s planning laws, major legislative reform was announced by the State Government and introduced to Parliament yesterday.

Drawing on many years of reform plans and consultation, the Planning and Development Amendment Bill 2020 (WA) (the Bill) amends the Planning and Development Act 2005 (WA) (the Act) and the Environmental Protection Act 1986 (WA) (EP Act) by:

  • Incorporating some aspects of the State Government’s Action Plan for Planning Reform, intended to simplify and streamline a planning system long considered in need of reform; and
  • Introducing a number of additional and adapted urgent measures, intended to act as a short-term panacea to the economic strain inflicted by COVID-19.

The Bill has been fast-tracked in the hope that the new arrangements will help employment and business opportunities in Western Australia rebound – fast. It builds on amendments made to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) last month, which allowed for planning exemptions during the declared state of emergency. A second tranche of planning reform, including reforms with less immediate effect and therefore less urgency, will be introduced in a second Bill at a later date.

Reform included in the Bill

Here is our brief summary of proposed changes in the Bill:

1. Streamlined approval of State significant developments

Perhaps the most noteworthy change, is the introduction of a remarkably streamlined approval process for “significant developments” and other projects considered by the Minister to raise issues of State or regional importance.
Significant developments include projects with an estimated cost of at least $30 million and either:

  • 100 or more dwellings; or
  • A minimum of 20,000m² net lettable area, excluding warehousing.

Certain land and projects are excluded, including land covered by a redevelopment scheme or a State Agreement and mining projects.

Under the Bill, the Western Australian Planning Commission (Commission) is given significantly enhanced powers and flexibility in its process to grant development approvals for these projects. The proposal purports to adopt measures similar to those in other States. The Commission is required to consult with various parties and give due regard to particular matters (including the usual planning framework and submissions from local government and the Minister) but is otherwise largely unfettered. The Commission is not limited to planning considerations in its decision and may have regard to “any other matter affecting the public interest”, including the economic effects of COVID-19. Nor is it bound by any other law in making its decision.

The effect of these extraordinary powers is that the Commission’s determination is to have effect as if it was made by the ‘normal decision-maker’, even if the normal decision maker could not have legally made the decision under the usually applicable laws. Proposed section 275 would seem, for example, to override the operation of section 41 of the EP Act, which would usually prevent another decision-maker from making a decision while a proposal referred under section 38 of that Act was still being considered. With the proposed amendments still so new, it is unclear how they will operate (if passed) vis a vis section 5 of the EP Act, which provides for the EP Act’s supremacy over other legislation.

The amendments also include provisions to streamline other approval processes that could hold up projects. Proponents are not absolved from the need to obtain other non-planning approvals, but under the Bill the Minister for Planning  can direct another decision-maker to perform its function in a certain way (e.g. to grant an approval it was otherwise intending to refuse or delay).

The Commission’s powers are subject to the oversight of the State Administrative Tribunal (on application by the proponent) and the Governor.

The provisions hope to bring on new project works earlier by requiring substantial commencement within 48 months. It is touted as a ‘use it or lose it’ opportunity.

These changes are temporary and include an inbuilt sunset clause 18 months from assent of the Bill. However we note with interest the link made in Government statements between this sunset date and completion of regulatory changes to establish the Special Matter Development Assessment Panels (Special Matter DAP) (discussed further below). This media statement indicates the intent for the Special Matter DAPs to be “based on a similar model”. Time will tell how much of the extraordinary powers conferred on each of the Commission and the Minister under the Bill are intended to continue under the Special Matter DAPs process.

2. COVID-19 extensions of time

The Bill introduces an automatic two-year extension for all subdivision applications submitted or approved (but not yet lapsed) before the state of emergency was declared on 16 March 2020. This amendment is intended to mitigate disruptions arising from the COVID-19 pandemic and aligns with the Minister’s earlier announced Notice of Exemption, which provided a blanket two-year extension for all current development approvals.

3. Special Matters Development Assessment Panel

As mentioned above, building on the recent reduction in number of Development Assessment Panels in WA, the Government has announced its intention to make further reform to the Development Assessment Panel system. Much of the detail of this reform will be found in future regulatory amendments. However, the Bill indicates that the current Joint Development Assessment Panels and Local Development Assessment Panel will be replaced by:

  • District Development Assessment Panels (District DAPs); and
  • A new concept of Special Matter DAPs.

Under the Bill, a Special Matter DAP can be established for a project, area or class or kind of area which the Minister considers to be of State or regional importance.

4. Cutting red tape

The Bill also introduces a number of other permanent changes intended to reduce red tape, cut decision-making times and improve efficiency and clarity of the Act. Many of the related Bill amendments are administrative and simply signal or set up the substantive changes that will follow in the second Bill and future regulatory and policy amendments.
Some of the changes referenced in the Bill include the following:

  • A number of amendments are proposed to significantly reduce the time required for regional and local planning schemes to be approved or amended. The changes include:
    • the ability to prescribe in regulations, regional and local planning schemes and scheme amendments that do not need to be referred to the EPA;
    • introduction of risk-based assessment and decision-making pathways for “complex”, “standard” and “basic” region planning scheme amendments, set out in new region planning scheme regulations rather than in the Act;
    • less onerous process requirements for minor regional planning scheme amendments;
    • empowering the Minister to withdraw a regional planning scheme or amendment partway through the process; and
    • clarification that the Minister must approve a proposed local planning scheme or scheme amendment for advertising (with the intent being to avoid advertising of schemes that the Minister is never going to approve).
  • Introduction of a risk-based approach to State Planning Policy amendments in regulations;
  • Expansion of the public works exemption to planning approval in section 6 of the Act, by expanding the definition of a “public work” and who can rely on the exemption;
  • Introduction of a new concept of “planning codes” to replace certain State Planning Policies that are really prescriptive laws rather than policies (such as the Residential Design Codes), giving them the status of subsidiary legislation;
  • Amendment to allow subdivision approval conditions to require an area to be set aside for public open space or a cash-in-lieu payment;
  • Clarifying that the Commission can endorse a plan of subdivision on the basis that certain conditions (such as the grant of a restrictive covenant or easement) will be complied with at the time of registration;
  • Introduction of a 2 year extension of time to lodge a ‘certified correct’ diagram or survey of subdivision;
  • Provision for electronic versions of scheme maps to be the official legal versions of the maps, rather than gazetted versions, which will provide greater certainty and accessibility/transparency for the community; and
  • Provision for a responsible authority to purchase (compulsorily or by agreement) all of a lot where only part is impacted by a planning scheme (e.g. a reservation or improvement plan), to prevent the sterilisation of part lots.

Future reform

A number of other amendments, not included in the Bill, are contemplated in the Government’s media releases and fact sheets, also released yesterday. The reforms are split into six key themes areas:

  • Significant developments;
  • Special matters Development Assessment Panels;
  • Cutting red tape;
  • Small business;
  • Improving community engagement; and
  • Good design.

Some of the key proposals mentioned in these fact sheets but not included in the Bill are:

  • A streamlined and coordinated approval process for simple development applications;
  • A wider range of small residential projects that meet defined criteria to be exempt from planning approval (e.g. minor extensions, patios, carports, shade sails and pergolas);
  • An expanded and simplified list of “deemed to comply” provisions under revised R-Codes, meaning more single residential homes will not require planning approval;
  • Change of use applications to be abolished for a number of different uses to support small businesses wishing to establish or change their operations. While this is currently allowable in some local government areas, the reforms will ensure it is consistent across the State;
  • Car parking as part of a planning application to be more flexible and consistent across the State, including an updated framework to help local governments deal consistently with “cash-in-lieu” payments in place of on-site car parking requirements and shortfalls up to 10 car bays to be waived;
  • Consistent timeframes and processes for consultation on development applications across the State;
  • The ability to consider a deemed approval if an application is not dealt with in the statutory timeframe;
  • Unnecessary holdups in the referral process to be reduced and a clear mechanism introduced to enable a development proposal to proceed in the event that set timeframes are not met or responses are not received;
  • Amendments to enable online publication of planning documents;
  • Improvement of community engagement and consultation through the elevation of local planning strategies within the planning framework; and
  • Building on work already done in the WA design space, new policy reforms are to include a new Medium Density policy, finalisation of new benchmarks and policy to guide precinct design, a review of the single house development requirements in the R-Codes (Volume 1), early review of State planning policies for activity centres and liveable neighbourhoods and continued review of existing State planning policies especially those dealing with hazard management.

The Bill was introduced (without notice) in the Legislative Assembly yesterday. We understand that the Government hoped to get the Bill through the Lower House the same afternoon but that it is now to be debated next week.

If you would like to discuss any of these reforms or their potential implications, or any other matters concerning the WA planning system, please do not hesitate to contact us.

This article was written by Lucy Shea, Partner, Yvette Khoo, Associate and Adrienne Mallinson, Solicitor.

Lucy Shea

Partner | Perth

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