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Focus: Planning – April 2006

New Planning and Development Act for Western Australia set to begin operation

In brief: Senior Associate Robyn Glindemann and Lawyer Ashley Phelps outline important changes to Western Australian planning and building legislation with the forthcoming operation of a new Planning and Development Act and proposed new building legislation.

Planning and Development Act 2005

Planning regulation in Western Australia is currently based on three Acts – the Western Australian Planning Commission Act 1985, the Metropolitan Region Town Planning Scheme Act 1959, and the Town Planning and Development Act 1928. These Acts have been subject to a number of amendments over the years, which has led to a fragmented and often complex legal framework. The Planning and Development Act 2005 (the Act) was passed by the WA Parliament on 12 December 2005. Certain provisions of the Act have been proclaimed and will commence on 9 April 2006. The new Act consolidates all of the current planning legislation into one Act, while at the same time making a number of amendments to the current planning regime. The Explanatory Memorandum for the Bill sets out the purpose of these amendments:

  • Greater effectiveness in achieving government policy objectives by requiring WA's planning body, the Western Australian Planning Commission (the WAPC), to prepare a written statement setting out the planning objectives of a region planning scheme or amendment, and requiring a local government to have due regard to the written statement of planning objectives in preparing a consequential amendment to its local town planning scheme.
  • Promoting sustainability by including sustainable land use and development as a fundamental and underlying purpose of the planning legislation; expanding the functions of the WAPC to include advising on sustainable land use and development; and providing for planning schemes to include provisions for promoting sustainable land use and development.
  • Streamlining planning procedures in respect of region planning scheme processes, the review of local government schemes and for the subdivision of land.
  • Providing greater certainty and consistency particularly in the relationship between subdivision and local government schemes; exemption of subdivision works from development approvals; common compensation provisions and common enforcement provisions, including the introduction of infringement notices for minor offences.
  • Providing equity and fairness by expanding the current arrangements for consultation on Statements of Planning Policy and region planning schemes, and expanding the right to apply for an application for review by introducing a right to apply for a review of a local government decision on the characterisation of a 'use' under a scheme.

An important feature of the new Act is the clarification of the operation of section 20 of the Town Planning and Development Act 1928. Under s20 of the 1928 Act, the approval of the WAPC is required:

  • to lease or licence
  • part of a 'lot' (land as described in a certificate of title)
  • for any term exceeding 10 years, or 21 years if the lease or licence relates to a building or part of a building (including any options to extend or renew the term).

Failure to obtain prior WAPC consent to a lease or licence matching the above criteria renders the lease void.

Under the new Act, approval from the WAPC will be required for a lease or licence that exceeds 20 years and is not required for buildings constructed in accordance with a licence granted under s374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA), under an Act repealed by that Act, or a building licence is in force under that section.

Another important feature of the new Act relates to the issue of whether WAPC consent is needed where the lease or licence is of Crown land (that is, land that is not freehold). The Town Planning and Development Act was unclear on this issue; however, the WAPC took the view that s20 approval was not required. Section 133 of the new Act expressly clears up this ambiguity by excluding Crown land from the consent requirements, except in certain circumstances outlined in the Act. 

Building legislation reform

The proposed changes to the building legislation are aimed at bringing WA building regulations in line with national reforms and to ensure that the regulation of the building industry is consistent with National Competition Policy.

The proposed new Building Act has the following eight objectives:

  • to define what buildings and other structures are to be controlled under the Act;
  • to prescribe design, construction and maintenance standards;
  • to handle building applications;
  • to certify compliance with the relevant building standards;
  • to issue building and occupancy approvals;
  • to register practitioners;
  • to clarify liability; and
  • to provide for compliance and enforcement of building standards.

The WA Departments of Housing and Works (DHW) and Consumer and Employment Protection (DOCEP) are the departments undertaking the review of the current building legislation, with the purpose of developing a new WA Building Act. The departments are undertaking a public consultation process and have released a discussion draft of the framework of the proposed new Act to give the community, consumers and industry an opportunity to respond to the proposals. The discussion draft covers:

  • general issues relating to the overall framework of the building legislation under review;
  • licence issuing, regulation and enforcement;
  • building code compliance; and
  • registration of design and approval practitioners.

Interested parties are invited to respond to the discussion paper before 18 April 2006 and provide submissions in respect of the proposed new building legislation, which will be considered in developing the new Building Act.

The Minister for Energy, Science and Innovation has obtained cabinet endorsement to fast track the introduction of the new Building Act to the WA Parliament. The Minister hopes to introduce the legislation sometime in 2006.

For further information, please contact:

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