Planning and Development Amendment Bill 2020 5 min read
WA's planning system is undergoing two phases of reform following significant amendments to the Planning and Development Act 2005 (WA) (Planning Act) which commenced last month.
The amendments are the first tranche of planning reforms which are responsive not only to the COVID-19 pandemic but to broader reviews of WA's planning system undertaken over the past seven years.
We analyse below the key changes in the first phase of the reform package.
The Planning and Development Amendment Act 2020 (WA) (the Amendment Act) has now commenced, introducing the following key reforms into WA's planning system:
- a new approval pathway for certain major developments will be available during the 'recovery period', which ends in January 2022. Proponents for developments that fit prescribed 'significant development' criteria or are otherwise of 'State or regional importance' will need to consider whether this new approval pathway offers advantages for their projects over and above the standard Development Assessment Panels (DAP) procedures; and
- additional measures to support economic recovery, including a 'blanket' extension of pre-pandemic subdivision approvals and the creation of a new 'special matters' DAP for the post-recovery period.
A bold new approval mechanism allows applications for certain major development to temporarily bypass normal procedures and instead be assessed by the Western Australian Planning Commission's (WAPC) State Development Assessment Unit using new centralised powers.
The mechanism operates during an 18-month 'recovery period', ending in January 2022 and applies to:
- 'significant developments', which includes developments in the metropolitan region that have an estimated cost of $20 million or more, or developments in regional areas with an estimated cost of $5 million or more; and
- developments that do not meet these criteria but are otherwise of 'State or regional importance'.
The Premier will also have a discretion to refer applications already on foot (but undetermined) to the WAPC for determination.
While applications for 'significant developments' may be referred directly by the proponent to the WAPC for determination as of right, applications for major projects that do not meet the prescribed criteria must be referred to the WAPC by the Premier on the Planning Minister's recommendation.
For these applications, proponents will be required to demonstrate that their projects are of such State or regional importance that it would be appropriate for them to be assessed by the WAPC using its new powers.
As at the date of publication, there has been little guidance provided by the Government as to the circumstances in which this discretionary power might be enlivened. It would appear that the discretion now enshrined in the Planning Act is deliberately broad to ensure absolute flexibility during the recovery period.
The new approval pathway is designed to stimulate the economy by relaxing the regulatory burden on major developments. Although 'due regard' of planning instruments will be required, the WAPC will not be bound by these instruments or any other law in exercising its decision-making functions. The WAPC will be empowered to consider matters of public interest and is required to consider (amongst other things) the need to facilitate development in response to the economic effects of COVID-19.
The WAPC will still be required to consult the Minister, other prescribed State agencies and any relevant local government, person or body that the WAPC considers appropriate, and have 'due regard' to submissions made during consultation.
Notably, in contrast with the current system, there are no time periods prescribed for the assessment and determination of a 'significant development' application or a 'deemed refusal' mechanism, although an applicant has a right of appeal to the State Administrative Tribunal in respect of a refusal or conditions imposed on an approval. The WAPC is still required to determine the development application as soon as is reasonably practical but, subject to that requirement, is not required to determine the application before the end of the recovery period.
Under the new 'conflict avoidance' provisions, the Minister has extremely broad powers to restrain another decision maker from making a 'conflicting' decision in relation to a major development that has been approved by the WAPC using the new assessment pathway.
These unprecedented powers are discretionary, and could conceivably be used by the Minister in respect of a broad range of approvals required under State legislation including, for example, in relation to clearing permits or 'section 18' consents required to prepare land for development.
Proponents who obtain development approvals under the expedited pathway must 'substantially commence' development within two years of the WAPC granting approval, unless the WAPC specifies a different period in the development approval instrument.
Quite deliberately, and to ensure the expedited pathway achieves economic recovery in the short term, there is no opportunity or flexibility under the legislation to extend this timeframe once the development has been approved. This will be a key consideration for proponents in determining whether this new development pathway is appropriate for their project.
All subdivision applications that had either been submitted but not yet approved or approved but not yet lapsed before the State of Emergency came into effect on 16 March 2020 have also been granted an automatic two-year extension.
Applying as a 'blanket' to benefit approval holders broadly, this extension is designed to mitigate against disruptions arising from the pandemic.
The package of reforms includes the establishment of new 'special matter' DAPs after the 'recovery period' ends. These will be specialist panels designed to consider more complex proposals, and will sit alongside the existing DAPs which were recently the subject of separate reforms.1 Future regulations will provide greater clarity on the scope of applications which might be considered by a 'special matters' DAP.
Planning and Development (Development Assessment Panels) Order 2020