26 June 2020

New COVID-19 reforms to the development application process in WA

This article was written by Katherine VinesCarl Black, Jaime Greenacre, Emily Bell and Grace Bettridge.

The Planning and Development Amendment Act 2020 (WA) (Act) was passed by the Western Australian Parliament on 24 June 2020.

Enacted in response to the COVID-19 pandemic, the Act brings forwards the implementation of a number of measures under the WA Government’s “Action Plan for Planning Reform” and amends the Planning and Development Act 2005 (WA) (P&D Act) and makes related amendments to the Environment Protection Act 1986 (WA) (EP Act) and the Community Titles Act 2018 (WA).

The Act introduces a new development application process for “significant developments” and developments of State or regional importance to the P&D Act under Part 17 (“Special provisions for COVID-19 pandemic relating to development applications”) (Part 17 Process). The Part 17 Process will apply for an 18-month period from the date the Act receives assent (the recovery period). Applications will be decided by the Western Australian Planning Commission (WAPC), which has been equipped with enhanced decision-making powers and flexibility.

The Part 17 Process has the potential to benefit major developers (and, by extension, their financiers and investors) by streamlining the approval process for significant developments and developments of State or regional importance.  As construction of an approved development must substantially commence with 24-months of receiving approval, benefits may also extend to those involved in the construction sector.

From an economic perspective, by facilitating investment in the WA economy, the Act may also assist WA’s recovery following the COVID-19 pandemic.

Scope of the Part 17 Process

The Part 17 Process applies to “significant developments” during the recovery period.  

A “significant development” is a development that has an estimated cost of:

  • in the case of a development that is wholly or partly in a metropolitan region, $20 million or more; or
  • in the case of a development that is wholly outside of the metropolitan area, $5 million or more.

An application for a significant development can be made directly to the WAPC by the applicant. 

Applicants for developments that are not “significant developments” may notify the Minister that the application should be determined under Part 17. If the Minister considers the application raises issues of “State or regional importance”, then the Premier (on the Minister’s recommendation) may refer the development application to the WAPC.

The Part 17 Process does not apply to:

  • the development of warehouses (being a building or outdoor facility used for the storage of goods, equipment, plant or materials, or the display or sale by wholesale of goods);
  • land in a redevelopment scheme or area under the Metropolitan Redevelopment Authority Act 2011 (WA) or the Hope Valley-Wattleup Redevelopment Act 2000 (WA);
  • land to which a Government agreement applies; or
  • mining activities under the Mining Act 1978 (WA).

Further, the grant of a development approval under Part 17 does not affect the operation of other legislation that requires the applicant to obtain other types of consents and approvals, for example, land use consents under the Aboriginal Heritage Act 1972 (WA), a building or demolition permit under the Building Act 2011 (WA),or a licence under the Liquor Control Act 1988 (WA). Also, the EP Act (and any approved policy under the EP Act) prevails to extent of any inconsistency with the Part 17 Process.

The WAPC’s expanded decision-making powers

The Part 17 Process gives the WAPC broad powers to consider and determine a development application.  For instance, the WAPC is not bound or restricted by any “legal instrument” that would apply but for Part 17. This includes the P&D Act, the Contaminated Sites Act 2003 (WA), the Heritage Act 2018 (WA) and the Local Government Act 1995 (WA) (among other legislation). However, the EP Act is expressly excluded from the definition of “legal instrument”.

The WAPC is also not bound by planning schemes, interim development orders, or any other scheme, code, policy, plan or other instrument made under the P&D Act or other legislation. However, the WAPC may still apply or have regard to such “legal instrument” in making its determination.

In addition, the WAPC may:

  • do anything a normal decision-maker could have done under the “legal instrument”;
  • request any person or body to perform any functions they would have performed in relation to the development application, but for Part 17, and consult with these persons or bodies;
  • have regard to any other matter affecting the public interest; and
  • grant approval where, but for Part 17, a person or body would have contravened a “legal instrument”.

The WAPC’s Part 17 powers are not entirely unfettered. In considering and determining an application, the WAPC must have regard to:

  • the purpose and intent of any planning scheme that has effect in the locality to which the development application relates;
  • the need to ensure the orderly and proper planning, and the preservation of amenity, of that locality;
  • the need to facilitate development in response to the economic effects of the COVID-19 pandemic; and
  • any relevant State planning policies and any other relevant policies of the WAPC.

The WAPC must also consult with and consider the submissions and advice of certain persons and bodies in relation to an application. For example, the WAPC must consult with the Minister and have due regard to any submissions made by the Minister. The relevant local government must also be given the opportunity to make submissions to the WAPC (which must be given due regard). In certain circumstances, the WAPC must also consult with (and have due regard to any submission made by or advice given by) the Heritage Council, the Swan River Trust the CEO under the Contaminated Sites Act 2003 (WA).

The WAPC must also advertise the development application, invite submissions from members of the public generally or from a class or group of members of the public and have due regard to any submissions made. In addition, the WAPC has the ability to do anything else that the WAPC considers appropriate in order to obtain a document, information, an opinion or any other contribution from any person or body.

Any decision made by the WAPC under Part 17 has the same effect and validity as if it were made by a “normal decision-maker” under the P&D Act or other applicable “legal instrument”. The applicant may apply to the State Administrative Tribunal for review of the WAPC’s decision. Additional oversight to the WAPC’s powers is given to the Governor, who may add, amend or remove conditions on any approval, as well as amend any part of an approved development, amend an approval in any other way, and cancel an approval.

Under the Part 17 Process, the WAPC must approve (with or without conditions) or refuse a development application “as soon as is reasonably practicable”. However, the WAPC does not need to determine the application before the end of the “recovery period”.

Implications for approved developments

A development approved under Part 17 must substantially commence with 24-months of receiving approval.  This prevents a developer from “banking” an approval.

To facilitate the commencement of an approved development, Part 17 gives the Minister a discretion to direct how other non-planning decision-makers are to perform (or not perform) their statutory functions where that function conflicts with the development approval.  This imposes a positive obligation on these decision-makers to identify conflicts and refrain from performing a conflicting function until the conflict has been resolved.  A decision-maker must comply with any direction by the WAPC even if it requires the decision-maker to act contrary to its own requirements under law.

Next steps

The WA Government is now likely to progress other reform measures designed at cutting red tape by amending the Planning and Development (Local Planning Schemes) Regulations 2011 (WA) (see the WA Government’s “COVID-19 Planning Reforms” page for further information).

Following the recovery period under Part 17, the WA Government has announced that it intends to create a new Special Matters Development Assessment Panel to decide development applications based on a similar model by amendments to the Planning and Development (Development Assessment Panel) Regulations 2011 (WA).

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