Planning reform for significant developments - JDAP or WAPC?

The Planning and Development Amendment Bill 2020 (WA) has now passed through State Parliament and the new system for significant development proposals to be referred for determination by the Western Australian Planning Commission (WAPC) will come into effect the day after Royal Assent.

Importantly, the Bill as passed incorporates modifications to the original content as introduced, in order to broaden the scope of what constitutes a “significant development”.  In particular, a significant development is now defined to mean any development worth $20,000,000 or more in the Perth metropolitan area or any development worth $5,000,000 or more in any other part of the State.  Also, whereas the original content applied only to residential buildings and proposals with lettable floorspace, the only criterion now is development value, so any type of proposal could potentially qualify.  

Most of those significant development proposals that will be eligible for this new process of WAPC determination would be proposals of a value that would otherwise be determined by a development assessment panel (JDAP).  On this note, the WAPC process is optional and the JDAP system will remain in place.  Proponents of such development proposals will therefore have to ask themselves whether to stay with the JDAP process or whether to elect to follow the WAPC process.

Although the finer details as to how the WAPC process will work are not yet publicly available, and bearing in mind that every case must be considered on its own unique facts, there are some apparent benefits of the WAPC process over the JDAP process and vice versa.

For example, a proponent may consider electing to follow the WAPC process if:

• A proposal is politically sensitive at local level and is opposed by local government.  An assessment from the WAPC is more likely to remove local politics and ensure that the focus is on the planning merits.  The JDAP system still requires a responsible authority report and two local government Councillors on a panel.
• There is doubt as to whether there is legal power for development approval to be granted under the local planning scheme.  For example, some local planning schemes may impose strict development controls or land use classifications that would prevent an otherwise meritorious proposal from proceeding.  The WAPC will have power to grant development approval despite any such provisions in a local planning scheme, which would make it the preferable course for such a proposal.
• A matter is likely to face regulatory difficulties outside of a development application context.  For example, if a proposal requires vehicular access to a main road in circumstances where Main Roads WA may object to a crossover being approved, then the WAPC process would be preferable.  This is because development approvals granted through this process qualify for a procedure whereby the Minister may direct agencies such as Main Roads WA to take particular steps in a manner that would enable the development approval to be implemented.

On the other hand, a proponent may consider remaining in the JDAP system if:

• A proposal has support from the relevant local government.  If a local government supports a proposal, then it is likely to enjoy a favourable responsible authority report at officer level.  Assuming the two Councillors on a JDAP follow the officer recommendation, then that is 2 out of 5 votes secured and only a single specialist member would then need to be persuaded in order to obtain development approval.
• There are time constraints surrounding the need to obtain development approval.  For various reasons, a proponent will often need to obtain a development approval within a particular timeframe, and in such circumstances, the JDAP system is probably preferable, as it has defined timeframes and appeal rights in the case of a deemed refusal.  It appears that there would be no equivalent time constraints or deemed refusal mechanisms for the WAPC process, but it is acknowledged that this could potentially be added by regulations at a later date.
• A proposal is uncontroversial and otherwise compliant with the planning framework.  There are those development applications that although they are high-value and are required to be determined by a JDAP in the ordinary course, they are actually rather straightforward in terms of assessment and determination.  If there is a high likelihood that a JDAP development approval will be granted without any difficulty, then there may be little to be gained in electing to follow the untried and comparatively uncertain WAPC process.

If in doubt as to whether to follow the JDAP process or elect to follow the WAPC process, it would appear that there would be no prohibition on a proponent lodging two separate development applications that are either identical or materially similar and referring only one of the two to the WAPC.  This would allow the proponent to attempt to obtain development approval from both the JDAP and the WAPC, which may increase the likelihood of achieving a favourable outcome (albeit with some additional costs, including in relation to lodgement fees).

If you have any questions about the planning reforms, please do not hesitate to contact us.