Significant And Imminent Changes To Planning Regulation In Western Australia

Significant changes to the Planning and Development Act 2005 (WA) (PD Act) and the various regulations that sit beneath the PD Act come into effect on 1 March 2024.

At first blush, the precise scope and nature of the changes is not easy to ascertain.  Indeed, the changes to the PD Act comprise the commencement of some (but not all) parts of amending legislation that was actually passed by Parliament some time ago, being particular parts of the Planning and Development Amendment Act 2020 (WA) and the Planning and Development Amendment Act 2023 (WA).  The changes also involve various modifications to the sets of regulations that already sit beneath the PD Act, as well as the adoption of some new sets of regulations.

Importantly, it is fair to say that nothing about these reforms will alter the core existing features of the current planning system in Western Australia.  In particular, it will remain the case that each local government in Western Australia will have its own local planning scheme and associated planning instruments to set the applicable planning framework for the district in question.  Further, it will remain the case that any development application or subdivision application will need to be made, assessed and determined in accordance with the applicable planning framework.

Many of the changes that come into effect on 1 March 2024 effectively relate to matters of process and procedure.  For example, there will be significant changes to the processes associated with development applications that are determined by development assessment panels.  Similarly, there will be significant changes to the processes associated with progressing amendments to local planning schemes.  Further, whilst the significant development pathway (currently under Part 17 of the PD Act) will be retained, the upcoming changes will impose a new set of powers and procedures for that particular system.

Given the broad extent of the exchanges, it is not practicable to provide a concise summary of all of those changes that are likely to be relevant to particular individuals who are involved in the planning system.  It is therefore incumbent upon proponents and planning consultants to carefully consider the relevant new provisions of the PD Act and the associated regulations before commencing any new proposal.  Similarly, local government planners will need to quickly understand the new regulatory requirements and modify their internal systems accordingly.

As with any significant regulatory reform, there is an obvious potential for disagreements to arise and for ambiguities to emerge as to the correct application and meaning of new provisions that are introduced.  The nature of these things is that any such disagreements or ambiguities will likely be unforeseen and not anticipated by the drafters of the new provisions.  Both proponents and assessing authorities will therefore need to exercise appropriate care in the early days of navigating these new systems and to properly understand their relevant legal rights and responsibilities from the outset.

Some notable aspects of the upcoming changes to the PD Act and the associated regulations are as follows.

From 1 March 2024, the Residential Design Codes (R-Codes) will cease to be a State Planning Policy and will instead be classified under the new concept of “Planning Codes”.  A new Part 3A of the PD Act will provide that Planning Codes have the status of subsidiary legislation, to the extent that they are incorporated into the provisions of a local planning scheme.  On a practical level, this particular reform would appear unlikely to change how the R-Codes currently operate, in the sense that the R-Codes arguably already function more as a legislative instrument than as a policy in the traditional sense.

Also from 1 March 2024, the existing significant development pathway, currently under Part 17 of the PD Act, will be retained, but the underlying processes and procedures will be modified and repackaged into a new Part 11B of the PD Act.  Most of the existing base features of the significant development pathway will be retained, but with some notable differences.  For example, under Part 17 of the PD Act, there is currently an almost unrestrained ability for the Western Australian Planning Commission (WAPC) as decision-maker to dispense with applying a requirement of a local planning scheme in determining a development application.  This type of power will still exist under Part 11B of the PD Act, but will be more tightly controlled and only exercisable in narrower circumstances.  A new Part 11C of the PD Act will also be introduced to provide a new mechanism for resolving conflicts as between a development approval granted by the WAPC and the performance of a function by another authority under another legal instrument.

Changes will similarly come into effect from 1 March 2024 in relation to the constitution of development assessment panels and the associated processes.  One such change relates to terminology, with the existing concept of a “joint development assessment panel” ceasing to exist, in favour of there being a “development assessment panel” for particular larger districts.  The regulations will also be amended to enable a development assessment panel to consider any development application for grouped dwellings or multiple dwellings, regardless of the size of the project, so long as the estimated cost is at least $2 million.  There will otherwise no longer be any classification of mandatory development applications that must be determined by a development assessment panel and the position will be that most development valued at $2 million or more will be eligible for determination by a development assessment panel at the election of the proponent.

Whilst not involving any fundamental changes to how the planning system in Western Australia currently works, the changes to the PD Act and the associated regulations that come into effect on 1 March 2024 are broad and will result in important changes to matters of planning process and procedure.  Individuals involved in the planning system would be unwise to adopt a business as usual approach once 1 March 2024 comes around and care must be taken to ensure compliance with the changes to the planning system.

If you have any questions in relation to the changes to the PD Act and the associated regulations, please feel free to contact the Lavan Planning & Environment team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.