In response to the COVID-19 pandemic, the WA State Government has introduced a more streamlined development assessment process for ‘significant developments’ and given the Western Australian Planning Commission (WAPC) expanded decision making powers.
An amending Act introduced a new development application process in Part 17 (Part 17) of the Planning and Development Act 2005 (WA) (P&D Act).
The Part 17 process will apply for the ‘recovery period’ which is the period of 18 months from 8 July 2020, being the day on which the s.4 of the amending Act came into operation.
Part 17 applies to development applications for ‘significant developments’ or development proposals of State significance during the 18 month recovery period, with specified exclusions including for a warehouse.
A ‘significant development’ is a development that has an estimated cost of:
- in the case of a development that is wholly or partly in the metropolitan region, $20 million or more; or
- in any other case, $5 million or more; or
- developments of a class or kind prescribed by regulations (not yet applicable).
Application made directly to the WAPC
During the recovery period a person may make a development application to the WAPC for determination under Part 17 if the application is for a significant development.
A development application must be made in the manner and form required by the WAPC. The WAPC has produced ‘Form 17B Application for Significant Development Approval (August 2020)’ for significant development applications.
WAPC not bound by any ‘legal instrument’
Part 17 gives the WAPC broad powers to consider and determine a development application.
Under Part 17 the WAPC is not bound or restricted by any ‘legal instrument’ that would, apart from Part 17, regulate or otherwise apply in relation to making, consideration, or determination of the development application.
Legal instrument is defined to include:
- the P&D Act – other than Part 17 and any Part 17 regulations or orders under s.284;
- the Contaminated Sites Act 2003 (WA);
- the Heritage Act 2018 (WA);
- the Local Government Act 1995 (WA);
- any enactment other than the Acts set out above or the Environmental Protection Act 1986 (WA);
- a planning scheme or an interim develop order; and
- any other scheme, code, policy, plan , local law, by-law, rule, condition, notice or other instrument made under any enactment covered by paragraph (a) to (e) above, or other legislation.
WAPC determination of application
Section 274(1) of the P&D Act provides that a development application made or referred to the WAPC under Part 17 must be determined under s.274 and not any applicable legal instrument.
In considering and determining the development application 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 matter affecting the public interest; and
- grant approval for development where, but for Part 17, a person or body would have contravened a legal instrument.
The WAPC’s discretion is not totally unfettered. When 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; and
- the need to ensure the orderly and proper planning, and the preservation of amenity, of that locality; and
- 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.
Consultation and submissions
The WAPC must consult with, and have due regard to any submissions of the Minister, and in certain circumstances also the CEO as defined in the Contaminated Sites Act 2003, the Heritage Council, and the Swan River Trust.
The WAPC must give the local government in whose district the development relates an opportunity to make submissions to the WAPC, which must be given due regard.
The WAPC must advertise the development application and 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.
The WAPC may do anything else that it considers appropriate in order to obtain a document, information, an opinion, or any other contribution from any person or body.
Decision as soon as reasonably practicable
The WAPC must approve (with or without conditions) or refuse a development application as soon as is reasonably practicable. However, the WAPC does not have to determine the application before the end of the 18 month recovery period.
A development approved under Part 17 must be substantially commenced within the period specified in the approval, or if no period is specified in the approval then within the period of 24 months beginning on the day on which the approval is granted, otherwise the approval lapses.
Effect of a WAPC decision under Part 17
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 (such as a local government under its planning scheme) under the P&D Act or other applicable legal instrument.
This applies even if WAPC’s determination could not have been made by a normal decision-maker under an applicable legal instrument. A decision or other act or omission of a person or body is not unlawful or invalid just because the WAPC’s determination could not have been made by a normal decision-maker under an applicable legal instrument.
A determination by the WAPC to grant approval for development under Part 17 does not affect the operation of other legislation that requires the applicant to obtain other types of consents and approvals, such as a building permit under the Building Act 2011 (WA) or land use consents under the Aboriginal Heritage Act 1972 (WA).
Oversight of the WAPC
An applicant for development approval under Part 17 may apply to the State Administrative Tribunal for a review of the WAPC’s decision.
The Governor has oversight of the WAPC, and may add to, amend, or remove conditions on any approval, cancel an approval, or amend any part or aspect of the approved development.
The new Part 17 approval pathway is a temporary measure to seek to cut red tape and improve the approval process for significant developments to support the State’s economic recovery from the COVID-19 pandemic.
For further information, please contact:
Anne Wood – Partner – firstname.lastname@example.org
Emma Leys – Partner – email@example.com
Phillip Mavor – Special Counsel – firstname.lastname@example.org
Brenton Oakley – Special Counsel – email@example.com
The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.