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WA Planning and Development Amendment Bill 2020

June 29, 2020

Planning and Development Amendment Bill 2020 passes both houses of Parliament.

On 23 June 2020, the Western Australian Government were successful in passing the Planning and Development Amendment Bill 2020 (the Amendment) through both the Legislative Assembly and Legislative Council, paving the way for the amended Bill to be adopted.

The Amendment makes provisions for some temporary, post-COVID19 recovery red-tape reduction and concessions, and brings forward some of the structural legislation reforms to facilitate the ongoing Planning Reform agenda in Western Australia.

Since first introduced, a number of amendments have been made to the Bill, along with a few significant changes and tightening up the need to consider environmental and public comments.

What are the post-COVID19 recovery measures?

  • The biggest change is the threshold for what is considered a ‘significant development’ - which is a development that is assessed centrally by the Western Australian Planning Commission (WAPC) itself during the next 18 months.
    • While warehouses continue to be excluded from a ‘significant development’ definition, development proposals now only need to meet a $20 million value threshold in the metropolitan area, with dwelling-numbers and net-lettable-area (NLA) restrictions removed. Additionally, a $5 million regional value has also been specified as ‘significant development’. The Premier is now able to refer developments to the Commissioner for consideration, but only during the recovery period.
  • These ‘significant developments’ must also now be substantially commenced (as defined by the Planning and Development (Local Planning Schemes) Regulations 2015) within 24 months, instead of 48 months as originally proposed, placing greater emphasis on shovel-ready projects for assessment streamlining.
  • In previous versions of the Bill, the Commission were not obligated to consider an external stakeholder’s input, such as local jurisdictions, during the post-COVID19 recovery period. The term “may…consult/consider” has now been amended to “must…consult/consider”; and these requirements extend to the EPA, Swan River Trust and Local Government submissions, which would likely include public or community advertising results.
  • Is there any consideration of smaller developments?

    • Subdivision approval validity periods have also been extended if a subdivision plan has been lodged and not approved, or approved but not lapsed, before the COVID19 emergency start date; but some slight variations have been proposed to the original introduction:
      • If a subdivision application is approved for greater than 5 lots, the validity of the approval is now 6 years total. If the subdivision application is approved for 5 lots or less, the validity of the approval is 5 years total. It’s important to remember that the definition of a ‘lot’ includes a common property lot, like a vehicle or pedestrian accessway.

    • Following on from subdivisions, the affirmation within the Amendment that contributions are not payable for fewer than 3 lots, conversely affirms that the contribution requirement is applicable to subdivisions of 3 lots or more (as inferred within the Explanatory Memorandum); changing a widely-held understanding that subdivisions of this nature in established suburban settings were not required to contribute in this manner.
    • As both recovery period and structural legislation reform related, a second phase of changes are now expected to be introduced by the Western Australian Government, bringing about the exemptions to minor residential works, additions and extensions as previously announced. This process is being monitored and updates will be provided as this progresses.

    What about the structural legislation reforms?

    • A newly formed ‘Special Matters DAP’ is currently being formed to replace the Commission’s development applications assessment responsibility post COVID19 recovery, formed as a better resourced and highly technical decision-maker for strategic precincts and key developments if the project, plan or area is of State or significant importance.
      • District Development Assessment Panels (DAPs) can now be created by order of the Minister. The Planning Reform agenda indicates that a number of Joint Development Assessment Panels (JDAPs) are now proposed to be merged into four district DAPs (Inner Metro, Outer Metro and Regional, with the City of Perth Local DAP remaining).

    • Additionally, the Minister may now withdraw a scheme proposal or amendment. This is brought about to avoid the need for a scheme proposal or amendment to carry the course of finalisation, even though it may be outdated or substantially changed due to new or updated considerations - such as METRONET precinct plans, new transport corridors etc.
    • The Amendment also clarifies what is considered “community infrastructure” under Part 11, and the mechanisms to recover and expend development contributions for such, which is currently challenging.
    • Finally, the Environmental Protection Agency (EPA) can now issue a Notice of Exemptions for certain development. Previously, all scheme amendments (including any suburban, greenfields and rural) required referral to the EPA irrespective of whether realistically warranted or not. The Amendment gives the EPA scope to issue a Notice of Exemption, in consultation with the WAPC, for scheme amendments that obviously demonstrate no need for EPA referral.

    Are there any changes to the R Codes?

    The proposal to bring the Residential Design Codes (R Codes) out from under the State Planning Policy (SPP) umbrella and across into a new Part 3A of the Planning and Development Act 2005 as a ‘planning code’, has been adopted in full. This change elevates the R Codes to equivalence with subsidiary legislation, and opens the window for other SPPs and codes to be elevated in the same manner.

    This is structural hierarchy reform designed to ‘increase the weight’ of the R Codes in the decision-making process, as SPPs are a ‘due regard’ document currently; and are resource-consuming and somewhat more difficult planning instrument to modify when/as required.

    HIA continues to be regularly consulted by, and provides feedback to, the Department of Planning, Lands and Heritage and the WA Planning Commission as a stakeholder in the Planning Reform agenda.

    For further clarification and information on planning requirements, HIA members can contact HIA’s Planning Services team on 9492 9200 or wa_planning@hia.com.au