30 Aug 2010

Major overhaul of WA planning system - a move towards centralised planning

Western Australia's planning laws will be more centralised, but, according to the State Government, will also have more flexibility for strategic planning in regional areas and large projects, following the passage of the Approvals and Related Reforms (No 4) (Planning) Bill 2009 (WA). The amendments are expected to come into force in 2011.

The most fundamental reform in the Bill is the creation of Development Assessment Panels (DAPs). The State Government has described this as a step towards greater consistency in development assessment, because of the expertise of professional panel members, and their ability to take into account State-wide planning concerns in addition to local issues.

The Bill also expands the Western Australian Planning Commission's strategic planning powers through the use of instruments such as improvement plans and State Planning Policies.

What developments must go to a Development Assessment Panel?

The new legislation requires that all development applications above a certain financial threshold be determined by a DAP, with the opportunity for proponents of developments below the threshold to opt in.

Assessment by a DAP will be compulsory for developments valued at over $7 million. The "opt-in" threshold will be $3 million. Higher thresholds will apply in the City of Perth area: a $15 million compulsory threshold, and a $10 million optional threshold.

How will Development Assessment Panels operate?

The DAPs will consist of an independent chairman, two local council representatives, and two members with expertise in fields to be prescribed. Larger local government areas may have their own DAP (a Local Development Assessment Panel), while smaller local governments may refer approvals to a Joint Development Assessment Panel covering one or more local government areas.

The DAP will be required to make decisions with regard to the same planning instruments as a local government, and the same public consultation process will apply.

The legislation contains scant details about the operation of DAPs, with regulations currently being drafted to prescribe the trigger thresholds for DAP assessment, sitting fees for panel members, the method for the appointment and the required qualifications of panel members, and the procedures to be followed by the DAP.

Appealing a decision by a Development Assessment Panel

The determination of a DAP will be treated as a decision of the local government and therefore the current appeal process, to the State Administrative Tribunal, will apply.

The Bill has been criticised on the basis that it would require a local government to act as a respondent in review proceedings, defending a decision in which it had no involvement. In response to these criticisms, the State Government has said that the regulations will provide for the DAP to be the respondent in any review proceedings.

The Bill does not provide any third party appeal rights, so a local authority that does not agree with a decision of the DAP cannot apply to the State Administrative Tribunal for review.

Improvement Plans - an alternative to region plans

The new reforms allow the Western Australian Planning Commission to declare Improvement Plans in any area of the State, giving it wider planning control over areas which are not covered by region schemes.

The Commission will also have the power to make an "improvement scheme", which overrides the relevant local planning scheme, in order to implement an Improvement Plan. This means it can effectively take over a local authority's strategic planning and development control functions in the Improvement Plan area.

The use of Improvement Plans has been described by the State Government as a quicker and cheaper alternative to the creation of a region scheme, and as allowing a more consistent approach than ad hoc redevelopment legislation.

The Minister for Planning has said that improvement schemes may be appropriate where a project covers a large area, contains a number of historical uses or zonings, has environmental constraints, contaminated land, or is located in more than one local government area. Alternatively, an improvement scheme could be used where there is significant state investment in a site.

State Planning Policies - making them enforceable

Although local governments currently must "have due regard" to State Planning Policies in creating and amending local planning schemes, State Planning Policies currently have no statutory status.

The Minister will now be able to order a local government to amend its local planning scheme to ensure consistency with a State Planning Policy.

The State Government has indicated that the Minister's power to make a direction to the local government is only intended to be used where there is a clear conflict between local planning scheme and a State Planning Policy. These directions must be laid before Parliament, meaning that they can be disallowed.

Related Knowledge

Get in Touch

Get in touch information is loading


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.