Far reaching changes, including both procedural changes to the way planning law is administered and practical changes that will be of continuing relevance to developers, were introduced by the Planning and Development Amendment Act 2020 (WA) (Act). The Act received royal assent on 7 July 2020 and will amend the Planning and Development Act 2005 (WA) (PD Act).
Our previous blog article provided an overview of the Act as introduced in the Legislative Assembly. This article summarises the key changes to the Act as passed through both houses of State Parliament.
Definition of ‘significant development’
The new Part 17 of the PD Act creates a different approvals process for ‘significant developments.’ Under the Act, ‘significant developments’ may be referred directly to the Western Australian Planning Commission (WAPC) for determination.
The definition of ‘significant development’ has been amended to:
- Development that has an estimated cost of $20 million or more in the metropolitan region; or
- Development that has an estimated cost of $5 million or more outside of the metropolitan region.
This is a significantly wider definition than originally proposed, and in particular opens avenues for regional developments. However, we note that this definition relates only to development and does not contemplate strategic planning instruments, such as structure plans, activity centre plans or local development plans.
Default substantial commencement period reduced
The default period for substantially commencing ‘significant developments’ has been redefined to a period of 24 months from the date of approval. This is a reduction from 48 months as proposed in the original version of the Bill. This means development will need to commence earlier than previously anticipated or else approval will lapse. The WAPC still has the power to impose a longer or shorter substantial commencement period.
WAPC must undertake public consultation
The changes to the wording now strengthen the requirement for public consultation as part of the new ‘significant development’ approval pathway. Where previously public consultation was worded as discretionary, it is now a required part of the approval process.
The WAPC may also do ‘anything else’ it deems appropriate to ‘obtain a document, information, an opinion or any other contribution from any person or body’.
The Act now requires the WAPC to consult with the Department of Water and Environmental Regulation if the land is classified as contaminated and thereby subject to a Memorial under the Contaminated Sites Act 2003 (WA). While removing the express requirement to consult with the Environmental Protection Authority, the Act now expressly states ‘for the avoidance of doubt’ that the Environmental Protection Act 1986 (WA) prevails in the case of conflict.
Stricter guidelines on the process the WAPC must undergo to approve developments is a concession to the effectiveness of the Act as a ‘red-tape’ cutting measure. However, this balances the shorter substantial commencement period and wider significant development definition. The PD Act should now see more developments taking advantage of Part 17, and with that a greater transparency and certainty in decision making.