A medium density house with a red wall and black rooms coming out in blocks on the outside

In a previous blog article we noted a number of major changes to the Western Australian planning system that came about as a result of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations).  The Regulations took effect on 19 October 2015 and cover a wide range of matters.

As promised, this article provides a more detailed analysis of aspects of the Regulations, in particular the important deemed provisions in Schedule 2 of the Regulations, that now apply to all local planning schemes.

Section 257B of the Planning and Development Act 2005 (WA) (PD Act) provides for the deemed provisions to form part of every local planning scheme in Western Australia. New local planning schemes will now be required to incorporate the deemed provisions. In the interim, the deemed provisions will prevail where they conflict with a provision of an existing local planning scheme. Those concerned with a local planning scheme will now be required to consider the effect of the deemed provisions.

The deemed provisions are extensive and cover a variety of matters including local planning strategies and policies, heritage protection, structure plans, activity centre plans and local development plans. Particularly interesting are the effects of the provisions relating to structure plans, activity centre plans and local development plans. The Regulations require decision makers to have due regard to these planning instruments in deciding applications for development or subdivision approval. However, decision makers will not be bound by the plans when making a decision.

Further, when deciding an application for development approval, the Regulations require local governments to take into account proposed local planning instruments which are being seriously considered for adoption or approval. This requirement stems from the obligation of local governments to have due regard to the principles of orderly and proper planning. Consequently, local planning documents which are still in draft form can influence a local government’s decision regarding an application for development approval. It could be said that this provision is merely the legislative reflection of the longstanding planning law principle relating to the consideration of ‘seriously entertained planning proposals’.  It remains that subsidiary planning documents such as policies cannot override the provisions of a planning scheme.

One potential effect of the new provisions may be to provide landowners and developers with increased certainty regarding the required considerations and processes relating to local structure plans, activity centre plans and local development plans. Prior to the Regulations, the obligations on decision makers to consider planning documents and their effect were often unclear.

There has been some controversy and confusion regarding the deemed provisions arising from the substance of the provisions and their layering effect in combination with existing scheme provisions.  We have been advising clients on the impact of the Regulations.  Please contact our team if you would like to clarify any aspect of the Regulations.