Metropolitan Region Scheme Amendment Bill announcement

Confirming that we live in times of significant change to the planning system, the Planning and Development Amendment (Metropolitan Region Scheme) Bill 2024 (Amendment Bill) was recently introduced into Parliament. If enacted, it will make the most significant amendments to the Metropolitan Region Scheme (MRS) text since it was first gazetted 61 years ago. The Scheme Map (and therefore the MRS zones and reserves) remains substantially unchanged.

In this brief overview we highlight some of the changes to the text. It is not intended to be comprehensive.

There are at least 3 notable proposed changes. The first is to the development approvals process. The MRS proposes implementing the need for a single approval, with some exceptions, under both the MRS and a local planning scheme, as opposed to the current requirement for 2 separate approvals.¹ The Government’s stated aim is to ‘cut unnecessary red tape in order to boost housing supply’. The Amendment Bill and its accompanying MRS captures the Western Australian Planning Commission’s (WAPC) response to the Tribunal’s decision in the case of West Australian Shalom Group Inc and City of Joondalup.²

Secondly, the inclusion of a clause describing the nature of the MRS, which is said to provide greater clarity as to the interaction between local and regional planning schemes. Unsurprisingly, the clause provides that the MRS is focused on broader strategic matters. This principle also guides decision making under the MRS. The State Administrative Tribunal case of Paintessa Developments³ and the Supreme Court Case Reid v Western Australian Planning Commission⁴ (in which McLeod Fisher and Hamdorf acted for the Plaintiff) were referenced in the Explanatory Memorandum as having influenced this amendment.

Thirdly, the MRS would include express provisions describing the aims and purposes of the MRS. This includes a new clause 6(a), which would align the MRS with the sustainable development objective in section 3(1)(c) of the Planning and Development Act 2005 (WA) (PD Act) but goes somewhat further. In its current form it reads:

promote the sustainable development of land having regard to relevant environmental, social, economic and cultural factors

Interestingly, this clause also reflects to some extent the definition of ‘environment’ in sections 3(1) and 3(2) of the Environmental Protection Act 1986 (WA), elements of which have proven to be problematic and even controversial. In particular, the inclusion of the word ‘cultural’ has given rise to debate over its scope and relationship to the Aboriginal Heritage Act 1972 (WA). The term ‘cultural’ is not included in the PD Act objectives. It is also not in the aims of the the Greater Bunbury Region Scheme (GBRS), which the Government’s Explanatory Memorandum claims to be the model for the aims in the new MRS. It is also not in the Peel Region Scheme (PRS). It is not clear what the Government intends to achieve by including the word ‘cultural’ in the aim of the MRS but it may import a potential for controversy and additional ‘red tape’.

It remains to be seen if the effect of this provision goes beyond the MRS, to inform the interpretation of local planning schemes, by the operation of section 4(3) of the PD Act.

Development approval under the MRS will still be required for matters involving the protection of state reservations, matters of state or regional significance, and public works. These categories can be changed by a simple resolution of the WAPC.

Other key changes proposed under the Amendment Bill can be summarised as follows:

• generally aligning the language of the MRS with the GBRS and PRS, although there is at least one significant divergence from the GBRS, as mentioned in paragraph 6 above in regard to the aims of the new MRS;

• adding descriptions and purposes to reserves and zones; and

• the addition of provisions to enable the WAPC to make region planning scheme policies, district structure plans, regional infrastructure plans (regional policies) and special control areas.

Region planning policies will be planning instruments which are to be given regard for the purposes of determining an application for development approval. They will be reflective at the regional level of local planning policies provided for in local planning schemes under the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes)Regulations

A flowchart of the proposed approvals process under the amended MRS can be accessed through this link.

If you consider the above reform may impact you or your business, please contact us by telephone on (08) 6460 5179 or email admin@mfhlaw.com.au.

¹ West Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63.

² West Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63.

³ Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81.

⁴ Reid v Western Australian Planning Commission [2023] WASC 11.