“Significant Development” amendment to Planning & Development Act.

The recently passed Planning and Development Amendment Act 2023 (Amendment Act) introduces a new system for development approval of ‘significant development’. These provisions are anticipated to come into force on 1 March 2024.

A new Part 11B is to be inserted into the Planning and Development Act 2005 (WA) which establishes the significant development pathway. The new assessment pathway provides a refined, permanent version of the temporary Part 17 COVID-19 development pathways (COVID Pathway). It is anticipated that regulations for the new pathway will set a 120-day period for decision-making, which was not present in the previous COVID provisions.

Under the new pathway, the Western Australian Planning Commission (WAPC) will act as the decision-maker in determining significant development applications.

For a development application to be considered as ‘significant’, it must either meet a prescribed financial threshold or alternatively be authorised to be heard under Part 11B by the Premier if it is deemed of State or regional importance. It should be noted here that the Explanatory Memorandum for the Amendment Act outlines that applications relating to social and affordable housing will likely receive such authorisation.

These financial thresholds, whilst not yet officially confirmed, are expected to be $20 million for Perth and Peel and $5 million for regional areas. Upon meeting the threshold, a proponent may opt-in to the significant development pathway.

There is also the possibility of a ‘mandatory’ significant development, which must utilise the significant development pathway. However, at the time the amendments were first introduced into Parliament no such classes are contemplated.

Much of the detail as to the procedures to be followed by the WAPC in dealing with ‘significant development’ applications will be prescribed in regulations. We understand that these regulations will also be released on 1 March 2024.

The WAPC will maintain powers to approve a significant development application where it conflicts with the relevant planning framework. Such powers were present under the COVID Pathway; however, these powers may now only be exercised in four prescribed circumstances. These circumstances are:

– Where an application raises issues of State or regional importance, and is in the public interest;
– Where a conflict concerns a local planning scheme which has not yet been published or consolidated in accordance with the Planning and Development Act 2005 (WA);
– Where a conflict with a local planning scheme is considered minor and the determination is consistent with the general intent of the relevant planning documents associated with the development; and
– If the conflict is of a class prescribed in the new Part 11B. No prescribed classes are currently contemplated.

This new permanent pathway could hold benefits to proponents of large projects. The effectiveness of this new environment remains to be seen.