The State Government has recently introduced the Planning and Development Amendment (Metropolitan Region Scheme) Bill 2024 (Bill) into Parliament. The Bill contemplates a wholesale revision and modernisation of the Metropolitan Region Scheme (MRS), which is the region planning scheme that applies in the Perth metropolitan area. Whilst the title of the Bill contains the word “amendment”, the Bill actually contemplates the deletion and replacement of nearly all of the existing MRS text. On the other hand, the Bill does not contemplate any immediate changes to the MRS zoning map (save for in relation to the legend).
Assuming that the Bill becomes law, then the MRS text will read in a manner that is closer to what is currently contained in the more contemporary region planning schemes, being the Peel Region Scheme and the Greater Bunbury Region Scheme. The Bill also contemplates the introduction of elements into the MRS text that are similar in nature to what is currently included in the “deemed provisions” (in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)), such as by introducing a list of relevant considerations to be taken into account when determining an MRS development application.
Whilst the accompanying press release from the State Government states that the Bill will “boost housing supply”, it is doubtful whether the Bill will actually lead to any material change to existing levels of residential development. In particular, under the existing version of the MRS, development approval is not actually required for a single house. In the case of proposals for grouped dwellings and multiple dwellings, it is doubtful whether many such proposals are currently being delayed or complicated owing to MRS development application issues, as opposed to the various other regulatory and economic issues faced by developers in the current market.
Rather, it is likely that the key practical benefit that will arise from the Bill, assuming that it becomes law, will be to avoid some of the unintended and unexpected regulatory consequences that can often arise as a consequence of the MRS being somewhat outdated.
For example, in West Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63, the State Administrative Tribunal held that development approval was still required under the MRS in respect of a proposed change of use that was otherwise exempt from the need for development approval under the corresponding local planning scheme and that the exemption did not automatically carry over into the MRS. Similarly, in S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191, the Supreme Court dealt with a scenario where a proponent omitted to include an MRS development application form when submitting a development application under the corresponding local planning scheme. The particular issues that arose in these cases will not arise again in future, if the MRS is amended as per the Bill.
Perhaps the most important change contemplated by the Bill is to make the need for an MRS development approval the exception, rather than the norm. Under the MRS as it currently reads, most proposals on privately-owned zoned land in the Perth metropolitan area require development approval under the MRS. The only applicable exemption from the need for MRS development approval in such a scenario is where the proposed development is a single house. The Bill proposes, in effect, to reverse this approach, such that development approval will ordinarily not be required under the MRS and the need for MRS development approval will instead only arise in particular narrow circumstances. These circumstances will include where land is reserved under the MRS, where the Western Australian Planning Commission (WAPC) has made a resolution saying that MRS development approval is required and where land is in a special control area under the MRS.
Whilst the removal of the need for MRS development approval in more benign circumstances makes practical sense, it is likely that many of those circumstances would involve proposals where only a single development application determination is currently required (that is, a single decision to grant development approval under both the MRS and the corresponding local planning scheme), so the practical benefit in those cases may be limited to removing the need for fill out an MRS development application form at the outset.
In those more complex cases involving State or regional planning issues, it is likely that development approval will still be required under the MRS, if the Bill becomes law. Under the MRS as it currently reads, it is probably only those more complex cases (involving State or regional planning issues) that actually require any material attention to be given to an MRS development application, as distinct from the corresponding local planning scheme development application. The Bill will therefore not remove the need for careful assessment against MRS objectives and the grant of MRS development approval in the case of those development applications that give rise to State or regional planning issues.
The Bill otherwise contemplates the introduction of some new concepts into the MRS.
For example, the Bill contemplates a new zone under the MRS, being the “industrial deferred” zone, which as the name suggests, would function as an industrial equivalent to the existing “urban deferred” zone.
The Bill also contemplates that the WAPC may prepare and adopt a “region planning scheme policy”, which is a concept that does not currently exist in any of the existing region planning schemes in Western Australia. It is not immediately clear from the text of the Bill how a “region planning scheme policy” would function differently to a State planning policy or a development control policy adopted by the WAPC.
Further, the Bill contains proposed provisions saying that the WAPC may prepare and adopt a “district structure plan”. Various district structure plans already exist in Western Australia (for places such as Byford and East Wanneroo), but they tend to be strategic in nature without any express statutory foundation. Notably, the Bill does not contain anything to confirm the intended legal status of a “district structure plan” adopted under the MRS and whether (for example) it binds the content of any subsequent local structure plans over the same land.
Finally, the Bill contemplates that the MRS zoning map may be amended to designate “regional infrastructure plan areas”. The Bill does not contain anything that sheds any light on the precise intended function of “regional infrastructure plan areas”. The explanatory memorandum for the Bill however refers broadly to an objective of coordinating infrastructure planning across local government areas.
Viewed objectively, the Bill probably does not propose anything that would constitute a fundamental change to the existing planning system in Western Australia and the MRS will continue to serve its base function of imposing high-level and strategic zones and reservations over land in the Perth metropolitan area. The proposed modernisation of the MRS text as contemplated by the Bill is however a welcome and helpful reform that should make the MRS easier to understand and apply in practice and should otherwise help to avoid circumstances of the types referred to in the cases mentioned above.
If you have any questions in relation to the Bill or the MRS, please contact Alex McGlue or any other member of Lavan’s Planning and Environment Team.
