Planning reform for major projects – will it actually get shovels in the dirt any faster?

The State Government has recently announced significant proposed reforms to the planning system in Western Australia, with the release of the Planning and Development Bill 2020 (Bill).  The centrepiece of the Bill is a new system for assessing major projects, whereby a particular class of development applications will be determined solely by the Western Australian Planning Commission (WAPC), as distinct from a local government or a Development Assessment Panel (DAP)

The Bill also proposes amendments to streamline the existing process for decision-making in a planning context and should facilitate more certainty and efficiency moving forward.  The focus of this article however is the new system proposed to be introduced by the Bill in relation to significant developments.

Any reform that removes unnecessary delays in the development application process should be welcomed, so long as the integrity and quality of the decision-making process is maintained.  But will this new system, as proposed by the Bill, actually improve the overall development application process from the perspective of developers?

Something that is readily apparent from the Bill is that the scope of major projects that it applies to is actually rather narrow.  In terms of residential development, it would only apply to a project that involves the creation of 100 or more dwellings.  That means that a proposed apartment tower with 99 dwellings would not qualify.  In terms of non-residential development, it would only apply to a project with floorspace of 20,000 square metres or more.  This would seem to only include something such as a large shopping centre, which would ordinarily be supported by detailed background planning prior to any development application being made, so it is doubtful how often such proposals are actually being held up at the development application phase.

The Bill would perhaps better achieve its intended purpose of stimulating economic activity if, for example, it applied to any development application over a particular value threshold.  It would seem that streamlining a large number of proposals would have a more favourable economic impact than streamlining only a very narrow class of proposals.

The Bill also contemplates that a developer may elect whether or not to follow the WAPC determination process.  The alternative, given the value threshold, would be a determination by a DAP.  This gives rise to the question of whether a WAPC determination is actually better, from the perspective of a developer, than a DAP determination.

The DAP system was originally established with a view to taking complex and high-value development applications out of the sole hands of government and involving independent planning experts in the decision-making process.  Having a WAPC determination would effectively revert to the position of government officers solely determining development applications (although it is recognised that the WAPC has significant planning expertise).  Many developers would know that the WAPC assessment process lacks transparency and the statutory mechanics of the assessment process of DAPs.  In addition, the level of effort required in the assessment of significant projects should not be understated and it remains to be seen how an already overworked Department is to be resourced.  It should accordingly not be assumed that this proposed new WAPC process would be a “rubber stamp” process for obtaining development approval.

As is alluded to above, a particular concern with the Bill as currently drafted (bearing in mind that supporting regulations are yet to be released) is that it is unclear how transparent the decision-making process will be.  The Bill simply refers to the WAPC determining development applications but does not specify in what capacity the WAPC will make these determinations.  In particular, it is not clear whether this will see the WAPC make decisions behind closed doors, at Statutory Planning Committee meetings or otherwise.  Unlike a DAP meeting, a Statutory Planning Committee meeting is not entirely open to the public, so it would seem likely, at face value, that the new process will be less transparent than the DAP process which is already in place.

Similarly, although the Bill contemplates a public submission process on development applications, it does not appear to be a mandatory requirement.  This means that the WAPC could determine a complex development application of significant public interest, without consulting the community at all.  If the WAPC decides against undertaking public consultation, then that would give rise to a real risk of any development approvals being challenged in the Supreme Court by aggrieved third-parties based on denial of procedural fairness.  On the other hand, if the WAPC undertakes proper public consultation and takes a cautious approach to considering submissions, then that would delay the decision-making process and arguably undermine the very objective that the Bill is trying to achieve.

A particularly interesting aspect of the Bill is that it effectively states that the WAPC, in determining such a development application, is not bound by any other laws.  The Bill also contemplates a mechanism whereby the Minister can effectively override any other statutory requirements that may frustrate the timely implementation of a development approval.  It could be fairly argued that these proposed statutory powers are extreme and it will be interesting to see how they are applied in practice (should they become law).

The power to override other statutory requirements is presumably targeted at the scenario where referral agencies on a development application (such as Main Roads WA or the Department of Fire and Emergency Services) take a position on a particular aspect that prevents implementation of the proposal until such time as the issue can be resolved.  The powers could also conceivably extend to things such as overriding the need for environmental impact assessment or interfering with private property rights, which would not necessarily be desirable or in the broader public interest.

On the other hand, the Bill also indicates that the power to override other statutory requirements is not intended to remove the need for other required statutory authorisations for a given proposal to be obtained (such as a clearing permit, a building permit or a liquor licence).  This means that even if a development approval can be promptly obtained through the WAPC, a project could still potentially be delayed in respect of other required statutory authorisations.  It would also seem, from a constitutional perspective, that the Bill would not be capable of overriding requirements under Federal legislation, such as the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

The Bill also contemplates that a development approval granted by the WAPC for a major project may be amended or revoked by the Governor.  Under the planning system as it currently stands, there is no mechanism for the government to revoke or amend an existing local planning scheme development approval, without the consent of the proponent.  The prospect of a development approval being revoked after it has been granted runs contrary to the underlying objective of reducing the regulatory burden on development proposals.  If a developer instead opts for the DAP process, there would be no risk of a development approval being revoked by government.

As a general observation, although public submissions and referral agency comment can often be convoluted and frustrating for a developer, the reality is that these processes often serve to improve a given development proposal and to iron out any kinks in the proposal as originally conceived.  If a proposal is incrementally improved through this process, it is more likely to receive early support of the community and other government agencies.  On the other hand, if the process as proposed by the Bill does not achieve slow but incremental improvements to proposals, there is a real risk that the likelihood of judicial review proceedings in the Supreme Court will increase, because aggrieved third-parties would have no other way to make their position heard.  This could be avoided in circumstances that the opportunity for consultation and transparency in the manner in which the WAPC makes its determinations under the system form part of regulations to be prepared in support of the Bill.

In summary, the objective in the Bill of streamlining the development application for major projects has real merit, but the Bill may need some revision before it becomes law, if it is to truly achieve the purpose of stimulating development and other economic activity.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.