The State Development Act 2025 (WA) – what does it mean for project approvals?

The State Development Act 2005 (WA) (SD Act) came into effect on 19 February 2026.  It is fair to say that the SD Act is an extraordinary piece of legislation.

Background

Whilst many recent legislative and policy reforms in Western Australia have purported to “cut red tape”, the SD Act goes even further and arguably attempts to set aside regulatory hurdles altogether, in the case of those projects that are deemed worthy of special treatment by the State.

Looking into the crystal ball, it seems likely that in the coming years, there will be numerous transformational projects that will be key to the future of Western Australia, in relation to things such as the renewable energy transition, the preparation for hosting nuclear submarines, the establishment of new data centres for the AI revolution and the continued economic importance of the mining and resources sector.

Philosophically, should projects of such importance really be subject to the risks of standard bureaucratic decision-making? The SD Act seems to say “probably not”.

Eligible projects

The stated object of the SD Act is to “provide for the coordination, facilitation and promotion of State-significant development, while taking into account social and economic considerations”. The concept of State-significant development is then defined to mean industrial development, development of infrastructure or other development or activities of strategic or economic significance to the State. This is obviously a very broad definition that would be open to subjectivity.

The SD Act at Part 3 goes on to explain that the Minister may make a written instrument to designate something as being a “priority project”. If a project has been designated as a “priority project”, then the various powers under Part 3 of the SD Act can be exercised in respect of that project. Section 30(3) of the SD Act says that a wholly residential development project cannot be designated as a priority project. It would however seem to be the case that something such as a mixed-use development (with both apartments and commercial uses) or a structure plan (that contemplates both residential and commercial use) could be designated as a priority project.

There is no monetary value threshold built into the SD Act for defining what constitutes a priority project. Section 30(2)(b) of the SD Act does however say that the Minister must not designate something as a priority project unless satisfied that the project is of strategic or economic significance to the State or to an area of the State. Again, this is very broad and it could be argued (for example) that anything that is valuable enough for assessment by a Development Assessment Panel could satisfy the criterion of “economic significance”.

Key roles

The powers and responsibilities set out in the SD Act are vested in either the Minister (being the Minister responsible for the SD Act), the Premier or an office established under the SD Act known as the Coordinator General. The functions of the Coordinator General under the SD Act are advisory and administrative in nature, with the substantive decisions to be made by the Minister or the Premier. It should be noted that the Minister (responsible for the SD Act) and the Premier are currently the same person.

Key powers

Joint decision notice
Under section 41 of the SD Act, the Minister may issue a “joint decision notice” to a public authority that is responsible for making a decision under a designated statute. The designated statutes are listed in Schedule 1 of the SD Act and include the Environmental Protection Act 1986 (WA) and the Planning and Development Act 2005 (WA), amongst many others.

If a joint decision notice is issued to a public authority, it basically means that the public authority cannot make its relevant decision unless the public authority and the Minister have already agreed as to what that decision should be. Under section 42 of the SD Act, there is a process set out for what happens if the public authority and the Minister cannot reach an agreement as to how the decision should be made. Under this process, the important thing is that the final decision (absent any agreement) is to be made by the Premier.

This is an extraordinary process, in the sense that it basically says that, for something that has been designated as a priority project and made the subject of a joint decision notice, the Premier has the ultimate say in relation to decision-making that is usually the responsibility of another public authority exercising legislative powers. This is despite the position that the underlying legislation that governs the decision-making by the public authority does not vest any decision-making power in the Premier. At face value, this process allows the Minister or Premier to unilaterally change how laws of the State are applied in a particular case.

Modification order
Under section 50 of the SD Act, the Minister may make a “modification order” to say that specified provisions of a designated statute do not apply, or apply with specified modifications, in relation to making a decision in respect of a particular priority project. The Minister may make a modification order if the Minister considers it appropriate to do so to “prevent or reduce duplication of statutory or administrative processes” or if the Minister thinks it will not prevent the priority project “from being effectively regulated under law”.

A modification order cannot have the effect that a “key regulatory authorisation” is not required. A key regulatory authorisation is defined to mean an approval under a designated statute that authorises the carrying out of development or an activity or the grant of an interest in land or a right to access or use land. A modification order may however modify the process around the grant of a key regulatory authorisation or the grounds upon which a key regulatory authorisation may be granted.

Again, this is an extraordinary process, in the sense that it allows the Minister to effectively change many of the laws of the State as they apply to a particular priority project, so long as there is no complete dispensation of the requirement for a key regulatory authorisation.

Other powers

Due regard notice
Under section 34 of the SD Act, the Minister may give a “due regard notice” to a public authority, to require that public authority to take particular considerations into account when making a particular decision under a designated statute. It is doubtful how influential a due regard notice might be in practice, given that they do not compel a public authority to make a determination in a particular way and a lot of decision-making on significant projects already requires a broad range of factors to be taken into account as the default position.

Timeframe notice
Under section 37 of the SD Act, the Minister may give a “timeframe notice” to a public authority to require a particular decision under a designated statute to be made within some specified timeframe, which may be shorter than the default statutory timeframe (but cannot be less than 20 business days). It is doubtful how useful a timeframe notice might be in practice, given that there are consultation requirements that must be met before one is issued (which will itself chew up time) and there is no substantive consequence under the SD Act in the event that a public authority fails to comply with the specified timeframe.

State development areas
Under Part 4 of the SD Act, the Minister may declare an area as being a “State development area”, for purposes including to facilitate economic development, strategic industrial development and the provision of necessary infrastructure. If a State development area has been declared, then the Minister may subsequently make a written instrument known as a “State development area plan”. If a State development area plan is in force, then a public authority must give it due regard in making a decision under a designated statute that could cause or allow development to be carried out. Whilst there is nothing particularly controversial about the power to create a State development area plan, it could be argued that Part 4 of the SD Act does not really create any useful planning tools that did not already exist in similar form under other legislation.

Opportunities

Proponents of larger projects (and of not so large projects, for that matter) should be aware of the significant powers that exist under the SD Act and the potential for them to be used in appropriate situations. It is possible that the SD Act might end up being used sparingly, but for those projects where an unanticipated regulatory hurdle or similar challenge has emerged, there could be merit in exploring whether the issue could be resolved through asking the Minister to make a priority project declaration and to then exercise the appropriate SD Act powers.

The SD Act will also be potentially very useful for proponents of contentious projects that nevertheless carry support at State Government level. For example, if a development application needs to be determined by local government and the relevant Council is strongly opposed owing to community pressure, a supportive State Government could effectively ensure that a development approval is granted from the outset, by making a priority project designation and issuing a joint decision notice to the local government.

Threats

Whilst the SD Act is no doubt welcome from the perspective of proponents of larger projects, its powers and procedures may impact negatively on those persons and bodies who the default statutory procedures of decision-making are ultimately designed to protect. This could include, for example, local governments, other regulators, private landowners, community groups, environmental organisations and commercial competitors. Anybody who might be directly affected by a project that is benefiting from the SD Act regime accordingly needs to be aware of the relevant powers and procedures and respond accordingly.

Notably, section 45 of the SD Act seems to contemplate that third-party judicial review in the Supreme Court is still available for challenging a decision that has been made pursuant to a joint decision notice, but the relevant public authority would be the respondent to the matter (not the Minister or Premier). Query whether that public authority would actively defend the decision being challenged, if it was ultimately made by the Minister or Premier against the wishes of the public authority.

Risks

It would be reasonable to assume that the current State Government genuinely intends to use the SD Act in good faith to facilitate economic development and progress. The SD Act will however remain on the books following a change of government (subject to any repeal or significant amendment). It is therefore sensible to consider whether the extraordinary powers in the SD Act could potentially be subject to abuse, if a future government is willing to use the SD Act to achieve some unintended purpose.

For example, if for political reasons a future Premier wants to ensure that some controversial and unmeritorious development proposal goes ahead at a particular location, then that Premier could make that happen, by appointing themselves Minister, making a priority project declaration and issuing a joint decision notice (and potentially also a modification order), to ensure that the proposal ends up being approved by the Premier themselves and on their preferred terms.

Further, whilst the SD Act has clearly been conceived with a view to fast tracking approvals, it could equally be used to the opposite effect to prevent a project from going ahead at all. In particular, if a Premier of the day was politically opposed to a particular project, they could appoint themselves Minister, make a priority project declaration, issue a joint decision notice and then require that the relevant decision be one of refusal.

Conclusion

The SD Act is significant and extraordinary. Whilst it is not something that will apply to every project, its powers and procedures have the potential to impact significantly upon the assessment of those proposals that are subjected to the regime. Time will likely tell whether the extraordinary powers in the SD Act are more of a blessing or a curse to the people of Western Australia.
If you have any questions in relation to the SD Act, please contact Lavan’s planning, environment and land compensation team.

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.