29 May 2020

Western Australia

The Planning and Development Amendment Bill 2020 (WA) (PDA Bill) was introduced into the WA Legislative Assembly on 20 May 2020 and passed the Legislative Assembly on 28 May 2020. Most of the PDA Bill relates to broader planning reforms that had previously been consulted on, however, the PDA Bill also contains provisions that relate to COVID-19 (COVID-19 ‘special provisions).

Through proposed amendments to the Planning and Development Act 2005 (WA) the COVID-19 special provisions provide, for an initial period of 18 months which may be extended:

  • A new streamlined pathway for state significant developments and other developments referred by the Minister;
  • A change of role and responsibility of the WA Planning Commission (WAPC), which would become the decision maker for the state significant developments and other referred developments, and who must determine the development application ‘as soon as is reasonably practicable’ with broad discretions; and
  • an automatic two years extension for all subdivision applications submitted or approved before the state of emergency came into effect on 16 March 2020.

Significant developments are those that have an estimated cost of $30 million, and for residential developments, include the erection or alteration of 100 or more dwellings; or for commercial developments, they have a total net lettable area of 20,000 metres square.

In acting as the decision maker for these developments, the WAPC would need to consider but not be limited to planning considerations and may have regard to ‘any other matter affecting the public interest’.

The WAPC must consult:

  • the Minister and if required by the Minister give ‘reasonable opportunity’ for the Minister to make submissions. The WAPC must then have due regard to those submissions;
  • the EPA (as well as the Heritage Council and Swan River Trust in certain circumstances); and
  • the local government whose district the development relates.

The WAPC may also consult any person or body the WAPC considers is appropriate, advertise the development application and invite submissions from the public (or any class or group of members of the public) or do anything else the WAPC considers appropriate.

An applicant may apply to the State Administrative Tribunal (SAT) for a limited review of the WAPC’s decision. The Governor can also amend or remove conditions on the approval, impose new conditions, amend any part of the approved development, amend the approval or cancel the approval. However, such an order is subsidiary legislation, meaning it must be laid before each House of Parliament and subject to disallowance.
The Planning and Development (Local Planning Schemes) Amendment Regulations 2020, made on 3 April 2020, amended the Planning and Development (Local Planning Scheme) Regulations 2015  (WA) to allow the Planning Minister to temporarily override requirements and conditions of local planning schemes and approvals.

Under the Regulations, the Planning Minister can issue a notice published in the Government Gazette that authorises exemptions from planning requirements where:

  • If the Minister considers it is necessary to do so “for the purpose of facilitating response to, or recover from the emergency…”;
  • If a state of emergency declaration is in force under the Emergency Management Act 2005 (WA)for all of part of the State, or if not in force if necessary for the above purpose; and
  • Unless impracticable due to urgency, the Minister has first consulted with the WA Planning Commission and Local Government Association and given notice to the relevant local council or WALGA.

The exemptions include exemptions from requirements to obtain permits for use, works, or permit conditions, to overcome prohibitions, to re-enliven non-conforming uses, and to alter requirements in relation to consultation, advertisement, applications, time limits or forms.  Notably, the exemption power does not extend to an environmental condition that applies as a result of an assessment carried out under the Environmental Protection Act 1986 (WA).

A notice must state when it expires, which is either at the end of the state of emergency or a date no later than 5 years after the date it was issued.

A Notice of Exemption was issued by the Planning Minister as at 11 April 2020 which:

  • Extends the time for commencement of all planning permits by 2 years, issued on or before the cessation of the State of Emergency
  • Made specified use and development exempt from planning approvals subject to conditions, including:
  • Medical or health-related facilities required in response to the COVID-19 pandemic;
  • Truck and logistic companies needing to deliver goods but currently with restricted loading and unloading times;
  • Use and temporary works to allow businesses to adapt and change uses, including shops, restaurants, cafés, convenience stores, consulting rooms and offices in a commercial or mixed use zone, and industry, light industry, trade supplies, warehouse/storage and transport depot in an industrial zone;
  • Home occupation and home business uses, to allow people to work from home in residential zones.

The exemptions remain in effect until 90 days after the end of the State of Emergency.

The Local Government Amendment (COVID-19 Response) Act 2020, commenced 20 April 2020, empowers a local government to, by resolution, suspend the operation of a specified local law, or specified provisions of a local law, made by the local government under this Act or any other Act. The resolution is limited to being made while a COVID emergency declaration is in force; and only where the local government considers that the resolution is necessary to deal with consequences of the COVID-19 pandemic. Resolutions must be published on the local government’s website and given to the relevant Minister. The Minister is similarly empowered to, by order, modify or suspend the operation of the Local Government Act 1995 (WA) or related Regulation, where made while a COVID emergency declaration is in force; and where the Minister considers that the order is necessary to deal with consequences of the COVID-19 pandemic.

Non-COVID related environmental regulation reforms

The Environmental Protection Amendment Bill 2020 (First Bill) and the Environmental Protection Amendment Bill (No. 2) 2020 (Second Bill) were introduced on 16 April 2020 to amend the Environmental Protection Act 1986 (WA).  Amongst other things, the first Bill provides a new head power to allow a fee or charge to be imposed on the proponent for certain environmental impact assessment, to support cost recovery under regulations. The Second Bill supports this new head power by inserting sections which clarify that a prescribed fee or charge imposed by the relevant regulations can include an amount that is a tax.

  • The North West Gas Development (Woodside) Agreement Amendment Act 2020, passed on 24 March 2020, extends the lifespan of the NWS Project’s Karratha Gas Plant North West Shelf project by a further 25 years from 2034 to 2059, and allows gas from other fields to be processed through this Plant, along with making other amendments to this Agreement.

Courts and hearings: Relaxations of COVID-19 restrictions have commenced in WA Courts, with civil hearings able to be undertaken in person with limited attendance on behalf of parties and social distancing rules applying. Directions hearings, case management conferences and strategic conferences will continue to be conducted by telephone, at the discretion of the judicial officer.

 The Supreme Court has also requested (but not directed) members of the public who are not legal professionals, litigants or media not to attend.

The WA Planning Commission continues to hear deputations by telephone or video conference. Interested attendees can watch Council Meetings via the Live Stream page.