Planning and Development Act 2005

 

Planning and Development Act 2005

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Purposes and interpretation of this Act2

4.Terms used3

5.Crown bound9

6.Act does not interfere with public works10

Part 2 — The Western Australian Planning Commission

Division 1 — Establishment and management

7.Commission established11

8.Status11

9.Board of management11

10.Membership of board11

11.Associate members of board, for regions14

12.Board’s constitution and proceedings (Sch. 1)14

13.Remuneration and allowances14

Division 2 — Functions and powers

14.Functions14

15.Powers16

16.Delegation by Commission18

17.Minister may give Commission directions20

18.Minister to have access to information21

19.Committees (Sch. 2)22

20.Fees for Commission’s services22

Division 3 — Administration

21.Secretary22

22.Staff22

23.Use of staff and facilities of public authorities23

Division 4 — Miscellaneous

24.Execution of documents23

Part 3 — State planning policies

25.Statements of planning policy under repealed Act, effect of25

26.State planning policies, preparation and content of25

27.Matters to be considered when preparing State planning policy25

28.Consultation on and public notice of proposed State planning policy26

29.Approval of Governor27

30.Publicising approved State planning policy28

31.Amending or repealing State planning policy28

32.Environmental review28

Part 4 — Region planning schemes

Division 1 — Continuation and formulation of region planning schemes

33.Schemes under repealed Act, effect of29

34.Region planning schemes, preparation and content of29

35.Commission may resolve to prepare or amend region planning scheme29

36.Restrictions on making or amending region planning scheme for metropolitan region30

37.Region planning scheme may be amended or repealed31

Division 2 — Prerequisites to region planning scheme or amendment

38.Proposed schemes and amendments to be referred to EPA31

39.Environmental review, when required etc.32

40.Swan Valley Planning Committee, consultation with before public submissions33

Division 3 — Making of region planning scheme and amendments

41.Procedure33

42.Minister’s consent needed to seek public submissions on proposed scheme or amendment34

43.Publicising proposed scheme or amendment34

44.Submissions on proposed scheme or amendment36

45.Commission’s duties if proposed scheme or amendment is to be assessed under EP Act36

46.Person making submission may be heard37

47.Swan Valley Planning Committee, consultation with after public submissions37

48.Proposed scheme or amendment etc. to be submitted to Minister38

49.Minister may withdraw proposed scheme or amendment38

50.When Minister may submit proposed scheme or amendment for Governor’s approval39

51.Minister may direct proposed scheme or amendment to be republicised39

52.Modifications to proposed scheme or amendment, procedure on40

53.Approval of Governor40

54.Publicising approved scheme or amendment41

55.Revoking approval of scheme or amendment41

56.Parliament may disallow scheme or amendment42

Division 4 — Minor amendments to region planning scheme

57.Minor amendment, procedure for approval of etc.43

58.Publicising proposed minor amendment43

59.Submissions on minor amendment to be considered44

60.Commission’s duties if proposed minor amendment is to be assessed under EP Act44

61.Minister not to approve proposed minor amendment in some cases45

62.Minister may approve or decline to approve minor amendment46

Division 5 — Consolidation of region planning scheme

63.Minister may direct consolidation46

64.Maps, plans, diagrams may be added or substituted47

65.Certification and delivery of consolidation47

66.Proof of consolidation47

67.Consolidation of portion of region planning scheme48

Part 5 — Local planning schemes

Division 1 — Continuation and formulation of local planning schemes

68.Town planning schemes under repealed Act, effect of49

69.General objects of schemes49

70.Scheme may be made for land outside scheme or be concurrent with another scheme50

71.Scheme not to apply to redevelopment area50

72.Local government may prepare or adopt scheme50

73.Contents of scheme51

74.Repealing scheme52

75.Amending scheme52

Division 2 — Minister’s powers in relation to local planning schemes

76.Minister may order local government to prepare or adopt scheme or amendment52

77A.Minister may order local government to amend scheme to be consistent with State planning policy54

Division 3 — Relevant considerations in preparation or amendment of local planning scheme

77.State planning policies, effect of on scheme55

78.Proposed scheme for Swan Valley, consultation requirements for55

79.Heritage Council’s advice to be sought in some cases56

80.Swan and Canning Rivers management programme, effect of57

81.Proposed scheme or amendment to be referred to EPA57

82.Environmental review, when required etc.57

83.Consultation requirements59

Division 4 — Advertisement and approval

84.Advertising proposed scheme or amendment59

85.Local government’s duties if proposed scheme or amendment to be assessed under EP Act59

86.Minister not to approve proposed scheme or amendment in some cases60

87.Approving and publicising scheme or amendment61

Division 5 — Review of local planning schemes

88.Consolidated scheme, when to be prepared62

89.Consolidated scheme, public submissions to be sought on63

90.Consolidated scheme, report on operation of required64

91.Procedure if s. 90 report does not recommend change to scheme64

92.Procedure if s. 90 report recommends change to scheme65

93.Consolidated scheme, effect of publication of66

94.Procedure if new scheme prepared following s. 90 report66

95.Procedure if scheme repealed following s. 90 report67

96.Consolidation of 2 or more schemes, when this Div. applies to67

Division 6 — Crown land

97.Schemes for Crown lands67

Part 6 — Interim development orders

Division 1 — Regional interim development orders

98.Making and purpose of order69

99.Contents of order70

100.Commission to consult local government on some development applications71

101.Restrictions on power to grant development approval71

Division 2 — Local interim development orders

102.Making and purpose of order71

103.Contents of order72

Division 3 — Provisions applying to regional and local interim development orders

104.Consultation requirements73

105.Publicising interim development order74

106.Administration of interim development order74

107.Effect and duration of interim development order75

108.Existing lawful development not affected75

109.Amending interim development order76

110.Revoking interim development order76

111.Non‑conforming development by local government or public authority, procedure for77

Part 7 — Planning control areas

112.Declaration of planning control areas79

113.Amending or revoking s. 112 declaration80

114.Duration of s. 112 declaration80

115.Development in planning control area, applying for approval of80

116.Commission may approve or refuse s. 115 application81

117.Commission may revoke approval if development does not conform with it81

118.Existing lawful development not affected82

Part 8  Improvement plans and schemes

Division 1 — Improvement plans

119.Preparing and making improvement plan83

120.Amending or revoking improvement plan85

121.Commission’s powers as to land under improvement plan85

Division 2 — Improvement schemes

122A.Content of improvement scheme87

122B.Preparing, approving and reviewing improvement scheme87

122C.Existing lawful development not affected89

122D.Effect of improvement scheme on other planning schemes89

122E.Removal of land from improvement scheme area or repeal of improvement scheme, effect of90

122F.Amended improvement scheme area, transitional provisions for91

122G.Applications for development pending when land removed or improvement scheme repealed91

122H.Permanently closing street in improvement scheme area92

122I.Some planning schemes have no force while improvement scheme in force92

122J.Minister may amend local planning scheme to conform with improvement scheme93

122K.Region planning scheme may be amended to conform with improvement scheme93

122L.Minister has s. 211 and 212 powers for improvement scheme93

122M.Fees for planning matters under improvement scheme, Commission may impose94

Division 3 — General

122.This Part does not derogate from other powers94

Part 9 — Relationship between planning schemes, planning control provisions and written laws

123.Local planning scheme and local law to be consistent with region planning scheme95

124.Effect of region planning scheme on local planning scheme95

125.Minister may direct local government to amend local planning scheme to be consistent with region planning scheme etc.96

126.Local planning scheme, amendment of due to region planning scheme97

127.Minister may direct local government to modify proposed scheme or amendment to be consistent with region planning scheme98

128.Breach of s. 124(2), 125 or 127(2), Minister’s powers in case of99

129.Inconsistency between interim development order and local planning scheme or local law, effect of100

130.Planning control area provisions (Part 7) prevail101

131.Building standards etc. prevail101

132.Governor may modify or suspend law to enable planning scheme to have effect101

Part 10 — Subdivision and development control

Division 1 — Application

133.Application of Part to Crown land102

134.Relationship of Part to some other laws and application to land in Swan Valley102

Division 2 — Approval for subdivision and certain transactions

135.No subdivision etc. without approval103

136.Approval required for some dealings as to land not dealt with as lot or lots104

137.Heritage land, subdivision etc. of106

138.Commission’s functions when approving subdivision etc.106

139.Leases and licences that do not need approval under s. 136108

140.Saving of some agreements entered into without approval under s. 136109

141.Refund where land transaction cannot be completed110

142.Consultation requirements as to proposed subdivision110

143.Commission’s duties when dealing with plan of subdivision111

144.Reconsidering refusal to approve plan of subdivision111

145.Diagram or plan of survey of approved plan of subdivision, approval of112

146.No certificate of title for subdivided land without approved diagram or plan of survey114

147.No registration etc. of some land dealings without Commission’s approval115

Division 3 — Conditions of subdivision

150.Road access, conditions as to116

151.Reconsidering conditions117

152.Certain land to vest in Crown117

153.Setting aside land for open space or payment in lieu119

154.Money paid in lieu of open space, application of120

155.Value of land for s. 153, how determined121

156.Valuation under s. 155, dispute as to122

157.When approval of subdivision deemed to be approval under planning scheme123

Division 4 — Subdivision costs

158.Expenses of construction etc. of roads etc.123

159.Subdivider may recover portion of road costs from later subdivider124

160.Money payable under s. 159, recovery of126

161.When subdivision occurs126

Division 5 — Development controls

162.No development except with approval126

163.Application for development of heritage place127

164.Development commenced or carried out, subsequent approval of127

Division 5A — Integration of subdivision and development

164A.Integration of subdivision and development128

Division 6 — Miscellaneous

165.Hazard etc. affecting land, notating titles as to130

166.Encroachment that leads to approved subdivision130

167.Easement, creation of etc. on subdivision etc.131

168.Road, creation of etc. on subdivision etc.133

169.Roads and waterways, minimum standards of construction for135

170.Proposed road or waterway, drawings etc. of required136

Part 11A  Development Assessment Panels and development control

Division 1 — Functions of DAPs

171A.Prescribed development applications, DAP to determine and regulations for138

171B.DAP to carry out delegated functions140

Division 2 — Development Assessment Panels: establishment and administration

171C.Establishment of DAPs140

171D.Constitution, procedure and conduct of DAPs141

171E.Administration and costs of DAPs142

171F.Review of regulations143

Part 11 — Compensation and acquisition

Division 1 — General matters in relation to compensation

171.Entitlement to compensation, limits on144

Division 2 — Compensation where land injuriously affected by planning scheme

172.Terms used144

173.Injurious affection, compensation for145

174.When land is injuriously affected145

175.No compensation if scheme’s provisions are, or could have been, in certain other laws147

176.Questions as to injurious affection etc., how determined147

177.When compensation payable if land reserved147

178.Claim for compensation, time for making149

179.Injurious affection due to land being reserved, amount of compensation for150

180.Notating title to land after compensation paid150

181.Recovering paid compensation if reservation revoked or reduced151

182.Board of Valuers155

183.Valuations by Board155

Division 3 — Other compensation

184.Betterment; compensation for expenses rendered abortive by amendment or repeal of scheme156

185.Injurious affection due to interim development order157

186.Injurious affection due to planning control area158

Division 4 — Purchase or compulsory acquisition

187.Acquiring land in lieu of paying compensation159

188.Land to be acquired under s. 187, valuing160

189.Land in proposed region planning scheme, Commission may purchase161

190.Responsible authority may purchase land for planning scheme161

191.Compulsory acquisition of land in scheme area161

192.Land etc. to be acquired under s. 191, valuing162

193.Responsible authority’s powers as to acquired land163

194.Responsible authority may grant easement over acquired land164

195.Commission’s powers to acquire land in improvement plan164

196.Commission may sell etc. acquired land165

197.Declaring land for public work to be instead held etc. for region planning scheme or improvement plan165

197A.Planning control areas166

Part 12 — Financial provisions

Division 1 — Metropolitan Region Improvement Fund

198.Metropolitan Region Improvement Account169

199.MRI Account, application of170

Division 2 — Metropolitan Region Improvement Tax

200.Owners’ liability to pay tax171

201.Tax collections, how to be dealt with172

Division 3 — Financial provisions relating to the Commission

202.Saving172

203.Funds of Commission172

204.Minister’s approval needed for some contracts and expenditure173

205.Borrowing powers173

206.Borrowing from Treasurer173

207.Guarantees by Treasurer174

208.Financial Management Act 2006 and Auditor General Act 2006, application of174

209.Commission’s land not subject to rates etc.174

Division 4 — Financial provisions relating to local governments

210.Apportioning expenses between local governments175

Part 13 — Enforcement and legal proceedings

Division 1 — Enforcement

211.Person aggrieved by local government’s omission may go to Minister; Minister’s powers176

212.Breach of order etc. by local government, Minister’s powers as to177

213.Minister’s action under s. 212, effect of179

214.Illegal development, responsible authority’s powers as to180

215.Illegal development, responsible authority’s powers to remove etc.182

216.Breach of Act etc. or development approval, injunctions as to183

217.Environmental conditions, Minister’s powers to enforce184

Division 2 — Offences

218.Planning scheme or condition on development, contravening etc.185

219.Unauthorised subdivision works186

220.Planning control area, unauthorised development in186

221.Interim development order, contravening186

222.Heritage place, unauthorised development in187

223.General penalty187

224.Other enforcement provisions not affected187

225.Onus of proof in vehicle offence may be shifted188

Division 3 — Infringement notices

226.Terms used189

227.Prescribed offences189

228.Giving of infringement notice190

229.Content of infringement notice190

230.Extending time to pay modified penalty190

231.Withdrawal of infringement notice191

232.Benefit of paying modified penalty191

233.Paid modified penalty, application of191

234.Designated persons, appointment of191

235.Notice placing onus on vehicle owner192

Part 14 — Applications for review

Division 1 — Making and determination of applications for review

236.When this Part applies193

237.Terms used194

237A.How SAT to be constituted194

238.SAT members, qualifications of195

239.Legal representation, some applicants may elect there will be none195

240.SAT to invite Minister for the Environment to make submission before determining certain applications196

241.SAT to have regard to certain matters196

242.Persons who are not parties, submissions from197

243.Exclusion of powers to join parties197

244.SAT review of some SAT decisions198

245.Submissions by Minister to SAT199

246.Minister may call in application to SAT for review200

247.Determination of application by Minister201

Division 2 — Decisions which may be reviewed

249.Decision as to development under interim development order202

250.Decision as to development in planning control area203

251.Some decisions made under Part 10203

252.Decision made in exercise of discretionary power under planning scheme204

253.Responsible authority not making decision, notice of default to and deemed refusal by205

Division 3 — Other applications for review

254.Decision made under EP Act s. 48I206

255.Direction given under s. 214206

Part 15 — Subsidiary legislation

256.Regulations for content of local planning schemes208

257A.Model provisions, effect of209

257B.Deemed provisions, effect of209

258.Regulations for procedure and costs for local planning schemes210

259.Regulations for environmental review expenses211

261.Local government fees for planning matters etc., regulations as to212

262.Uniform general local laws213

263.Regulations: general214

264.Regulations may adopt codes and other texts216

Part 16 — Miscellaneous

265.Delegation by Minister217

266.Duties and liabilities of persons performing functions under this Act217

267A.Crown and State land, who may sign documents as to219

267.Protection from personal liability220

268A.Laying documents before House of Parliament that is not sitting220

268.Review of Act221

Part 17 — Special provisions for COVID‑19 pandemic relating to development applications

Division 1 — Preliminary

269.Terms used222

270.Effect of Part225

Division 2 — Commission to determine certain development applications

Subdivision 1 — Applications and referrals

271.Development applications that may be made directly to Commission during recovery period226

272.Development applications that may be referred to Commission by Premier during recovery period226

273.Supplementary provisions for applications and referrals227

Subdivision 2 — Determinations

274.Determination of development applications by Commission228

275.Application of legal instruments and matters to which Commission must have due regard230

276.Consultation, submissions and other input232

277.Effect of Commission determination under s. 274234

278.Substantial commencement of development approved by Commission under s. 274236

279.Amendment or cancellation of approval granted by Commission under s. 274236

Division 3 — Avoiding conflicts with approvals granted by Commission under section 274

280.General provisions for Division238

281.Decision‑maker proposing to perform function in conflict with approval240

282.Owner of land or other prescribed person may apply for direction if performance of function conflicts with approval242

Division 4 — Oversight of Commission

283.State Administrative Tribunal243

284.Governor may amend or cancel approval granted by Commission under s. 274244

Division 5 — Final matters

285.Fees245

286.Regulations246

Part 18 — Extension of time for endorsement of diagram or plan of survey due to COVID‑19 pandemic

287.Term used: COVID‑19 emergency start date247

288.Extension of time for endorsement of diagram or plan of survey of approved subdivision247

Part 19 — Transitional provisions for Planning and Development Amendment Act 2020

289.LDAP or JDAP continues as district DAP249

290.Preparation and approval of planning schemes where process commenced before commencement day249

291.R‑Codes taken to be planning codes250

292.Regulations made by Minister continue in force251

293.Electronic planning maps prepared before commencement day252

294.Transitional regulations252

Schedule 1 — Constitution and proceedings of the Board

1.Term used: appointed member254

2.Term of office254

3.Appointments to be part-time unless stated otherwise254

4.Vacancies in and removal from office254

5.Leave of absence255

6.Deputy chairperson255

7.Deputy members256

8.Meetings256

9.Resolution without meeting257

10.Telephone or similar meetings257

11.Minutes of meetings257

12.Procedures257

Schedule 2 — Committees

1.Committees, general provisions as to258

2.Deputy members for local government representatives259

3.Executive, Finance and Property Committee259

4.Statutory Planning Committee260

5.Sustainable Transport Committee261

7.Coastal Planning and Coordination Council262

8.Regional planning committees263

9.District planning committees265

Schedule 3 — Metropolitan region

Schedule 4 — Other regions

1.Gascoyne Region269

2.Goldfields‑Esperance Region269

3.Great Southern Region269

4.Kimberley Region269

5.Mid West Region269

6.Peel Region269

7.Pilbara Region269

8.South West Region270

9.Wheatbelt Region270

Schedule 5 — Local governments — metropolitan region

1.SOUTH‑WEST GROUP271

2.WESTERN SUBURBS GROUP271

3.NORTH‑WEST GROUP271

4.SOUTH‑EAST GROUP272

5.EASTERN GROUP272

Schedule 6 — Planning control areas: purposes for which land may be required

Schedule 7 — Matters which may be dealt with by planning scheme

1.Generality preserved274

2.Subdivision274

3.Reconstruction274

4.Preservation and conservation274

5.Roads, public works, community infrastructure, reservation of land, provision of facilities275

6.Zoning275

7.Controls for land management275

8.Development standards275

9.Development controls276

10.Acquisition and purchase of land276

11.Powers276

12.Agreements and cooperation276

13.Carrying out scheme277

14.Review by SAT277

15.Policies and ancillary matters277

Schedule 8 — Matters for which local laws may be made by Governor

1.Purchase and reservation of land278

2.Limiting and regulating building278

3.Classification and zoning278

4.Prohibiting unauthorised uses278

5.Prescribing characteristics of buildings279

6.Prohibiting trade etc. or erection or use of building279

7.Requirements of new subdivisions279

8.Building lines279

9.Open space etc.280

10.Heights of walls etc. at road corners280

11.Implementing of local laws280

Schedule 9 — Board of Valuers

1.Term used: Board281

2.Term of office281

3.Constitution of Board281

4.Resignation or removal from office281

5.Remuneration of members281

Notes

Compilation table283

Uncommenced provisions table285

Other notes285

Defined terms

 

Planning and Development Act 2005

An Act to provide for a system of land use planning and development in the State and for related purposes.

Part 1  Preliminary

1.Short title

This Act may be cited as the Planning and Development Act 2005.

2.Commencement

(1)This Act comes into operation on a day fixed by proclamation.

(2)Different days may be fixed under subsection (1) for different provisions.

3.Purposes and interpretation of this Act

(1)The purposes of this Act are to —

(a)consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985) in a rewritten form; and

(b)provide for an efficient and effective land use planning system in the State; and

(c)promote the sustainable use and development of land in the State.

(2)If —

(a)the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and

(b)this Act appears to have expressed the same idea in a different form of words in order to use a clearer or simpler style,

the ideas are not to be taken to be different just because different forms of words were used.

4.Terms used

(1)In this Act, unless the contrary intention appears —

Account means the account referred to in section 203(2);

artificial waterway means an artificial channel, lake, harbour or embayment, for navigational, ornamental and recreational purposes, or for any of those purposes, and includes any addition to, or alteration of, an artificial waterway as so defined;

associate member means an associate member of the board appointed under section 11;

Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;

board means the board referred to in section 9;

chairperson means the chairperson of the board;

chief executive officer means the chief executive officer of the department principally assisting in the administration of this Act;

Commission means the Western Australian Planning Commission established by section 7;

Crown land has the meaning given to that term in the Land Administration Act 1997;

deputy member means a person appointed under Schedule 1 clause 7;

development means the development or use of any land, including —

(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;

(b)the carrying out on the land of any excavation or other works;

(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that —

(i)is likely to change the character of that place or the external appearance of any building; or

(ii)would constitute an irreversible alteration of the fabric of any building;

development application means an application under a planning scheme, or under an interim development order, for approval of development;

Development Assessment Panel or DAP means a JDAP or LDAP;

district means an area that has been declared to be a district under the Local Government Act 1995;

district planning committee means a committee established under Schedule 2 clause 9;

environmental condition means a condition agreed under section 48F, or decided under section 48J, of the EP Act;

EP Act means the Environmental Protection Act 1986;

EPA means the Environmental Protection Authority continued in existence under the EP Act;

Heritage Council means the Heritage Council of Western Australia established by the Heritage Act 2018;

improvement plan means an improvement plan referred to in section 119;

improvement scheme means an improvement scheme that has effect under Part 8 Division 2;

improvement scheme area has the meaning given in section 122A(2);

interim development order means a regional interim development order or a local interim development order;

JDAP means a Joint Development Assessment Panel established under section 171C;

LAA Department means the department principally assisting in the administration of the Land Administration Act 1997;

land includes —

(a)land, tenements and hereditaments; and

(b)any interest in land, tenements and hereditaments; and

(c)houses, buildings, and other works and structures;

LDAP means a Local Development Assessment Panel established under section 171C;

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3;

local interim development order means an interim development order made under section 102;

local order area means an area affected by, and specified in, a local interim development order;

local planning scheme means a planning scheme of effect or continued under Part 5;

lot means a defined portion of land —

(a)depicted on a plan or diagram available from, or deposited with, the Authority and for which a separate Crown grant or certificate of title has been or can be issued; or

(b)depicted on a diagram or plan of survey of a subdivision approved by the Commission; or

(c)which is the whole of the land the subject of —

(i)a Crown grant issued under the Land Act 1933 1; or

(ii)a certificate of title registered under the Transfer of Land Act 1893; or

(iii)a survey into a location or lot under section 27(2) of the Land Administration Act 1997 or a certificate of Crown land title the subject of such a survey; or

(iv)a part‑lot shown on a diagram or plan of survey of a subdivision deposited with the Authority; or

(v)a conveyance registered under the Registration of Deeds Act 1856,

but does not include a lot as defined in the Strata Titles Act 1985 section 3(1);

member means a member of the board;

metropolitan region means the region described in Schedule 3;

Metropolitan Region Scheme means the planning scheme continued under section 33(1), or any region planning scheme made in substitution for that scheme;

Minister for the Environment means the Minister to whom the Governor has for the time being committed the administration of the EP Act;

MRI Account means the Metropolitan Region Improvement Account established under section 198;

officer of the Commission means either of the following —

(a)the Secretary to the Commission appointed under section 21(1);

(b)a public service officer referred to in section 22;

planning control area means a planning control area declared and in force under section 112;

planning scheme means a local planning scheme, region planning scheme or improvement scheme that has effect under this Act and includes —

(a)the provisions of the scheme being —

(i)the provisions set out in the scheme; and

(ii)any State planning policy that, with any modifications set out in the scheme, has effect under section 77(2)(b) as part of the scheme; and

(iii)any provisions that have effect under section 257B(2) as part of the scheme;

and

(b)all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme;

public authority means any of the following —

(a)a Minister of the Crown in right of the State;

(b)a department of the Public Service, State trading concern, State instrumentality or State public utility;

(c)any other person or body, whether corporate or not, who or which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility;

public work includes the following —

(a)any public work as defined in the Public Works Act 1902;

(b)development in any area to which a region planning scheme applies if the development is of a class or kind designated as public work under the scheme;

(c)development in any area to which a local planning scheme applies if the development is of a class or kind designated as public work under the scheme;

region means the metropolitan region or a region referred to in Schedule 4;

region planning scheme means either of the following —

(a)the Metropolitan Region Scheme;

(b)a planning scheme continued under section 33(2) or of effect under Part 4;

regional interim development order means an interim development order made under section 98;

Regional Minister means the Minister to whom the Governor has for the time being committed the administration of the Regional Development Commissions Act 1993;

regional order area means an area affected by, and specified in, a regional interim development order;

responsible authority, except as provided in regulations made under section 171A(2)(a), means —

(a)in relation to a local planning scheme or local interim development order, the local government responsible for the enforcement of the observance of the scheme or order, or the execution of any works which under the scheme or order, or this Act, are to be executed by a local government; and

(b)in relation to a region planning scheme, regional interim development order or planning control area, the Commission or a local government exercising the powers of the Commission; and

(c)in relation to an improvement scheme, the Commission;

road means a public thoroughfare for vehicles (as defined in the Road Traffic (Administration) Act 2008 section 4) or pedestrians, and includes structures or other things appurtenant to the road that are within its limits, and a thoroughfare is not prevented from being a road only because it is not open at each end;

State planning policy means a planning policy approved under section 29;

subdivision includes amalgamation;

Swan Valley has the meaning given to that term in the Swan Valley Planning Act 1995;

Swan Valley Planning Committee has the meaning given to that term in the Swan Valley Planning Act 1995;

utility services means drainage, electricity, sewerage or water supply services or such other services as are prescribed;

WALGA means the body constituted under section 9.58 of the Local Government Act 1995 and known as the Western Australian Local Government Association.

(2)In this Act, unless the contrary intention appears, a reference to —

(a)“the preparation of a local planning scheme” or “the amendment of a local planning scheme” includes a reference to the adoption of a local planning scheme or amendment;

(b)“a local planning scheme prepared by a local government” or “an amendment prepared by a local government” includes a reference to a planning scheme or amendment adopted by it,

and other parts of speech and grammatical forms of those phrases have corresponding meanings.

(3)A provision of this Act relating to a region scheme is to be construed in conjunction with the provisions of this Act relating to local planning schemes as if those provisions related to region schemes but, if the provision relating to a region scheme is in conflict with, or inconsistent with a provision relating to a local planning scheme, for the purpose of construing the provision relating to a region scheme the provision relating to the region scheme prevails to the extent that it is in conflict or inconsistent.

[Section 4 amended: No. 60 of 2006 s. 147(2); No. 77 of 2006 Sch. 1 cl. 127(1); No. 21 of 2008 s. 690; No. 28 of 2010 s. 4, 41 and 52; No. 8 of 2012 s. 161; No. 22 of 2018 s. 186(2); No. 30 of 2018 s. 161; No. 26 of 2020 s. 11.]

5.Crown bound

(1)Except as provided in section 6 this Act binds the Crown.

(2)A region planning scheme binds the Crown.

(3)An improvement scheme binds the Crown.

[Section 5 amended: No. 28 of 2010 s. 5.]

6.Act does not interfere with public works

(1)Subject to subsections (2) to (4), nothing in this Act interferes with the right of the Crown, or the Governor, or a public authority, or a local government —

(a)to undertake, construct or provide any public work; and

(b)to take land for the purposes of that public work.

(2)Rights referred to in subsection (1) are to be exercised having due regard to —

(a)the purpose and intent of any planning scheme that has effect in the locality where, and at the time when, the right is exercised; and

(b)the orderly and proper planning, and the preservation of the amenity, of that locality at that time; and

(c)any advice provided by the responsible authority in the course of the consultation required under subsection (3) in respect of the exercise of the right.

(3)At the time when a proposal for any public work, or for the taking of land for a public work, is being formulated, the responsible authority is to be consulted as to whether the undertaking, construction or provision of, or the taking of land for, the public work will be consistent with the matters referred to in subsection (2)(a) and (b).

(4)This section does not affect —

(a)the application of section 5(2) and (3); or

(b)the application of a region planning scheme or an improvement scheme in relation to anything done, or proposed to be done, by a public authority that is not an agency of the Crown.

[Section 6 amended: No. 28 of 2010 s. 6; No. 26 of 2020 s. 12.]

Part 2 — The Western Australian Planning Commission

Division 1 — Establishment and management

7.Commission established

(1)A body called the Western Australian Planning Commission is established.

(2)The Commission is a body corporate with perpetual succession.

(3)Proceedings may be taken by or against the Commission in its corporate name.

8.Status

The Commission is an agent of the State and has the status, immunities and privileges of the State.

9.Board of management

(1)The Commission is to have a board of management.

(2)The board is the governing body of the Commission.

(3)The board, in the name of the Commission, is to perform the functions of the Commission under this Act or any other written law.

10.Membership of board

(1)The board is to consist of the following members —

(a)a chairperson appointed by the Governor on the nomination of the Minister; and

(b)6 members appointed by the Governor, of whom —

(i)one is to be a person nominated by the Minister from a list of the names of 4 persons representing the interests of local governments within the metropolitan region submitted to the Minister by WALGA; and

(ii)one is to be a person nominated by the Minister from a list of the names of 4 persons representing the interests of the local governments outside the metropolitan region submitted to the Minister by WALGA; and

(iii)one is to be a person nominated by the Minister as having experience of the field of coastal planning and management; and

(iv)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of urban and regional planning, property development, commerce and industry, business management, financial management, engineering, surveying, valuation, transport or urban design; and

(v)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of environmental conservation, natural resource management or heritage interests; and

(vi)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of planning and provision of community services, community affairs or indigenous interests;

and

(c)the least number of other members who include —

(i)the chief executive officer of the department principally assisting in the administration of this Act; and

(ii)the chief executive officer of the department principally assisting in the administration of the Water Agencies (Powers) Act 1984; and

(iii)the chief executive officer of the department principally assisting in the administration of the Transport Co‑ordination Act 1966; and

(iv)the chief executive officer of the department principally assisting in the administration of the Environmental Protection Act 1986; and

(v)the chief executive officer of the department principally assisting in the administration of the Government Agreements Act 1979; and

(vi)the chief executive officer of the department principally assisting in the administration of the Housing Act 1980; and

(vii)a person, whether a member under another subparagraph or another person nominated by the Minister, who has experience in the field of urban and regional planning and is employed in an agency, as defined in the Public Sector Management Act 1994, for which the Minister is responsible; and

(viii)a person nominated by the Regional Minister.

(2)When the submission of a list of names is required for the purposes of subsection (1)(b)(i) or (ii), that submission is to be made to the Minister in writing signed on behalf of WALGA within such reasonable time after the receipt by WALGA of a notice from the Minister stating that the submission is required as is specified in the notice.

(3)If a submission is not made under subsection (2) within the time specified under that subsection, the Minister may nominate a person the Minister thinks fit to be a member in place of the person referred to in subsection (1)(b)(i) or (ii).

[Section 10 amended: No. 25 of 2012 s. 222(2).]

11.Associate members of board, for regions

(1)In this section —

regional matter means a matter that, in the opinion of the chairperson, affects more than one local government in a region referred to in Schedule 4.

(2)The Governor may, on the nomination of the Minister, appoint an associate member for a region referred to in Schedule 4.

(3)Each nomination by the Minister for appointment as an associate member under subsection (2) is to be made on the recommendation of the Regional Minister.

(4)Where it appears to the chairperson that a regional matter is to be considered at a meeting of the board the chairperson may, by written notice specifying the time and place of the meeting, request the associate member for that region to attend that meeting for the consideration of that matter.

12.Board’s constitution and proceedings (Sch. 1)

Schedule 1 has effect.

13.Remuneration and allowances

A member, a deputy member, an associate member or a member of a committee established under Schedule 2 is to be paid such remuneration and allowances as are determined by the Minister on the recommendation of the Public Sector Commissioner.

[Section 13 amended: No. 39 of 2010 s. 89.]

Division 2 — Functions and powers

14.Functions

The functions of the Commission are —

(a)to advise the Minister on —

(i)the coordination and promotion of land use, transport planning and land development in the State in a sustainable manner;

(ii)the administration, revision and reform of legislation relating to land use, transport planning and land development;

(iii)local planning schemes, and amendments to those schemes, made or proposed to be made for any part of the State;

and

(b)to prepare and keep under review —

(i)a planning strategy for the State; and

(ii)planning policies,

as a basis for coordinating and promoting land use planning, transport planning and land development in a sustainable manner, and for the guidance of public authorities and local governments on those matters; and

(c)to plan for the coordinated provision of transport and infrastructure for land development; and

(d)to provide advice and assistance to any body or person on land use planning and land development and in particular to local governments in relation to local planning schemes and their planning and development functions; and

(e)to undertake research and develop planning methods and models relating to land use planning, land development and associated matters; and

(f)to keep under review the strategic planning for the metropolitan region and any other part of the State to which a region planning scheme applies and to make recommendations to the Minister on that strategic planning; and

(g)to prepare and amend State planning policies under Part 3; and

(h)to prepare region planning schemes under Part 4; and

(ia)to prepare improvement plans and improvement schemes under Part 8; and

(i)to keep under review each region planning scheme and improvement scheme, to review the scheme completely whenever requested by the Minister to do so and to submit for approval under Part 4 or 8 any amendment considered necessary as a result of a review; and

(j)to develop, maintain and manage land held by it that is reserved under a region planning scheme or improvement scheme and to carry out such works, including the provision of facilities on the land, as may be incidental to development, maintenance or management or to be conducive to the use of the land for any purpose for which it is reserved; and

(k)to establish, and exercise powers in relation to, committees under Schedule 2; and

(l)to do all things that are necessary for the purpose of carrying out this Act, region planning schemes and improvement schemes; and

(m)to do anything else that it is required or authorised to do by this or any other written law.

[Section 14 amended: No. 28 of 2010 s. 7.]

15.Powers

(1)The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2)Without limiting subsection (1), the Commission may, for the purpose of performing a function —

(a)subject to this Act, acquire, hold and dispose of real and personal property; and

(b)enter into an agreement with any person under which that person may acquire a lease of, a licence in respect of, or any other estate or interest in, any land mentioned in section 14(j); and

(c)develop and turn to account any technology, software or other intellectual property that relates to the function, and, for that purpose, apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights; and

(d)enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, in the State or elsewhere) —

(i)for the supply of equipment by that person or body; or

(ii)to provide consultancy or advisory services to that person or body; or

(iii)for the commercial exploitation of the knowledge, expertise and resources of the Commission and the rights referred to in paragraph (c);

and

(e)subject to subsection (3), enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, in the State or elsewhere) for the performance by that person or body of any work or the supply of services; and

(f)on terms and conditions approved by the Minister and the Treasurer, participate in any business arrangement and acquire, hold and dispose of shares, units or other interests in, or relating to, a business arrangement; and

(g)act in conjunction with a person, a firm, a local government or a department of the Public Service, or other agency or instrumentality, of the State, another State or Territory or the Commonwealth.

(3)The Commission is not to enter into a contract or arrangement referred to in subsection (2)(e) unless —

(a)the Minister has approved; and

(b)the contract or arrangement is entered into in such circumstances and for such periods as the Minister may from time to time specify by written notice given to the Commission.

(4)For the purposes of subsection (2)(f) the Minister and the Treasurer may approve terms and conditions in respect of a specific business arrangement or class of business arrangement or in respect of business arrangements generally.

(5)In this section —

business arrangement means a company, a partnership, a trust, a joint venture, an arrangement for sharing profits or an arrangement for sponsorship;

participate includes form, promote, establish, enter into, manage, dissolve, wind up, and do anything incidental to the participating in a business arrangement.

16.Delegation by Commission

(1)The Commission may, by resolution, delegate to a person or body referred to in subsection (3) any function of the Commission under this Act or any other written law, except this power of delegation.

(2)A resolution referred to in subsection (1) takes effect when notice of the resolution is published in the Gazette.

(3)A delegation under subsection (1) may be made to —

(a)a member or associate member; or

(b)a committee established under Schedule 2, or a member of such a committee; or

(c)an officer of the Commission; or

(d)a public authority or a member or officer of a public authority; or

(e)a local government, a committee established under the Local Government Act 1995 or an employee of a local government.

(4)The reference to functions in subsection (1) extends, without limitation or restriction, to all of the powers, privileges, authorities, discretions, duties and responsibilities vested in or imposed on the Commission by this Act or any other written law.

(5)Without limiting the generality of subsection (1), where the Commission has delegated its functions under section 14(i) and (l), the delegation includes, subject to the instrument of delegation, a delegation of every function of the Commission under Part 4.

(6)Except as provided in subsection (7A), a delegate must not further delegate any function.

(7A)If the Commission delegates a function of the Commission to the Metropolitan Redevelopment Authority established under the Metropolitan Redevelopment Authority Act 2011, the Authority may subdelegate the exercise or performance of the function to any land redevelopment committee established under that Act.

(7B)A subdelegation under subsection (7A) takes effect when notice of the subdelegation is published in the Gazette.

(7C)Subsections (4), (5) and (7) and the Interpretation Act 1984 sections 58 and 59 apply to a subdelegation of a function under this section in the same way as they apply to a delegation of a function.

(7D)A subdelegate must not further delegate any function subdelegated under subsection (7A).

(7)A delegate exercising or performing a function as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(8)Nothing in this section limits the ability of the Commission to act through an officer or agent.

(9)This section does not apply to the execution of documents but authority to execute documents on behalf of the Commission can be given under section 24.

(10)This section does not affect the operation of section 171B.

[Section 16 amended: No. 28 of 2010 s. 42; No. 45 of 2011 s. 141(2) and (3).]

17.Minister may give Commission directions

(1)The Minister may give written directions to the Commission with respect to the exercise or performance of its functions, either generally or in relation to a particular matter, and the Commission is to give effect to any such direction.

(2)The Minister is to cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under subsection (3), within 14 days after the direction is given.

(3)If —

(a)at the commencement of the period referred to in subsection (2) a House of Parliament is not sitting; and

(b)the Minister is of the opinion that that House will not sit during that period,

the Minister is to transmit a copy of the direction to the Clerk of that House.

(4)A copy of a direction transmitted to the Clerk of a House is to be taken to have been laid before that House.

(5)The laying of a copy of a direction that is regarded as having occurred under subsection (4) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

(6)The text of any direction given under subsection (1) is to be included in the annual report submitted by the accountable authority of the Commission under Part 5 of the Financial Management Act 2006.

(7)Nothing in this section applies to a direction of the Minister given under section 26(1), 28(4)(b), 31(1), 31(2), 43(5)(b), 51(1), 51(2), 52(2),63(1) or 67(1).

[Section 17 amended: No. 77 of 2006 Sch. 1 cl. 127(2).]

18.Minister to have access to information

(1)The Minister is entitled —

(a)to have information in the possession of the Commission; and

(b)if the information is in or on a document, to have, and make and retain copies of, that document.

(2)For the purposes of subsection (1) the Minister may —

(a)request the Commission to give information to the Minister; and

(b)request the Commission to give the Minister access to information; and

(c)for the purposes of paragraph (b) make use of the staff of the Commission to obtain the information and give it to the Minister.

(3)The Commission has to comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4)In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Commission.

19.Committees (Sch. 2)

Schedule 2 has effect with respect to committees established by the Commission under that Schedule.

20.Fees for Commission’s services

(1)The Minister may by notice published in the Gazette set fees to be charged in respect of anything done under this Act and services provided by the Commission in connection with its functions.

(2)Fees set under subsection (1) are payable by the person at whose request or on whose application the act is done.

Division 3 — Administration

21.Secretary

(1)The Commission may appoint a person to the office of Secretary to the Commission.

(2)The office of Secretary to the Commission may be held under a contract entered into with the Commission or under Part 3 of the Public Sector Management Act 1994.

22.Staff

Public service officers are to be appointed or made available under Part 3 of the Public Sector Management Act 1994 to enable the Commission and its committees to perform their respective functions.

23.Use of staff and facilities of public authorities

(1)The Commission may, by arrangement made between it and the relevant employer, make use, either full‑time or part‑time, of the services of any officer or employee employed —

(a)in the Public Service; or

(b)in a State agency; or

(c)otherwise in the service of the State.

(2)The Commission may by arrangement with —

(a)a department of the Public Service; or

(b)a State agency,

make use of any facilities of the department or agency.

(3)An arrangement under subsection (1) or (2) is to be made on terms agreed to by the parties.

Division 4 — Miscellaneous

24.Execution of documents

(1)The Commission is to have a common seal.

(2)A document is duly executed by the Commission if —

(a)the common seal of the Commission is affixed to it in accordance with subsections (3) and (4); or

(b)it is signed on behalf of the Commission by a person or persons authorised to do so under subsection (5).

(3)The common seal of the Commission is not to be affixed to any document except as authorised by the Commission.

(4)The common seal of the Commission is to be affixed to a document in the presence of the chairperson and another member, or the chairperson and an officer of the Commission authorised by the Commission either generally or in any particular case to be so present, and each of them is to sign the document to attest that the common seal was so affixed.

(5)The Commission may, by writing under its common seal, authorise a member or members or an officer or officers of the Commission to sign documents on behalf of the Commission, either generally or subject to such conditions or restrictions as are specified in the authorisation.

(6)A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7)A document executed by a person under this section without the common seal of the Commission is not to be regarded as a deed unless the person executes it as a deed and is authorised under subsection (5) to do so.

(8)When a document is produced bearing a seal purporting to be the common seal of the Commission, it is to be presumed that the seal is the common seal of the Commission until the contrary is shown.

Part 3  State planning policies

25.Statements of planning policy under repealed Act, effect of

Any statement of planning policy in force under the Town Planning and Development Act 1928 immediately before this section comes into operation —

(a)continues in force as a State planning policy under this Act; and

(b)has effect accordingly.

26.State planning policies, preparation and content of

(1)The Commission may, with the approval or on the direction of the Minister, prepare State planning policies.

(2)A State planning policy is to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments.

(3)Despite subsection (2), a State planning policy may make provision for any matter which may be the subject of a local planning scheme.

(4)A State planning policy may be prepared so as to apply —

(a)generally or in a particular class of matter or in particular classes of matter; and

(b)throughout the State or in a specified portion or specified portions of the State, whether or not a planning scheme has been prepared or is being prepared in that portion or those portions of the State.

[Section 26 amended: No. 28 of 2010 s. 8.]

27.Matters to be considered when preparing State planning policy

In the preparation of a State planning policy the Commission is to have regard to —

(a)demographic, social and economic factors and influences; and

(b)conservation of natural or cultural resources for social, economic, environmental, ecological and scientific purposes; and

(c)characteristics of land; and

(d)characteristics and disposition of land use; and

(e)amenity, design and environment; and

(f)communications; and

(g)developmental requirements of public authorities,

in respect of the State or the portion of the State, or portions of the State, to which the State planning policy is to apply, as the case requires.

28.Consultation on and public notice of proposed State planning policy

(1)When preparing a State planning policy, the Commission —

(a)if the State planning policy is likely to affect a district or districts in particular, is to consult the local government for that district or the local governments for those districts; and

(b)in any other case is to consult WALGA,

with respect to the proposed State planning policy.

(2)The Commission is to deposit copies of the proposed State planning policy for public inspection during ordinary business hours free of charge —

(a)at the office of the Commission; and

(b)at not less than 3 other public places which the Commission considers to be convenient for public inspection.

(3)As soon as practicable after the deposit of the copies of the proposed State planning policy under subsection (2) the Commission is to cause to be inserted in a daily newspaper and a Sunday newspaper a notice stating —

(a)in short, the purpose of the proposed State planning policy; and

(b)that the proposed policy has been deposited and the places and times at which it may be inspected free of charge; and

(c)the period (being a period of not less than 60 days after the day on which the notice is published) within which, and the form in which, submissions may be made to the Commission on any provision of the proposal.

(4)Without limiting subsections (1), (2) and (3), the Commission —

(a)is to make reasonable endeavours to consult in respect of the proposed State planning policy such public authorities and persons as appear to the Commission to be likely to be affected by the policy; and

(b)is to take such steps to make public the details of the proposed State planning policy as the Minister may direct,

and may take such other steps as it considers necessary to make public the details of the proposed policy.

(5)The Commission is to consider any submissions with respect to the proposed State planning policy and may modify the proposed policy as it thinks fit.

29.Approval of Governor

(1)The Governor may approve a State planning policy prepared by the Commission with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and which the Governor is by this subsection authorised to make.

(2)A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette.

30.Publicising approved State planning policy

The Commission is to cause a copy of any State planning policy approved by the Governor —

(a)to be published in the Gazette; and

(b)to be forwarded to each local government, any portion of the district of which is included in the area covered by the policy.

31.Amending or repealing State planning policy

(1)A State planning policy may be amended by amendments prepared by the Commission with the approval of the Minister, or on a direction of the Minister.

(2)A State planning policy may be repealed by —

(a)a subsequent State planning policy; or

(b)an instrument of repeal —

(i)made by the Commission with the approval of the Minister, or on a direction of the Minister; and

(ii)approved by the Minister and published in the Gazette.

(3)Sections 26, 27, 28, 29 and 30 apply, with such modifications as are necessary, to and in relation to an amendment as if the amendment were a State planning policy.

32.Environmental review

The Commission may, in relation to a particular State planning policy or an amendment to such a policy, act under sections 81, 82, 84, 85 and 86 as if —

(a)the Commission were a local government; and

(b)that policy or amendment were a local planning scheme,

but otherwise this Part applies to that policy or amendment.

Part 4 — Region planning schemes

Division 1 — Continuation and formulation of region planning schemes

33.Schemes under repealed Act, effect of

(1)The Metropolitan Region Scheme in force under the Metropolitan Region Town Planning Scheme Act 1959 immediately before this section comes into operation —

(a)continues in force as a region planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

(2)Any regional planning scheme in force under the Western Australian Planning Commission Act 1985 immediately before this section comes into operation —

(a)continues in force as a region planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

34.Region planning schemes, preparation and content of

(1)If, in the opinion of the Commission or the Minister, matters of State or regional importance so require, the Commission is to prepare such region planning schemes, and amendments to region planning schemes, as may be necessary for the purposes of this Act.

(2)A region planning scheme may be prepared for all or any of the objects, purposes, provisions, powers or works referred to in section 69(1) and may provide for planning, replanning or reconstructing the whole or any part of a region.

35.Commission may resolve to prepare or amend region planning scheme

(1)Subject to section 36, the Commission may resolve to prepare a region planning scheme or an amendment to a region planning scheme.

(2)Immediately after resolving to prepare a region planning scheme, the Commission is to ensure compliance with the relevant procedures set out in Divisions 2 and 3.

(3)Immediately after resolving to prepare an amendment to a region planning scheme, the Commission is to ensure compliance in respect of that amendment with the relevant procedures set out in Divisions 2, 3 and 4.

36.Restrictions on making or amending region planning scheme for metropolitan region

The Metropolitan Region Scheme and any other region scheme applicable to the metropolitan region are not to be made or amended under this Act —

(a)in a manner that is contrary to or inconsistent with —

(i)the Swan and Canning Rivers Management Act 2006 Part 5; or

(ii)any amendment made to the Metropolitan Region Scheme by the Acts Amendment (Swan River Trust) Act 1988 section 14, 15 or 17; or

(iii)any amendment made to the Metropolitan Region Scheme by the Swan and Canning Rivers (Consequential and Transitional Provisions) Act 2006 section 21;

or

(b)in a manner that is contrary to or inconsistent with any protection order made under the Heritage Act 2018 Part 4 Division 1, except in so far as may be ordered on an application or referral made under section 62 of that Act to the State Administrative Tribunal; or

(c)except as provided in the Metropolitan Redevelopment Authority Act 2011 section 58 and without limiting section 51 of that Act, to make any provision in respect of any land to which an approved redevelopment scheme that is in operation under that Act applies; or

(d)without limiting section 23 of the Hope Valley‑Wattleup Redevelopment Act 2000, to make any provision in respect of land in the redevelopment area as defined in that Act.

[Section 36 amended: No. 52 of 2006 s. 6; No. 45 of 2011 s. 141(4); No. 22 of 2018 s. 186(3).]

37.Region planning scheme may be amended or repealed

(1)A region planning scheme may be amended under this Act.

(2)A region planning scheme may be repealed by —

(a)a subsequent region planning scheme; or

(b)an instrument of repeal prepared by the Commission, approved by the Minister and published in the Gazette.

Division 2 — Prerequisites to region planning scheme or amendment

38.Proposed schemes and amendments to be referred to EPA

(1)When the Commission resolves to prepare a region planning scheme or an amendment to a region planning scheme, the Commission is to forthwith refer that scheme or amendment to the EPA by giving to the EPA —

(a)written notice of the resolution; and

(b)such written information about that scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the scheme or amendment.

(2)This section applies in respect of an amendment whether or not the amendment constitutes a substantial alteration to a region planning scheme.

39.Environmental review, when required etc.

(1)In this section —

instructions means instructions issued under section 48C(1)(a) of the EP Act.

(2)When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed region planning scheme or amendment to a region planning scheme, the Commission, if it wishes to proceed with that scheme or amendment, is to undertake an environmental review of that scheme or amendment in accordance with the relevant instructions.

(3)The Commission is not to submit a scheme or an amendment referred to in subsection (2) to the Minister under section 42 for consent to public submissions being sought, or act in relation to that scheme under section 58, as the case requires, until —

(a)the Commission has forwarded the environmental review to the EPA; and

(b)the EPA has advised that that review has been undertaken in accordance with the relevant instructions, or 30 days have elapsed since the review was forwarded without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs.

(4)If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions, the Commission may —

(a)comply with subsection (2) in respect of the scheme or amendment concerned; or

(b)request the Minister to consult the Minister for the Environment and, if possible, agree with the Minister for the Environment on whether or not the review has been undertaken in accordance with those instructions.

(5)If the Minister, having complied with a request under subsection (4), and the Minister for the Environment —

(a)agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision is final and without appeal or review; or

(b)cannot so agree, section 48J of the EP Act applies.

40.Swan Valley Planning Committee, consultation with before public submissions

(1)The Commission, before submitting to the Minister under section 42 a scheme or amendment that would apply to land in the Swan Valley, is to refer the scheme or amendment to the Swan Valley Planning Committee.

(2)The Committee, within 42 days after the day on which it receives the referral, or within such longer period as the Commission allows, is to give to the Commission its written advice on the scheme or amendment including any modifications it thinks should be made.

(3)If the Committee fails to give its advice within the time allowed under subsection (2), it is to be taken to have no advice to give on the scheme or amendment.

(4)The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee’s advice in whole or in part in preparing the scheme or amendment.

(5)Subject to any approval under subsection (4), the Commission is to prepare the scheme or amendment in accordance with any advice given by the Committee under this section.

Division 3 — Making of region planning scheme and amendments

41.Procedure

Subject to Division 4, the Commission is to adopt the procedure set out in this Division for submitting and obtaining approval of any region planning scheme or amendment to a region planning scheme (in this Division referred as the scheme or amendment) formulated by the Commission.

42.Minister’s consent needed to seek public submissions on proposed scheme or amendment

Subject to Division 4, the scheme or amendment when prepared by the Commission and after sections 38 and 39 have been complied with, is to be submitted, together with such reports, surveys and other material as the Commission considers desirable, to the Minister for the Minister’s consent to public submissions being sought.

43.Publicising proposed scheme or amendment

(1)If the Minister consents to public submissions being sought in respect of the scheme or amendment the Commission is to deposit copies of —

(a)the scheme or amendment; and

(b)a statement setting out the purpose and planning objectives of the scheme or amendment,

for public inspection during ordinary business hours free of charge at the places listed in subsection (2).

(2)For the purposes of subsection (1) the scheme or amendment and statement are to be deposited —

(a)in the case of a region planning scheme, or an amendment to a region planning scheme other than the Metropolitan Region Scheme —

(i)at the offices of the local governments of the districts which lie within or partly within the area to which the region planning scheme applies; and

(ii)at not less than 3 other public places which the Commission considers to be most convenient for public inspection;

and

(b)in the case of an amendment to the Metropolitan Region Scheme —

(i)at the offices of the Commission; and

(ii)at the offices of the City of Perth and the City of Fremantle; and

(iii)at not less than 3 other public places in the metropolitan region which the Commission considers to be most convenient for public inspection.

(3)As soon as practicable after the deposit of the copies under subsection (1) the Commission is to cause to be inserted at least 3 times in each of the following publications —

(a)the Gazette;

(b)a daily newspaper circulating in the area to which the region planning scheme applies;

(c)a Sunday newspaper circulating in the area to which the region planning scheme applies,

a notice stating —

(d)in short, the purpose and planning objectives of the scheme or amendment; and

(e)that the scheme or amendment has been deposited and the places and times at which it may be inspected free of charge; and

(f)that submissions on any provision of the scheme or amendment may be made to the Commission in the form specified in the notice within the period specified in the notice (being a period not less than 3 months from the date the notice is first published in the Gazette).

(4)If the scheme or amendment changes the zoning or reservation of land, the Commission, within 7 days of the publication of the notice in the Gazette, is to make reasonable endeavours to give written notice of the scheme or amendment to the owners of land of which the zoning or reservation is changed.

(5)The Commission is to —

(a)make reasonable endeavours to consult in respect of the scheme or amendment such public authorities and persons as appear to the Commission to be likely to be affected by the scheme or amendment; and

(b)take such steps to make public the details of the scheme or amendment as the Minister may direct,

and may take such other steps as it considers necessary to make public the details of the scheme or amendment.

44.Submissions on proposed scheme or amendment

(1)Submissions on the scheme or amendment may be made at any time within the period prescribed in the notice under section 43(3)(f).

(2)The Commission is to consider all submissions that are duly lodged.

45.Commission’s duties if proposed scheme or amendment is to be assessed under EP Act

(1)In this section —

proposed amendment means proposed amendment to a region planning scheme under this Division.

(2)When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed scheme or proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 44(1), transmit to the EPA a copy of each submission made to the Commission under section 44(1) and relating wholly or in part to environmental issues raised by the proposed scheme or proposed amendment; and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 44(1), inform the EPA of its views on and response to the environmental issues raised by the submissions referred to in paragraph (a) and received within that period.

46.Person making submission may be heard

(1)The Commission is to give each person making a submission or the person’s agent the opportunity of being heard on the submission by the Commission or by a committee established under Schedule 2.

(2)Where a submission is made by a group of persons, the group is to appoint one person to represent the group and only that person may be heard under subsection (1).

47.Swan Valley Planning Committee, consultation with after public submissions

(1)Where as required by section 40(5), a scheme or amendment has been prepared in accordance with advice given by the Swan Valley Planning Committee and after considering public submissions on the scheme or amendment the Commission has modified the scheme or amendment in a way which is not in accordance with that advice, the Commission is to, before submitting that scheme or amendment to the Minister under section 48, refer the scheme or amendment, with the other documents referred to in that section, back to the Committee for its comments and advice.

(2)Where the Swan Valley Planning Committee has any comment to make, or advice to give, on a scheme or amendment or the other documents referred to it under subsection (1) it is to give a written report to the Commission and that report is to be submitted to the Minister along with the other documents referred to in section 48.

(3)If the Swan Valley Planning Committee does not report to the Commission within 42 days of the referral under subsection (2) it is to be taken to have no comment to make or advice to give.

48.Proposed scheme or amendment etc. to be submitted to Minister

(1)Subject to section 47, after —

(a)sections 38 and 39 have been complied with in relation to the scheme or amendment; and

(b)considering all submissions that have been duly lodged,

the Commission is to submit to the Minister —

(c)the scheme or amendment to which those submissions relate, with the modifications, if any, it thinks fit to make; and

(d)a copy of each of those submissions; and

(e)a report by the Commission on those submissions.

(2)For the purposes of subsection (1) the Commission may adopt a report by a committee referred to in section 46(1) and submit it as, or include it in, the report of the Commission.

49.Minister may withdraw proposed scheme or amendment

If —

(a)the report of the Commission; or

(b)in the case of a scheme or amendment that would apply to land in the Swan Valley, a report of the Swan Valley Planning Committee under section 47,

submitted with a scheme or amendment under section 48, recommends that the scheme or amendment should not proceed, the Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment.

50.When Minister may submit proposed scheme or amendment for Governor’s approval

The Minister is not to present to the Governor a proposed scheme or amendment referred to the EPA under section 38 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; or

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that scheme or amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the Commission under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that scheme or amendment is subject have been incorporated into that scheme or amendment.

51.Minister may direct proposed scheme or amendment to be republicised

(1)Before presenting the scheme or amendment to the Governor for consideration, if the Minister is of the opinion that any modification made to the scheme or amendment by the Commission is of such a substantial nature as to warrant such action, the Minister may direct the Commission to again deposit the scheme or amendment as so modified, or that portion of the scheme or amendment which is so modified, for public inspection at such time and at such places as the Minister directs.

(2)The Minister may direct the Commission to publish such notices in connection with the scheme or amendment as the Minister thinks appropriate.

(3)The Commission is to comply with the directions.

52.Modifications to proposed scheme or amendment, procedure on

(1)A person who desires to make a submission on modifications made by the Commission may notify the Minister in writing in the form approved by the Commission.

(2)The Minister is to direct the Commission to consider and report on the submission to the Minister in accordance with the procedure set out in sections 46 and 48.

(3)If a report submitted with a scheme or amendment under section 48 as read with subsections (1) and (2) recommends that the scheme or amendment should not be proceeded with, the Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment.

53.Approval of Governor

(1)If the Minister has not withdrawn the scheme or amendment under section 49 or 52(3), the Minister is to present the scheme or amendment to the Governor.

(2)The Governor may approve the scheme or amendment with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and the Governor is by this subsection authorised to make such modifications.

54.Publicising approved scheme or amendment

When the Governor has approved the scheme or amendment, whether with or without modifications —

(a)the scheme or amendment, or the scheme or amendment as so modified, but not including any maps, plans or diagrams, is to be published in the Gazette; and

(b)the maps, plans and diagrams are to be open for public inspection at such times and such places as the Minister determines.

55.Revoking approval of scheme or amendment

(1)The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment has effect, revoke his or her approval of the scheme or amendment.

(2)The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment is published in the Gazette, revoke his or her approval of part of the scheme or amendment.

(3)If the approval is revoked under subsection (1) or (2) before the scheme or amendment has been published in the Gazette, section 54 does not apply in respect of the scheme or amendment, or, if the approval is revoked in respect of part of the scheme or amendment, the part of the scheme or amendment in respect of which the approval is revoked, as the case requires.

(4)If the approval is revoked under subsection (1) after notice of the scheme or amendment has been published in the Gazette and before the scheme is laid before both Houses of Parliament —

(a)section 56(1) does not apply in respect of the scheme or amendment; and

(b)notice of the revocation is to be published in the Gazette.

(5)If the approval of the scheme or amendment is revoked under subsection (1) after the scheme or amendment is laid before both Houses of Parliament —

(a)the scheme or amendment is to be withdrawn; and

(b)notice of the revocation is to be published in the Gazette.

56.Parliament may disallow scheme or amendment

(1)A copy of the scheme or amendment and a copy of the report of the Commission on the submissions referred to in sections 48 and 52 are to be laid before each House of Parliament within 6 sitting days of that House next following the date of the publication of the scheme or amendment in the Gazette.

(2)Either House of Parliament may, by resolution of which notice has been given within 12 sitting days of that House after the scheme or amendment has been laid before it under subsection (1), pass a resolution disallowing the scheme or amendment.

(3)As soon as the scheme or amendment is no longer subject to disallowance under subsection (2), the scheme or amendment has effect as if it were enacted by this Act.

(4)If either House of Parliament passes a resolution disallowing the scheme or amendment, notice of the disallowance is to be published in the Gazette within 21 days of the passing of the resolution.

(5)It does not matter whether or not the period of —

(a)6 sitting days referred to in subsection (1) or some of them; or

(b)12 sitting days referred to in subsection (2) or some of them,

occur during the same session of Parliament, or the same Parliament, as that in which the relevant scheme or amendment is laid before the House of Parliament concerned.

Division 4 — Minor amendments to region planning scheme

57.Minor amendment, procedure for approval of etc.

(1)If a proposed amendment does not, in the opinion of the Commission, constitute a substantial alteration to a region planning scheme, that amendment —

(a)is not required to be submitted and approved in accordance with the procedure prescribed in Division 3; and

(b)instead, may be submitted and approved in accordance with the procedure prescribed in this Division.

(2)Despite subsection (1), an amendment cannot be made to the Metropolitan Region Scheme under this Division to change the zoning of any land in the Swan Valley.

58.Publicising proposed minor amendment

(1)If under section 57 a proposed amendment is not required to be submitted and approved in accordance with the procedure prescribed in Division 3, the Commission, after sections 38 and 39 have been complied with in relation to that amendment, is to —

(a)send a copy of the amendment to the Minister; and

(b)publish in the Gazette and in a daily newspaper circulating in the area to which the region scheme applies a notice —

(i)describing the amendment; and

(ii)stating where and when the amendment will be available for inspection; and

(iii)stating that submissions on any provision of the amendment may be made to the Commission in the form set out in that notice within the period specified in the notice (being a period of not less than 60 days after publication of the notice); and

(iv)certifying that, in the opinion of the Commission, the amendment does not constitute a substantial alteration to the relevant region planning scheme;

and

(c)if the amendment changes the zoning or reservation of land, within 7 days of the publication referred to in paragraph (b), make reasonable endeavours to give written notice of the amendment to the owner of land of which the zoning or reservation is changed; and

(d)make reasonable endeavours to consult in respect of that amendment such public authorities and persons as appear to the Commission to be likely to be affected by that amendment.

(2)When a submission is made by a group of persons, that group is to appoint one person to represent that group for the purposes of the submission.

59.Submissions on minor amendment to be considered

If the Commission receives any submissions in accordance with the relevant notice published under section 58 the Commission is to consider, and make a report and recommendation to the Minister on, those submissions.

60.Commission’s duties if proposed minor amendment is to be assessed under EP Act

(1)In this section —

proposed amendment means proposed amendment to a region planning scheme under this Division.

(2)When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 58(1)(b)(iii), transmit to the EPA a copy of each submission made to the Minister under section 58(1)(b)(iii) and relating wholly or in part to environmental issues raised by the proposed amendment; and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 58(1)(b)(iii), inform the EPA of its views on and response to the environmental issues raised by the submissions referred to in paragraph (a) and received within that period.

61.Minister not to approve proposed minor amendment in some cases

The Minister is not to approve under section 62(1) a proposed amendment to a region planning scheme referred to the EPA under section 60 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; or

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the Commission under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that amendment is subject have been incorporated into that amendment.

62.Minister may approve or decline to approve minor amendment

(1)On receiving a report and recommendation made to the Minister under section 59, the Minister may, after complying with section 61 in relation to the amendment concerned —

(a)approve, with such modifications, if any, as the Minister considers it necessary to make; or

(b)decline to approve,

the proposed amendment to which that report and recommendation relate.

(2)When the Minister has approved a proposed amendment under subsection (1) the Commission is to cause —

(a)that amendment or that amendment as modified under subsection (1), as the case requires, excluding any maps, plans or diagrams forming part of that amendment, to be published in the Gazette; and

(b)any maps, plans or diagrams forming part of that amendment to be open for inspection at such times and places as the Commission determines.

(3)The amendment or the amendment as modified under subsection (1), as the case requires, has effect on publication under subsection (2) as if it were enacted by this Act.

Division 5 — Consolidation of region planning scheme

63.Minister may direct consolidation

(1)The Minister may direct the Commission to deliver to the Minister a consolidation of a region planning scheme as in force at the date specified in the direction.

(2)On receipt of a direction under subsection (1) the Commission is to cause to be prepared a consolidation of the region planning scheme incorporating all amendments to the scheme in force on the date specified in the direction.

64.Maps, plans, diagrams may be added or substituted

(1)In the preparation of the consolidation there may be included, in addition to or in substitution for, any maps, plans and diagrams forming part of the region planning scheme, such maps, plans or diagrams, prepared on such scale or scales, as, in the opinion of the Commission, are necessary to state and represent, in an informative and convenient form, the scope, effect and details of the region planning scheme as amended.

(2)Where an addition or substitution under subsection (1) necessitates the making of a consequential amendment to the text of the region planning scheme, that amendment is to be made in the consolidation.

(3)Where an addition, substitution or other amendment is effected under subsection (1) or (2) the region planning scheme is to be taken to be amended accordingly on and from the publication of notice of consolidation under section 66(1) but the provisions of Divisions 3 and 4 and the Metric Conversion Act 1972 do not apply to any such addition, substitution or other amendment.

65.Certification and delivery of consolidation

After preparing the consolidation the Commission is to —

(a)seal the consolidation and certify on the consolidation that it is a correct statement and representation of the region planning scheme as in force at the date specified in the direction given by the Minister; and

(b)deliver the consolidation to the Minister.

66.Proof of consolidation

(1)If the Minister approves of the consolidation and signs the consolidation, the Commission is to publish notice of the consolidation in the Gazette.

(2)After publication of the notice —

(a)the consolidation is to be judicially noticed by all courts, tribunals, bodies and persons; and

(b)the consolidation is to be taken, unless the contrary intention is shown, to be a correct statement and representation of the region planning scheme as in force on the date specified in the Minister’s direction.

67.Consolidation of portion of region planning scheme

(1)The Minister may direct the Commission to deliver to the Minister a consolidation of the portion of a region planning scheme (whether by reference to a map of the scheme or any other portion of the scheme) as is specified in the direction.

(2)The provisions of this Division apply to and in relation to the consolidation of the portion of the scheme so specified in the direction as though the portion of the scheme so specified were the whole scheme.

Part 5 — Local planning schemes

Division 1 — Continuation and formulation of local planning schemes

68.Town planning schemes under repealed Act, effect of

(1)Any town planning scheme in force under the Town Planning and Development Act 1928 on the day on which this section comes into operation —

(a)continues in force as a local planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

(2)Except as provided in section 257B(3), nothing in this Act affects the validity of a town planning scheme continued under subsection (1).

[Section 68 amended: No. 28 of 2010 s. 53.]

69.General objects of schemes

(1)A local planning scheme may be made under this Act with respect to any land —

(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and

(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.

(2)With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.

(3)This section applies subject to section 256 and the regulations made under it and sections 257A and 257B.

[Section 69 amended: No. 28 of 2010 s. 54.]

70.Scheme may be made for land outside scheme or be concurrent with another scheme

(1)Nothing in this Act prevents —

(a)a local planning scheme from being made with respect to land comprised in another local planning scheme; or

(b)subject to subsection (2), 2 or more local planning schemes from having force and effect concurrently with respect to any land.

(2)The zoning of land in an area to which a local planning scheme applies is not to be provided for in more than one local planning scheme applicable to that area.

71.Scheme not to apply to redevelopment area

A local planning scheme must not be made or amended under this Act —

(a)except as provided in the Metropolitan Redevelopment Authority Act 2011 sections 57 and 58 and without limiting section 51 of that Act, to make any provision in respect of any land to which an approved redevelopment scheme that is in operation under that Act applies; or

(b)without limiting the Hope Valley‑Wattleup Redevelopment Act 2000 section 23, to make any provision in respect of land in the redevelopment area as defined in that Act.

[Section 71 inserted: No. 45 of 2011 s. 141(5).]

72.Local government may prepare or adopt scheme

(1)Subject to section 71, a local government may —

(a)prepare a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district; or

(b)adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local government might itself have prepared a scheme.

(2)A local government and another local government may —

(a)jointly prepare a local planning scheme with respect to land that is partly in the district of the first‑mentioned local government and partly in the district of the other local government; or

(b)jointly adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local governments might themselves have prepared a scheme.

(3)Where a local planning scheme is prepared or adopted under subsection (2) a reference in this Act to the local government or responsible authority that is preparing or has prepared the scheme is to be read as a reference to the local governments that join in the preparation or adoption of the scheme.

73.Contents of scheme

(1)A local planning scheme is to —

(a)define in such manner as may be prescribed by the regulations the area to which the scheme is to apply;

(b)specify the local government to be responsible for enforcing the observance of the scheme, and for the execution of any works which, under the scheme or this Act, are to be executed by a local government.

(2A)A local planning scheme may —

(a)supplement provisions prescribed under section 256; and

(b)deal with any special circumstances or contingencies for which adequate provisions are not prescribed under section 256.

(2)Where land included in a local planning scheme is in the districts of more than one local government, or is in the district of a local government by which the scheme was not prepared, the responsible authority in relation to the local planning scheme may be one of those local governments, or for certain purposes of the scheme one local government, and for other purposes of the scheme another local government.

[Section 73 amended: No. 28 of 2010 s. 55.]

74.Repealing scheme

A local planning scheme may be repealed by —

(a)a subsequent local planning scheme; or

(b)an instrument of repeal prepared by the local government, approved by the Minister and published in the Gazette.

75.Amending scheme

A local government may amend a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, by an amendment —

(a)prepared by the local government, approved by the Minister and published in the Gazette; or

(b)proposed by all or any of the owners of any land in the scheme area, adopted, with or without modifications, by the local government, approved by the Minister and published in the Gazette.

Division 2 — Minister’s powers in relation to local planning schemes

76.Minister may order local government to prepare or adopt scheme or amendment

(1)If the Minister is satisfied on any representation that a local government —

(a)has failed to take the requisite steps for having a satisfactory local planning scheme or an amendment to a local planning scheme prepared and approved in a case where a local planning scheme or an amendment to a local planning scheme ought to be made; or

(b)has failed to adopt a local planning scheme or an amendment to a local planning scheme proposed by owners of any land, in a case where a local planning scheme or an amendment to a local planning scheme ought to be adopted; or

(c)has refused to consent to any modifications or conditions imposed by the Minister,

the Minister may order the local government, within such time as is specified in the order, to prepare and submit for the approval of the Minister a local planning scheme, or an amendment to a local planning scheme or to adopt a local planning scheme, or an amendment to a local planning scheme or to consent to the modifications or conditions imposed.

(2)If the representation under subsection (1) is that a local government has failed to adopt a local planning scheme or an amendment to a local planning scheme, the Minister, in lieu of making an order to adopt the scheme or amendment, may approve of the proposed scheme or amendment subject to such modifications and conditions, if any, as the Minister thinks fit.

(3)A local planning scheme or an amendment approved under subsection (2) has effect as if it had been adopted by the local government and approved by the Minister under this Part.

(4)The Minister must ensure that written reasons for making an order under subsection (1) are provided with the order.

(5)The Minister must, as soon as is practicable after an order is given to the local government under subsection (1), cause to be laid before each House of Parliament or dealt with under section 268A —

(a)a copy of the order; and

(b)a copy of the reasons for making the order.

[Section 76 amended: No. 28 of 2010 s. 56(1)-(3); No. 45 of 2011 s. 141(6).]

77A.Minister may order local government to amend scheme to be consistent with State planning policy

(1)The Minister may, on the recommendation of the Commission, order a local government to prepare and submit for the approval of the Minister an amendment to a local planning scheme for the purpose of rendering the local planning scheme consistent with a specified State planning policy.

(2)The order must specify the following —

(a)the relevant State planning policy;

(b)the amendments that are to be made to the local planning scheme;

(c)the time (being sufficient time to allow the local government to comply with its obligations under Divisions 3 and 4) by which the local government must comply with the order.

(3)The Minister must, as soon as is practicable after the order is given to the local government, cause a copy of the order to be laid before each House of Parliament or dealt with under section 268A.

(4)If —

(a)the Commission makes a recommendation for the purposes of subsection (1); and

(b)the Minister decides not to make an order pursuant to the recommendation,

the Minister must, as soon as is practicable —

(c)give the Commission written reasons for the Minister’s decision; and

(d)cause a copy of the reasons to be laid before each House of Parliament or dealt with under section 268A.

[Section 77A inserted: No. 28 of 2010 s. 46.]

Division 3 — Relevant considerations in preparation or amendment of local planning scheme

77.State planning policies, effect of on scheme

(1)Every local government in preparing or amending a local planning scheme —

(a)is to have due regard to any State planning policy which affects its district; and

(b)may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.

(2)Where a scheme includes a provision referred to in subsection (1)(b) —

(a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and

(b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.

(3)Modifications referred to in subsection (2)(b) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection (2)(a), which is inconsistent with the modifications.

78.Proposed scheme for Swan Valley, consultation requirements for

(1)If the City of Swan resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, that would apply to land in the Swan Valley, that City, before the scheme or the amendment is advertised for public inspection under the regulations, is to refer the proposed scheme or amendment to the Swan Valley Planning Committee.

(2)The Swan Valley Planning Committee, within 42 days after the day on which it receives the referral, or within such longer period as the City of Swan allows, is to give to the City its written advice on the proposed scheme or amendment, including any modifications it thinks should be made.

(3)If the Swan Valley Planning Committee fails to give its advice within the time allowed under subsection (2), it is to be taken to have no advice to give on the proposed scheme or amendment.

(4)The Commission may, at the request of the City of Swan, approve of the City disregarding the Committee’s advice in whole or in part in preparing the scheme or amendment.

(5)Subject to any approval under subsection (4), the City of Swan is to prepare the local planning scheme or the amendment in accordance with any advice given by the Swan Valley Planning Committee under this section.

79.Heritage Council’s advice to be sought in some cases

If an entry in the register established and maintained under the Heritage Act 2018 section 35(1) or in any local heritage survey prepared under section 103(1) of that Act relates to land or waters that are within or abut a local government district, the local government in preparing or amending a local planning scheme —

(a)is to refer the proposed scheme or amendment to the Heritage Council for advice in so far as any proposal under that scheme or amendment affects or may affect any such land or waters; and

(b)is to have regard to any advice given; and

(c)is not to proceed, without the consent of the Minister, with the proposal unless or until that advice has been received.

[Section 79 amended: No. 22 of 2018 s. 186(4).]

80.Swan and Canning Rivers management programme, effect of

If a strategic document in force under the Swan and Canning Rivers Management Act 2006 Part 4 relates to land or waters that are within or abut the district of a local government referred to in Schedule 7 of that Act, the local government in preparing or amending a local planning scheme is to have due regard to that management programme.

[Section 80 amended: No. 52 of 2006 s. 6.]

81.Proposed scheme or amendment to be referred to EPA

When a local government resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, the local government is to forthwith refer the proposed local planning scheme or amendment to the EPA by giving to the EPA —

(a)written notice of that resolution; and

(b)such written information about the local planning scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the local planning scheme or amendment.

82.Environmental review, when required etc.

(1)When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed local planning scheme or a proposed amendment to a local planning scheme, the local government concerned, if it wishes to proceed with that local planning scheme or amendment, is to undertake, or cause under subsection (5) to be undertaken, an environmental review of that local planning scheme or amendment in accordance with the relevant instructions issued under that section.

(2)The local government is not to advertise that local planning scheme or amendment under section 84 until —

(a)the local government has forwarded the environmental review to the EPA; and

(b)the EPA has advised that that review has been undertaken in accordance with those instructions, or 30 days have elapsed since that forwarding without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs.

(3)If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act, the local government may —

(a)comply with subsection (1) in respect of the local planning scheme or amendment concerned; or

(b)request the Minister to consult the Minister for the Environment and, if possible, agree with that Minister on whether or not the review has been undertaken in accordance with those instructions.

(4)If the Minister, having complied with a request made under subsection (3), and the Minister for the Environment —

(a)agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision is final and without appeal or review; or

(b)cannot so agree, section 48J of the EP Act applies.

(5)If —

(a)the resolution to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, referred to in subsection (1) was passed at the request of the owner of land to which that local planning scheme or amendment relates; and

(b)the local government referred to in that subsection by written notice served on that owner requests the owner to undertake an environmental review of that local planning scheme or amendment in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act; and

(c)that owner wishes that local planning scheme or amendment to proceed,

the owner is to undertake the environmental review and forward that review to that local government.

(6)The local government may, in accordance with regulations made under section 259, recover the expenses incurred by the local government in undertaking an environmental review in accordance with instructions issued under section 48C(1)(a) of the EP Act.

83.Consultation requirements

A local government, before submitting a local planning scheme or amendment to the Minister under section 87, is to make reasonable endeavours to consult in respect of the local planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the local planning scheme or amendment.

Division 4 — Advertisement and approval

84.Advertising proposed scheme or amendment

After compliance with sections 81 and 82, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government, is to be advertised for public inspection in accordance with the regulations.

85.Local government’s duties if proposed scheme or amendment to be assessed under EP Act

(1)When a local government has been informed under section 48A(1)(b)(i) of the EP Act that a proposed local planning scheme or amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the local government is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period during which that local planning scheme or amendment is advertised under section 84, transmit to the EPA a copy of each submission —

(i)made during that period; and

(ii)relating wholly or in part to environmental issues raised by that local planning scheme or amendment;

and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in paragraph (a) inform the EPA of its views on and response to the environmental issues referred to in paragraph (a) and received within that period.

86.Minister not to approve proposed scheme or amendment in some cases

The Minister is not to approve under section 87(2) of a proposed local planning scheme or amendment referred to the EPA under section 81 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that local planning scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; or

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that local planning scheme or amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the local government under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that amendment is subject have been incorporated into that local planning scheme or amendment.

87.Approving and publicising scheme or amendment

(1)Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.

(2)The Minister may, in relation to a local planning scheme or amendment submitted to the Minister under subsection (1) —

(a)approve of that local planning scheme or amendment; or

(b)require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister’s approval under this subsection; or

(c)refuse to approve of that local planning scheme or amendment.

(3)When the Minister notifies the Commission that the Minister has approved a local planning scheme or an amendment to a local planning scheme, the Commission is to cause the scheme or amendment to be published in the Gazette.

(4A)Any costs incurred by the Commission in publishing a scheme or amendment under subsection (3) may be recovered by the Commission from the local government which prepared or adopted the scheme or amendment as a debt due to the Crown.

(4B)When the Minister has approved a local planning scheme or an amendment to a local planning scheme, the local government which prepared or adopted the scheme or amendment is to —

(a)advertise the scheme or amendment in accordance with the regulations; and

(b)ensure that copies of the scheme or amendment are available to the public.

(4)A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.

(5)It is sufficient compliance with subsection (3) if a local planning scheme or amendment to a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme or amendment.

[Section 87 amended: No. 28 of 2010 s. 57.]

Division 5 — Review of local planning schemes

88.Consolidated scheme, when to be prepared

(1)For the purposes of section 90, a local government by which a local planning scheme was prepared is to prepare a consolidation of the scheme incorporating all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made.

(2)The consolidation is to be prepared —

(a)in the fifth year after approval was given to the scheme by the Minister under section 87; and

(b)in the case of a scheme in respect of which a consolidation has been published in the Gazette under this Part, in the fifth year after the consolidation of the scheme was last so published; and

(c)in the case of a scheme in respect of which an exemption is granted under subsection (4)(b) or section 91(3), in the fifth year after the notice of exemption was published in the Gazette.

(3)Despite subsections (1) and (2), a local government is not required to prepare a consolidation of the scheme if the local government resolves instead to prepare a new scheme in substitution for that scheme.

(4)Despite subsections (1) and (2), the Minister may at any time, by notice in the Gazette —

(a)direct the local government by which a local planning scheme was prepared to prepare, within the period specified in the notice, a consolidation of the scheme; or

(b)exempt a local government from compliance with those subsections if the scheme does not contain any provision for the zoning or classification of land.

(5)If a consolidation is required under subsection (4)(a) before a consolidation has been prepared under a paragraph of subsection (2), the consolidation is not required under that paragraph.

(6)The Minister is to consult the local government before giving a direction under subsection (4)(a).

89.Consolidated scheme, public submissions to be sought on

(1)After preparing the consolidation the local government is to ensure that the consolidation is approved by the Commission and made available for inspection.

(2)When the consolidation has been approved by the Commission, the local government is to invite submissions from the public on the effectiveness of the scheme, the need for amendment of the scheme and the need for the making of a new scheme.

90.Consolidated scheme, report on operation of required

(1)Not later than 6 months after preparing a consolidation of a local planning scheme, the local government is to make a report to the Minister on the operation of the scheme.

(2)In its report the local government is to —

(a)include all submissions received under section 89; and

(b)report and make recommendations on the submissions; and

(c)report and make recommendations as to whether or not the scheme —

(i)is satisfactory in its existing form; or

(ii)should be amended; or

(iii)should be repealed and a new scheme prepared in its place; or

(iv)should be repealed.

91.Procedure if s. 90 report does not recommend change to scheme

(1)If —

(a)a report of a local government under section 90 recommends that a local planning scheme is satisfactory in its existing form and the Minister concurs; or

(b)the Minister, after considering the report of the local government, advises the local government that the local planning scheme is satisfactory in its existing form,

the local government is to cause the consolidation of the local planning scheme prepared under section 88 to be published in the Gazette.

(2)It is sufficient compliance with subsection (1) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme.

(3)If the Minister considers that the publication of a consolidation of a local planning scheme under subsection (1) is unnecessary or inexpedient the Minister may by notice published in the Gazette declare that the scheme is satisfactory in its existing form and exempt the local government from the requirement to publish the consolidation.

92.Procedure if s. 90 report recommends change to scheme

(1)If —

(a)a report of a local government under section 90 recommends amendment of a local planning scheme and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that amendment is recommended,

the local government, within 3 months or such longer period as the Minister may in writing agree from the date of the report or the Minister’s advice as the case may be, is to amend the local planning scheme in accordance with this Part.

(2)After the Minister has under section 87(2), approved the amendments prepared for the purposes of subsection (1), the local government is to —

(a)prepare a consolidation of the local planning scheme, incorporating —

(i)all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made; and

(ii)the amendments prepared for the purposes of subsection (1) and approved by the Minister under section 87(2);

and

(b)publish the consolidation of the local planning scheme in the Gazette.

(3)It is sufficient compliance with subsection (2)(b) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme.

93.Consolidated scheme, effect of publication of

(1)As from the publication of a consolidation of a local planning scheme under section 91 or 92 the consolidation of the local planning scheme —

(a)is to be judicially noticed by all tribunals, bodies and persons; and

(b)is to be taken to be a correct statement and representation of the local planning scheme as of effect on the day on which the resolution to prepare the consolidation was made and, in the case of a consolidation published under section 92, including the amendments prepared for the purposes of subsection (1) of that section and approved by the Minister.

(2)A reference in this or any other Act to a local planning scheme is to be read and construed as including a reference to a consolidation of a local planning scheme published under section 91 or 92.

94.Procedure if new scheme prepared following s. 90 report

If —

(a)a report of a local government under section 90 recommends that a local planning scheme should be repealed and a new scheme prepared in its place and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that the local planning scheme should be repealed and a new scheme prepared in its place,

the new scheme is to be prepared by the local government and made in accordance with this Part, within the period of 6 months or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister’s advice as the case may be.

95.Procedure if scheme repealed following s. 90 report

If —

(a)a report of a local government under section 90 recommends that a local planning scheme should be repealed and not replaced and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that the local planning scheme should be repealed and not replaced,

the local government is to prepare an instrument of repeal, and forward it to the Minister under section 74(b) within the period of 42 days or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister’s advice as the case may be.

96.Consolidation of 2 or more schemes, when this Div. applies to

Where 2 or more local planning schemes are consolidated, the provisions of the Division apply to those schemes as so consolidated with effect from the date on which they were last published in the Gazette as a consolidation of a scheme with the approval of the Minister.

Division 6 — Crown land

97.Schemes for Crown lands

(1)If Crown land is to be sold, leased or disposed of, the Commission may prepare a scheme in respect of the land.

(2)The Commission may prepare a scheme in respect of the land with the general objects and provisions set out in section 69.

(3)A scheme prepared under this section, if approved by the Minister and published in the Gazette, has the same effect as a local planning scheme made and approved under this Part.

(4)The provisions of this Act, other than Part 10, so far as consistent and applicable, apply to and in respect of a scheme prepared under this section, as if the Commission were the responsible authority.

(5)If —

(a)a scheme is prepared, approved and published under this section; and

(b)Crown land the subject of the scheme is sold, leased or disposed of,

the Commission, with the approval of the Minister, may —

(c)suspend, vary, supplement, or supersede any of the provisions of the scheme; or

(d)agree with a local government to be jointly responsible with that local government, as the responsible authority under and for the purposes of the scheme either with respect to all, or part, of the scheme; or

(e)agree with a local government that the local government is to be substituted as the responsible authority under and for the purposes of the scheme, either with respect to all, or part, of the scheme.

(6)After subsection (7) has been complied with in respect of a scheme to which subsection (5)(e) applies, the scheme is to be taken to be a local planning scheme prepared by the local government substituted as the responsible authority and this Act applies accordingly.

(7)Where the Commission exercises a power under subsection (5) and as a result a scheme is amended, the Minister is to cause notice of the amendment to be published in the Gazette.

Part 6 — Interim development orders

Division 1 — Regional interim development orders

98.Making and purpose of order

(1)Subject to this Part, if —

(a)the Commission is of the opinion that the development of land outside the metropolitan region and within a part of the State in respect of which the Commission has resolved under section 35 to prepare a region planning scheme might materially affect the preparation or implementation of the region planning scheme; and

(b)the Minister approves,

the Commission may make such regional interim development orders as are necessary for regulating, restricting or prohibiting that development.

(2)A regional interim development order may be made by the Commission at any time —

(a)before the relevant procedures set out in Part 4 have been fully complied with in respect of the region planning scheme; and

(b)after the Commission has complied with subsection (3).

(3)Before making a regional interim development order the Commission is to —

(a)inform each local government of a district which lies within or partly within the area to which the proposed regional interim development order will apply of the proposal; and

(b)invite that local government to make submissions on the proposal within 28 days; and

(c)provide the Minister with a copy of any submission received under paragraph (b).

99.Contents of order

(1)A regional interim development order is to specify the land affected by the regional development order.

(2)A regional interim development order may —

(a)require a person, before commencing to carry out any specified development within the regional order area, to obtain the written approval of the Commission;

(b)regulate, restrict or prohibit any specified class of development within the regional order area;

(c)exempt from the operation of the order any development of a specified class within the regional order area;

(d)provide that the approval of the Commission for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as the Commission considers necessary to impose, including, without limiting the generality of those conditions —

(i)a condition limiting the period during which that development may be carried out; and

(ii)a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited;

(e)provide that the Commission may refuse to grant to an applicant its approval of development of a specified class in a specified part of the regional order area;

(f)subject to section 108, suspend, vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the regional order area.

(3)In subsection (2) —

specified means specified in the regional interim development order concerned.

100.Commission to consult local government on some development applications

Before granting an application for approval of development referred to in section 99(2)(a), the Commission is to —

(a)refer that application to the local government of the district in which the relevant land lies; and

(b)invite the local government to make submissions on the application within 42 days; and

(c)have regard to any submission received under paragraph (b).

101.Restrictions on power to grant development approval

Despite section 129, nothing in a regional interim development order in force in respect of a regional order area empowers the Commission to grant an applicant approval of development if that development contravenes a provision of a local planning scheme in force in the regional order area.

Division 2 — Local interim development orders

102.Making and purpose of order

(1)Pending the consideration by the Minister of a proposed local planning scheme for a district or part of a district situated outside the metropolitan region, the Minister may make such local interim development orders as are necessary and in the public interest for regulating, restricting or prohibiting the development of any land within the district or such part of the district.

(2)If a local planning scheme is already in effect in a district or part of a district and it is proposed to make a further local planning scheme for that district or part of a district, the Minister is not to make a local interim development order that has effect in that district or part of a district unless, in the opinion of the Minister, it is in the public interest to do so.

103.Contents of order

(1)A local interim development order is to specify the land affected by the order.

(2)A local interim development order may —

(a)require a person, before commencing to carry out any specified development within the local order area, to obtain the written approval of the local government administering the order;

(b)regulate, restrict or prohibit any specified class of development within the local order area;

(c)exempt from the operation of the order any development of a specified class within the local order area;

(d)in the case of land to which the Heritage Act 2018 applies, require the local government administering the order before approving a development application —

(i)to refer the application in question to the Heritage Council; and

(ii)not to proceed, without the consent of the Minister, with the application unless or until the advice of the Heritage Council has been received; and

(iii)to have regard to that advice;

(e)provide that the approval of the local government for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as the local government considers necessary to impose, including, without limiting the generality of those conditions —

(i)a condition limiting the period during which that development may be carried out; and

(ii)a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited;

(f)provide that the local government administering the order may refuse to grant to an applicant its approval of development of a specified class in a specified part of the local order area;

(g)subject to section 108, suspend, vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the local order area.

(3)In subsection (2) —

specified means specified in the local interim development order concerned.

[Section 103 amended: No. 22 of 2018 s. 186(5).]

Division 3 — Provisions applying to regional and local interim development orders

104.Consultation requirements

Before making an interim development order that, in the opinion of the Commission or the local government, as the case requires, may affect the functions of a public authority or utility services provider, the Commission or the local government is to —

(a)inform the public authority or utility services provider of the proposal; and

(b)invite that public authority or utility services provider to make submissions on the proposal within 28 days; and

(c)provide the Minister with a copy of any submission received under paragraph (b).

105.Publicising interim development order

(1)On the making of a regional interim development order the Commission is to cause to be published once in the Gazette and 3 times in a daily newspaper circulating in the part of the State to which the order applies a notice —

(a)containing a summary of the order; and

(b)stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the area to which the order applies.

(2)At the same time or before acting under subsection (1), the Commission is to publish in the Gazette —

(a)a summary of the relevant resolution made under section 35(1); and

(b)a description of the part of the State to which the relevant proposed region planning scheme is to apply.

(3)On the making of a local interim development order the local government in whose district the order applies is to cause to be published once in the Gazette and 3 times in a daily newspaper circulating in that district a notice —

(a)containing a summary of the order; and

(b)stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the area to which the order applies.

106.Administration of interim development order

(1)The Commission is to administer each regional interim development order.

(2)The local government or local governments specified in a local interim development order is or are to administer the local interim development order.

107.Effect and duration of interim development order

(1)Subject to subsection (2), an interim development order —

(a)comes into operation on the day of publication of the relevant notice in the Gazette under section 105; and

(b)has effect as if it were enacted by this Act.

(2)An interim development order ceases to have effect in the regional order area or local order area to which it applies —

(a)when the relevant region planning scheme or local planning scheme, as the case requires, comes into operation in respect of that area; or

(b)when the interim development order is revoked under section 110; or

(c)on the expiry of 3 years from the day on which the interim development order first applied to that area,

whichever is the sooner.

(3)Despite subsection (2) —

(a)the Commission may, by notice published in the Gazette before a regional interim development order ceases to have effect, extend its operation for a further period not exceeding 12 months and may, if the Commission thinks fit, exercise that power of extension more than once; and

(b)the Minister may, by notice published in the Gazette before a local interim development order ceases to have effect, extend its operation for a further period not exceeding 12 months and may, if the Minister thinks fit, exercise that power of extension more than once.

108.Existing lawful development not affected

Nothing in an interim development order prevents —

(a)the continued use of any land for the purpose for which the land was lawfully being used; or

(b)the carrying out of any development for which an approval or approvals, if any, required under this Act or any other Act authorising that development to be carried out, had been obtained and was or were current,

immediately before the coming into operation of the order.

109.Amending interim development order

(1)The Commission may, with the approval of the Minister, at any time make an order amending a regional interim development order.

(2)The Minister may at any time make an order amending a local interim development order.

(3)Sections 105(1) or (3) and 107(1) apply with any necessary modifications to such an order as if the order were an interim development order.

110.Revoking interim development order

(1)The Commission may, with the approval of the Minister, at any time by order published —

(a)once in the Gazette; and

(b)3 times in a daily newspaper circulating in the part of the State to which the relevant regional interim development order applies,

revoke a regional interim development order.

(2)The Minister may at any time by order published —

(a)once in the Gazette; and

(b)3 times in a daily newspaper circulating in the part of the district to which the relevant local interim development order applies,

revoke a local interim development order.

111.Non‑conforming development by local government or public authority, procedure for

(1)If —

(a)a local government or public authority wishes to carry out within a regional order area any work or undertaking that is not exempted from the operation of the relevant regional interim development order and which, in the opinion of the Commission, would not be in conformity with the proposed region planning scheme for the part of the State in which the regional order area is situated; and

(b)after consultation between the local government or public authority and the Commission, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that proposed region planning scheme,

the Commission may submit the matter to the Minister for determination by the Governor.

(2)If —

(a)a local government or public authority wishes to carry out within a local order area any work or undertaking that is not exempted from the operation of the relevant local interim development order and which, in the opinion of the local government administering the order, would not be in conformity with the proposed local planning scheme for the district in which the local order area is situated; and

(b)after consultation between the local government or public authority wishing to carry out the work or undertaking and the local government administering the order, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that proposed local planning scheme,

the local government may submit the matter to the Minister for determination by the Governor.

(3)The Governor may, by order, in respect of a matter submitted under subsection (1) or (2) for determination —

(a)prohibit absolutely or for such period as the Governor thinks fit; or

(b)restrict, regulate or permit,

the carrying out of the work or undertaking or any part of it subject to such conditions as the Governor specifies.

(4)An order under subsection (3) has effect subject to any written law with which it is inconsistent.

[Section 111 amended: No. 8 of 2009 s. 100(2).]

Part 7  Planning control areas

112.Declaration of planning control areas

(1)If the Commission considers that any land may be required for one or more of the purposes specified in Schedule 6, the Commission may by notice published in the Gazette and with the approval of the Minister declare that land to be a planning control area.

(2)The power in subsection (1) cannot be exercised in respect of any land that is —

(a)land to which an approved redevelopment scheme under the Metropolitan Redevelopment Authority Act 2011 applies; or

(b)in the redevelopment area as defined in the Hope Valley‑Wattleup Redevelopment Act 2000; or

(c)in the development control area as defined in the Swan and Canning Rivers Management Act 2006; or

(d)in an improvement scheme area.

(3)If the Commission considers that this Part should apply to any land in the Swan Valley, before seeking approval of the declaration the Commission is to —

(a)inform the Swan Valley Planning Committee and invite that Committee to make submissions on the matter within 42 days; and

(b)provide the Minister with a copy of any submissions received from the Committee under paragraph (a).

(4)This Part and the operation of any approval of development granted under this Part have effect subject to the Heritage Act 2018 Part 5 Division 2.

(5)Where any land is comprised within an area to which the Commission considers that this section should apply and is land to which the Heritage Act 2018 applies, the Commission is to satisfy the Minister before seeking approval to the declaration of that land as a planning control area that full disclosure has been made to, and consultations concluded with, the Heritage Council as to the likely effect of the declaration as regards places to which that Act applies.

[Section 112 amended: No. 52 of 2006 s. 6; No. 28 of 2010 s. 58; No. 45 of 2011 s. 141(7); No. 22 of 2018 s. 186(6) and (7).]

113.Amending or revoking s. 112 declaration

The Commission may by notice published in the Gazette and with the approval of the Minister amend or revoke a declaration made under section 112.

114.Duration of s. 112 declaration

A declaration made under section 112 remains in force until —

(a)the expiry of such period, not exceeding 5 years from the date on which the notice by which that declaration was so made was published in the Gazette, as is specified in that notice; or

(b)it is revoked under section 113,

whichever is the sooner.

115.Development in planning control area, applying for approval of

(1)A person who wishes to commence and carry out development in a planning control area may apply to the local government in the district of which the planning control area is situated for approval of that development.

(2)An applicant is to submit to the local government such plans and other information as the local government may reasonably require.

(3)The local government, within 30 days of receiving the application, is to forward the application, together with its recommendation, to the Commission for determination.

116.Commission may approve or refuse s. 115 application

(1)After receiving an application and recommendation forwarded to it under section 115(3), the Commission may —

(a)consult with any authority that in the circumstances it thinks appropriate; and

(b)having regard to —

(i)any relevant State planning policy: and

(ii)the purposes for which the land to which that application relates is zoned or reserved under any planning scheme; and

(iii)any special considerations relating to the nature of the planning control area concerned and of the development to which that application relates; and

(iv)the orderly and proper planning, and the preservation of the amenity, of the locality in which the land to which that application relates is situated,

approve, subject to such conditions as it thinks fit, or refuse to approve, that application.

(2)The Commission is to give written notice to the applicant of its decision on the application.

[Section 116 amended: No. 28 of 2010 s. 59.]

117.Commission may revoke approval if development does not conform with it

(1)If —

(a)the Commission approves an application forwarded to it under section 115(3); and

(b)the development concerned is carried out in a manner which is not in conformity with that approval, or any conditions subject to which that approval was given are not complied with,

the Commission may revoke that approval.

(2)Subsection (1) does not affect the operation of a direction under section 214 or prevent proceedings for an offence against section 220 in respect of that carrying out or non‑compliance alleged to have been committed during the subsistence of that approval.

118.Existing lawful development not affected

Nothing in this Part or section 220 affects —

(a)the continued use of any land in a planning control area for the purpose for which it was lawfully being used; or

(b)the continuation and completion of the development of any land in a planning control area, including the erection, construction, alteration or carrying out, as the case requires, of any building, excavation or other works on that land, which development was lawfully being carried out,

immediately before the declaration of the planning control area.

Part 8  Improvement plans and schemes

[Heading inserted: No. 28 of 2010 s. 9.]

Division 1 — Improvement plans

[Heading inserted: No. 28 of 2010 s. 9.]

119.Preparing and making improvement plan

(1)The Commission may —

(a)certify in writing to the Minister that for the purpose of advancing the planning, development and use of any land —

(i)the land should be dealt with in all or any of the following ways, namely, planned, replanned, designed, redesigned, consolidated, resubdivided, cleared, developed, reconstructed or rehabilitated; or

(ii)provision should be made for the land to be used for such residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, works, improvements or facilities, or spaces for those purposes, as may be appropriate or necessary;

and

(b)recommend to the Minister that the land should be so dealt with or used for that purpose and made the subject of an improvement plan.

(2)The recommendation is to be accompanied by a copy of the improvement plan and such supporting maps and texts as the Minister may require.

(2A)A recommendation under subsection (1) may relate to land in 1 or more districts.

(3A)The power in subsection (1) cannot be exercised in respect of any land that is —

(a)land to which an approved redevelopment scheme under the Metropolitan Redevelopment Authority Act 2011 applies; or

(b)in the redevelopment area as defined in the Hope Valley‑Wattleup Redevelopment Act 2000; or

(c)in the development control area as defined in the Swan and Canning Rivers Management Act 2006.

(3B)Before making a recommendation under subsection (1) in relation to any land, the Commission must consult with —

(a)the local government for the district in which the land is situated; or

(b)if the land is situated in more than 1 district — each of the local governments for those districts.

(3C)An improvement plan that authorises the making of an improvement scheme must set out the objectives of the improvement scheme.

(3)If the Minister accepts the recommendation, the Minister is to forward the recommendation to the Governor for acceptance.

(4)An improvement plan comes into force on the day on which notice of the acceptance of the recommendation of the Governor, and a summary of the improvement plan, is published in the Gazette.

(5A)The Minister must, as soon as is practicable after notice in respect of an improvement plan is published under subsection (4), cause a copy of the improvement plan to be laid before each House of Parliament or dealt with under section 268A.

(5)Section 195 applies in respect of the acquisition of land included in an improvement plan in force under this section.

[Section 119 amended: No. 28 of 2010 s. 10; No. 45 of 2011 s. 141(8); No. 26 of 2020 s. 97.]

120.Amending or revoking improvement plan

(1)The Commission may —

(a)amend an improvement plan by notice of amendment; or

(b)revoke an improvement plan by notice of revocation.

(2)Section 119 applies to a notice of amendment or revocation under subsection (1) as if the notice were a recommendation under that section and the amendment or revocation were an improvement plan.

121.Commission’s powers as to land under improvement plan

(1)For the purpose of advancing the development of land in accordance with an improvement plan the Commission with the approval of the Governor may —

(a)construct, repair, rehabilitate or improve buildings, works, improvements or facilities on land acquired or held by it under this Act; and

(b)return, sell, lease, exchange or otherwise dispose of —

(i)any buildings, works, improvements or facilities and the land appurtenant to the buildings, works, improvements or facilities; and

(ii)any land acquired by the Commission under this Act,

to any person or public authority upon such terms and conditions as the Commission with the approval of the Governor thinks fit; and

(c)in respect of land included in an improvement plan but not acquired or held by it under this Act, enter into an agreement with any owner of the land relating to —

(i)the planning, replanning, design, redesign, consolidation, resubdivision, clearing, development, reconstruction or rehabilitation of the land; and

(ii)the construction, repair, rehabilitation or improvement of any buildings, works, services, improvements or facilities on the land; and

(iii)the sale, purchase, exchange, surrender, vesting, allocation or other disposal of the land, the adjustment or alteration of the boundaries of the land, the pooling of the lands of several owners, the adjustment of rights between owners of the land or other persons interested in the land whether by payments of money or transfers or exchanges of land or otherwise, the valuation of the land and the provision of land for any public open space, public work or any other public purpose; and

(iv)the payment, satisfaction or recovery of costs incurred in implementing the agreement; and

(v)such other acts, matters or things as are or may be necessary to give effect to the improvement plan;

and

(d)do any act, matter or thing for the purpose of carrying out any agreement entered into under paragraph (c).

(2)The Commission is to notify in the Gazette particulars of any return, sale, lease, exchange or disposal to any person referred to in subsection (1)(b) within one month of the Governor’s approval.

Division 2 — Improvement schemes

[Heading inserted: No. 28 of 2010 s. 11.]

122A.Content of improvement scheme

(1)Without limiting section 119, an improvement plan may authorise the making of an improvement scheme by the Commission in respect of some or all of the land to which the improvement plan applies.

(2)An improvement scheme must specify the land to which it applies (the improvement scheme area).

(3)An improvement scheme may, in relation to the whole or any part of the relevant improvement scheme area, provide for all or any of —

(a)the matters referred to in section 119(1)(a); and

(b)the objects, purposes, provisions, powers and works referred to in section 69(1).

[Section 122A inserted: No. 28 of 2010 s. 11.]

122B.Preparing, approving and reviewing improvement scheme

(1)Sections 75, 77 and 79 to 95 apply, with such modifications as are necessary, to and in relation to an improvement scheme as if, in each of those provisions —

(a)a reference to a local planning scheme were a reference to the improvement scheme; and

(b)a reference to a local government were a reference to the Commission; and

(c)a reference to a local government district or land in a district were a reference to the improvement scheme area.

(2)Section 78 applies to and in relation to an improvement scheme —

(a)in the manner set out in subsection (1); and

(b)as if a reference in that section to the City of Swan were a reference to the Commission; and

(c)as if subsections (4) and (5) were deleted and the following subsection were inserted:

 

(4)The Commission must have regard to, but is not bound to accept, the advice of the Swan Valley Planning Committee.

(3A)Before submitting an improvement scheme or amendment to an improvement scheme to the Minister under section 87, the Commission must consult with any affected local government.

(3B)In subsection (3A) —

affected local government means —

(a)in the case of an improvement scheme — a local government in the district of which the improvement scheme is proposed to apply; and

(b)in the case of an amendment — a local government in the district of which the improvement scheme applies.

(3)Regulations made under section 258 apply, with such modifications as are necessary, to and in relation to an improvement scheme as if the improvement scheme were a local planning scheme.

(4)An improvement scheme may be repealed by an instrument of repeal prepared by the Commission, approved by the Minister and published in the Gazette.

(5)Unless otherwise specified in an instrument of repeal, the instrument has effect on the day on which it is published in the Gazette.

(6)The Minister must not approve an amendment to an improvement scheme that removes land from an improvement scheme area, or approve an instrument of repeal under subsection (4), unless satisfied that any other planning scheme, insofar as it will apply to the improvement scheme area on the amendment day or repeal day, does not —

(a)prevent any development that would be permitted; or

(b)allow any development that would not be permitted,

in the improvement scheme area immediately before the amendment day or repeal day.

(7)In subsection (6) —

amendment day, for an improvement scheme, means the day on which the amendment to the scheme has effect;

repeal day, for an improvement scheme, means the day on which an instrument of repeal of that scheme has effect.

[Section 122B inserted: No. 28 of 2010 s. 11.]

122C.Existing lawful development not affected

(1)This Division (other than this section) does not apply to a development that was lawfully being carried out on land immediately before an improvement scheme applied to the land.

(2)A development referred to in subsection (1) or in respect of which all necessary approvals under the relevant region planning scheme and local planning scheme were in force immediately before the improvement scheme applied to the land —

(a)may be lawfully carried out as if this Division had not been enacted; and

(b)is governed by those schemes despite section 122D.

[Section 122C inserted: No. 28 of 2010 s. 11.]

122D.Effect of improvement scheme on other planning schemes

(1)In this section —

start day, for an improvement scheme, means the day on which the improvement scheme has effect under section 87(4) as applied by section 122B(1).

(2)On the start day for an improvement scheme, any other planning scheme that applies to land in the improvement scheme area immediately before that day ceases to apply —

(a)to that land; and

(b)to any development of that land commenced on or after that day.

(3)If, after the start day, any land is added to an improvement scheme area by an amendment to the improvement scheme, any other planning scheme that applies to the land area immediately before the amendment comes into operation ceases to apply —

(a)to that land; and

(b)to any development of that land commenced on or after that time.

(4)Subsections (2) and (3) do not affect the operation of sections 122I to 122K.

(5)The Interpretation Act 1984 section 37 applies in respect of subsections (2) and (3) as if a planning scheme were an enactment and the subsections repealed the scheme in so far as it applies to the land in the improvement scheme area and development of that land.

(6)Subsection (5) has effect subject to any provision of an improvement scheme that relates to non‑conforming uses.

[Section 122D inserted: No. 28 of 2010 s. 11.]

122E.Removal of land from improvement scheme area or repeal of improvement scheme, effect of

(1)If land is removed from an improvement scheme area by an amendment to an improvement scheme (the removed land) —

(a)the improvement scheme for the area ceases to apply to the removed land; and

(b)a planning scheme that, but for section 122D, would apply to the land, applies to the land.

(2)If an improvement scheme is repealed, a planning scheme that, but for section 122D would apply to the improvement scheme area, applies to the area.

[Section 122E inserted: No. 28 of 2010 s. 11.]

122F.Amended improvement scheme area, transitional provisions for

If land is added to or removed from an improvement scheme area by amendment to the improvement scheme, regulations may make provisions of a transitional nature that are expedient to be made, including provisions that save rights existing at the time of the amendment, but subject to any provisions of the improvement scheme relating to non‑conforming uses.

[Section 122F inserted: No. 28 of 2010 s. 11.]

122G.Applications for development pending when land removed or improvement scheme repealed

(1)This section applies if —

(a)when land is removed from an improvement scheme area by an amendment to an improvement scheme (the removed land); or

(b)when an improvement scheme is repealed,

an application for approval of development of any of the removed land or of any part of the improvement scheme area under the repealed improvement scheme made under this Act to the Commission —

(c)has not been determined by the Commission; or

(d)having been so determined, is the subject of an application to the State Administrative Tribunal for a review that has not been finalised.

(2)This Act continues to apply, and the Commission must continue to perform its functions, in relation to the application for approval and any application for review as if the land had not been removed or the scheme had not been repealed, as the case requires.

(3)This section applies irrespective of whether or not another planning scheme applies to the land after the land is removed or the improvement scheme is repealed.

[Section 122G inserted: No. 28 of 2010 s. 11.]

122H.Permanently closing street in improvement scheme area

For the purposes of permanently closing a street in an improvement scheme area, the Land Administration Act 1997 section 58 and regulations made under that Act apply as if each reference to a local government in that section and in those regulations —

(a)were a reference to the Commission; and

(b)were not a reference to the local government of the district in which the street is wholly or partly situated.

[Section 122H inserted: No. 28 of 2010 s. 11.]

122I.Some planning schemes have no force while improvement scheme in force

(1)A local or region planning scheme, or an amendment to a local or region planning scheme, made after an improvement scheme has effect, insofar as it purports to apply to land in an improvement scheme area, has no effect while the improvement scheme applies to the land.

(2)Subject to subsection (1) and without limiting sections 122J to 122L, this Division does not prevent a local or region planning scheme or amendment referred to in that subsection being made after an improvement scheme has effect so as to commence when the improvement scheme ceases to apply to the land.

[Section 122I inserted: No. 28 of 2010 s. 11.]

122J.Minister may amend local planning scheme to conform with improvement scheme

(1)The Minister may, while an improvement scheme is of effect, publish in the Gazette a notice amending a local planning scheme so that the local planning scheme is consistent with the improvement scheme in relation to land in the improvement scheme area.

(2)An amendment published under subsection (1) has effect, by force of this subsection and without further action under this Act, on the day on which the improvement scheme ceases to apply to the land.

[Section 122J inserted: No. 28 of 2010 s. 11.]

122K.Region planning scheme may be amended to conform with improvement scheme

(1)A region planning scheme may be amended under Part 4 Division 4 while an improvement scheme is of effect so that the region planning scheme is consistent with the improvement scheme in relation to land in the improvement scheme area.

(2)An amendment referred to in subsection (1) has effect on the day on which the improvement scheme ceases to apply to the land.

[Section 122K inserted: No. 28 of 2010 s. 11.]

122L.Minister has s. 211 and 212 powers for improvement scheme

Sections 211 and 212 apply in relation to an improvement scheme as if, in each of those sections —

(a)a reference to a local planning scheme were a reference to the improvement scheme; and

(b)a reference to a local government were a reference to the Commission.

[Section 122L inserted: No. 28 of 2010 s. 11.]

122M.Fees for planning matters under improvement scheme, Commission may impose

The Commission may, in relation to an improvement scheme, impose fees under section 261 as if it were a local government, and that section, and the regulations made under that section, apply accordingly.

[Section 122M inserted: No. 28 of 2010 s. 11.]

Division 3 — General

[Heading inserted: No. 28 of 2010 s. 12.]

122.This Part does not derogate from other powers

Except as provided in Division 2, nothing in this Part is to be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority, body or person.

[Section 122 amended: No. 28 of 2010 s. 13.]

Part 9  Relationship between planning schemes, planning control provisions and written laws

[Heading inserted: No. 28 of 2010 s. 14.]

123.Local planning scheme and local law to be consistent with region planning scheme

(1)A local planning scheme is not to be approved by the Minister under this Act unless the provisions of the local planning scheme are in accordance with and consistent with each relevant region planning scheme.

(2)Local laws which if made would affect or be likely to affect a region planning scheme are not to be made by a local government unless the provisions of the local laws are in accordance with and consistent with each relevant region planning scheme.

124.Effect of region planning scheme on local planning scheme

(1)If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local planning scheme to the extent of the inconsistency.

(2)If a region planning scheme is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the region planning scheme has effect, resolve to prepare —

(a)a local planning scheme which is consistent with the region planning scheme; or

(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,

and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.

(3)If a region planning scheme is amended and is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the amendment to the region planning scheme has effect, resolve to prepare in relation to the land —

(a)a local planning scheme which is consistent with the region planning scheme; or

(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,

and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.

(4)In preparing the local planning scheme or amendment the local government is to have due regard to the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme as set out in the statement deposited under section 43(1).

(5)The local government is to, within such reasonable time after the passing of the resolution as is directed in writing by the Minister, forward to the Minister for approval under section 87 the local planning scheme or amendment it has prepared.

125.Minister may direct local government to amend local planning scheme to be consistent with region planning scheme etc.

(1)The Minister may, by written notice, direct a local government to prepare a local planning scheme or to amend a local planning scheme, in the time and manner set out in the notice, to ensure consistency with a region planning scheme, a proposed region planning scheme or a proposed amendment to a region planning scheme.

(2)A local government to whom a notice is given under subsection (1) is to, within the time set out in the notice —

(a)resolve to prepare a local planning scheme, or an amendment to a local planning scheme, in accordance with the notice; and

(b)prepare and advertise the local planning scheme or amendment in accordance with this Part; and

(c)forward to the Minister for approval under section 87 the local planning scheme or amendment prepared by it.

(3)If the Minister so directs, the advertisement of the local planning scheme or amendment to the local planning scheme is to be published together with the notification of the relevant region planning scheme or amendment under section 43 or 58.

126.Local planning scheme, amendment of due to region planning scheme

(1)If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary to give effect to the reservation under the region planning scheme.

(2)Notice of any amendment effected under subsection (1) is to be published in the Gazette.

(3)If a region planning scheme delineates, or it is proposed that a region planning scheme delineate, land comprised in a local planning scheme as land in an Urban zone, the Commission may publish in the Gazette a notice amending the local planning scheme, insofar as it operates in relation to that land, so that the land is zoned in the local planning scheme in a manner that is consistent with the objectives of the delineation or proposed delineation under the region planning scheme.

(4)The Commission must not publish a notice under subsection (3) amending a local planning scheme until the local government that made or adopted the scheme has been consulted.

(5)An amendment in a notice published under subsection (3) takes effect —

(a)if the relevant region planning scheme is in operation on the day on which the notice is published under subsection (3) — on that day;

(b)otherwise — on the day on which the relevant region planning scheme comes into operation.

(6)When an amendment to a local planning scheme takes effect under subsection (5), the local planning scheme is, by force of this subsection and without further action under this Act, amended as set out in the notice.

[Section 126 amended: No. 28 of 2010 s. 60.]

127.Minister may direct local government to modify proposed scheme or amendment to be consistent with region planning scheme

(1)The Minister may, before approving a proposed local planning scheme, or amendment to a scheme, prepared by a local government under section 124(2) or 125, direct the local government to —

(a)modify the proposed local planning scheme or amendment in the manner specified in the direction to ensure that the proposed local planning scheme or amendment —

(i)is consistent with the region planning scheme; and

(ii)will not impede the implementation of the region planning scheme;

and

(b)forward the proposed local planning scheme or amendment as so modified to the Minister for approval under section 87.

(2)A local government is to comply with a direction under subsection (1).

[Section 127 amended: No. 8 of 2009 s. 100(3).]

128.Breach of s. 124(2), 125 or 127(2), Minister’s powers in case of

(1)If a local government does not comply with —

(a)section 124(2); or

(b)section 125; or

(c)not later than 60 days after the giving of the direction concerned, section 127(2),

the Minister may —

(d)cause the relevant local planning scheme or amendment to be prepared or modified as the case requires and forwarded to the local government; and

(e)direct the local government to adopt that local planning scheme or amendment as if it were a local planning scheme proposed by owners of land with respect to which the local government might itself have prepared a scheme.

(2)A local government is to comply with a direction under subsection (1)(e).

(3)If a local government to which a direction has been given under subsection (1)(e) does not comply with the direction within 60 days after the relevant local planning scheme or amendment was forwarded to it, the Minister may approve of the local planning scheme or amendment and cause it to be published in the Gazette in accordance with Part 5.

(4)A local planning scheme, or an amendment to an existing local planning scheme, as the case requires, published in the Gazette under subsection (3) takes effect from the date of publication and has effect as if it were made under Part 5.

(5)All costs, charges and expenses incurred by the Minister in the exercise of any powers conferred on the Minister by this section may be recovered by the Minister from the local government concerned as a debt due to the Crown or may be deducted from any moneys payable by the Crown to the local government.

129.Inconsistency between interim development order and local planning scheme or local law, effect of

(1)If there is an inconsistency between —

(a)a local planning scheme in force in a regional order area, or a local law in force in a regional order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960; and

(b)a regional interim development order in force in respect of the regional order area,

the regional interim development order prevails over that local planning scheme or local law to the extent of the inconsistency.

(2)If there is an inconsistency between —

(a)a local planning scheme in force in a local order area, or a local law in force in a local order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960; and

(b)a local interim development order in force in respect of the local order area,

the local interim development order prevails over that local planning scheme or local law to the extent of the inconsistency.

[Section 129 amended: No. 24 of 2011 s. 168(2).]

130.Planning control area provisions (Part 7) prevail

The provisions of Part 7 prevail over —

(a)every other provision of this Act; and

(b)any region planning scheme; and

(c)any local planning scheme,

to the extent of any inconsistency with those provisions and schemes.

131.Building standards etc. prevail

(1)If there is any inconsistency between a local planning scheme and a regulation made under the Building Act 2011, the regulation prevails to the extent of the inconsistency.

(2)In the exercise of any power conferred on it by a local planning scheme a local government is obliged to have regard to any regulations made under the Building Act 2011.

[Section 131 amended: No. 24 of 2011 s. 168(3) and (4).]

132.Governor may modify or suspend law to enable planning scheme to have effect

(1)If the carrying out of any provision of a planning scheme would conflict with any provisions, limitations, or conditions of or prescribed by any Act, the responsible authority may apply to the Governor for an order modifying or suspending the provisions of that Act, so far as may be necessary to enable effect to be given to the planning scheme.

(2)Upon application under subsection (1) the Governor may, in respect of that planning scheme but not otherwise, make an order accordingly for the suspension or modification of the provisions or any of them, subject to such conditions and limitations as the Governor thinks fit.

(3)An order under subsection (2) does not take effect unless and until it has been approved by a resolution of both Houses of Parliament.

Part 10 — Subdivision and development control

Division 1 — Application

133.Application of Part to Crown land

(1)Except as provided in subsection (2) and section 168, this Part (other than Division 5) does not apply to Crown land.

(2)If the Minister to whom the Governor has for the time being committed the administration of the Land Administration Act 1997 intends to subdivide and develop any Crown land under section 27(1) of that Act for the purpose of selling the Crown land under section 74 of that Act, section 134, Division 2 (except section 136), sections 150, 151, 152 and 157, Division 4 and section 167 apply to that Crown land for the purposes of section 27 of the Land Administration Act 1997 as if that Crown land were held in freehold.

[Section 133 amended: No. 28 of 2010 s. 61.]

134.Relationship of Part to some other laws and application to land in Swan Valley

(1)Sections 135 and 136 are subject to section 68 of the Environmental Protection Act 1986 and to section 58(6) of the Contaminated Sites Act 2003.

(2)Sections 135 and 136 do not apply to —

(a)the grant of, or to the transfer of or other dealing with or in, a mining tenement as defined in the Mining Act 1904 2 or the Mining Act 1978 or a portion of such a mining tenement or any shares in the mining tenement or portion; or

(b)the conferral of rights under section 34 of the Dampier to Bunbury Pipeline Act 1997; or

(c)the issue of a distribution licence under Part 2A of the Energy Coordination Act 1994.

(3)Where an application is made to the Commission for approval under section 135 or 136 in relation to land in the Swan Valley, unless subsection (8) applies, the Commission is to give full particulars of the application to the Swan Valley Planning Committee.

(4)The Swan Valley Planning Committee, within 42 days after the day on which it receives particulars of an application or within such longer period as the Commission allows, is to give to the Commission its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.

(5)If the Swan Valley Planning Committee fails to give its advice within the time allowed under subsection (4), it is to be taken to have no advice to give on the application.

(6)The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee’s advice in whole or in part in determining the application.

(7)Subject to any approval under subsection (6), the Commission is to determine the application after having due regard to the advice of the Committee, but may determine that application otherwise than in accordance with that advice.

(8)The Swan Valley Planning Committee may determine that any particular class or description of applications under section 135 or 136 need not be referred to the Committee for advice under this section and is to notify the Commission of any such determination.

[Section 134 amended: No. 7 of 2006 s. 20(3).]

Division 2 — Approval for subdivision and certain transactions

135.No subdivision etc. without approval

(1)A person is not to —

(a)subdivide any lot; or

(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or

(c)lay out, grant or convey a road,

without the approval of the Commission.

(2)A person who contravenes subsection (1) commits an offence.

(3)In this section —

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

136.Approval required for some dealings as to land not dealt with as lot or lots

(1)Subject to sections 139 and 140 a person is not to —

(a)lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period; or

(b)lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any option to renew or extend the terms or periods; or

(c)sell or agree to sell land; or

(d)grant any option of purchase of land,

without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of purchase as a lot or lots.

(2)A person who contravenes subsection (1) commits an offence.

(2D)Subsection (1) applies to land comprised of common property or a lot in a strata titles scheme and a reference in that subsection to a lot includes a reference to a lot in a strata titles scheme.

(2E)However, subsection (1) does not apply to the sale of common property or part of a lot, an agreement to sell common property or part of a lot or the grant of an option of purchase of common property or part of a lot if the transaction is associated with a subdivision by registration of an amendment of a strata titles scheme.

(2F)Words in subsections (2D) and (2E) have the meanings given in the Strata Titles Act 1985 section 3(1) (and references to those words in sections 139 and 140 are to be read accordingly).

[(3A)deleted]

(3)In this section —

land, in relation to the leasing or the granting of a licence to use or occupy or, where applicable, the leasing and the granting of such a licence, does not include the whole or a portion of a building if —

(a)the building was constructed in accordance with a building licence granted by a local government under section 374 of the Local Government (Miscellaneous Provisions) Act 1960 (deleted by the Building Act 2011 section 153(2)) or a building permit granted under the Building Act 2011, or a building permit, occupancy permit or building approval certificate is in effect under the Building Act 2011 in respect of the building; and

(b)subject to subsection (4), the leasing or the granting of a licence does not relate to any land other than that building or portion;

licence to use or occupy does not include an easement.

(4)A reference in the definition of land in subsection (3) to the whole or a portion of a building includes a reference to any area outside that whole or portion, which area is —

(a)the subject of the same lease or licence to use or occupy as that whole or portion or of a lease or licence to use or occupy entered into or granted by the lessor of, or grantor of a licence to use or occupy, that whole or portion; and

(b)used for the purpose of ingress to or egress from that whole or portion, advertising, parking vehicles, storing goods, loading or unloading goods or passengers or for any other purpose necessary or desirable for the convenient occupation of that whole or portion.

[Section 136 amended: No. 28 of 2010 s. 62; No. 24 of 2011 s. 168(5); No. 30 of 2018 s. 162.]

137.Heritage land, subdivision etc. of

(1)This section applies to land included in a place of a kind mentioned in the Heritage Act 2018 section 72(1).

(2)The Commission must not grant an application for its approval under section 135 or 136 in respect of land to which this section applies unless the requirements of the Heritage Act 2018 Part 5 Division 2 have been observed.

(3)If the Heritage Act 2018 section 76(3) applies, the holder of an approval given by the Commission under section 135 or 136 in respect of land to which this section applies is not to give effect to that approval —

(a)during such time as the operation of the approval is suspended the Heritage Act 2018 section 76(3); or

(b)otherwise than in accordance with the Heritage Act 2018 section 76(6).

[(4)deleted]

[Section 137 amended: No. 22 of 2018 s. 186(8)-(11).]

138.Commission’s functions when approving subdivision etc.

(1)The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.

(2)Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

(3)The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if —

(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or

(b)the approval is consistent with a region planning scheme that deals with substantially the same matter; or

(c)in the opinion of the Commission —

(i)the conflict is of a minor nature; or

(ii)the approval is consistent with the general intent of the local planning scheme;

or

(d)the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; or

(e)in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or

(f)the approval is given in circumstances set out in the regulations.

(4)Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

139.Leases and licences that do not need approval under s. 136

(1)A person may without the approval of the Commission lease or grant a licence to use or occupy land for a term of any duration and otherwise than as a lot or lots if that lease or licence —

(a)belongs to a class of lease or licence for the time being approved under subsection (3) in respect of the person; and

(b)complies with such conditions as are imposed under subsection (3) in respect of that person.

(2)A person may apply to the Commission in writing for a class of lease or licence to use or occupy land to be approved under subsection (3) in respect of that person.

(3)On receiving an application made under subsection (2) the Commission may, having regard to —

(a)the nature of the interest proposed to be granted under leases or licences of the class concerned; and

(b)the classification or zoning of the land to which leases or licences of the class concerned will relate; and

(c)the proposed terms of leases or licences of the class concerned, whether for the lives of the proposed lessees or licensees or for fixed periods; and

(d)the anticipated number or frequency of leases or licences of the class concerned; and

(e)such matters other than those referred to in paragraphs (a), (b), (c) and (d) as the Commission considers relevant,

approve the class of lease or licence concerned in respect of the applicant for the purposes of subsection (1), subject to such conditions as the Commission thinks fit to impose in respect of that approval, or refuse to approve that class.

(4)The Commission may at any time revoke or amend an approval given under subsection (3) by notice in writing of that revocation or amendment served on the person in respect of whom or which that approval was given.

140.Saving of some agreements entered into without approval under s. 136

(1)Where an agreement to sell or grant an option to purchase, or to lease or grant or lease and grant a licence to use or occupy any portion of a lot has been entered into without the approval of the Commission having been first obtained as required under this Division, that agreement is to be taken not to have been entered into in contravention of this Division if —

(a)the agreement is entered into subject to the approval of the Commission being obtained; and

(b)an application for the approval of the Commission is made within a period of 3 months after the date of the agreement.

(2)Nothing in this Division renders the agreement illegal or void by reason only that the agreement was entered into before the approval of the Commission was obtained.

(3)Without prejudice to the operation of section 141, the agreement referred to in subsection (1) has no effect, unless and until the Commission gives its approval —

(a)within a period of 6 months after the date of the agreement or within such further period as is stipulated in that agreement; or

(b)within such further period as is stipulated in a subsequent agreement in writing made —

(i)by all the parties to the first‑mentioned agreement; or

(ii)when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party.

141.Refund where land transaction cannot be completed

Where, after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed —

(a)within a period of 6 months after the date of entering into the transaction or within such further period as is stipulated in the transaction; or

(b)within such further period as is stipulated in a subsequent agreement in writing made —

(i)by all the parties to the transaction; or

(ii)when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party,

because the land cannot be dealt with as a lot or lots, the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid.

142.Consultation requirements as to proposed subdivision

(1)When, in the opinion of the Commission, a plan of subdivision may affect the functions of a local government, a public authority, or a utility services provider, the Commission is to forward the plan or a copy of the plan to that local government, public authority or utility services provider for objections and recommendations.

(2)A local government, public body or utility services provider receiving such a plan or copy is to, within 42 days of receipt of the plan or copy or within such longer period as the Commission allows, forward it to the Commission with —

(a)a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b)in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme (as defined in the EP Act) applies, advice of any relevant environmental condition to which the assessed scheme is subject.

(3)If a local government, public authority or utility services provider does not forward a memorandum within the time allowed under subsection (2), the Commission may determine that it is to be taken to have no objections or recommendations to make or advice to give.

143.Commission’s duties when dealing with plan of subdivision

(1)After considering any objections or recommendations contained in a memorandum forwarded to the Commission under section 142, and any advice of a relevant environmental condition forwarded to it under that section, the Commission is to —

(a)approve the plan of subdivision; or

(b)refuse to approve the plan of subdivision; or

(c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

(2)The Commission is to try to deal with the plan of subdivision in one of the ways mentioned in subsection (1) within the period of 90 days after the day on which the plan was submitted to the Commission for approval or within such longer period after that day as may be agreed in writing between the Commission and the applicant for approval.

144.Reconsidering refusal to approve plan of subdivision

(1)If the Commission under section 143 refuses to approve a plan of subdivision and the applicant for approval concerned is dissatisfied with the refusal, that applicant may within 28 days of being notified of the refusal request in writing the Commission to reconsider the refusal.

(2)On receiving a request under subsection (1), the Commission, by notice in writing served on the person who made that request, may —

(a)approve the plan of subdivision; or

(b)again refuse to approve the plan of subdivision; or

(c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

145.Diagram or plan of survey of approved plan of subdivision, approval of

(1)A person to whom approval of a plan of subdivision has been given may, within the prescribed period —

(a)submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b)request the Commission to approve the diagram or plan of survey of the subdivision.

(2)In subsection (1) —

prescribed period means —

(a)in relation to a plan of subdivision creating more than 5 lots, the period of 4 years after the Commission approved the plan of subdivision; and

(b)in any other case, the period of 3 years after the Commission approved the plan of subdivision.

(3)If a subdivision is being carried out in stages, a diagram or plan of survey of the subdivision may be submitted to the Commission under subsection (1) in relation to a stage of subdivision.

(4)Subject to subsection (6), if the Commission is satisfied that —

(a)the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

(b)if that approval was given subject to conditions —

(i)the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or

(ii)in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

the Commission is to endorse its approval on the diagram or plan of survey.

(5)The Commission is to try to deal with the request under subsection (1)(b) within the period of 30 days after the day on which the request is made to the Commission or within such longer period after that day as may be agreed in writing between the Commission and the person making the request.

(6)If, in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the Commission is of the opinion that, because of planning considerations, it is not appropriate to approve the diagram or plan of survey, the Commission may refuse to endorse its approval on the diagram or plan of survey.

(7)If, at the expiration of the period referred to in subsection (1), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect and the diagram or plan of survey cannot be submitted to the Commission under this section.

146.No certificate of title for subdivided land without approved diagram or plan of survey

(1)The Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless a diagram or plan of survey of the subdivision of that land has been endorsed with the approval of the Commission and —

(a)in the case of a diagram or plan of survey endorsed with the approval of the Commission before the coming into operation of this section, the title application was lodged with the Registrar of Titles before, or is lodged with the Registrar of Titles within 5 years after, the coming into operation of this section; and

(b)in the case of a diagram or plan of survey endorsed with the approval of the Commission on or after the coming into operation of this section, the diagram or plan of survey has been endorsed with the approval of the Commission within the 24 months preceding the lodging of a title application with the Registrar of Titles; and

(c)any conditions as to the registration or recording or continued registration or recording of an encumbrance or other document on or before the creation or registration of a certificate of title that are noted on the diagram or plan of survey have been complied with, or will be complied with at the time the certificate of title is created or registered.

(2)In subsection (1)(a) and (b) —

title application, in relation to a diagram or plan of survey, means an application for new titles to be created and registered for land the subject of the diagram or plan of survey.

(3)A plan containing one lot only is deemed a diagram or plan of survey of a subdivision provided that it is a portion of land comprised in —

(a)a certificate of title; or

(b)a registered conveyance; or

(c)a Crown grant; or

(d)a lot on a plan deposited with the Authority.

[Section 146 amended: No. 60 of 2006 s. 147(3).]

147.No registration etc. of some land dealings without Commission’s approval

(1)The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of any land unless —

(a)it has first been approved in writing by the Commission; or

(b)the land comprises the whole of one or more lots, or the land comprises part of a lot included in a diagram or plan of survey of subdivision that has been approved by the Commission; or

(c)in the case of a lease, the lease does not contain or purport to contain an option to purchase land other than the whole of one or more lots and —

(i)the term is not more than 20 years, including any option to extend or renew the term; or

(ii)section 136(1) does not apply to the lease by virtue of the definition of land in section 136; or

(iii)the lease is a lease which may be entered into without the approval of the Commission by virtue of section 139(1).

(2)The Registrar of Titles is not to create and register in the name of a registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots, unless the application from the registered proprietor for the certificate of title has been endorsed with the approval of the Commission.

Division 3 — Conditions of subdivision

[148.Deleted: No. 30 of 2018 s. 163.]

[149.Has not come into operation.]

150.Road access, conditions as to

(1)Without limiting section 143, the Commission may impose a condition under that section that access to and from a portion of land shown on a plan or diagram of survey relating to the subdivision to a road abutting the portion of land is to be restricted or prohibited as set out in the condition and in accordance with the regulations.

(2)A condition referred to in subsection (1) is to specify a covenantee.

(3)Where —

(a)a diagram or plan of survey of a subdivision, or a scheme plan lodged for registration under the Strata Titles Act 1985, is received by the Authority; and

(b)it is shown on the plan or diagram that access to and from any portion of land shown on the plan or diagram to and from a road abutting the portion of land is subject to or intended to be subject to a restriction or prohibition as set out in a condition imposed by the Commission,

the land becomes subject to a covenant so restricting or prohibiting that access —

(c)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(d)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(4)It is sufficient description for the purposes of subsection (3)(b) if reference is made on the plan or diagram to this section and regulations made for the purposes of this section.

[Section 150 amended: No. 60 of 2006 s. 147(4); No. 30 of 2018 s. 164.]

151.Reconsidering conditions

(1)If the Commission under section 143 imposes conditions and the applicant concerned is dissatisfied with any such condition, that applicant may within 28 days of being notified of that condition request in writing the Commission to reconsider that condition.

(2)On receiving a request under subsection (1), the Commission may by notice in writing served on the person who made that request —

(a)alter or revoke the condition to which that request relates; or

(b)confirm the condition.

152.Certain land to vest in Crown

(1)If the Commission has approved a subdivision of land subject to a condition that one or more portions of land shown on a diagram or plan of survey relating to the subdivision or a scheme plan under the Strata Titles Act 1985 are to vest in the Crown for any one or more of the following purposes —

(a)conservation or protection of the environment;

(b)an artificial waterway;

(c)a pedestrian accessway;

(d)a right‑of‑way;

(e)a reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation;

(f)a public purpose specified in the condition and related to the subdivision,

then, subject to the encumbrances referred to in subsection (5), the land subject to the condition vests in the Crown by force of this section without any conveyance, transfer or assignment or the payment of any fee.

(2)Land vested under subsection (1) is vested —

(a)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan of survey, has or have been registered under the Transfer of Land Act 1893.

(3)Land vested under subsection (1) —

(a)is Crown land; and

(b)does not form part of a parcel comprised in a scheme plan that is registered under the Strata Titles Act 1985; and

(c)is to be taken to be reserved under section 41 of the Land Administration Act 1997 for the purpose set out in the condition; and

(d)may be dealt with in accordance with the Land Administration Act 1997.

(4)The Registrar of Titles is to do all things necessary to give effect to this section.

(5)Land vested under this section is to be vested subject to —

(a)any easement on that land created for the purposes of the subdivision, shown on the diagram or plan of survey and referred to in section 167; and

(b)any easement on that land created under Part IVA of the Transfer of Land Act 1893 for the purposes of the subdivision and shown on the diagram or plan of survey; and

(c)any existing encumbrance specified in a direction of the Minister responsible for the administration of the Land Administration Act 1997, or a person authorised in writing by that Minister for the purposes of this section, lodged with the Registrar of Titles on or before the vesting; and

(d)any encumbrance prescribed, or of a class prescribed, by the regulations.

[Section 152 amended: No. 30 of 2018 s. 165.]

153.Setting aside land for open space or payment in lieu

(1)The Commission may under section 143(1)(c) impose either of the following conditions on the approval of a plan of subdivision of land —

(a)a requirement that a specified portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally;

(b)a requirement that the owner of the land make a payment to the local government in whose district the land is situated of a sum that represents the value of a specified portion of the land in lieu of a requirement to set aside and vest in the Crown that portion of the land for parks, recreation grounds or open spaces generally.

(2)The Commission must not impose a requirement referred to in subsection (1)(b) unless the local government in whose district the land is situated has been consulted.

(3)The Commission must not impose a requirement referred to in subsection (1)(b) in respect of a plan of subdivision that creates fewer than 3 lots.

(4)If the Commission has imposed a condition referred to in subsection (1)(a) on an approval of a plan of subdivision, the Commission may, with the agreement of the local government in whose district the land is situated, consent to the owner of the land making a payment to the local government of a sum that represents the value of a portion of the land in lieu of setting aside that portion.

(5)This section does not limit any other condition that the Commission may impose under section 143(1)(c).

[Section 153 inserted: No. 26 of 2020 s. 85.]

154.Money paid in lieu of open space, application of

(1)All money received by a local government under section 153 is to be paid into a separate reserve account established and maintained under the Local Government Act 1995 section 6.11 for the purposes set out in subsection (2)(a) to (d).

(2)The money is to be applied —

(a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision referred to in section 153 is situated; or

(b)in repaying any loans raised by the local government for the purchase of any such land; or

(c)with the approval of the Minister, for the improvement or development as parks, recreation grounds or open spaces generally of any land in that locality vested in or administered by the local government for any of those purposes; or

(d)with the approval of the Commission, in reimbursing an owner (the first owner) of land included in a joint subdivision agreement for land that has been set aside and vested for parks, recreation grounds or open space where —

(i)the first owner set aside a greater proportion of land than another owner (the second owner); and

(ii)as a consequence, the local government and the Commission approved of the second owner paying to the local government a sum in lieu of land being set aside for that purpose and that sum, or the relevant proportion of that sum, being reimbursed to the first owner for the excess proportion of land set aside by the first owner.

(3)If interest is earned from the investment of moneys held under subsection (1), that money is to be applied for a purpose set out in subsection (2).

[Section 154 amended: No. 26 of 2020 s. 86.]

155.Value of land for s. 153, how determined

(1)In this section —

licensed valuer means —

(a)a licensed valuer as defined in the Land Valuers Licensing Act 1978; or

(b)the Valuer‑General,

but nothing in subsection (3)(a) or in this definition is to be construed as obliging the Valuer‑General to undertake a valuation for the purposes of this section;

market value of land means the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require.

(2)For the purposes of section 153, the value of the portion is to be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land.

(3)For the purposes of subsection (2), the market value of land —

(a)is to be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and

(b)is to be so determined —

(i)as at the date on which the valuation is made; and

(ii)on the basis that there are no buildings, fences or other improvements of a like nature on the land; and

(iii)on the assumption that any rezoning necessary for the purpose of the subdivision has come into force; and

(iv)taking into account the added value of all other improvements on or appurtenant to the land.

(4)The licensed valuer is to give the valuation to the owner of the land and the local government.

(5)If within 90 days, or such longer time as is agreed in writing by the local government, of the date on which the valuation is made the owner of the land has not —

(a)paid the amount of the valuation; or

(b)disputed the valuation under section 156,

the local government may, by written notice to the owner of the land, determine that the valuation is no longer current and that a fresh valuation is required.

156.Valuation under s. 155, dispute as to

(1)If either the owner of the land or the local government disputes a valuation made under section 155, the valuation may be varied by agreement between the parties or the dispute may be settled by such method as they may agree upon.

(2)If after 28 days from the date when both parties have received the valuation the dispute has not been settled or an agreement made as to the method of settlement, either the owner of the land or the local government may refer the dispute for determination by an arbitrator under the Commercial Arbitration Act 2012.

[Section 156 amended: No. 23 of 2012 s. 45.]

157.When approval of subdivision deemed to be approval under planning scheme

(1)Subject to subsection (2), when the Commission has approved a plan of subdivision of any land to which a planning scheme relates, that approval is to be taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land that are —

(a)shown on the plan of subdivision; or

(b)required by the Commission to be carried out as a condition of approval of the plan of subdivision.

(2)When approving a plan of subdivision the Commission may determine that the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works specified in the determination, and the determination has effect accordingly.

Division 4 — Subdivision costs

158.Expenses of construction etc. of roads etc.

(1)Where a person who is subdividing land is required under this Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may —

(a)carry out or cause to be carried out the construction and drainage at his or her own expense; or

(b)arrange for the local government to carry out the work on behalf, and at the cost and expense, of that person.

(2)Where the person does not make the arrangement with the local government, that person is to pay to the local government, on demand, an amount (calculated under subsection (3)) to cover the reasonable costs of the local government in supervising the construction and drainage.

(3)For the purposes of subsection (2) the amount is to be calculated as follows —

(a)where the person has not engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 3% of the cost of the construction and drainage as estimated by the local government;

(b)where the person has engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 1½% of the cost of the construction and drainage as estimated by the local government.

(4)The local government may require the person to employ a consulting engineer and clerk of works to design and supervise the construction and drainage and that person, when required to do so by the local government, is to carry out the requirement.

159.Subdivider may recover portion of road costs from later subdivider

(1)Where —

(a)a person (in this section called the later subdivider) has subdivided land in which —

(i)a lot or lots has or have a common boundary with; or

(ii)a road joins,

an existing road to which there is access from the subdivided land; and

(b)a person (in this section called the original subdivider) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing road; and

(c)the later subdivider did not contribute to that cost,

the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one‑half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in paragraph (a).

(2)In this section —

CPI means the Table described as the Consumer Price Index (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth, or if the same is not published, such other similar index as the Minister may reasonably determine;

market value of land means the capital sum, determined in accordance with section 155(3)(b)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require;

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

(3)In this section a reference to the cost of providing a road is a reference to the aggregate of —

(a)the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land provided as a road, being such percentage of the market value of the total area of land comprised in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and

(b)the reasonable cost of designing and carrying out the following works —

(i)the survey of the land provided as a road; and

(ii)the formation, preparation, priming and sealing of the road; and

(iii)the provision of kerbing, drainage and service ducts in connection with the road,

escalated by the percentage by which the CPI last published prior to the date of the subsequent subdivision has increased over the CPI last published prior to the original subdivider subdividing the land referred to in subsection (1)(b).

160.Money payable under s. 159, recovery of

An amount payable under section 159 may be recovered by the original subdivider in a court of competent jurisdiction as a debt due to the original subdivider by the later subdivider; but no proceedings for recovery of the debt are to be commenced after the expiration of 6 years from the date of the later subdivision.

161.When subdivision occurs

For the purposes of this Division land is subdivided on the date on which the approval of the Commission is endorsed on the diagram or plan of survey relating to the subdivision of the land.

Division 5 — Development controls

162.No development except with approval

(1)Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless —

(a)the approval has been obtained and is in force under the planning scheme or interim development order; and

(b)the development is carried out in accordance with the conditions subject to which the approval was granted.

(2)Nothing in this section limits or otherwise affects a right or entitlement under any other written law.

163.Application for development of heritage place

An application for approval of development must, if the application is a proposal to which the Heritage Act 2018 section 73(1) applies, be made —

(a)in the case of an application under a local planning scheme or local interim development order, to the responsible authority; and

(b)in any other case, to the Commission.

[Section 163 inserted: No. 22 of 2018 s. 186(12).]

164.Development commenced or carried out, subsequent approval of

(1)A responsible authority may grant its approval under a planning scheme or interim development order for development already commenced or carried out.

(2)The Commission may grant its approval under section 116 for development already commenced or carried out in a planning control area.

(3)Subsections (1) and (2) do not affect the operation of the provisions of Part 13 in respect of development commenced or carried out before approval has been granted.

(4)Development which was unlawfully commenced or carried out is not rendered lawful by the occurrence of any subsequent event except the approval by the relevant responsible authority of that development.

(5)The continuation of development unlawfully commenced is to be taken to be lawful upon the grant of approval for the development.

Division 5A — Integration of subdivision and development

[Heading inserted: No. 30 of 2018 s. 166.]

164A.Integration of subdivision and development

(1)This section applies if, on an application for subdivision approval or development approval, the Commission or responsible authority forms the opinion that the integration of subdivision and development approvals or multiple subdivision or development approvals is necessary or desirable —

(a)due to the size of the lots and potential impact on the amenity of the locality; or

(b)for other reasons associated with the achievement of orderly and proper planning, and the preservation of the amenity, of the locality.

(2)The main purposes of integrating subdivision and development approvals are —

(a)to facilitate a cohesive approach to planning and development in circumstances where subdivision and development should only be undertaken in conjunction with each other; and

(b)to ensure that, in those circumstances, appropriate conditions for both the subdivision and development of land are determined as early as is practicable.

(3)If this section applies —

(a)the Commission may, in order to achieve the necessary or desirable integration of subdivision and development approvals, refuse to determine an application for subdivision approval until other applications for subdivision or development approvals are made or are made and determined; and

(b)the Commission may refuse to unconditionally endorse a diagram or plan of survey with a subdivision approval in order for the plan to be registered in the Register under the Transfer of Land Act 1893 unless satisfied that —

(i)the diagram or plan of survey is an accurate depiction of the subdivision that has been prepared after completion of the works necessary for the subdivision and the construction or modification of the buildings necessary for the development, the approvals of which have been required to be integrated; and

(ii)the subdivision and development has been undertaken consistently with the relevant approvals, including their conditions; and

(iii)the requirements of the Building Act 2011 have been complied with for the development.

(4)Regulations may be made —

(a)requiring the Commission or a responsible authority to inform each other and share information about an application for subdivision approval or development approval; or

(b)requiring an applicant to provide additional documents or information reasonably required to determine whether subdivision and development approvals should be integrated under this section and to give effect to any such integration; or

(c)establishing processes for the concurrent or separate consideration of subdivision and development approvals to which this section applies and for the imposition of conditions of approvals to which this section applies; or

(d)otherwise facilitating the integration of subdivision and development approvals.

[Section 164A inserted: No. 30 of 2018 s. 166.]

Division 6 — Miscellaneous

165.Hazard etc. affecting land, notating titles as to

(1)This section applies when the Commission considers it desirable that owners or prospective owners of land comprised in —

(a)a plan of subdivision or proposed plan of subdivision; or

(b)a strata titles scheme as defined in the Strata Titles Act 1985 section 3(1), registered, or lodged for registration, under that Act,

be made aware of hazards or other factors seriously affecting the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly.

(2)When this section applies, the Commission may cause a notification of the hazard or other factor affecting the use or enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles and deposited with the Authority.

(3)Where a notification is deposited under subsection (2), the Registrar of Titles is to endorse or note the title and land register in respect of the land with that notification.

(4)The Commission may, at any time after the notification has been deposited under subsection (2), lodge a withdrawal of that notification with the Authority.

(5)A withdrawal of a notification under subsection (4) is to be in a form acceptable to the Registrar of Titles.

[Section 165 amended: No. 60 of 2006 s. 147(5); No. 30 of 2018 s. 167.]

166.Encroachment that leads to approved subdivision

If, after the erection of a building on land the property of one owner —

(a)it is found that the building encroaches upon land the property of another owner to the extent of not more than one metre; and

(b)the encroaching owner desires to purchase the land upon which the encroachment stands; and

(c)an application for approval of the necessary subdivision is made by the owner of the land encroached upon; and

(d)the Commission is satisfied that there has not been collusion and that everything has been done in good faith without intention to evade the law,

the Commission is to approve of the necessary subdivision.

167.Easement, creation of etc. on subdivision etc.

(1)Where —

(a)a diagram or plan of survey of a subdivision, or a scheme plan lodged for registration under the Strata Titles Act 1985, is received by the Authority; and

(b)it is shown on the plan or diagram that any land comprised in the diagram or plan is subject to or intended to be subject to an easement in favour of —

(i)the local government in whose district the land is situated, for the purposes of sewerage or drainage or access to sewerage or drainage works; or

(ii)a licensee as defined in the Water Services Act 2012 section 3(1), for the purpose of water supply, sewerage, irrigation or drainage works or access to water supply, sewerage, irrigation or drainage works; or

(iii)the holder of a licence under the Electricity Industry Act 2004 for the purpose of the supply of electricity or access to electricity supply works; or

(iv)the holder of a distribution licence under the Energy Coordination Act 1994 for the purpose of the supply of gas, or access to gas supply works, under the authority of that licence; or

(v)any holder of a licence under a written law for the purpose of the supply of a utility service or access to a utility service, under the authority of that licence,

the land becomes subject to an easement in favour of the person or authority mentioned on the plan or diagram for the purpose mentioned on the diagram or plan —

(c)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(d)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(2)An easement in favour of a person or authority for any purpose, to which any land is subject by virtue of this section, gives that person or authority such rights, powers and privileges as are prescribed in respect of an easement in favour of that person or authority for that purpose.

(3)If, by virtue of this section, any land is subject to an easement, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence that the land is so subject, and, for the purpose of making any such entry or endorsement or registering any such memorial, it is sufficient description of the easement if reference is made to this section.

(4)Where, by virtue of this section, any land is subject to an easement in favour of a person or authority for any purpose, the Registrar of Titles may, by order made —

(a)upon application in writing by the person or authority; and

(b)with the consent in writing of all persons having a registered interest in the land,

vary or extinguish the easement and upon such variation or extinction, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation or extinction.

(5)The purpose of an easement in favour of a person or authority is to be taken to be varied if —

(a)the prescribed circumstances set out in the regulations occur; and

(b)the person or authority gives written consent to that variation,

and the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation.

[Section 167 amended: No. 60 of 2006 s. 147(6); No. 25 of 2012 s. 222(3); No. 30 of 2018 s. 168.]

168.Road, creation of etc. on subdivision etc.

(1)All land on a diagram or plan of survey of a subdivision, or a scheme plan lodged for registration under the Strata Titles Act 1985, deposited with the Authority that is shown as a new road is dedicated as a road.

(2)The local government within the district in which the dedicated road is situated has the care, control and management of the road.

(3)All land on a diagram or plan of survey of a subdivision, or a scheme plan lodged for registration under the Strata Titles Act 1985, deposited with the Authority that is shown as a road widening or is for the purpose of extending or adding to a road forms part of the road and is dedicated to the public use.

(4)Subsections (1) and (3) operate —

(a)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(5)When a portion of land is transferred to the Crown or a local government for the purpose of extending or adding to a road, the transferred portion is to be taken —

(a)to be dedicated to the public use; and

(b)to form part of the road,

as and from the date of registration of the transfer.

(6)When a road corner shown on a plan deposited with the Authority or the LAA Department is subsequently rounded off or truncated, the portion of land so excised forms part of the road and is dedicated to the public use.

(7)The local government within the district in which the land referred to in subsection (6) is situated has the care, control and management of the land.

(8)Subsection (6) operates —

(a)in the case of a scheme plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act;

(b)in the case of a plan lodged with an application for a new certificate or certificates, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan have been registered;

(c)in the case of a plan lodged with an application for registration of a document giving effect to the rounding off or truncation, at the time of the registration of that document.

(9)Land referred to in subsection (1), (3) or (6) does not form part of a parcel comprised in a scheme plan that is registered under the Strata Titles Act 1985.

[Section 168 amended: No. 60 of 2006 s. 147(7); No. 30 of 2018 s. 169.]

169.Roads and waterways, minimum standards of construction for

(1)The Commission may by notice published in the Gazette fix minimum standards of construction with respect to roads and artificial waterways to be constructed on a proposed subdivision.

(2)A notice published under subsection (1) may set out particulars relating to the width, kerbing, thickness, surfacing and foundations of roads, and the materials to be used in the construction of roads and artificial waterways.

(3)A notice published under subsection (1) is subsidiary legislation for the purposes of sections 43 and 44 of the Interpretation Act 1984.

(4)A person who without the approval of the Commission constructs a road or artificial waterway on a subdivision that does not comply with the standards set out in a notice published under subsection (1) commits an offence.

170.Proposed road or waterway, drawings etc. of required

(1A)In this section —

responsible authority means —

(a)in relation to land that is subject to a local planning scheme — the local government responsible for the enforcement of the observance of the scheme; and

(b)in relation to land that is subject to an improvement scheme — the Commission.

(1)Before a person who is subdividing land commences to construct and drain roads or construct artificial waterways shown in the diagram or plan of survey, that person is to give to the responsible authority —

(a)drawings showing longitudinal and cross sections of the proposed road or artificial waterway; and

(b)specifications of the proposed road or artificial waterway; and

(c)such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires.

(2)A person who does not comply with subsection (1) commits an offence.

(3)The responsible authority may by written notice require the person subdividing the land —

(a)to amend the drawings or specifications or both; and

(b)to comply with such further conditions as the responsible authority thinks fit to impose in respect of the proposed road or waterway,

for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.

(4)Without limiting the powers conferred on a responsible authority by subsection (3), where —

(a)a person delivers drawings and specifications of a proposed road or artificial waterway to a responsible authority under subsection (1); and

(b)the proposed road or artificial waterway, if constructed in accordance with those plans and specifications, would not satisfy the minimum standards fixed under section 169 applicable to the proposed road or artificial waterway,

the responsible authority is to by written notice require the person to so amend the drawing or specifications, or both, as to cause the proposed road or artificial waterway to satisfy those minimum standards.

(5)A person who is aggrieved by a requirement of the responsible authority made under subsection (3) may apply to the State Administrative Tribunal for a review, in accordance with Part 14, of the responsible authority’s decision.

(6)A person who does not comply with a requirement of a responsible authority made by written notice given to that person under subsection (3) commits an offence.

[Section 170 amended: No. 28 of 2010 s. 15.]

Part 11A  Development Assessment Panels and development control

[Heading inserted: No. 28 of 2010 s. 43.]

Division 1 — Functions of DAPs

[Heading inserted: No. 28 of 2010 s. 43.]

171A.Prescribed development applications, DAP to determine and regulations for

(1)In this section —

planning instrument means —

(a)a planning scheme; or

(b)an interim development order;

prescribed development application means —

(a)a development application of a class or kind prescribed for the purposes of subsection (2)(a); or

(b)a development application of a class or kind prescribed for the purposes of subsection (2)(ba) in respect of which an applicant has made an election in accordance with regulations made under subsection (2)(ba)(i);

(2)The Governor may make regulations —

(a)providing that, despite any other provision of this Act or a planning instrument, a development application of a class or kind prescribed for the purposes of this paragraph —

(i)must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(ii)cannot be determined by a local government or the Commission;

(ba)providing that, despite any other provision of this Act or a planning instrument, if —

(i)an applicant for approval of development elects in accordance with the prescribed procedure to have a development application determined by a DAP; and

(ii)the development application is of a class or kind prescribed by the regulations for the purposes of this paragraph,

the development application —

(iii)must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(iv)cannot be determined by a local government or the Commission;

(b)providing for the duties and responsibilities of local governments and the Commission in relation to prescribed development applications;

(c)providing for the procedures for dealing with prescribed development applications;

(d)providing for the application of the provisions of this Act and planning instruments in relation to prescribed development applications;

(e)providing for the procedures to be followed by, and powers of, a DAP when determining a prescribed development application;

(f)providing for the effect of a determination of a prescribed development application;

(g)providing for the notification of a determination of a prescribed development application;

(h)providing for the review of a determination of a prescribed development application.

(3)Unless otherwise provided under regulations made for the purposes of subsection (2) —

(a)a determination by a DAP of a prescribed development application; and

(b)a failure by a DAP to make a determination of a prescribed development application,

is to be regarded as, and has effect as if it were, a determination or failure of the responsible authority to which the application was made.

[Section 171A inserted: No. 28 of 2010 s. 43.]

171B.DAP to carry out delegated functions

(1)In addition to the functions conferred on it by regulations made under section 171A, a DAP is to perform the functions that are delegated to it by a responsible authority in accordance with regulations made under subsection (2).

(2)The Governor may make regulations —

(a)prescribing the functions under this Act or a planning scheme that may be delegated by a responsible authority to a DAP; and

(b)making provision in relation to the making and effect of the delegation of functions by a responsible authority to a DAP.

[Section 171B inserted: No. 28 of 2010 s. 43.]

Division 2 — Development Assessment Panels: establishment and administration

[Heading inserted: No. 28 of 2010 s. 43.]

171C.Establishment of DAPs

(1)The Minister may, by order published in the Gazette, establish —

(a)a LDAP for a district;

(b)a JDAP for 2 or more districts.

(2)The order must give the DAP a name.

(3)A JDAP cannot be established for a district for which a LDAP is established.

(4)A LDAP cannot be established for a district for which a JDAP is established.

(5)If a JDAP is established for 2 or more districts, the districts need not be contiguous.

(6)The Minister may revoke or amend an order made under subsection (1) by further order published in the Gazette.

(7)The regulations may prescribe transitional provisions in relation to the revocation or amendment of an order under this section.

[Section 171C inserted: No. 28 of 2010 s. 43.]

171D.Constitution, procedure and conduct of DAPs

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or that are necessary or convenient to be prescribed, for the establishment and functioning of DAPs.

(2)Without limiting subsection (1), regulations may be made about the constitution, procedure and conduct of DAPs, including but not limited to regulations about the following —

(a)the total number of persons who are to be on a DAP;

(b)the qualifications to be held by each person on a DAP;

(c)the procedure to be followed for nominating and appointing DAP members;

(d)the remuneration and allowances payable to DAP members;

(e)the term of office of DAP members;

(f)the removal of DAP members;

(g)compiling and maintaining a register of persons who are eligible to be DAP members;

(h)the paid training of persons appointed to be DAP members;

(i)procedures at DAP meetings;

(j)the conduct of DAP members.

(3)The qualifications to be held by a person on a DAP may be specified in the regulations by reference to one or more of these —

(a)an office or position;

(b)an educational qualification;

(c)a type or level of knowledge;

(d)a type or level of experience.

[Section 171D inserted: No. 28 of 2010 s. 43.]

171E.Administration and costs of DAPs

(1)The Governor may make regulations about —

(a)the administration of DAPs; and

(b)the payment of the costs and expenses of DAPs.

(2)Without limiting subsection (1), regulations may be made —

(a)about the staffing, facilities and services that are to be provided to DAPs by the chief executive officer or by local governments; and

(b)about the access of the Minister to information in the possession of a DAP; and

(c)about reporting requirements in relation to —

(i)directions under the regulations; and

(ii)expenditure in relation to DAPs; and

(iii)determinations by DAPs; and

(iv)any other matter specified in the regulations.

(3)A local government must comply with a direction given and requirements prescribed under subsection (2).

[Section 171E inserted: No. 28 of 2010 s. 43.]

171F.Review of regulations

(1)An appropriate Standing Committee of the Legislative Council is to carry out a review of the operation and effectiveness of all regulations made under this Part as soon as practicable after the expiry of 2 years from the day on which regulations made under this Part first come into operation.

(2)The Standing Committee is to prepare a report based on the review and, as soon as practicable after the report is prepared, is to cause the report to be laid before each House of Parliament.

[Section 171F inserted: No. 28 of 2010 s. 43.]

Part 11 — Compensation and acquisition

Division 1 — General matters in relation to compensation

171.Entitlement to compensation, limits on

(1)If compensation has been paid under a provision of this Part in relation to a matter or thing no further compensation is payable under any other provision of this Act as a result of the same matter or thing.

(2)When a person is entitled to compensation under this Act in respect of any matter or thing, and is also entitled to compensation in respect of the same matter or thing under any other written law, that person is not entitled to compensation in respect of that matter or thing both under this Act and that other written law, and is not entitled to any greater compensation under this Act than that person would be under the other written law.

Division 2 — Compensation where land injuriously affected by planning scheme

172.Terms used

In this Division —

Board means the Board of Valuers established under section 182;

non‑conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7;

public purpose means a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work.

173.Injurious affection, compensation for

(1)Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.

(2)Despite subsection (1) a person is not entitled to obtain compensation under this section on account of any building erected, or any contract made, or other thing done with respect to land included in a planning scheme after the date of the approval of a planning scheme or amendment, or after such other date as the Minister may fix for the purpose, being not earlier than the date of the approval of the scheme or amendment.

(3)A responsible authority may make agreements with owners for the development of their land during the time that the planning scheme or amendment is being prepared.

174.When land is injuriously affected

(1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if —

(a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; or

(b)the scheme permits development on that land for no purpose other than a public purpose; or

(c)the scheme prohibits wholly or partially —

(i)the continuance of any non‑conforming use of that land; or

(ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non‑conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.

(2)Despite subsection (1)(c)(ii), a planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building is not to be taken to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of that class or kind in connection with, or in furtherance of, non‑conforming use.

(3)Where a planning scheme wholly or partially prohibits the continuance of any non‑conforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a non‑conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise —

(a)the lot or lots on which the non‑conforming use is in fact being carried on; or

(b)if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or

(c)if the prohibition relates to a building or buildings standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.

(4)If any question arises under subsection (3) as to whether at any particular date, any land —

(a)does or does not comprise the lot or lots on which a non‑conforming use is being carried on; or

(b)is or is not being used for any purpose authorised by a scheme; or

(c)is or is not reasonably required for the purpose for which any building is being used,

the claimant or responsible authority may apply to the State Administrative Tribunal for determination of that question.

175.No compensation if scheme’s provisions are, or could have been, in certain other laws

When land is alleged to be injuriously affected by reason of the making or amendment of a planning scheme, no compensation is payable in respect of the injurious affection if or so far as the relevant provisions of the planning scheme are —

(a)also contained in any Act, or in any order having the force of an Act of Parliament, in operation in the area; or

(b)such as would have been enforceable without compensation if they had been contained in local laws.

176.Questions as to injurious affection etc., how determined

(1)A claimant or responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected.

(2)Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this Division is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 2012, unless the parties agree on some other method of determination.

[Section 176 amended: No. 23 of 2012 s. 45.]

177.When compensation payable if land reserved

(1)Subject to subsection (3), when under a planning scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until —

(a)the land is first sold following the date of the reservation; or

(b)the responsible authority —

(i)refuses an application made under the planning scheme for approval of development on the land; or

(ii)grants approval of development on the land subject to conditions that are unacceptable to the applicant.

(2)Compensation for injurious affection to any land is payable only once under subsection (1) and is so payable —

(a)under subsection (1)(a) to the person who was the owner of the land at the date of reservation referred to in subsection (1)(a); or

(b)under subsection (1)(b) to the person who was the owner of the land at the date of application referred to in subsection (1)(b),

unless after the payment of that compensation further injurious affection to the land results from —

(c)an alteration of the existing reservation of the land; or

(d)the imposition of another reservation of the land.

(3)Before compensation is payable under subsection (1) —

(a)when the land is sold, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that —

(i)the owner of the land has sold the land at a lesser price than the owner might reasonably have expected to receive had there been no reservation of the land under the planning scheme; and

(ii)the owner before selling the land gave written notice to the responsible authority of the owner’s intention to sell the land; and

(iii)the owner sold the land in good faith and took reasonable steps to obtain a fair and reasonable price for the land;

or

(b)when the responsible authority refuses an application made under the planning scheme for approval of development on the land or grants approval of development on the land subject to conditions that are unacceptable to the applicant, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that the application was made in good faith.

178.Claim for compensation, time for making

(1)A claim for compensation for injurious affection to land by the making or amendment of a planning scheme is to be made —

(a)in the case of a claim in respect of injurious affection referred to in section 174(1)(a) or (b), at any time within 6 months after —

(i)the land is sold; or

(ii)the application for approval of development on the land is refused; or

(iii)the approval is granted subject to conditions that are unacceptable to the applicant;

or

(b)in the case of a claim in respect of injurious affection referred to in section 174(1)(c), within the time, if any, limited by the planning scheme.

(2)The time limited by a planning scheme under subsection (1)(b) is to be not less than 6 months after the date when notice of the approval of the scheme is published in the manner prescribed by the regulations.

179.Injurious affection due to land being reserved, amount of compensation for

(1)Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between —

(a)the value of the land as so affected by the existence of such reservation; and

(b)the value of the land as not so affected.

(2)The values referred to in subsection (1)(a) and (b) are to be assessed as at the date on which —

(a)the land is sold as referred to in section 178(1)(a); or

(b)the application for approval of development on the land is refused; or

(c)the approval is granted subject to conditions that are unacceptable to the applicant.

180.Notating title to land after compensation paid

(1)When compensation for injurious affection to any land has been paid under section 177, the responsible authority may lodge with the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, specifying —

(a)the date of payment of compensation; and

(b)the amount of compensation so paid; and

(c)the proportion (expressed as a percentage), which the compensation bears to the unaffected value of the land as assessed under section 179(2).

(2)On receipt of the notification from the responsible authority, the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, is to register the notification.

181.Recovering paid compensation if reservation revoked or reduced

(1)Where —

(a)compensation for injurious affection to land (the original compensation) has been paid to an owner of land in the circumstances set out in section 177; and

(b)as a result of the planning scheme being amended or revoked the reservation of the land for a public purpose is revoked or the area of the land the subject of the reservation is reduced,

the responsible authority is entitled to recover from the owner of the land at the date of the revocation or reduction of the reservation an amount (the refund) which is determined by calculating the relevant proportion (as determined under subsections (4) to (7)) of the value of the land as at the date on which the refund becomes payable under subsection (2).

(2)The refund is not payable by the owner of the land until the land is first sold or subdivided following the date of the revocation or reduction referred to in subsection (1)(b) unless otherwise agreed by the owner and the responsible authority.

(3)If the land is owned by 2 or more people they are jointly and severally liable to pay the refund.

(4)When the reservation has been revoked the relevant proportion for the purposes of subsection (1) is the same as the proportion referred to in section 180(1)(c) in relation to the original compensation.

(5)Where the area of the reservation has been reduced the relevant proportion for the purposes of subsection (1) is to be determined as follows — 

(a)a notional amount of compensation is determined under sections 177 and 179 as if — 

(i)the reservation had never occurred; and

(ii)a reservation of the reduced area had occurred when the reduction occurred; and

(iii)the land were being sold;

and

(b)the proportion (expressed as a percentage) which that notional amount of compensation bears to the current value of the land (unaffected by the existence of the reservation) is calculated; and

(c)the relevant proportion is then determined by deducting the proportion calculated under paragraph (b) from the proportion referred to in section 180(1)(c) in relation to the original compensation.

Example:Original compensation
proportion


25%

Less

 

Notional compensation
proportion


15%

Relevant proportion =

10%

(6)Despite subsection (4), where the reservation is revoked after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is the same as the notional compensation proportion calculated under subsection (5)(a) and (b) in respect of the previous reduction.

(7)Despite subsection (5), where the reservation is reduced after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is to be determined as follows — 

(a)a notional compensation proportion is calculated under subsection (5)(a) and (b) in respect of the subsequent reduction; and

(b)the relevant proportion is then determined by deducting the proportion referred to in paragraph (a) from the notional compensation proportion calculated under subsection (5)(a) and (b) in respect of the previous reduction.

Example:Notional compensation
proportion calculated
under subsection (5)(a)
and (b) on previous
reduction





15%

Less

 

Notional compensation
proportion calculated
under subsection (5)(a)
and (b) on
subsequent reduction





8%

Relevant proportion
on subsequent
reduction=



7%

(8)For the purposes of subsections (1) and (5)(b) the value of the land is to be determined by one of the methods set out in section 188(2)(a), (b) or (c), but that value is to be determined without regard to any increase in value attributable to factors unrelated to the reservation or to its revocation or reduction.

(9)When the responsible authority has an entitlement to recover an amount under subsection (1) it has an interest in the land and may lodge with the Registrar a notification in a form acceptable to the Registrar of the existence of that interest, and may withdraw, in a form acceptable to the Registrar, any notification so lodged.

(10)On receipt of the notification or a withdrawal of notification from the responsible authority, the Registrar is to register the notification or withdrawal of notification.

(11)Before selling or subdividing land in respect of which a notification is lodged under subsection (9), the owner of the land is to give written notice to the responsible authority, in accordance with the regulations, of the owner’s intention to sell or subdivide the land.

(12)Where a notification is lodged under subsection (9) the Registrar of Titles is not to register a transfer of the land without the consent of the responsible authority.

(13)Where a notification as to the land is lodged under subsection (9) with the Registrar of Deeds and Transfers without the consent of the responsible authority, registration of the document the subject of the notification is null and void.

(14)Subject to subsection (15), in the case of land reserved under a region planning scheme, subsection (1) has effect whether the reservation of the land occurred before the commencement of this section or occurs after that commencement.

(15)In the case of land reserved under the Metropolitan Region Scheme, where the reservation occurred before the commencement of this Act, subsection (1) does not have effect if —

(a)the revocation or reduction of the reservation occurred before 1 July 1988; or

(b)the sale or subdivision referred to in subsection (2) occurred before 1 March 1995,

but otherwise has effect whether the revocation or reduction occurred before the commencement of this section or occurs after that commencement.

(16)In any other case subsection (1) has effect if the revocation or reduction occurs after the commencement of this section.

(17)In this section —

register means to register under the Registration of Deeds Act 1856 or Transfer of Land Act 1893, as the case requires;

Registrar means the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires.

[Section 181 amended: No. 28 of 2010 s. 63.]

182.Board of Valuers

(1)A Board of Valuers is established.

(2)The Board consists of the following members appointed by the Governor —

(a)a chairperson nominated by the Commission; and

(b)3 other members nominated by the body known as The Real Estate Institute of Western Australia, an incorporated association under the Associations Incorporation Act 2015.

(3)Each of the persons appointed to the Board is to be an Associate or a Fellow of the Australian Property Institute, an association incorporated under the laws of South Australia.

(4)Judicial notice is to be taken of the signature of the chairperson on any finding of the Board.

(5)Schedule 9 has effect.

[Section 182 amended: No. 30 of 2015 s. 226.]

183.Valuations by Board

(1)The owner of land that is subjected to injurious affection due to, or arising out of, the land being reserved under a planning scheme for a public purpose who gives notice of intention to sell the land and claim compensation is to, unless the responsible authority waives the requirement, apply to the Board of Valuers in the prescribed manner for a valuation of the land as not so affected and the Board is to make the valuation.

(2)Subject to subsection (4), a valuation made by the Board under subsection (1) is to be communicated to the applicant and to the responsible authority and, for the purposes of this Division, a valuation so made is final.

(3)Upon receipt of a valuation made by the Board under this section, the responsible authority is to advise the owner of the subject land of the minimum price at which the land may be sold without affecting the amount of compensation (if any) payable to him or her under this Division.

(4)Where any land with respect to which a valuation has been made under this section is not sold within a period of 6 months from the making of the valuation, the Board may, at the request of the owner of the land, if in the circumstances of the case it thinks it just to do so, review the valuation and either confirm the valuation or vary it.

(5)Where the Board reviews a valuation under subsection (4), it is to notify the owner of the land and the responsible authority accordingly and upon that notification subsection (3), with such modification as circumstances require, applies to the valuation as reviewed by the Board.

Division 3 — Other compensation

184.Betterment; compensation for expenses rendered abortive by amendment or repeal of scheme

(1)If, by the expenditure of money by the responsible authority in the making and carrying out of a planning scheme, any land or property is within 12 months of the completion of the work, or of the section of the work affecting the land, as the case may be, increased in value, the responsible authority may recover from any person whose land or property is so increased in value, one half of the amount of that increase.

(2)A claim by a responsible authority for the purposes of subsection (1) is to be made within the time, if any, limited by the planning scheme, not being less than 3 months after the date when notice of the approval of the scheme is first published.

(3)If a planning scheme is amended or repealed by an order of the Minister under this Act any person who has incurred expenditure for the purpose of complying with the planning scheme is entitled to compensation from the responsible authority, in so far as any such expenditure is rendered abortive by reason of the amendment or repeal of the planning scheme.

(4)A question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which —

(a)the responsible authority is entitled to recover under this section from a person whose land is increased in value; or

(b)is to be paid as compensation under this section,

is to be determined by arbitration in accordance with the Commercial Arbitration Act 2012 or by some other method agreed by the parties.

[Section 184 amended: No. 23 of 2012 s. 45.]

185.Injurious affection due to interim development order

(1)Compensation for injurious affection to any land within a regional order area or a local order area or for loss arising from any other cause is payable under this Part as a result of the operation of the relevant interim development order if, and only if —

(a)the Commission or the local government administering the interim development order —

(i)refuses an application made under that interim development order for approval of development on that land; or

(ii)grants such an application subject to conditions,

on the ground that the proposed planning scheme for the regional order area or local order area, as the case requires, is to include that land within a reservation for public purposes; and

(b)any decision for the review of which the claimant has made an application under section 249 has been affirmed in whole or in part by the State Administrative Tribunal.

(2)The Commission or local government, as the case requires, may, and if the claimant so requests is to, purchase any land injuriously affected at a price not exceeding the value of that land at the time of —

(a)the refusal of approval; or

(b)the grant of approval subject to conditions,

without regard to any increase in value attributable wholly or in part to the proposed region planning scheme or proposed local planning scheme for the regional order area or local order area in which the land is situated.

(3)If the land is not purchased under subsection (2), when compensation of the kind referred to in subsection (1) is claimed that compensation is to be determined by arbitration in accordance with the Commercial Arbitration Act 2012 or by some other method agreed by the parties.

[Section 185 amended: No. 23 of 2012 s. 45.]

186.Injurious affection due to planning control area

(1)Compensation is payable in respect of land injuriously affected by the declaration, or by the amendment of the declaration, of a planning control area, and land so affected may be acquired by the Commission, in the same circumstances and to the same extent as if the land in the planning control area, instead of being in the planning control area, had been reserved under a planning scheme for a public purpose.

(2)Division 2 applies to compensation payable under this section as if any reference in that Division to compensation for injurious affection to any land were a reference to compensation under this section for injurious affection as a result of the declaration of a planning control area under section 112, or the amendment of the declaration under section 113.

Division 4 — Purchase or compulsory acquisition

187.Acquiring land in lieu of paying compensation

(1)Where compensation for injurious affection is claimed as a result of the operation of the provisions of section 174(1), the responsible authority may at its option elect to acquire the land so affected instead of paying compensation.

(2)The responsible authority, within 3 months of the claim for injurious affection being made, is to by written notice given to the claimant —

(a)elect to acquire the land; or

(b)advise that it does not intend to acquire the land.

(3)Where the responsible authority elects to acquire the land as provided in subsections (1) and (2), if the responsible authority and the owner of the land are unable to agree as to the price to be paid for the land by the responsible authority, the price at which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with section 188.

(4)If —

(a)an owner of land claims compensation and the responsible authority elects to purchase the land instead of paying compensation; and

(b)the price to be paid for the land by the responsible authority has not been determined for the purposes of subsection (3),

the owner of the land may withdraw the claim for compensation and, upon that withdrawal, the election has no effect.

[Section 187 amended: No. 8 of 2009 s. 100(4).]

188.Land to be acquired under s. 187, valuing

(1)The value of the land referred to in section 187(3) is to be —

(a)the value of the land on the date the responsible authority elects to acquire the land under that section; and

(b)determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the planning scheme.

(2)Subject to subsection (4), the value of the land referred to in section 187(3) is to be determined —

(a)by arbitration in accordance with the Commercial Arbitration Act 2012; or

(b)by the State Administrative Tribunal on the owner of the land applying to it for a determination of that value; or

(c)by some other method agreed upon by the responsible authority and the owner of the land.

(3)If arbitration has not commenced under subsection (2)(a), an application has not been made under subsection (2)(b), and no method has been agreed under subsection (2)(c), within 12 months of the date on which the responsible authority elected to acquire the land, the responsible authority may —

(a)refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 2012; or

(b)apply to the State Administrative Tribunal for a determination of that value,

and the value determined under this subsection is to be the value of the land for the purposes of section 187.

(4)Where a dispute is referred for determination under subsection (3)(a) there is to be taken to be, for the purposes of the Commercial Arbitration Act 2012, an arbitration agreement to refer the dispute, and the parties to the agreement are to be taken to be the owner of the land and the responsible authority.

[Section 188 amended: No. 23 of 2012 s. 45.]

189.Land in proposed region planning scheme, Commission may purchase

The Commission may, if it considers that any land to which a proposed region planning scheme or a proposed amendment to a region planning scheme is to apply is likely to be comprised in the scheme, purchase the land.

190.Responsible authority may purchase land for planning scheme

(1)The responsible authority may, for the purpose of a planning scheme, in the name and on behalf of such responsible authority, purchase any land comprised in the planning scheme from any person who may be willing to sell the same.

(2)If the land to be purchased under subsection (1) (the relevant land) forms only part of a lot, the responsible authority may also purchase under subsection (1) the rest of the lot, or any part of the rest of the lot, for purposes related to the purchase of the relevant land.

(3)Subsection (2) applies whether or not the rest of the lot, or the part of the rest of the lot, is comprised in the planning scheme and whether or not its purchase is for the purpose of the scheme.

[Section 190 amended: No. 26 of 2020 s. 15.]

191.Compulsory acquisition of land in scheme area

(1)The responsible authority may, for the purpose of a planning scheme and with the consent of the Governor, take compulsorily under and subject to Part 9 of the Land Administration Act 1997 (but subject to subsection (3)), any land comprised in the scheme, and whether situate within or without the boundaries of the district of the responsible authority, as if the land were required for a public work (as defined in section 151(1) of that Act).

(1A)If the land to be taken under subsection (1) (the relevant land) forms only part of a lot, the responsible authority may also take under subsection (1) the rest of the lot, or any part of the rest of the lot, for purposes related to the taking of the relevant land.

(1B)Subsection (1A) applies whether or not the rest of the lot, or the part of the rest of the lot, is comprised in the planning scheme and whether or not the taking of the rest of the lot, or the part of the rest of the lot, is for the purpose of the scheme.

(2)Land acquired under subsection (1) is to be acquired in the name and on behalf of the responsible authority.

(3)When any land is taken compulsorily under the powers conferred by this section the provisions of —

(a)sections 166 to 171 inclusive; and

(b)section 180,

of the Land Administration Act 1997 do not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act is to be read and construed as if the provisions were deleted.

[Section 191 amended: No. 26 of 2020 s. 16.]

192.Land etc. to be acquired under s. 191, valuing

(1)Despite Part 10 of the Land Administration Act 1997, the value of any land or improvements on land which is compulsorily acquired by a responsible authority under section 191 is, for the purpose of assessing the amount of compensation to be paid for the land and improvements to be assessed —

(a)without regard to any increase or decrease in value attributed wholly or in part to any of the provisions contained in, or to the operation or effect of, the relevant planning scheme; and

(b)having regard to values current at the time of acquisition,

but in assessing the amount of compensation regard is to be had to any amounts of compensation already paid, or payable, by the responsible authority in respect of the land under Division 2.

(2)Where compensation has been paid, or is payable, in respect of land under Division 2, then, subject to subsection (3), there is to be deducted from the compensation assessed under subsection (1) an amount that bears the same ratio to the compensation so assessed as the compensation paid or payable under that Division bears to the unaffected value of the land, as determined under this Part.

(3)In assessing the amount to be deducted from compensation under subsection (2), the person lawfully appointed to determine the amount of compensation is to have regard to —

(a)any improvements or demolitions lawfully made to or on the land, subsequently to the determination of the unaffected value of the land; and

(b)to the earlier termination of the tenure of the land, where the compensation might otherwise have been affected by an assurance given by the responsible authority, and which the responsible authority is by this paragraph authorised to give, that the tenure was to be of a greater period.

193.Responsible authority’s powers as to acquired land

Subject to the relevant planning scheme, a responsible authority which takes or acquires land under this Part has all the powers of an owner in respect of the land, and may erect buildings on the land or otherwise improve and make use of the land in such manner as the responsible authority thinks fit.

194.Responsible authority may grant easement over acquired land

(1)The responsible authority may grant to any person any easement in, upon, through, under, or over, any land taken or acquired for planning purposes, subject to such conditions and payments of such rents as the responsible authority thinks fit.

(2)A grant of an easement under subsection (1) is subject to revocation without compensation at any time the responsible authority thinks fit, or in the case of a breach of any condition under which an easement may have been granted.

195.Commission’s powers to acquire land in improvement plan

(1)The Commission may purchase or otherwise acquire any land included in an improvement plan in force under section 119 by agreement with the owner of the land.

(2)In default of agreement under subsection (1), the Commission may acquire the land compulsorily under and subject to Part 9 of the Land Administration Act 1997 as if the land were required for a public work (as defined in section 151(1) of that Act), subject to subsection (3).

(3)Sections 191(3) and 192 apply with any necessary modifications to the taking of land under subsection (2) as they apply to the taking of land under section 191.

(3A)For the purposes of subsection (3), in section 192(1)(a), the reference to the relevant planning scheme is to be read as a reference to the improvement plan.

(4)Nothing in this section is to be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority, body or person.

[Section 195 amended: No. 28 of 2010 s. 16; No. 26 of 2020 s. 17.]

196.Commission may sell etc. acquired land

(1)The Commission is to hold for the purposes of the relevant region planning scheme or improvement plan any land acquired by it under this Part and may, subject to subsections (2) and (3), dispose of or alienate that land —

(a)for or in furtherance of the provisions or likely provisions of the relevant region planning scheme or improvement plan; or

(b)if that land is no longer required by the Commission.

(2)Subject to subsection (3), except with the consent of the Governor, the Commission is not to dispose of or alienate any land compulsorily acquired by it other than for or in furtherance of the provisions or likely provisions of the relevant region planning scheme or improvement plan.

(3)In exercising a power to dispose of or alienate land conferred by this section, the Commission is to have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is practicable and appropriate to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that land was so acquired.

(4)In relation to a part of a lot purchased or taken by the Commission in accordance with section 190(2) or 191(1A), in subsection (1), the reference to the purposes of the relevant region planning scheme is a reference to the purposes for which the part of the lot was purchased or taken.

[Section 196 amended: No. 28 of 2010 s. 17; No. 26 of 2020 s. 18.]

197.Declaring land for public work to be instead held etc. for region planning scheme or improvement plan

(1)Where any land held, taken, resumed or otherwise acquired under any Act, for any public work, is in the opinion of the Governor not required for that work and is required for the purposes or likely purposes of a region planning scheme or improvement plan, the Governor, despite Part 9 Division 5 of the Land Administration Act 1997, may declare by notice published in the Gazette that the land is to be held and may be used for the purposes of the region planning scheme or improvement plan.

(2)From the date of the publication of the notice the land described in the notice, by force of this section, vests in the Commission for the purposes of the region planning scheme or improvement plan.

(3)The Commission is to ensure that a memorial is lodged with the Registrar in respect of land vested in the Commission under this section as soon as is practicable after the land is so vested.

(4)The memorial is to be —

(a)accompanied by the notice published under subsection (1) in respect of the relevant land; and

(b)in a form approved by the Registrar.

(5)The Registrar is to register the memorial against the relevant land and take such steps as are necessary to record the vesting.

(6)In this section —

register means to register under the Registration of Deeds Act 1856 or Transfer of Land Act 1893, as the case requires;

Registrar means the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires.

[Section 197 amended: No. 28 of 2010 s. 18.]

197A.Planning control areas

(1)In section 187(1), the reference to the provisions of section 174(1) includes those provisions as applied by section 186(2).

(2)The Commission may purchase any of the following land —

(a)land within a proposed planning control area;

(b)land that would be brought within a planning control area as a result of a proposed change to the area;

(c)land within a planning control area.

(3)The Commission may compulsorily take any land within a planning control area under and subject to the Land Administration Act 1997 Part 9 as if the land were required for a public work (as defined in section 151(1) of that Act).

(4)Sections 191(3) and 192 apply with any necessary modifications to the taking of land under subsection (3) as they apply to the taking of land under section 191.

(5)For the purposes of subsection (4), in section 192(1)(a), the reference to the relevant planning scheme is to be read as a reference to the declaration of the planning control area under section 112.

(6)The Commission —

(a)must hold any land acquired by the Commission under this section for the purpose, or for any 1 or more of the purposes, for which the land is required as referred to in section 112(1); and

(b)may dispose of or alienate the land —

(i)for that purpose or 1 or more of those purposes; or

(ii)if the land is no longer required for that purpose or any of those purposes.

(7)Land acquired under subsection (3) can be disposed of or alienated under subsection (6)(b)(ii) only with the Governor’s consent.

(8)Section 196(3) applies to the power to dispose of or alienate land conferred by subsection (6)(b) as it applies to a power conferred by section 196.

(9)In section 197, references to the purposes of a region planning scheme include the purposes, or any 1 or more of the purposes, for which land within a planning control area is required as referred to in section 112(1).

[Section 197A inserted: No. 26 of 2020 s. 19.]

Part 12 — Financial provisions

Division 1 — Metropolitan Region Improvement Fund

198.Metropolitan Region Improvement Account

(1)For the purposes of reviewing, amending, carrying out and giving effect to the Metropolitan Region Scheme and any improvement scheme that has effect in part or all of the metropolitan region, an agency special purpose account called the Metropolitan Region Improvement Account is established under section 16 of the Financial Management Act 2006.

(2)The Commission is to control the MRI Account and the MRI Account may be operated for the purposes set out in subsection (1) in such manner as from time to time the Treasurer approves and is by this section authorised to approve.

(3)The Commission is to credit to the MRI Account —

(a)moneys appropriated to the MRI Account under section 201(2); and

(b)any purchase moneys or rents or profits or other money received by the Commission from land acquired by it or arising out of the use or occupation of the land by the Commission; and

(c)moneys borrowed by the Commission for the performance of any function referred to in section 14 in relation to the metropolitan region; and

(d)any other payments made to the Commission in connection with the performance of a function referred to in paragraph (c).

[Section 198 amended: No. 77 of 2006 Sch. 1 cl. 127(3) and (5); No. 28 of 2010 s. 19.]

199.MRI Account, application of

(1A)In this section —

metropolitan improvement scheme means an improvement scheme that has effect in part or all of the metropolitan region.

(1)The Commission may apply money in the MRI Account to payment of all expenditure incurred by it for the purpose of reviewing, amending, carrying out and giving effect to the Metropolitan Region Scheme and any metropolitan improvement scheme, including —

(a)payment of capital expenditure, costs and other expenses incurred by the Commission in and in connection with, the acquisition, whether by agreement or compulsorily, of any property in the metropolitan region under this Act; and

(b)all expenses incurred by the Commission in or in connection with —

(i)the Metropolitan Region Scheme, a regional interim development order in respect of land in the metropolitan region or a metropolitan improvement scheme or the establishment and maintenance of any works in connection with the Metropolitan Region Scheme, regional interim development order or metropolitan improvement scheme; or

(ii)the development, maintenance and management of any land held by the Commission that is reserved under the Metropolitan Region Scheme or metropolitan improvement scheme; or

(iii)the carrying out of any works, including the provision of facilities, incidental to such development, maintenance and management or conducive to the use of such land for any purpose for which it is reserved.

(2)The Commission is also authorised to apply money standing to the credit of the MRI Account to payment of expenditure required for the purpose of carrying out the Metropolitan Redevelopment Authority Act 2011 or the Hope Valley‑Wattleup Redevelopment Act 2000.

[Section 199 amended: No. 77 of 2006 Sch. 1 cl. 127(5); No. 28 of 2010 s. 20; No. 45 of 2011 s. 141(9).]

Division 2 — Metropolitan Region Improvement Tax

200.Owners’ liability to pay tax

(1)Subject to subsection (3), a person who, at midnight on 30 June in any year is the owner of land in the metropolitan region is liable to pay Metropolitan Region Improvement Tax on the land in accordance with this Act.

(2)The land is chargeable with the tax imposed by and at the rate imposed by the Metropolitan Region Improvement Tax Act 1959.

(3)An owner of land in the metropolitan region is also liable to pay Metropolitan Region Improvement Tax in accordance with sections 14 and 15 of the Land Tax Assessment Act 2002 and, for that purpose, those sections are to apply as if references in those sections to land tax and the Land Tax Act 2002 were respectively references to Metropolitan Region Improvement Tax and the Metropolitan Region Improvement Tax Act 1959.

(4)For the purposes of this Act the provisions of the Land Tax Assessment Act 2002 and the Taxation Administration Act 2003, relating to land tax and land so far as they can be made applicable with all necessary modifications or adaptations apply to the Metropolitan Region Improvement Tax and land in the metropolitan region.

(5)Despite anything contained in any other law, the amount of the tax which the Commissioner of State Revenue is to treat as having come into his or her possession under this Act in each financial year is to be the amount of the tax which becomes payable in that financial year.

201.Tax collections, how to be dealt with

(1)The proceeds of the Metropolitan Region Improvement Tax referred to in section 200 are to be credited to the Consolidated Account.

(2)An amount equal to the amount credited to the Consolidated Account under subsection (1) is to be credited to the Metropolitan Region Improvement Account and charged to the Consolidated Account, and this subsection appropriates the Consolidated Account accordingly.

[Section 201 amended: No. 77 of 2006 s. 4 and Sch. 1 cl. 127(4).]

Division 3 — Financial provisions relating to the Commission

202.Saving

Nothing in this Division is to be read as derogating from Division 1 and this Division has effect subject to that Division.

203.Funds of Commission

(1)The funds available to the Commission to enable it to perform its functions are —

(a)moneys borrowed by the Commission under this Act; and

(b)other moneys lawfully received by, made available to, or payable to, the Commission under this or any other Act.

(2)The funds referred to in subsection (1) are to be credited to, and money paid by the Commission is to be debited to, an account called the “Western Australian Planning Commission Account” that is to be established —

(a)as an agency special purpose account under section 16 of the Financial Management Act 2006; or

(b)with the approval of the Treasurer, at a bank as defined in section 3 of that Act.

[Section 203 amended: No. 77 of 2006 Sch. 1 cl. 127(6).]

204.Minister’s approval needed for some contracts and expenditure

The Commission, without the consent of the Minister, in respect of any one work, is not to make a contract or incur any expenditure the consideration or cost of which exceeds $1 000 000.

205.Borrowing powers

(1)Subject to subsection (2), the Commission may, with the prior written approval of the Treasurer and on such terms as the Treasurer approves, borrow money for the performance by the Commission of its functions.

(2)Any moneys borrowed by the Commission under this section may be raised as one loan or as several loans and in such manner as the Treasurer may approve, but the amount of money so borrowed is not in any one year to exceed in the aggregate such amounts as the Treasurer approves.

(3)For the purpose of making provision to repay either the whole or any part of any loan raised under this section the Commission may, subject to this section, borrow the moneys necessary for that purpose before the loan or part of it becomes payable.

206.Borrowing from Treasurer

(1)In addition to the powers conferred by section 205, the Commission may borrow from the Treasurer such amounts as the Treasurer approves on such conditions relating to repayment and payment of interest as the Treasurer imposes.

(2)Under this section the Account and the assets of the Commission are charged with the due performance by the Commission of all obligations arising from any advance made under this section.

207.Guarantees by Treasurer

(1)The Treasurer is authorised to guarantee —

(a)the repayment of any amount borrowed from time to time under section 205; and

(b)the payment of interest and such other charges in respect of such borrowings as the Treasurer has approved.

(2)A guarantee is to be in the form, and subject to the terms and conditions, determined by the Treasurer.

(3)The due payment of money payable by the Treasurer under a guarantee is to be charged to the Consolidated Account, which this subsection appropriates accordingly.

(4)The Treasurer is to cause any amounts received or recovered, from the Commission or otherwise, in respect of any payment made by the Treasurer under a guarantee to be credited to the Consolidated Account.

[Section 207 amended: No. 77 of 2006 s. 4.]

208.Financial Management Act 2006 and Auditor General Act 2006, application of

The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Commission and its operations.

[Section 208 amended: No. 77 of 2006 Sch. 1 cl. 127(7).]

209.Commission’s land not subject to rates etc.

(1)Subject to subsection (2), no rate, tax, or assessment is to be imposed, levied, charged or made upon any land acquired by the Commission under and for the purposes of this Act while the Commission is the owner of the land.

(2)If any land referred to in subsection (1) is leased by the Commission, the Commission is to pay in respect of the land out of the rent received by the Commission, the whole or such portion of the amount of any rate, tax, or assessment that would but for this section have been imposed, levied, charged or made on the land so leased, as the Commission certifies in writing to be available for the purpose.

Division 4 — Financial provisions relating to local governments

210.Apportioning expenses between local governments

(1)The Minister may order that any part of the expenses incurred by a local government under this Act, or under any local planning scheme, are to be borne by another local government (the other local government).

(2)An amount ordered under subsection (1) is to be taken to be a debt due to the local government that incurred the expenses by the other local government.

(3)In fixing the amount to be borne by the other local government the Minister is to have regard to the proportion of the expenses incurred in respect of anything done within the district of the other local government in relation to a local planning scheme, and the ratio of that proportion to the whole expense under this Act in relation to the scheme, and such other matters as are prescribed by the regulations.

(4)A local government may apply to the State Administrative Tribunal for a review, in accordance with Part 14, of any order of the Minister under this section.

Part 13 — Enforcement and legal proceedings

Division 1 — Enforcement

211.Person aggrieved by local government’s omission may go to Minister; Minister’s powers

(1)A person aggrieved by —

(a)the failure of a local government to enforce or implement effectively the observance of a local planning scheme; or

(b)the failure of a local government to execute any works which, under a local planning scheme or this Act, the local government is required to execute,

may make representations to the Minister.

(2)The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.

(3)For the purposes of making a report and recommendations on a referral under subsection (2), Part 14 applies with such modifications as may be necessary, as if the referral were an application for review.

(4)On holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister may order the local government —

(a)to do all things necessary for enforcing the observance of the scheme or any of the provisions of the scheme; or

(b)to do all things necessary for executing any works which, under the scheme or this Act the local government is required to execute,

as the case requires.

(5)The Minister is not bound by the report and recommendations of the State Administrative Tribunal.

(6)The local government may within 28 days of service of the order appeal against the order to a judge who may —

(a)confirm, vary or annul the Minister’s order; and

(b)make such order as to costs of the appeal as the judge thinks proper.

(7)The decision of the judge is final and enforceable as an order of judgment of the Supreme Court.

(8)Subject to any rules made by the Governor —

(a)the proceedings on an appeal are to be as the judge directs; and

(b)subject to the direction of the judge may, as regards the summoning and attendance of witnesses, the production of documents and costs, be regulated by the appropriate Rules of the Supreme Court, with appropriate adaptations and alterations.

212.Breach of order etc. by local government, Minister’s powers as to

(1)If the Minister is satisfied that a local government has failed to —

(a)comply with an order under section 76; or

(ba)comply with an order made under section 77A; or

(b)comply with a provision of Part 5 Division 5; or

(c)comply with an order under section 211; or

(d)comply with a provision of regulations made under this Act,

the Minister may serve written notice on the local government under this section.

(2)The notice is to —

(a)set out the relevant order or provision and the manner in which the local government has failed to comply with it; and

(b)specify a period (which is not to be less than 60 days after the notice is served) before which the local government is required to comply with the relevant order or provision; and

(c)advise the local government that the Minister intends to exercise the powers conferred by subsection (3) if the local government does not comply with the requirement made under paragraph (b).

(3)If the local government does not comply with the requirement made under subsection (2)(b), the Minister may take all such steps and prepare or cause to be prepared all such documents as are necessary for compliance with the requirement as if the Minister were the local government.

(4)For the purposes of subsection (3), the Minister may by order direct the local government to provide the Minister with such reports or other information specified in the order as are necessary for the exercise of the Minister’s powers under this section.

(5)The Minister is to cause a copy of an order directed to a local government under subsection (4) to be served on the local government, and the local government is to comply with the order.

(6)For the purposes of subsection (3), the provisions of the regulations that would have applied to the local government apply to the Minister with such modifications as are necessary or are prescribed.

(7)All costs, charges and expenses incurred by the Minister in the exercise of any powers conferred by subsection (3) may be recovered from the local government as a debt due to the Crown or may be deducted from any moneys payable by the Crown to the local government.

(8)The Minister must, as soon as is practicable after a notice is served on a local government under subsection (1) —

(a)give a copy of the notice to the Commission; and

(b)cause to be laid before each House of Parliament or dealt with under section 268A —

(i)a copy of the notice; and

(ii)a copy of the reasons for giving the notice.

[Section 212 amended: No. 28 of 2010 s. 47; No. 26 of 2020 s. 101.]

213.Minister’s action under s. 212, effect of

(1)When the Minister exercises powers conferred under section 212 and prepares or causes to be prepared and published in the Gazette —

(a)an amendment to a local planning scheme; or

(b)a local planning scheme, incorporating, if necessary, any modifications to, or conditions on, the scheme; or

(c)a consolidated local planning scheme; or

(d)the repeal of a local planning scheme,

that amendment, scheme, scheme as modified or with conditions, consolidation or repeal, as the case may be, has effect as if it were made, published and adopted by the local government and approved by the Minister and the local government is to implement it accordingly.

(2)A reference in this or any other Act to —

(a)an amendment to a local planning scheme is to be read and construed as including a reference to an amendment to a local planning scheme prepared or caused to be prepared by the Minister under section 212; and

(b)a local planning scheme is to be read and construed as including a reference to a local planning scheme prepared or caused to be prepared by the Minister in accordance with section 212.

214.Illegal development, responsible authority’s powers as to

(1)For the purposes of subsections (2) and (3) —

(a)a development is undertaken in contravention of a planning scheme or an interim development order if the development —

(i)is required to comply with the planning scheme or interim development order; and

(ii)is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order;

(b)a development is undertaken in contravention of planning control area requirements if the development —

(i)is commenced, continued or carried out in a planning control area without the prior approval of that development obtained under section 116; or

(ii)is commenced, continued or carried out otherwise than in accordance with the approval referred to in subparagraph (i) or otherwise than in accordance with the conditions, if any, subject to which that approval is given.

(2)If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme, interim development order or planning control area requirements.

(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development —

(a)to remove, pull down, take up, or alter the development; and

(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.

(4)The responsible authority may give directions under subsections (2) and (3)(a) and (b) in respect of the same development and in the same instrument.

(5)If it appears to a responsible authority that delay in the execution of any work to be executed under a planning scheme or interim development order would prejudice the effective operation of the planning scheme or interim development order, the responsible authority may give a written direction to the person whose duty it is to execute the work to execute that work.

(6)A direction under subsection (3) or (5) is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with.

(7)A person who —

(a)fails to comply with a direction given to the person under subsection (2); or

(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,

commits an offence.

215.Illegal development, responsible authority’s powers to remove etc.

(1)If —

(a)a notice is served on a person under section 214(2), (3) or (5) and that person fails to —

(i)carry out the directions within the time specified in the notice; or

(ii)apply under section 255 for a review of any direction contained in the notice;

or

(b)on an application by that person for a review of any direction contained in the notice, the direction is confirmed or varied and the owner fails to carry out the direction as confirmed or varied within the time specified by the State Administrative Tribunal in the notice given under section 255(2),

the responsible authority may itself remove, pull down, take up or alter the development, restore the land as nearly as practicable to its condition immediately before the development started, or execute that work, as it directed that person.

(2)Any expenses incurred by a responsible authority under subsection (1) may be recovered from the person to whom the direction was given as a debt due in a court of competent jurisdiction.

216.Breach of Act etc. or development approval, injunctions as to

(1)Without prejudice to any proceeding for an offence against this Act, if —

(a)a person contravenes a provision of this Act, an interim development order or a planning scheme; or

(b)a responsible authority grants an application for approval of development subject to conditions and the development is commenced, continued or completed contrary to or otherwise than in accordance with any condition imposed by the responsible authority with respect to the development,

the Supreme Court may, on application by the responsible authority, grant an injunction —

(c)if the application is with respect to a contravention of the Act, an interim development order or a planning scheme, restraining the person from engaging in any conduct or doing any act, that constitutes or is likely to constitute a contravention of this Act, the interim development order or the planning scheme;

(d)if the application is with respect to the commencement, continuation or completion of a development contrary to or otherwise than in accordance with any condition imposed by the responsible authority with respect to the development —

(i)in the case where the development is commenced but not carried out, restraining the continuation or completion of the development or any use of the development; or

(ii)in the case where the development is completed, restraining the use of the development,

until the condition is complied with.

(2)An injunction granted under subsection (1) —

(a)has effect for the period specified in the injunction or until further order of the Court; and

(b)may be varied or rescinded by the Court.

217.Environmental conditions, Minister’s powers to enforce

(1)In this section —

assessed scheme means a planning scheme, or an amendment to a planning scheme, that is an assessed scheme as defined in the EP Act;

environmental condition means a condition agreed under section 48F of the EP Act or decided under section 48I of the EP Act;

environmental harm has the meaning given to that term in the EP Act;

pollution has the meaning given to that term in the EP Act.

(2)After receiving advice from the Minister for the Environment under section 48H(4) of the EP Act the Minister may exercise one or more of the powers set out in subsection (3) in relation to a development implementing an assessed scheme.

(3)For the purposes of subsection (2) the Minister may —

(a)by order in writing served on the person who is undertaking the development, direct the person to stop doing so for such period, beginning immediately and lasting not more than 24 hours, as is specified in the order; or

(b)cause the responsible authority to serve a notice on the person who is undertaking the development directing the person to take such steps as are specified in the notice, within such period as is so specified for the purpose of —

(i)complying with; or

(ii)preventing non‑compliance with,

the environmental condition to which the Minister for the Environment’s advice relates; or

(c)advise the responsible authority to cause such steps to be taken as are necessary for the purpose of —

(i)complying with; or

(ii)preventing non‑compliance with,

the environmental condition to which the Minister for the Environment’s advice relates.

(4)A person who fails to comply with an order or notice served on the person under subsection (3)(a) or (b) commits an offence.

(5)Nothing in this section prevents or otherwise affects the application of Part V of the EP Act to —

(a)a development referred to in subsection (2); or

(b)pollution or environmental harm caused by any non‑compliance with an environmental condition referred to in subsection (3).

Division 2 — Offences

218.Planning scheme or condition on development, contravening etc.

A person who —

(a)contravenes the provisions of a planning scheme; or

(b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or

(c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,

commits an offence.

[Section 218 amended: No. 28 of 2010 s. 21.]

219.Unauthorised subdivision works

(1)A person who commences, continues or carries out works for the purpose of enabling the subdivision of land otherwise than —

(a)as shown on a plan of subdivision approved by the Commission; or

(b)as required by the Commission to be carried out as a condition of approval of the plan of subdivision,

commits an offence.

(2)It is a defence to a charge of an offence under subsection (1) to show that the person has development approval or other lawful authority to commence, continue or carry out the works.

220.Planning control area, unauthorised development in

A person who commences, continues or carries out development in a planning control area except —

(a)with the prior approval of that development obtained under section 116; and

(b)in a manner which is in conformity with the approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval is given,

commits an offence.

221.Interim development order, contravening

A person who —

(a)contravenes an interim development order; or

(b)commences, continues or carries out any development which is required to comply with an interim development order otherwise than in accordance with —

(i)the interim development order; or

(ii)any condition imposed in respect of that development by the Commission or the local government administering that order under its powers under the order,

commits an offence.

222.Heritage place, unauthorised development in

A person who commences, continues or carries out any development, or causes or permits any development to be commenced, continued or carried out, affecting land to which section 163 applies except —

(a)with the prior approval of that development obtained under section 163; and

(b)in a manner which is in conformity with the approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval was given,

commits an offence.

223.General penalty

Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.

[Section 223 amended: No. 4 of 2011 s. 10.]

224.Other enforcement provisions not affected

(1)This Division does not prejudice or affect the operation of sections 214, 215 or 216.

(2)A person may be prosecuted for an offence under this Division irrespective of whether or not a direction has been given under section 214.

225.Onus of proof in vehicle offence may be shifted

(1)In this section —

vehicle offence means an offence of which the parking, standing or leaving of a vehicle is an element.

(2)Where a vehicle offence is alleged to have been committed and the identity of the person committing the alleged offence is not known and cannot immediately be ascertained an officer of the relevant responsible authority who is a designated person under section 228 may give the owner of the vehicle a notice under this section.

(3)The notice is to be in the form prescribed in the regulations and is to contain particulars of the alleged offence and require the owner to identify the person who was the driver or person in charge of the vehicle at the time when the offence is alleged to have been committed.

(4)The notice may be addressed to the owner of the vehicle without naming, or stating the address of, the owner and may be given by —

(a)attaching it to the vehicle or leaving it in or on the vehicle at or about the time that the alleged offence is believed to have been committed; or

(b)giving it to the owner within 21 days after the alleged offence is believed to have been committed.

(5)The notice is to include a short statement of the effect of subsection (6).

(6)Unless, within 28 days after being served with the notice, the owner of the vehicle —

(a)informs the responsible authority or an officer of the responsible authority authorised for the purposes of this paragraph as to the identity and address of the person who was the person in charge of the vehicle at the time the offence is alleged to have been committed; or

(b)satisfies the responsible authority that the vehicle had been stolen or unlawfully taken, or was being unlawfully used, at the time the offence is alleged to have been committed,

the owner is, in the absence of proof to the contrary, deemed to have committed the offence.

[Section 225 amended: No. 8 of 2009 s. 100(5).]

Division 3 — Infringement notices

226.Terms used

In this Division —

alleged offender means a person who or which is suspected of having committed an offence under this Act or under regulations made under this Act;

designated person in section 228, 229, 230 or 231 means a person appointed under section 234 to be a designated person for the purposes of the section in which the term is used;

prescribed offence means an offence prescribed under section 227(1).

227.Prescribed offences

(1)The regulations may prescribe an offence under this Act, or under any regulations made under this Act, to be an offence for which an infringement notice may be issued under this Division.

(2)For each prescribed offence the regulations must prescribe —

(a)a modified penalty applicable in whatever the circumstances in which the offence is committed; or

(b)a modified penalty applicable if the offence is committed in circumstances specified in the regulations.

(3)The modified penalty for an offence is not to exceed 20% of the maximum penalty that could be imposed for that offence by a court.

228.Giving of infringement notice

(1)A designated person who has reason to believe that a person has committed a prescribed offence may give an infringement notice to the alleged offender.

(2)The notice must be given within 6 months after the alleged offence is believed to have been committed.

229.Content of infringement notice

(1)An infringement notice is to be in the prescribed form and is to —

(a)contain a description of the alleged offence; and

(b)specify the amount of the modified penalty for the offence; and

(c)advise that if the alleged offender does not wish to have a complaint of the alleged offence heard and determined by a court, that amount may be paid to a designated person within a period of 28 days after the giving of the notice; and

(d)inform the alleged offender as to who are designated persons for the purposes of receiving payment of modified penalties.

(2)The amount referred to in subsection (1)(b) is to be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.

230.Extending time to pay modified penalty

A designated person may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.

231.Withdrawal of infringement notice

(1)A designated person may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(2)If an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded.

232.Benefit of paying modified penalty

(1)Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn.

(2)If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(3)Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

233.Paid modified penalty, application of

An amount paid as a modified penalty is, subject to section 231(2), to be dealt with as if it were a penalty imposed by a court as a penalty for an offence.

234.Designated persons, appointment of

(1)The chief executive officer of a responsible authority may, in writing, appoint persons or classes of persons to be designated persons for the purposes of section 228, 229, 230 or 231 or for the purposes of 2 or more of those sections.

(2)A person who is authorised to give infringement notices under section 228 is not eligible to be a designated person for the purposes of any of the other sections.

235.Notice placing onus on vehicle owner

(1)If an alleged offence is one for which a notice under section 225 can be given to the owner of a vehicle involved in the commission of the offence, that notice can be included in the same document as an infringement notice given to the owner for the alleged offence.

(2)For the purpose of giving the vehicle owner an infringement notice that is with a notice under section 225 —

(a)it is a sufficient ground for believing the owner to have committed the alleged offence that the person is the owner; and

(b)the infringement notice may be addressed and given as specified in section 225(4).

(3)Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, section 225(6) does not have effect to deem the owner to have committed the offence.

(4)The statement required by section 225(5) is to include a description of the effect of subsection (3) if an infringement notice is given with a notice under section 225.

Part 14 — Applications for review

Division 1 — Making and determination of applications for review

236.When this Part applies

(1)In this section —

planning scheme includes any other instrument that regulations made under the State Administrative Tribunal Act 2004 specify to be a planning scheme for the purposes of subsection (3).

(2)This Part applies if a written law or a planning scheme or any other written law gives the State Administrative Tribunal jurisdiction to carry out a review in accordance with this Part.

(3)Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is to be taken to give that right if —

(a)the planning scheme is expressed as conferring on the person a right to appeal against the decision, or to refer the matter, under this Act; or

(b)the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.

(4)Subsection (3) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise than in accordance with this Part.

(5)A provision in a planning scheme of the kind described in subsection (3)(a) or (b) has no effect other than the effect given to that provision by subsection (3).

237.Terms used

In this Part, unless the contrary intention appears —

judicial member has the meaning given to that term in section 3(1) of the State Administrative Tribunal Act 2004;

party has the meaning given to that term in section 36 of the State Administrative Tribunal Act 2004;

President means the President of the State Administrative Tribunal;

Tribunal member has the meaning given to that term in section 3(1) of the State Administrative Tribunal Act 2004.

[Section 237 amended: No. 5 of 2008 s. 84.]

237A.How SAT to be constituted

(1)When exercising the jurisdiction referred to in section 236(2), the State Administrative Tribunal is to be constituted under this section and section 238.

(2)The State Administrative Tribunal is to be constituted by one Tribunal member when it is dealing with an application for a review of the determination of, or conditions imposed in respect of —

(a)a development application to commence a development of a value of less than $250 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004; or

(b)a development application to commence a development of a single house on a single lot where the development is of a value of less than $500 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004, or any development ancillary to that development; or

(c)an application for approval to subdivide a lot into not more than 3 lots.

(3)The State Administrative Tribunal is to be constituted by one Tribunal member when it is dealing with an application that the applicant, with the agreement of each other party, has elected at the time of making the application to have determined by one Tribunal member.

(4)If —

(a)subsection (2) or (3) does not apply; or

(b)the President is of the opinion that an application referred to in subsection (2) or (3) is likely to raise complex or significant planning issues,

the State Administrative Tribunal is to be constituted under section 11 of the State Administrative Tribunal Act 2004.

[Section 237A inserted: No. 5 of 2008 s. 85.]

238.SAT members, qualifications of

(1)The member constituting the State Administrative Tribunal, or each of them if there is more than one, is to be a person who has knowledge of and experience in one or more of the fields of urban and regional planning, architecture and urban design, engineering, surveying, environmental science, planning law, heritage matters, public administration, commerce and industry.

(2)If the application is for a review of a decision referred to in section 254 or a decision relating to an environmental condition, the member constituting the State Administrative Tribunal, or at least one of them if there is more than one, is to be a person who has knowledge of and experience in the field of environmental science.

[Section 238 amended: No. 5 of 2008 s. 86.]

239.Legal representation, some applicants may elect there will be none

(1)In the case of an application described in section 237A(2) the applicant may, at the time the application is made, elect that no party to the application is to be represented by a legal practitioner.

(2)If an applicant makes an election under subsection (1), no party to the application is entitled to be represented by a legal practitioner unless —

(a)the President, being of the opinion that the application is likely to raise complex or significant planning issues, directs that the parties may be so represented; or

(b)the President, having regard to whether the application involves a question of law, directs in any other case that the parties may be so represented; or

(c)the applicant is a legal practitioner; or

(d)the applicant withdraws the election.

[Section 239 amended: No. 5 of 2008 s. 87.]

240.SAT to invite Minister for the Environment to make submission before determining certain applications

Before determining an application for the review of a decision referred to in section 254 or a decision relating to an environmental condition, the State Administrative Tribunal is to invite the Minister for the Environment to make a submission in respect of that application.

241.SAT to have regard to certain matters

(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including —

(a)any State planning policy which may affect the subject matter of the application; and

(b)any management programme for the development control area in force under the Swan and Canning Rivers Management Act 2006 Part 4 that may affect the subject matter of the application.

(2)In the case of an application that relates to land to which the Heritage Act 2018 applies, and whether or not a State planning policy provides for the conservation of that land, the State Administrative Tribunal —

(a)is to refer the matter to the Heritage Council for advice; and

(b)may receive and hear submissions made on behalf of the Heritage Council; and

(c)may join the Heritage Council as a party to the application; and

(d)is to have due regard to the objects of the Heritage Act 2018.

(3)In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.

[Section 241 amended: No. 52 of 2006 s. 6; No. 22 of 2018 s. 186(13).]

242.Persons who are not parties, submissions from

The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.

243.Exclusion of powers to join parties

Section 38 of the State Administrative Tribunal Act 2004 does not apply to a proceeding for a review in accordance with this Part.

244.SAT review of some SAT decisions

(1)The State Administrative Tribunal constituted by a judicial member may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.

(2)The State Administrative Tribunal constituted by a judicial member may —

(a)affirm the direction, determination or order; or

(b)revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.

(3)An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules made under the State Administrative Tribunal Act 2004, by a party within one month after the direction, determination or order is given to the party.

[(4)deleted]

(5)A review by the State Administrative Tribunal —

(a)of its own motion is not to be made later than one month after the direction, determination or order is given to the party; or

(b)on the application of a party is not to be made later than one month after the application is made.

[Section 244 amended: No. 5 of 2008 s. 88.]

245.Submissions by Minister to SAT

(1)If it appears to the State Administrative Tribunal that an application may be determined in a way which will have a substantial effect on the future planning of the area in which the land the subject of the application is situated, the State Administrative Tribunal may invite the Minister to make a submission as to the matters the Minister considers to be relevant to the issues before the State Administrative Tribunal.

(2)Irrespective of whether or not there has been an invitation under subsection (1), if it appears to the Minister that an application may be determined in a way which will have a substantial effect on the future planning of the area in which the land the subject of the application is situated, the Minister may make a submission as to the matters which the Minister considers to be relevant to the issues before the State Administrative Tribunal.

(3)A submission may be made by the Minister in writing or orally on behalf of the Minister by a representative who appears at a hearing of the application, and may be made at any time before the determination of the application.

(4)When a written submission has been made by the Minister, a copy is to be given by the State Administrative Tribunal to the parties who are in any case to be given an opportunity of making further submissions to the State Administrative Tribunal.

(5)In this section —

(a)where the area in which the land the subject of the application is situated includes or comprises land or waters that are within or abut the development control area as defined in the Swan and Canning Rivers Management Act 2006, Minister includes the Minister to whom the administration of that Act is committed; and

(b)where the area in which the land the subject of the application is situated includes, or is included in, or abuts any land included in a place of a kind mentioned in the Heritage Act 2018 section 72(1), Minister includes the Minister to whom the administration of that Act is committed.

[Section 245 amended: No. 52 of 2006 s. 6; No. 22 of 2018 s. 186(14).]

246.Minister may call in application to SAT for review

(1)This section applies to an application made to the State Administrative Tribunal if the Minister considers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister.

(2)The Minister may direct —

(a)the President to refer an application to which this section applies to the Minister for determination; or

(b)the State Administrative Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination.

(3)The Minister cannot give a direction under subsection (2) —

(a)in respect of an application made to the State Administrative Tribunal under the Heritage Act 2018; or

(b)more than 14 days after the application was made to the State Administrative Tribunal; or

(c)after a final determination has been made in relation to the application.

(4)The Minister, within 14 days after a direction is given, is to cause a copy of it to be published in the Gazette and, as soon as is practicable, is to cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.

(5)If the Minister gives a direction under subsection (2)(a), each party to the proceeding may present the case of that party to the Minister.

(6)The Minister is to have regard to the submissions of the parties and may have regard to any other submission received by the Minister.

(7)A copy or transcript of any submission to which the Minister has regard is to be —

(a)given to each party; and

(b)published in the manner prescribed by the regulations.

[Section 246 amended: No. 28 of 2010 s. 48; No. 22 of 2018 s. 186(15).]

247.Determination of application by Minister

(1)In determining an application the Minister is not limited to planning considerations but may make the determination having regard to any other matter affecting the public interest.

(2)When the Minister determines an application that determination has effect according to its tenor.

(3)When an application is referred to the Minister under section 246(2)(b) the executive officer of the State Administrative Tribunal is to —

(a)give a copy of the recommendations that accompanied the referral to each party within a reasonable time after the referral; and

(b)make a copy of the recommendations available during office hours for inspection by any person without charge.

(4)The Minister is to —

(a)give to each party written reasons for the determination of the Minister on the application; and

(b)as soon as is practicable, cause a copy of those reasons to be laid before each House of Parliament; and

(c)upon payment of a fee determined in the manner prescribed by the regulations, supply a copy of those reasons to any other person.

(5)The decision of the Minister is final.

[248.Deleted: No. 28 of 2010 s. 49.]

Division 2 — Decisions which may be reviewed

249.Decision as to development under interim development order

(1)Subject to subsection (2), if an applicant for approval to carry out development under an interim development order is aggrieved by the refusal to grant the approval or by the conditions subject to which the approval is granted, the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision to refuse or to impose the conditions.

(2)No application for a review is to be made or heard in respect of a development that contravenes a provision of —

(a)a local planning scheme; or

(b)a local law of a local government that is not superseded by the interim development order; or

(c)an order made under the Heritage Act 2018 Part 4 or Part 11 Division 4.

(3)The Commission is to be taken to have refused an application for approval to carry out development under a regional interim development order, and a local government is to be taken to have refused an application for approval to carry out development under a local interim development order, if the Commission or the local government, as the case requires, has not given its decision on that application to the applicant —

(a)within a period of 60 days after the receipt by the local government or Commission of the application; or

(b)in the case of land in relation to which the application has been referred to the Heritage Council in accordance with the interim development order, within a period of 60 days after referring the application.

[Section 249 amended: No. 22 of 2018 s. 186(16).]

250.Decision as to development in planning control area

(1)An applicant whose application under section 115 has been —

(a)approved subject to conditions which are unacceptable to the applicant; or

(b)refused,

may apply to the State Administrative Tribunal for a review, in accordance with this Part, of that approval or refusal.

[(2)deleted]

(3)If the Commission has not within 60 days of receiving an application forwarded to it under section 115(3) given its decision on that application to the applicant, the application is to be taken to have been refused.

[Section 250 amended: No. 22 of 2018 s. 186(17).]

251.Some decisions made under Part 10

(1)An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision of the Commission to refuse to approve any plan, application for title, transfer, conveyance, lease, licence to use and occupy, or mortgage, in respect of which an application for approval was made to the Commission.

(2)An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of conditions affixed to the granting of an approval referred to in subsection (1).

(3)An applicant who makes a request under section 144(1) or 151(1) may apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision of the Commission made under section 144(2) or 151(2).

(4)An applicant given approval of a plan of subdivision who is aggrieved by the Commission’s decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.

(5)If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision has not been complied with, an application under subsection (4) may include an application for a review of that condition.

252.Decision made in exercise of discretionary power under planning scheme

(1)Subject to subsection (3), if —

(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and

(b)a person has applied to the responsible authority for such a grant; and

(c)the responsible authority has —

(i)refused the application; or

(ii)granted it subject to any condition,

the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision.

(2)Subject to subsections (1) and (3), an applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision under a local planning scheme or an improvement scheme as to —

(a)the classification of a use under the planning scheme; or

(b)the permissibility of a use that is not listed under the planning scheme.

(3)Subsections (1) and (2) do not affect the operation of a right given or taken to be given by a planning scheme to apply for a review of a decision, but where rights are given or taken to be given by a planning scheme and under subsection (1) or (2), the exercise of one of those rights extinguishes the other right to apply for a review of the same decision.

[Section 252 amended: No. 28 of 2010 s. 22.]

253.Responsible authority not making decision, notice of default to and deemed refusal by

(1)In this section —

applicant includes a person making a request under section 144(1), 145(1) or 151(1);

decision period means —

(a)in the case of an application for approval of a plan of subdivision, the period of 90 days specified in section 143(2) or any longer period after that day as may be agreed between the Commission and the applicant under section 143(2); and

(b)in the case of an application for endorsement of approval on a diagram or plan of survey, the period of 30 days specified in section 145(5) or any longer period after that day as may be agreed between the Commission and the applicant under section 145(5); and

(c)in the case of any other application, or a request, referred to in subsection (2), the period of 60 days from the day on which the application or request was made, or any longer period after that day as may be agreed in writing between the responsible authority and the applicant or person so requesting.

(2)If at any time after the end of the decision period the responsible authority has not —

(a)approved, or refused to approve, an application referred to in section 251(1); or

(b)given notice of a decision on the request made under section 144(1) or 151(1); or

(c)endorsed, or refused to endorse, a diagram or plan of survey under section 145(4),

the applicant may give written notice of default to the responsible authority.

(3)Where a notice of default is given to a responsible authority under subsection (2), the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, as if the responsible authority had refused to approve the application, plan or diagram, or had refused to alter or revoke the condition, as the case requires, on the day on which the notice of default was given to the responsible authority.

Division 3 — Other applications for review

254.Decision made under EP Act s. 48I

If a responsible authority makes a decision under section 48I(3)(c) or (d) of the EP Act in respect of a proposal under an assessed scheme, the applicant promoting the proposal may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision.

255.Direction given under s. 214

(1)A person to whom a direction is given under section 214 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision to give the direction.

(2)If the State Administrative Tribunal confirms or varies the direction, it may, by written notice served on the person to whom the direction was given, direct the owner to comply with the direction as so confirmed or varied, within a period of not less than 40 days after service of the notice, as is specified in the notice.

(3)Nothing in subsection (2) limits the functions of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.

Part 15  Subsidiary legislation

[Heading deleted: No. 26 of 2020 s. 73.]

256.Regulations for content of local planning schemes

(1)The Governor may, on the recommendation of the Minister, make regulations prescribing provisions that deal with any or all of the following —

(a)carrying out the general objects of local planning schemes;

(b)any matter set out in Schedule 7.

(2)Before making a recommendation under subsection (1) the Minister —

(a)must consult with the EPA and local governments; and

(b)may consult with any other public authority or person the Minister considers is likely to be affected by the proposed regulations; and

(c)must have regard to any submissions made pursuant to consultation under paragraphs (a) and (b).

(3)Consultation under subsection (2) may be undertaken in any way and within such period as the Minister considers appropriate in the circumstances.

(4)Unless the regulations otherwise provide, provisions prescribed under subsection (1) apply to all local planning schemes.

(5)The regulations must designate each provision prescribed under subsection (1) as —

(a)a model provision, being a provision to which section 257A applies; or

(b)a deemed provision, being a provision to which section 257B applies.

(6)The regulations may include provisions of a savings or transitional nature that are necessary or convenient to be made for the purpose of dealing with matters that are incidental to or consequential on the prescribing of a model provision or a deemed provision under this section.

(7)Without limiting subsection (6), regulations made under that subsection may provide that specified model provisions or deemed provisions of a local planning scheme —

(a)do not apply; or

(b)apply with specified modifications,

to or in relation to any matter.

[Section 256 inserted: No. 28 of 2010 s. 64; amended: No. 26 of 2020 s. 74.]

257A.Model provisions, effect of

(1)In this section —

model provision means a provision designated as a model provision under section 256(5)(a).

(2)Subject to subsection (3), a local planning scheme prepared or adopted by a local government must include any model provisions that —

(a)are prescribed by regulations in force at the time the scheme is approved under section 87; and

(b)apply to the scheme.

(3)When approving a local planning scheme under section 87, the Minister may approve the exclusion from, or variation in, the scheme of a model provision.

[Section 257A inserted: No. 28 of 2010 s. 64.]

257B.Deemed provisions, effect of

(1)In this section —

deemed provision means a provision designated as a deemed provision under section 256(5)(b).

(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.

(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.

(4)It is sufficient compliance with section 54(a), 87(3)(a), 91(1) or 92(2)(b) if a local planning scheme is published under that provision without the deemed provisions.

(5)Each local government, in preparing a local planning scheme or a consolidation of a local planning scheme, must ensure that the scheme is consistent with any deemed provision that applies to the scheme.

[Section 257B inserted: No. 28 of 2010 s. 64.]

[257.Deleted: No. 28 of 2010 s. 65.]

258.Regulations for procedure and costs for local planning schemes

(1)The Governor may make regulations for regulating the procedure to be observed —

(a)with respect to the preparation or adoption of a local planning scheme;

(b)with respect to obtaining the approval of the Minister to a local planning scheme so prepared or adopted;

(c)with respect to the review, amendment or repeal of a local planning scheme;

(d)with respect to any inquiries, reports, notices, or other matters required in connection with the preparation, adoption or approval of a local planning scheme, or preliminary to the preparation, adoption or approval of the scheme.

(2)Provision is to be made by the regulations for ensuring that —

(a)notice of the proposal to prepare or adopt a scheme is to be given, at the earliest stage possible, to any local government interested in the land; and

(b)the local government of the district in which any land proposed to be included in a scheme is given —

(i)a notice of any proposal to prepare or adopt such a scheme; and

(ii)a copy of the draft scheme before the scheme is made;

and

(c)the local government is entitled to be heard at any inquiry held by the Minister in regard to the scheme.

(3)Without limiting the generality of subsection (1) regulations made under that subsection with regard to the amendment of a scheme may require the payment by the owner of land of the costs incurred in the publication under the regulations of any notice prescribed in the regulations relating to an amendment to a local planning scheme where the amendment is made at the request of that owner and is in respect of land owned by that owner.

[Section 258 amended: No. 28 of 2010 s. 66; No. 26 of 2020 s. 75.]

259.Regulations for environmental review expenses

The Governor may make regulations with respect to the persons from whom, and the means by which, a responsible authority may recover expenses incurred by it in undertaking an environmental review required by the EP Act under section 48C(1)(a) of the EP Act.

[Section 259 amended: No. 26 of 2020 s. 76.]

[260.Deleted: No. 26 of 2020 s. 77.]

[Heading deleted: No. 26 of 2020 s. 78.]

261.Local government fees for planning matters etc., regulations as to

(1)In this section —

fee includes charge;

issue includes grant, give or renew;

licence includes registration, right, permit, authority, approval or exemption;

planning matter means any matter arising under this Act in relation to —

(a)a local planning scheme; or

(b)subdivision; or

(c)approval of development.

(2)The Governor may make regulations providing for, or in respect of —

(a)the licences and services in respect of planning matters for which fees may be imposed by a local government; and

(b)the fees that may be imposed for those licences and the provision of those services, and the recovery of those fees; and

(c)any formula, index or other base to be used for the purposes of calculating or ascertaining the fee; and

(d)the payment or recovery of costs and expenses incurred by the local government in issuing a licence or providing a service in relation to a planning matter, including costs and expenses incurred by the local government in obtaining specialist or expert advice where, in the opinion of the local government, the advice was necessary for the purpose of taking the action or providing the service; and

(e)the liability of persons for payment to the local government in respect of the issuing of a licence and the provision of services and related costs and expenses.

(3)A local government is not to —

(a)impose any fee for the issue of a licence or the provision of a service in relation to a planning matter; or

(b)require payments for costs and expenses incurred by the local government in issuing a licence or providing a service in relation to a planning matter,

unless the licence or service is prescribed under subsection (2)(a).

(4)A fee imposed for an application for approval of development that has commenced or been carried out may include an amount prescribed by way of penalty.

(5)A local government is not to impose a fee for an action or service in relation to a planning matter that is inconsistent with a fee prescribed or provided for under this section.

262.Uniform general local laws

(1)The Governor may make uniform general local laws, or separate sets of general local laws adapted for areas of any special character, for carrying into effect all or any of the purposes mentioned in Schedule 8.

(2)Local laws made under subsection (1) —

(a)have the force of law in the district of any local government which the Governor may from time to time prescribe; and

(b)supersede the local laws made for the same or similar purpose by the local government of the district so prescribed.

(3)The Governor may at any time repeal any by‑law made under section 248 of the Local Government Act 1960 3.

(4)If a by‑law made under section 248 of the Local Government Act 1960 3, or a local law made under subsection (1), is inconsistent with any planning scheme approved before or after the making of the by‑law or local law, and having effect in the district, or in part of the district, in which the by‑law or local law is in force, then to the extent of such inconsistency, and in the part of the district in which the planning scheme has effect, the provisions of the planning scheme prevail.

(5)In subsection (4) a reference to a planning scheme includes a reference to —

(a)an approved redevelopment scheme as defined in the Metropolitan Redevelopment Authority Act 2011 section 3; and

(b)a master plan approved under the Hope Valley‑Wattleup Redevelopment Act 2000.

(6)If any property is injuriously affected by the operation of any by‑law made under section 248 of the Local Government Act 1960 3 or local law under subsection (1), the provisions of Part 11 apply as if the by‑law or local law were a planning scheme, and as if the resolution making the by‑law or local law were a resolution to prepare a planning scheme.

[Section 262 amended: No. 28 of 2010 s. 23; No. 45 of 2011 s. 141(10).]

263.Regulations: general

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2)Without limiting any other provision of this Act, regulations may —

(a)make provision for or with respect to the making of applications and the manner in which applications are to be made and the procedure to be followed;

(b)prescribe forms and fees;

(c)prescribe the rights, powers and privileges given to, and duties imposed on, a covenantee or other person or authority specified in the regulations where road access is restricted or prohibited as set out in a condition referred to in section 150 and provide for the modification or discharge of, and other matters related to, a covenant referred to in that section;

(d)prescribe the rights, powers and privileges given to a specified person or authority where an easement for a specified purpose has effect in favour of that person or authority under section 167;

(ea)provide for and regulate reporting by local governments in relation to planning matters;

(eb)regulate procedures in relation to the carrying out and enforcement of local planning schemes;

(e)impose a penalty not exceeding $50 000 for offences against the regulations.

(3)A fee imposed for an application for approval of development that has commenced or been carried out may include an amount prescribed by way of penalty.

(4)To the extent that a regulation made under this section is inconsistent with or contrary to a regulation made under sections 256 to 259, the regulation made under sections 256 to 259 prevails.

(5)If a regulation is inconsistent with a rule, the regulation prevails to the extent of the inconsistency.

[Section 263 amended: No. 28 of 2010 s. 67; No. 26 of 2020 s. 79.]

[Heading deleted: No. 26 of 2020 s. 80.]

264.Regulations may adopt codes and other texts

(1)A regulation made under this Act may adopt the text of any code, rules, specifications or standard issued by the Standards Association of Australia or by such other body as is specified in the regulation.

(2)A regulation prescribing fees payable on application to the Board of Valuers may adopt the text of all or any of the maximum amount of remuneration fixed under section 25 of the Land Valuers Licensing Act 1978 for the various kinds of services rendered by licensed valuers and those maximum amounts of remuneration, if so adopted, are to be taken to be fees prescribed as fees payable on application to the Board of Valuers.

(3)The text may be adopted —

(a)wholly or in part;

(b)as modified by the regulations;

(c)as it exists at a particular date or as amended from time to time.

(4)The adoption may be direct, by reference made in the regulation, or indirect, by reference made in any text that is itself directly or indirectly adopted.

Part 16  Miscellaneous

265.Delegation by Minister

(1)The Minister may, by instrument, delegate to a person or body any function of the Minister under this Act, except this power of delegation.

(2)The Minister is to cause the name or title of the delegate to be published in the Gazette as soon as is practicable after the making of the delegation concerned.

(3)A delegate cannot subdelegate the exercise or performance of any function unless the delegate is expressly authorised by the instrument of delegation to do so.

(4)A delegate exercising or performing a function as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of the Minister to act through an officer or agent.

266.Duties and liabilities of persons performing functions under this Act

(1)In this section —

function means a function in connection with the carrying out of this Act;

meeting means a meeting held in connection with the carrying out of this Act;

member means any of the following —

(a)a member;

(b)an associate member;

(c)a member of a committee established under Schedule 2;

(d)a member of a public authority;

(e)a member of a local government;

(f)a member of a DAP.

(2)A member must at all times act honestly in the performance of a function.

Penalty: $5 000.

(3)Where a matter is before a meeting for consideration and a member participating in the meeting has a direct or indirect pecuniary interest in the matter, the member —

(a)as soon as possible after the relevant facts have come to the member’s knowledge is to disclose that the member has such an interest to the other members participating in the meeting; and

(b)after disclosure of the interest is not to —

(i)be present during any consideration or discussion of the matter; or

(ii)vote on the matter.

Penalty: $5 000.

(4)A disclosure under subsection (3) is to be recorded in the minutes of the meeting.

(5)A member is not to disclose any information acquired by virtue of the performance of any function unless the disclosure is made —

(a)in connection with the carrying out of this Act or under a legal duty; or

(b)for the purposes of any proceedings arising out of this Act or any report of such proceedings.

Penalty: $5 000.

(6)A member is not to make improper use of information acquired by virtue of the performance of any function to gain, directly or indirectly, an advantage for himself or herself or to cause detriment to the Commission or any other person.

Penalty: $5 000.

(7)A member who commits a breach of any provision of this section is liable for any profit made by the member or for any damage suffered by the Commission as a result of the breach of that provision.

(8)This section is in addition to and not in derogation of any other law relating to the duty or liability of the holder of a public office.

[Section 266 amended: No. 28 of 2010 s. 44.]

267A.Crown and State land, who may sign documents as to

(1)If the approval or signature of the owner of Crown land or freehold land in the name of the State is required for the purposes of this Act, the approval or signature may be given by —

(a)the Minister as defined in the Land Administration Act 1997 section 3(1) (the Minister for Lands); or

(b)a person who is authorised in writing by the Minister for Lands to do so.

(2)Nothing in this section limits the ability of the Minister for Lands to otherwise perform a function through an officer or agent.

(3)Nothing in this section affects —

(a)a right or obligation that any other person, as an owner of land mentioned in subsection (1), has under this Act in relation to that land; or

(b)how that right may be exercised or that obligation may be satisfied.

[Section 267A inserted: No. 8 of 2010 s. 25.]

267.Protection from personal liability

(1)An action in tort does not lie against —

(a)a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act; or

(b)a person acting under an authority mentioned in section 152(5)(c) or 267A(1) for anything that the person has done, in good faith, in the performance or purported performance of a function to which the authority applies.

[(2)deleted]

(3)The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act or any other written law had been enacted.

(4)Despite subsection (1), neither the Commission, the State nor a local government is relieved of any liability that it might have for another person having done anything as described in that subsection.

(5)In this section, a reference to the doing of anything includes a reference to an omission to do anything.

[Section 267 amended: No. 8 of 2010 s. 26.]

268A.Laying documents before House of Parliament that is not sitting

(1)If a provision of this Act requires the Minister, as soon as is practicable, to cause a copy of an order, improvement plan or direction to be laid before each House of Parliament, or dealt with under this section, and —

(a)at the commencement of the period after the day on which the order, improvement plan or direction is given, a House of Parliament is not sitting; and

(b)the Minister is of the opinion that the House will not sit during the period of 14 days after the order or direction is given,

the Minister is to transmit a copy of the order, improvement plan or direction to the Clerk of that House.

(2)A copy of an order, improvement plan or direction transmitted to the Clerk of a House is to be taken to have been laid before that House.

(3)The laying of a copy of an order, improvement plan or direction that is regarded as having occurred under subsection (2) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

[Section 268A inserted: No. 28 of 2010 s. 50; amended: No. 45 of 2011 s. 141(11).]

268.Review of Act

(1)The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 5 years from the commencement of this section.

(2)The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause the report to be laid before each House of Parliament.

Part 17 — Special provisions for COVID‑19 pandemic relating to development applications

[Heading inserted: No. 26 of 2020 s. 4.]

Division 1 — Preliminary

[Heading inserted: No. 26 of 2020 s. 4.]

269.Terms used

(1)In this Part —

applicable legal instrument, in relation to a development application, means a legal instrument under which the application could, apart from this Part, be determined;

development, in relation to a development application that is an application for approval under the Swan and Canning Rivers Management Act 2006 section 72(1) or (4) or to a determination of such an application, has the meaning given in section 3(1) of that Act;

development application —

(a)means a development application as defined in section 4(1); and

(b)includes (to avoid doubt) a development application as defined in section 4(1) that is to be determined, or could be determined, by a Development Assessment Panel; and

(c)includes an application under Part 7 for approval of development in a planning control area; and

(d)includes an application for approval under the Swan and Canning Rivers Management Act 2006 section 72(1) or (4);

Government agreement has the meaning given in the Government Agreements Act 1979 section 2;

legal instrument means any of the following —

(a)this Act, other than this Part, any Part 17 regulations and any orders under section 284;

(b)any of the following enactments —

(i)the Contaminated Sites Act 2003;

(ii)the Heritage Act 2018;

(iii)the Swan and Canning Rivers Management Act 2006;

(iv)the Swan Valley Planning Act 1995;

(v)the Local Government Act 1995;

(c)any enactment, other than the following —

(i)this Act;

(ii)an enactment covered by paragraph (b);

(iii)the EP Act;

(d)a planning scheme or an interim development order;

(e)any other scheme, code, policy, plan, local law, by‑law, rule, condition, notice or other instrument made under any enactment covered by paragraph (a), (b) or (c);

mining has the meaning given in the Mining Act 1978 section 8(1);

normal decision‑maker, in relation to a development application, means a person or body who could, apart from this Part, determine the application under an applicable legal instrument;

Part 17 regulations means regulations under section 286(1);

recovery period means the period of 18 months beginning on the day on which the Planning and Development Amendment Act 2020 section 4 comes into operation;

significant development, subject to subsections (2) and (3), means —

(a)development that has an estimated cost of —

(i)in the case of a development that is wholly or partly in the metropolitan region — $20 million or more;

or

(ii)in any other case — $5 million or more;

or

(b)development that is of a class or kind prescribed by Part 17 regulations for the purposes of this paragraph;

substantially commenced, subject to subsection (4), has the meaning given in the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 1 as in force at the beginning of the recovery period;

warehouse means a building or outdoor facility, or a part of a building or outdoor facility, used for 1 or both of the following —

(a)the storage of goods, equipment, plant or materials;

(b)the display or sale by wholesale of goods.

(2)Development that is of a class or kind prescribed by Part 17 regulations for the purposes of this subsection —

(a)is not to be regarded as significant development or as being part of any significant development; and

(b)is not to be taken into account in determining whether any larger development of which the development forms part is significant development.

(3)Development of a warehouse —

(a)is not to be regarded as significant development or as being part of any significant development; and

(b)is not to be taken into account in determining whether any larger development of which the development forms part is significant development.

(4)For the purposes of the definition of substantially commenced in subsection (1), the definition of that term in the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 clause 1 applies as if the reference to a development approved under a planning scheme or under an interim development order were a reference to a development approved by the Commission under section 274.

[Section 269 inserted: No. 26 of 2020 s. 4.]

270.Effect of Part

(1)This Part has effect despite any legal instrument.

(2)However, this Part does not apply in relation to any of the following —

(a)land to which an approved redevelopment scheme under the Metropolitan Redevelopment Authority Act 2011 applies;

(b)land in the redevelopment area as defined in the Hope Valley‑Wattleup Redevelopment Act 2000;

(c)land to which a Government agreement applies;

(d)mining, or proposed mining, that is, or would be, authorised under the Mining Act 1978.

(3)To avoid doubt, this Part is subject to section 5 of the EP Act.

[Section 270 inserted: No. 26 of 2020 s. 4.]

Division 2 — Commission to determine certain development applications

[Heading inserted: No. 26 of 2020 s. 4.]

Subdivision 1 — Applications and referrals

[Heading inserted: No. 26 of 2020 s. 4.]

271.Development applications that may be made directly to Commission during recovery period

During the recovery period, a person may make a development application to the Commission for determination under section 274 if the application is for approval of significant development.

[Section 271 inserted: No. 26 of 2020 s. 4.]

272.Development applications that may be referred to Commission by Premier during recovery period

(1)During the recovery period, the prospective applicant in relation to a development application that has not yet been made may notify the Minister that they want the application to be determined under section 274.

(2)Subsection (3) applies if the Minister —

(a)is notified under subsection (1); and

(b)considers that the development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274.

(3)During the recovery period, the Premier, on the Minister’s recommendation, may refer the development application to the Commission for determination under section 274.

(4)Subsection (5) applies if —

(a)before or during the recovery period, a person makes a development application (otherwise than to the Commission under section 271); and

(b)the Minister considers that the development application raises issues of such State or regional importance that it would be appropriate for the application to be determined under section 274.

(5)During the recovery period, the Premier, on the Minister’s recommendation, may —

(a)direct any person or body who is dealing with the development application to refer the application to the Commission for determination under section 274; or

(b)if the Commission is dealing with the development application — direct the Commission to determine the application under section 274.

(6)However, the Premier cannot give a direction under subsection (5) if the development application has already been determined, or been taken to be determined, by a normal decision‑maker (whether or not the determination is to be reviewed by the State Administrative Tribunal or otherwise challenged).

(7)The Premier, within 14 days after the day on which a direction is given under subsection (5), must cause a copy of it to be published in the Gazette and, as soon as is practicable, must cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.

[Section 272 inserted: No. 26 of 2020 s. 4.]

273.Supplementary provisions for applications and referrals

(1)A development application that is made under section 271 must be made in the manner and form required by the Commission and, without limitation, include any documents or information required by the Commission.

(2)A notification under section 272(1) must be made in the manner and form required by the Minister and, without limitation, include any documents or information required by the Minister.

(3)A person or body who is given a direction under section 272(5) to refer a development application to the Commission —

(a)must refer the development application within the period specified in the direction; and

(b)in referring the development application, must provide the Commission with the application and any documents or information that accompanied the application.

(4)Without limiting section 270(1), in imposing requirements under subsection (1) or (2), the Commission or Minister is not bound or restricted by any legal instrument that would, apart from this Part, regulate, or otherwise apply in relation to, any of the following —

(a)the making of the development application;

(b)the development application itself;

(c)the consideration or determination of the development application.

[Section 273 inserted: No. 26 of 2020 s. 4.]

Subdivision 2 — Determinations

[Heading inserted: No. 26 of 2020 s. 4.]

274.Determination of development applications by Commission

(1)A development application must be determined under this section (and not any applicable legal instrument) if —

(a)the development application is made or referred to the Commission under section 271 or 272(3) or (5); or

(b)the Commission is directed under section 272(5) to determine the development application under this section.

(2)The Commission must consider the development application and determine it by —

(a)granting approval for the development without conditions; or

(b)granting approval for the development with conditions; or

(c)refusing approval for the development.

(3)The Commission must determine the development application as soon as is reasonably practicable but, subject to that, does not have to determine the application before the end of the recovery period.

(4)For the purposes of subsection (2)(a) and (b) —

(a)approval can be granted —

(i)for the development for which approval is sought; or

(ii)for that development, except for a part or aspect of that development specified in the approval; or

(iii)for a part or aspect of that development specified in the approval;

but

(b)approval cannot be granted as referred to in paragraph (a)(ii) or (iii) —

(i)in the case of a development application made under section 271 — for development that is not significant development; or

(ii)in any other case — for development that is substantially different from the development for which approval is sought.

(5)For the purposes of subsection (2)(b), the Commission may impose any conditions that the Commission considers appropriate, including (without limitation) the following —

(a)a condition limiting the time period for which approval is granted;

(b)a condition requiring further details of the development specified in the approval to be, before the development is commenced, submitted to, and approved by, the Commission.

(6)The Commission can impose a condition of the kind referred to in subsection (5)(b) only if the Commission considers that the further details to be approved would not substantially change the approved development.

(7)When the Commission determines the development application, the Commission must —

(a)give the applicant written notice of the determination, including the Commission’s reasons for the determination; and

(b)make copies of the determination and reasons publicly available on a website maintained by, or on behalf of, the Commission.

[Section 274 inserted: No. 26 of 2020 s. 4.]

275.Application of legal instruments and matters to which Commission must have due regard

(1)This section applies if the Commission is required to consider and determine a development application under section 274.

(2)Subsections (3) and (4) apply in relation to any legal instrument that would, apart from this Part, regulate, or otherwise apply in relation to, any of the following —

(a)the making of the development application;

(b)the development application itself;

(c)the consideration or determination of the development application.

(3)Without limiting section 270(1), for the purposes of the Commission’s consideration and determination of the development application —

(a)the legal instrument does not apply; and

(b)the Commission is not otherwise bound or restricted by the legal instrument.

(4)However, in considering and determining the development application, the Commission may do any of the following —

(a)anything that a normal decision‑maker, or any other person or body dealing with the development application, could, apart from this Part, have done under the legal instrument;

(b)request any person or body to perform (in whole or in part and with or without modifications) any functions that the person or body would, apart from this Part, have had in relation to the development application under the legal instrument;

(c)otherwise involve, or consult, a person or body referred to in paragraph (b);

(d)otherwise apply (with or without modifications), or have regard to, the legal instrument.

(5)Without limiting subsection (3), the Commission —

(a)in considering and determining the development application, is not limited to planning considerations and may have regard to any other matter affecting the public interest; and

(b)may grant approval for development even if —

(i)there has been a contravention by any person or body of a legal instrument referred to in subsection (2); or

(ii)there would, apart from this Part, have been such a contravention.

(6)In considering and determining the development application, the Commission must have due regard to —

(a)the purpose and intent of any planning scheme that has effect in the locality to which the development application relates; and

(b)the need to ensure the orderly and proper planning, and the preservation of amenity, of that locality; and

(c)the need to facilitate development in response to the economic effects of the COVID‑19 pandemic; and

(d)any relevant State planning policies and any other relevant policies of the Commission.

[Section 275 inserted: No. 26 of 2020 s. 4.]

276.Consultation, submissions and other input

(1)This section applies for the purposes of the Commission’s consideration of a development application under section 274 (but does not limit what the Commission may or must do under section 275).

(2)The Commission must —

(a)consult the Minister; and

(b)if required by the Minister — give the Minister a reasonable opportunity to make submissions to the Commission; and

(c)have due regard to any submissions made by the Minister.

(3)The Commission must —

(a)consult the CEO (as defined in the Contaminated Sites Act 2003 section 3(1)) if the development is of land referred to in section 58(1)(a)(i) of that Act in respect of which a memorial is registered under section 58 of that Act; and

(b)consult the Heritage Council if the development would, or would be likely to, affect any of the following —

(i)a place that is a registered place under the Heritage Act 2018;

(ii)a place that is the subject of a protection order under the Heritage Act 2018 Part 4 Division 1;

(iii)a place that is the subject of a heritage agreement made by the Heritage Council under the Heritage Act 2018 Part 7;

and

(c)consult the Swan River Trust if the development —

(i)is of land that is wholly or partly in the development control area as defined in the Swan and Canning Rivers Management Act 2006; or

(ii)is of land that abuts that development control area; or

(iii)would, or would be likely to, affect any waters in that development control area;

and

(d)have due regard to any submission made, or advice given, to the Commission in the course of a consultation under paragraph (a), (b) or (c).

(4)The Commission must —

(a)give any local government to whose district the development application relates an opportunity to make submissions to the Commission within a period specified by the Commission; and

(b)have due regard to any submissions made by the local government within that period.

(5)The Commission may require the applicant to do any of the following within a period specified by the Commission —

(a)provide the Commission with any document or information;

(b)do anything else that the Commission considers appropriate.

(6)The Commission must —

(a)consult any person or body not referred to in subsections (2) to (5) whom the Commission considers it appropriate to consult; and

(b)in the manner the Commission considers appropriate, advertise the development application, inviting submissions from members of the public generally or from a class or group of members of the public that the Commission considers appropriate; and

(c)have due regard to any submissions made by members of the public in response to the invitation under paragraph (b).

(7)The Commission may do anything else that is not covered by subsections (2) to (6) and that the Commission considers it appropriate to do in order to obtain a document, information, an opinion or any other contribution from any person or body.

(8)If the Commission does anything under subsection (6)(a) or (b) or (7), the Commission must, as it considers appropriate, set a limit on the time within which, as the case requires —

(a)a person or body who is being consulted by the Commission may respond to the Commission on any matter; or

(b)members of the public may make submissions; or

(c)a person or body may provide any document, information, opinion or other contribution.

[Section 276 inserted: No. 26 of 2020 s. 4.]

277.Effect of Commission determination under s. 274

(1)This section applies if the Commission determines a development application under section 274.

(2)The Commission’s determination has effect, and is valid, for all purposes as if it had been made by a normal decision‑maker under an applicable legal instrument.

Example for this subsection:

1.If the development application would, apart from this Part, have been determined by a local government for the purposes of a local planning scheme, the Commission’s determination has the same effect for the purposes of the local planning scheme as if the determination had been made by the local government.

2.Accordingly, if the determination is to grant approval for development —

(a)the development may be commenced and carried out as if the approval had been granted by the local government; and

(b)any conditions imposed by the Commission on the approval must be complied with as if they were conditions imposed on the approval by the local government; and

(c)section 218(c) applies in relation to a failure to comply with any of those conditions.

(3)Subsection (2) applies even if the Commission’s determination could not have been made by a normal decision‑maker under an applicable legal instrument.

(4)Without limiting subsections (2) and (3), a decision, or other act or omission, of a person or body is not unlawful or invalid just because the Commission’s determination could not have been made by a normal decision‑maker under an applicable legal instrument.

(5)Subsections (2) to (4) are subject to sections 278 and 279 and Divisions 3 and 4.

(6)Subject to Division 3, if the Commission’s determination is to grant approval for development, the determination does not affect the operation of any legal instrument that requires the obtaining, in relation to the development, of any other type of approval, consent, licence, permit, registration or other authority (however described).

Examples for this subsection:

1.A consent under the Aboriginal Heritage Act 1972 section 18.

2.A building permit or demolition permit under the Building Act 2011.

3.A licence under the Liquor Control Act 1988.

(7)If the Commission’s determination is to grant approval for development, references in subsections (2) to (6) to the Commission’s determination are to the determination as amended from time to time under section 279 or by an order under section 284.

[Section 277 inserted: No. 26 of 2020 s. 4.]

278.Substantial commencement of development approved by Commission under s. 274

(1)This section applies if the Commission grants approval for development under section 274.

(2)The development must be substantially commenced —

(a)within the period specified in the approval for the purposes of this subsection; or

(b)if no period is specified in the approval — within the period of 24 months beginning on the day on which the approval is granted.

(3)The approval lapses if the development is not substantially commenced within the period referred to in subsection (2).

[Section 278 inserted: No. 26 of 2020 s. 4.]

279.Amendment or cancellation of approval granted by Commission under s. 274

(1)This section applies if the Commission grants approval for development under section 274 in respect of any land.

(2)An owner of the land, or a person who is of a class or kind prescribed by Part 17 regulations for the purposes of this subsection, may apply to the Commission for the Commission —

(a)to amend or remove any of the conditions imposed on the approval; or

(b)to amend any part or aspect of the approved development; or

(c)to amend the approval in any other way; or

(d)to cancel the approval.

(3)An amendment of the kind referred to in subsection (2)(b) —

(a)cannot substantially change the approved development; and

(b)in the case of approval granted on a development application made under section 271 — cannot result in the approved development no longer being significant development.

(4)The Commission cannot do anything under this section that would have the effect of extending the period within which the development must be substantially commenced in accordance with section 278(2).

(5)The Commission must consider an application made under subsection (2) and determine it by —

(a)granting it (with or without conditions); or

(b)refusing it.

(6)Sections 273(1), 274(3) and (5) to (7), 275 and 276 apply with any necessary modifications to an application made under subsection (2) as they apply to a development application made under section 271.

(7)Subject to Division 4, no person or body, apart from the Commission acting under this section, can do any of the following in relation to the approval referred to in subsection (1) —

(a)amend or remove any of the conditions imposed on the approval;

(b)impose new conditions on the approval;

(c)amend any part or aspect of the approved development;

(d)amend the approval in any other way;

(e)cancel the approval.

(8)In subsections (2) and (7), references to the conditions imposed on the approval, the approved development or the approval are to the conditions, development or approval as amended from time to time under this section or by an order under section 284.

[Section 279 inserted: No. 26 of 2020 s. 4.]

Division 3 — Avoiding conflicts with approvals granted by Commission under section 274

[Heading inserted: No. 26 of 2020 s. 4.]

280.General provisions for Division

(1)For the purposes of this Division, the performance of a function conflicts with an approval for development granted by the Commission under section 274 if the performance of the function, or the way in which the function is performed —

(a)prevents the approved development from proceeding in accordance with the approval; or

(b)prevents a condition imposed by the Commission on the approval from being complied with; or

(c)otherwise substantially undermines, or substantially conflicts with, the approval.

Examples for this subsection:

1.An authority refuses to grant a permit under another Act that is necessary for the approved development to proceed in accordance with the Commission’s approval.

2.An authority grants a permit under another Act that is necessary for the approved development to proceed in accordance with the Commission’s approval but the permit is granted subject to conditions that prevent the approved development from proceeding in accordance with the Commission’s approval.

(2)In this Division, references to performing a function include references to the following —

(a)refusing or failing to perform a function or otherwise not performing a function;

(b)being taken to perform a function;

(c)being taken to refuse or fail to perform a function or otherwise not to perform a function.

(3)A notification or application to the Minister under section 281 or 282 must be made in the manner and form required by the Minister and, without limitation, include any documents or information required by the Minister.

(4)The Minister can give a direction under section 281 or 282 only with the agreement of the Premier.

(5)The performance of a function by a person or body (the decision‑maker) in compliance with a direction given to the decision‑maker under section 281 or 282 has effect, and is valid, for all purposes.

(6)Subsection (5) applies even if, apart from this Division, the decision‑maker could not have performed the function as required by the direction.

(7)Without limiting subsections (5) and (6), a decision, or other act or omission, of a person or body is not unlawful or invalid just because the decision‑maker could not, apart from this Division, have performed the function as required by the direction.

(8)This Division does not apply to the performance, or proposed performance, of a function under section 279 or Division 4.

[Section 280 inserted: No. 26 of 2020 s. 4.]

281.Decision‑maker proposing to perform function in conflict with approval

(1)This section applies if —

(a)the Commission grants approval for development under section 274; and

(b)a person or body (the decision‑maker) proposes to perform a function under a legal instrument; and

(c)the performance of the function as proposed would conflict with the approval.

(2)The decision‑maker must not perform the function as proposed unless —

(a)the decision‑maker has notified the Minister of the proposed performance of the function and the conflict; and

(b)either —

(i)the decision‑maker performs the function in compliance with a direction given to the decision‑maker under this section; or

(ii)the Minister has notified the decision‑maker under subsection (8).

(3)If the Minister is notified under subsection (2)(a), the Minister may give a direction under this section if the Minister considers —

(a)that —

(i)the approved development is significant development; or

(ii)the conflict raises issues of State or regional importance;

and

(b)that it is appropriate to resolve the conflict.

(4)A direction under this section is a direction to the decision‑maker to do 1 or more of the following for the purpose of resolving the conflict —

(a)not perform the function as proposed;

(b)perform the function in accordance with the direction;

(c)reconsider the performance of the function in accordance with the direction and give effect to the outcome of the reconsideration;

(d)take any steps specified in the direction for giving effect to the direction.

(5)The direction may specify a period within which anything required to be done under the direction must be done.

(6)The decision‑maker must comply with the direction —

(a)even if that involves doing something, or omitting to do something, that, apart from this subsection, the decision‑maker could not do, or could not omit to do, under any legal instrument; and

(b)without limiting paragraph (a), despite any time limit that would, apart from this subsection, apply under any legal instrument in relation to anything to which the direction relates.

(7)The Minister, within 14 days after the day on which the direction is given, must cause a copy of it to be published in the Gazette and, as soon as is practicable, must cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.

(8)If the Minister decides not to give a direction under this section, the Minister must notify the decision‑maker of the Minister’s decision.

[Section 281 inserted: No. 26 of 2020 s. 4.]

282.Owner of land or other prescribed person may apply for direction if performance of function conflicts with approval

(1)This section applies if —

(a)the Commission grants approval for development under section 274; and

(b)a person or body (the decision‑maker) performs a function under a legal instrument; and

(c)the performance of the function has not been the subject of a notification or direction under section 281; and

(d)the performance of the function conflicts with the approval.

(2)An owner of land in respect of which the approval is granted, or a person who is of a class or kind prescribed by Part 17 regulations for the purposes of this subsection, may apply to the Minister for a direction under this section to resolve the conflict.

(3)If an application is made under subsection (2), the Minister may give a direction under this section if the Minister considers —

(a)that —

(i)the approved development is significant development; or

(ii)the conflict raises issues of State or regional importance;

and

(b)that it is appropriate to resolve the conflict.

(4)A direction under this section is a direction to the decision‑maker to do 1 or more of the following for the purpose of resolving the conflict —

(a)cancel the performance of the function;

(b)perform the function again but in accordance with the direction;

(c)reconsider the performance of the function in accordance with the direction and give effect to the outcome of the reconsideration;

(d)take any steps specified in the direction for giving effect to the direction.

(5)The direction may specify a period within which anything required to be done under the direction must be done.

(6)The decision‑maker must comply with the direction —

(a)even if that involves doing something, or omitting to do something, that, apart from this subsection, the decision‑maker could not do, or could not omit to do, under any legal instrument; and

(b)without limiting paragraph (a), despite any time limit that would, apart from this subsection, apply under any legal instrument in relation to anything to which the direction relates.

(7)The Minister, within 14 days after the day on which the direction is given, must cause a copy of it to be published in the Gazette and, as soon as is practicable, must cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.

[Section 282 inserted: No. 26 of 2020 s. 4.]

Division 4 — Oversight of Commission

[Heading inserted: No. 26 of 2020 s. 4.]

283.State Administrative Tribunal

(1)This section applies if the Commission determines a development application under section 274 or an application under section 279.

(2)The applicant may apply to the State Administrative Tribunal (the Tribunal) for a review of the Commission’s decision to make the determination.

(3)For the purposes of the Tribunal’s jurisdiction under this section, the member, or at least 1 of the members, who constitute the Tribunal must be a judicial member (as defined in the State Administrative Tribunal Act 2004 section 3(1)).

(4)For a review under this section, the Commission is the decision‑maker for the purposes of the State Administrative Tribunal Act 2004.

(5)In conducting a review under this section, the Tribunal must give the Minister a reasonable opportunity to make submissions to the Tribunal on any matter relating to the review.

(6)Sections 242 and 243 apply to a review under this section as they apply to a review in accordance with Part 14.

(7)Except as set out in this section, the Tribunal has no jurisdiction in relation to anything done under this Part or any Part 17 regulations, including (without limitation) anything done in compliance with a direction under section 281 or 282.

[Section 283 inserted: No. 26 of 2020 s. 4.]

284.Governor may amend or cancel approval granted by Commission under s. 274

(1)This section applies if the Commission grants approval for development under section 274.

(2)The Governor may, by order, do any of the following —

(a)amend or remove any of the conditions imposed on the approval;

(b)impose new conditions on the approval;

(c)amend any part or aspect of the approved development;

(d)amend the approval in any other way;

(e)cancel the approval.

(3)An amendment of the kind referred to in subsection (2)(c) —

(a)cannot substantially change the approved development; and

(b)in the case of approval granted on a development application made under section 271 — cannot result in the approved development no longer being significant development.

(4)In subsection (2), references to the conditions imposed on the approval, the approved development or the approval are to the conditions, development or approval as amended from time to time under section 279 or by an order under this section.

(5)An order under this section may include directions for giving effect to the order.

(6)The Commission cannot do anything under section 279 that would override, or otherwise be inconsistent with, the provisions of an order under this section.

(7)An order under this section is subsidiary legislation for the purposes of the Interpretation Act 1984.

(8)The Interpretation Act 1984 section 42 applies to an order under this section as if it were a regulation.

[Section 284 inserted: No. 26 of 2020 s. 4.]

Division 5 — Final matters

[Heading inserted: No. 26 of 2020 s. 4.]

285.Fees

(1)The Minister may, by notice published in the Gazette —

(a)set fees to be charged in respect of any matter under, or relating to, this Part or any Part 17 regulations; and

(b)make provision for determining the persons by whom the fees are payable.

(2)Despite section 274(3), the Commission is not required to consider or determine a development application, or to do any other thing under this Part or Part 17 regulations, unless any fee relating to the application or other thing has been paid.

(3)Section 20 does not apply in relation to this Part.

[Section 285 inserted: No. 26 of 2020 s. 4.]

286.Regulations

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Part to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Part.

(2)Without limiting subsection (1), Part 17 regulations may prescribe powers, duties, procedures or any other matters for the purposes of, or in relation to —

(a)applications, notifications, referrals or directions under this Part; or

(b)the consideration or determination of applications or notifications under this Part.

[Section 286 inserted: No. 26 of 2020 s. 4.]

Part 18