The New Local Planning Scheme Regulations: No plan, no development contribution

Further reform to the WA planning system will commence on 19 October 2015 when the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) take effect. The Regulations, which were Gazetted last week, will introduce a new Model Scheme text and ‘Deemed Provisions’ which will automatically form part of every local planning scheme. The changes will also see the structure plan approval process streamlined and the local scheme amendment process simplified.

Another significant change is the obligation on local governments to prepare a development contribution plan for each area identified in a local planning scheme as a development contribution area. Currently, there is no obligation to do so unless the local planning scheme provisions require the making of a development contribution plan.

Norton Rose Fulbright has a market leading planning practice and we would be happy to discuss with you the implications of the reforms for your business.

The principles underlying development contributions are set out in State Planning Policy 3.6 – Development Contributions for Infrastructure (SPP 3.6). Under the new Model Scheme text, SPP 3.6 will have legal status by being read as part of each local planning scheme. This means that in preparing a development contribution plan, local governments must have regard to the principles set out in SPP 3.6. These include:

• Need and nexus: The need for the infrastructure included in the development contribution plan must be clearly demonstrated (need) and the connection between the development and the demand created should be clearly established (nexus).
• Transparency: Both the method for calculating the development contribution and the manner in which it is applied should be clear, transparent and simple to understand and administer.
• Equity: Development contributions should be levied from all developments within a development contribution area, based on their relative contribution to need.
• Certainty: All development contributions should be clearly identified and methods of accounting for escalation agreed upon at the commencement of a development.
• Efficiency: Development contributions should be justified on a whole of life capital cost basis consistent with maintaining financial discipline on service providers by precluding over recovery of costs.
• Consistency: Development contributions should be applied uniformly across a Development Contribution Area and the methodology for applying contributions should be consistent.
• Right of consultation and arbitration: Land owners and developers have the right to be consulted on the manner in which development contributions are determined. They also have the opportunity to seek a review by an independent third party if they believe that the calculation of the contributions is not reasonable.
• Accountability: There must be accountability in the manner in which development contributions are determined and expended.

SPP 3.6 is currently being reviewed to clarify the range of infrastructure to be covered by the policy and to establish guidelines for effective implementation. This should provide greater certainty for developers on the likely amount of infrastructure contributions in both new and existing urban areas.

The new Regulations will replace the Town Planning Regulations 1967 (WA) and its associated Model Scheme text. From 19 October 2015, when the Regulations come into effect, the following changes will take place:

• New Model Scheme text and ‘Deemed Provisions’. The new Model Scheme text will become a template for use by a local government when it updates its planning scheme. The provisions of the Model Scheme text are not binding on local governments and can be varied subject to the approval of the Minister for Planning. In contrast, the ‘Deemed Provisions’ apply regardless of whether a local government updates its scheme and will automatically form part of every local planning scheme from 19 October 2015. Where there is an inconsistency between a deemed provision and a local planning scheme, the deemed provision will apply.
• Streamlining of the structure plan approval process. A structure plan is a plan for the co-ordination of future subdivision and zoning of an area of land. The ‘Deemed Provisions’ set out the requirements for preparing a structure plan, the assessment and advertising process by the local government and the role of the WAPC as the sole authority responsible for approving a structure plan. An approved structure plan will generally have effect for 10 years unless the WAPC revokes its approval or extends the approval period. Structure plans will no longer have statutory force. A decision-maker who determines a development application in an area that is covered by an approved structure plan is to have due regard to, but is not bound by, the structure plan when deciding the application.
• Three-tiered approach to scheme amendments. A risk-based approach will be applied to scheme amendments. A ‘basic’ amendment process will apply to straight forward or administrative type amendments. Basic amendments will not generally require advertising by the local government unless the Minister for Planning (or another authorised person) directs otherwise. A ‘standard’ process will apply to amendments of less strategic significance or complexity. The ‘complex’ process will be used for significant or complex amendments and is most closely aligned with the current scheme amendment process. The statutory timeframe for the WAPC’s assessment of the proposed amendment will be 42 days, 60 days and 90 days respectively.

The latest reforms to the WA planning system are aimed at addressing outdated regulations. They are part of the State Government’s ‘Planning makes it happen: phase two – Blueprint for planning reform’ which was the subject of a previous legal update accessible here. The new Regulations will remove old terminology, provide alternative tracks for scheme amendments, streamline planning processes across local government areas, and provide clarity for developers in relation to infrastructure charges.

Please contact Charmian Barton if you would like to know more about the legislation and the implications for your business.