Planning and Development Act 2005

• Landowners and developers, who must obtain development approval before undertaking development, and WAPC approval before subdividing land or conducting certain dealings (s 136).
• Local governments, which prepare and administer local planning schemes, assess most development applications, and exercise enforcement powers.
• The WAPC and its board, which administer regional planning, approve subdivisions, process significant development applications, and exercise enforcement powers.
• Development Assessment Panels, which determine prescribed development applications above set thresholds.
• The State Administrative Tribunal, which reviews planning decisions under s 171Y and related provisions.
• The Minister for Planning, who approves State planning policies, region planning schemes and amendments, and may call in certain applications.
• The Environmental Protection Authority, which is consulted on proposed schemes and amendments under ss 38 and 81.
• The Heritage Council, which is consulted on proposed schemes or amendments affecting heritage places (s 79).

Development approval requirement. Development requires approval under an applicable planning scheme or interim development order before it may be carried out. Carrying out development without approval where approval is required is an offence under the Act.

Subdivision approval. Subdivision of land requires WAPC approval under Part 10. Section 136 prohibits leasing or granting a licence for more than 20 years, selling land, or granting options to purchase in respect of land not dealt with as lots, without WAPC approval. Contravention is an offence under s 136(2).

Environmental referral. When preparing proposed region schemes or local schemes, referral to the EPA is required under ss 38 and 81. Where the EPA requires environmental review, the process under the Environmental Protection Act 1986 must be followed before the scheme can be approved.

Heritage consultation. Section 79 requires the Heritage Council's advice to be sought before a local scheme or amendment affecting a heritage place is submitted for approval.

Consistency with State planning policies. Under s 29, persons and bodies performing functions under the Act must have due regard to State planning policies. Under s 77, local planning schemes must be consistent with State planning policies.

Comment on proposed performance audit reports. Section 19 of the scheme review obligations requires consolidated scheme reports and associated consultation processes.

WAPC functions. Section 14 sets out the WAPC's broad functions, including formulating policies for planning and development, preparing and revising region planning schemes, and processing development applications. Section 15 gives the WAPC wide powers to carry out those functions. Section 16 allows delegation.

Ministerial directions. Section 17 allows the Minister to give the WAPC directions in the performance of its functions, subject to the requirement that the Minister publish the direction.

DAP determination. Under Part 11A, DAPs have power to determine prescribed development applications. Section 171B also allows DAPs to exercise delegated functions of local governments or the WAPC.

Significant development determination. Under Part 11B, the WAPC may approve significant development applications (s 171P). The approval may be inconsistent with applicable planning instruments in defined circumstances under s 171R, provided specified criteria are met. The Governor may amend or cancel a WAPC approval under s 171ZA.

Enforcement powers. The WAPC and local governments have enforcement powers in respect of development not approved or carried out in breach of conditions. Section 171V gives the WAPC enforcement powers in relation to conditions of significant development approvals.

SAT review. Under s 171Y, decisions of the WAPC under Part 11B are reviewable by the State Administrative Tribunal. The Minister may call in a SAT review under s 171Z.

The Act creates offences for development without approval and for breaches of subdivision and land dealing requirements. Section 136(2) creates an offence for conducting prohibited dealings in respect of non-lot land without WAPC approval. The Act also provides for infringement notices as an alternative to prosecution for prescribed offences, with penalty provisions set by regulation. Penalties are not to exceed 20% of the maximum for the offence in an infringement notice. If the infringement notice penalty is paid, withdrawal may occur under s 181-type provisions.

Local planning scheme preparation. A local government prepares a proposed scheme or amendment, which must be referred to the EPA, and Heritage Council where relevant. A public advertising period applies. The Minister must approve proposed schemes and amendments for advertising before they can proceed, and must not approve a scheme or amendment in certain circumstances (s 86). After advertising, the Minister may approve, refuse or modify.

Development application assessment. Applications are lodged with the local government (for local scheme applications) or the WAPC or DAP (for prescribed or significant development). The relevant decision-maker assesses the application against the applicable planning scheme and policy considerations. SAT review is available for refused or conditionally approved applications.

Subdivision approval. Subdivision applications are lodged with the WAPC. The WAPC may approve, refuse or approve subject to conditions. SAT review may be available.

Significant development. An application may be made to the WAPC under s 171L. An authorisation for the application to be made under s 171L is required in some cases (s 171M). The WAPC must determine the application within the time specified under s 171T.

Environmental Protection Act 1986 (WA). Sections 38 and 81 require referral of proposed schemes to the EPA. Environmental assessment processes under the EP Act must be completed before certain planning approvals can proceed.

Heritage Act 2018 (WA). Section 79 requires Heritage Council advice before schemes affecting heritage places are processed. The definition of development in s 4(1) expressly includes acts affecting places subject to protection orders under the Heritage Act 2018.

Swan Valley Planning Act 2020 (WA). The Swan Valley Planning Scheme operates under this Act and the Planning and Development Act 2005 by virtue of cross-references in the definition of "planning scheme" (s 4(1)).

State Development Act 2025 (WA). State development areas, State development area declarations and State development area plans are defined by reference to that Act (ss 4(1), related provisions). State development area improvement schemes may be authorised by a State development area declaration.

Community Titles Act 2018 (WA). Sections 136(2A)-(2E) apply the subdivision and land dealings regime to common property and lots in community title schemes.

Local Government Act 1995 (WA). Local governments exercising functions under the Planning and Development Act 2005 are subject to local government legislation requirements.

Metropolitan Redevelopment Authority Act 2011 (WA). The scheme preparation powers do not extend to land in an approved redevelopment scheme area under that Act (s 36(c)).

State Administrative Tribunal Act 2004 (WA). The SAT hears reviews of planning decisions under s 171Y and the SAT Act governs SAT procedure.

Section 136 catches non-subdivision dealings. The prohibition in s 136 is not limited to formal subdivision. Selling land, granting options to purchase, or leasing for more than 20 years in respect of land not dealt with as lots also requires WAPC approval. Conveyancers and solicitors who overlook this requirement expose their clients to criminal liability and may create defective titles.

Significant development can override local schemes. Under s 171R, the WAPC may approve significant development applications inconsistently with applicable planning instruments (including local planning schemes) if specified criteria are met. This means local zoning is not always determinative for significant development.

DAP decisions replace local government decisions. Where a DAP determines a prescribed development application, the DAP's decision is the decision on the application. The local government's recommendation is a relevant factor but not binding. Applicants and affected persons should engage with the DAP process directly, not only through local government channels.

Environmental approval can delay scheme timelines significantly. Where the EPA requires full environmental review of a proposed scheme or amendment, the Environmental Protection Act 1986 process must be completed before the scheme can be approved. This can add years to planning processes.

State planning policies bind but do not override. Persons and bodies performing functions must "have due regard to" State planning policies (s 29). This is a strong but not absolute obligation. The WAPC and local governments retain discretion, but departures from policy require clear justification.

Example 1: House extension in a local planning scheme area. An owner proposes to extend their house in a way that exceeds the allowable setbacks under the local planning scheme. The owner must apply for planning approval to the local government. The local government assesses the application against the scheme and relevant policies. If refused, the owner may apply to the SAT for review.

Example 2: Prescribed development application to a DAP. A developer proposes a multi-storey apartment building above the threshold prescribed for DAP determination. The application is made to the DAP. The local government provides a recommendation, but the DAP makes the final decision. The developer engages directly with the DAP and its presiding member.

Example 3: Significant development in an inconsistency situation. A proponent seeks to develop a major industrial facility in an area where the local scheme zones the land for residential use. The development is prescribed as significant development under s 171I. The WAPC may approve the application under s 171P. If it does so inconsistently with the local scheme, it must be satisfied of the matters required by s 171R. The Governor may later amend or cancel the approval under s 171ZA.

Example 4: Sale of land without WAPC approval. A landowner sells a portion of their land that is not yet registered as a separate lot, without first obtaining WAPC approval under s 136. Both the seller and buyer commit offences under s 136(2). The transaction may also be unenforceable.

Example 5: Environmental referral for a new town plan. A local government proposes a new local planning scheme for a greenfield area. The proposed scheme is referred to the EPA under s 81. The EPA requires a full environmental review. The environmental review process under the Environmental Protection Act 1986 is completed. Subject to the EPA's conditions, the Minister may then approve the scheme.