Planning and Development (Part 11B Fees) Notice 2024

The notice introduces several defined terms that are essential to understanding its operation, many of which cross-reference the principal Act. The central concept is a significant development application, which is not defined within the notice itself; instead, clause 3(2) provides that terms used in the notice have the same meaning as in section 171H(1) of the Planning and Development Act 2005. That section defines a significant development as development that meets criteria set out in regulations (the Planning and Development (Significant Development) Regulations 2024), typically involving large-scale projects, high capital investment, or state significance.

The notice distinguishes two types of post-approval applications. An application to amend an approval means an application under section 171X(2)(a), (b), (c) or (d) of the Act - effectively, requests to modify a significant development approval after it has been granted, such as changing conditions, extending time, or altering the approved plans. An application to cancel an approval refers to an application under section 171X(2)(e) - a request to revoke an approval entirely.

Design review fees are a separate charge tied to the use of expert design panels. The notice creates a distinction between two categories of appropriate design reviewer: the State Design Review Panel and the Government Architect. The phrase is defined in clause 3(1) by reference to paragraphs (a) or (b) of the definition of “design review” in section 171H(1) of the Act. This means the reviewer must be either a committee or body of a kind described there. The notice does not create or empower these reviewers; it only sets the fees payable when a design review is requested or required.

The State Design Review Panel is the committee established under Schedule 2 clause 1 of the Act - a standing panel of experts convened to assess design quality. The Government Architect is either the person holding that office or, during a vacancy, the acting chairperson of the State Design Review Panel (cl 3(1)). The notice accordingly sets two pricing tiers: a higher fee for the panel (which involves multiple experts) and a lower fee for the Government Architect acting individually.

Two concession categories are created. A registered community housing provider is one included on the register under regulation 50 of the Planning and Development (Development Assessment Panels) Regulations 2011. A registered not-for-profit entity is one on the Australian Charities and Not-for-profits Register under Commonwealth law. Both entities receive a 50% reduction on all fees under the notice (cl 5). This is the only concession; there is no small-business discount, hardship waiver, or sliding scale based on project type beyond the cost brackets for significant development applications.

The refund provisions (cll 6 and 7) introduce the concept of a design review being “started” or “completed” - terms not further defined. The notice leaves it to the Commission’s satisfaction to determine whether a review was commenced or finished before withdrawal or determination. This creates uncertainty for applicants about when a refund is mandatory versus discretionary.

The notice directly affects any person or entity that intends to lodge a significant development application under Part 11B of the Planning and Development Act 2005. That includes private developers, state government agencies, local government entities, public-private partnership proponents, and any other applicant for development that meets the threshold criteria for “significant development” under the regulations. The notice also applies to anyone who already holds a significant development approval and later wishes to amend or cancel it - a much narrower group.

Indirectly, the notice affects design consultants, town planners, and legal advisers who must advise clients on the fee structures and budget for these costs. The engineering and construction sectors are affected because the fee scale is tied to estimated cost of development. A proposed project estimated at $49 million attracts a $47,059 application fee, while a $51 million project jumps to $69,382 - a 47% increase for crossing a single threshold. This creates a sharp pricing discontinuity that may influence the final cost estimate submitted by applicants (though deliberate under-estimation risks later rejection or conditions).

Registered community housing providers and not-for-profit entities are affected differently: they receive a 50% reduction on all fees, meaning a $69,382 fee becomes $34,691 for a $50 million+ project. This gives those entities a financial advantage relative to for-profit developers, potentially distorting competition in the housing market if both types of entities seek similar approvals.

The Commission itself is affected: it administers the fee system, processes payments, makes refund decisions (sometimes mandatory, sometimes discretionary), and may need to allocate design review resources. The State Design Review Panel and the Government Architect are affected as the reviewers whose services generate the separate design review fees.

Smaller developers are disproportionately affected because the fee structure is not proportional to the likely administrative burden. The lowest bracket - under $2 million - still costs $11,057. For a small builder proposing a $1.8 million project, that fee is a significant upfront sunk cost. Combined with design review fees that can reach $12,000 for the first three reviews, a small applicant may face total outlays exceeding $23,000 before the Commission even begins substantive assessment. Meanwhile, a $100 million project pays a flat $69,382 - a much lower percentage of project cost.

The notice does not affect ordinary residential development that does not meet the significant development threshold, standard development applications made to local governments, or retrospective applications outside Part 11B. Its reach is limited to the specific cohort of applicants who require a Part 11B determination.

The notice creates a single primary duty: the applicant must pay the prescribed fee to the Commission at the time of making a significant development application, an application to amend an approval, or an application to cancel an approval (cl 4(2)). This is a precondition to the Commission’s obligation to receive and process an application, though the notice does not say that a non-payment renders an application invalid - that is a matter for the Act itself. The amount payable is determined by the estimated cost of the development as at the date of application, using the bracket structure in Schedule 1.

For design reviews, the duty to pay arises in three situations: (a) where a prospective applicant requests a design review before making a significant development application (under the Significant Development Regulations reg 6(1)(b)); (b) where the Commission requests a design review during its consideration of a significant development application; and (c) where the Commission requests a design review during consideration of an application to amend an approval (cl 4(3)). In case (a), the prospective applicant pays; in cases (b) and (c), the applicant pays (cl 4(6)). If a design review is requested both pre-application (by the applicant) and during assessment (by the Commission) for the same significant development application, the fees are only payable once, and the total number of reviews is aggregated across both phases (cl 4(5)). This prevents double-charging.

The main rights created are refund rights. Under clause 6, if an applicant withdraws an application, the Commission may refund the application fee in whole or in part (discretionary). However, design review fees receive stronger protection. If none of the first three design reviews were started before withdrawal, the Commission must refund that fee (cl 6(3)(a)). If a review was started but not completed, the Commission may refund in whole or in part (cl 6(3)(b)). For subsequent design reviews (the 4th, 5th, etc.), the same pattern applies: mandatory refund if not started, discretionary refund if started but not completed (cl 6(4)). Similarly, clause 7 provides that if the Commission determines that a design review will not be conducted, or was not conducted by the time the application is determined, the design review fee must be refunded. However, this clause does not apply if the applicant has withdrawn the application - in that case, clause 6 governs.

The right to a 50% fee reduction is contingent on the applicant being a registered community housing provider or a registered not-for-profit entity at the time of application (cl 5). This is a right, but one that requires the applicant to maintain registration. The notice does not address what happens if an entity ceases to be registered during the application process.

Importantly, the notice does not confer a right to a refund of the application fee if the application is refused. The fee is non-refundable unless the applicant withdraws (and even then it is discretionary). This creates a sunk-cost risk: an applicant who proceeds to assessment and is ultimately rejected loses the entire fee. Similarly, design review fees paid for reviews that are actually conducted are non-refundable, even if the application fails.

The notice itself does not create any penalties. It is a fee-setting instrument, not a penal or enforcement instrument. Enforcement of the duty to pay fees would likely occur through the Commission’s refusal to accept or process an application unless the fee is paid - a practical sanction rather than a statutory one. If an application is lodged without the correct fee, the Commission would presumably return the application or treat it as not validly made, relying on its general powers under the Act. There is no provision for late payment penalties, interest, or surcharges.

However, the notice does give the Commission a decision-making role in refund applications, which could give rise to administrative law challenges. If the Commission unreasonably refuses to exercise its discretion to refund a fee under clause 6(2) or 6(3)(b), an applicant might seek judicial review. The same applies if the Commission incorrectly decides whether a design review was “started” or “completed”. But these are not penalties; they are reviewable discretionary decisions.

The only potential penalty-related interaction is indirect: if an applicant knowingly misrepresents the estimated cost of the development to fall into a lower fee bracket, that could attract liability for false or misleading statements under other provisions of the Planning and Development Act 2005 or under the Criminal Code (WA) for fraud. The notice does not address this, but the standard of proof and auditor scrutiny of cost estimates becomes relevant.

Practically, the Commission’s enforcement mechanism is simple: no fee, no assessment. There is no debt-collection provision, no automatic right to sue for unpaid fees, and no penalty for late payment. The notice relies entirely on the applicant’s incentive to have the application processed. This is typical of application fee regimes; it works because the applicant wants the service.

For design review fees, the notice sets the liability but does not specify what happens if the fee is not paid. If an applicant refuses to pay the design review fee after the Commission has requested a review, the Commission could presumably decline to proceed with the design review, which may delay or prejudice the application. The applicant would then be in breach of a condition of the assessment, and the Commission could treat the application as incomplete.

In summary, enforcement is administrative, not penal. The real cost of non-compliance is the risk of stalled or rejected applications, plus the loss of the refund safety net if a withdrawal occurs after a design review has started.

This notice sits under the Planning and Development Act 2005, specifically Part 11B. It is a delegated instrument made by the Minister (or the Governor in Executive Council, depending on the enabling power) and its validity depends on the parent Act. The notice only has effect while Part 11B remains in force. If the Act were amended or repealed to remove Part 11B, the notice would lapse automatically.

The notice interacts closely with the Planning and Development (Significant Development) Regulations 2024, which define what constitutes a significant development and set out the procedural requirements for applications. The notice’s design review fee trigger in clause 4(3)(a) expressly refers to regulation 6(1)(b) of those regulations, which requires a prospective applicant to arrange a design review before making an application in some circumstances. The notice thus completes the regulatory picture: the regulations impose the obligation to obtain a design review; the notice sets the cost.

The definition of “registered community housing provider” in clause 3(1) pulls in the Planning and Development (Development Assessment Panels) Regulations 2011, regulation 50, which keeps the register. The definition of “registered not-for-profit entity” cross-references the Commonwealth Australian Charities and Not-for-profits Commission Act 2012. This means the notice relies on external registers maintained by different bodies; any change to those registers automatically affects eligibility for the 50% fee reduction.

The notice does not directly interact with the State Administrative Tribunal Act 2004 or the Planning and Development (Development Assessment Panels) Regulations 2011 beyond the cross-reference noted. However, if a fee dispute arises, an applicant could seek review of the Commission’s refusal to refund under the principal Act’s review mechanisms.

It also interacts with the general fee-charging provisions of the Financial Management Act 2006, which governs the handling of public moneys. The fees collected by the Commission are public moneys, and the Commission must account for them. Refunds must be made out of the Consolidated Account or a special purpose account, subject to appropriation.

There is no interaction with the Native Title Act 1993 (Cth) or the Environmental Protection Act 1986 (WA) that is apparent from the notice’s text. Those Acts impose separate procedural and cost obligations on developers, but the notice does not displace or duplicate them.

The notice is also subject to the Interpretation Act 1984 (WA), which provides rules for the construction of statutory instruments. For example, the power to fix fees by notice implies that fees can be varied by subsequent notices without amending the principal Act, giving the executive flexibility to adjust fees without parliamentary amendment.

The notice was originally published as SL 2024/28 on 21 February 2024 and came into operation on 1 March 2024 (the commencement of section 11 of the Planning and Development Amendment Act 2023). At that time, the notice contained the fee-setting provisions but Schedule 1 (the fee table) was not inserted. The original version had a heading “Schedule 1 , Fees” with a placeholder or no content. The fee amounts for items 1, 2 and 3 were presumably set directly in the body of the notice? A careful reading of the as-published version shows that Schedule 1 as originally enacted was blank or missing. The compilation table indicates that Schedule 1 was inserted by the Planning and Development (Part 11B Fees) Amendment Notice 2025.

The amending notice was published as SL 2025/125 on 27 June 2025. Its commencement was staggered: clauses 1 and 2 (citation and commencement) came into operation on 27 June 2025; the rest of the notice, including the insertion of Schedule 1, came into operation on 1 July 2025. The effect was to insert the fee table for significant development applications and to set the $311 fees for amendment and cancellation applications. Prior to 1 July 2025, the fee amounts may have been specified differently or not at all. The compilation table notes the amendment and the operative date.

The amendment also inserted a heading into Schedule 1: “[Heading inserted: SL 2025/125 cl. 4.]” - indicating that the original schedule lacked a heading. The amendment thus not only added the fee amounts but also provided structure.

There have been no other amendments. The notice is current as at the compilation date shown (27 June 2025), but practitioners should be aware that fees are subject to change by further notices, and the current fee amounts may be adjusted for inflation or policy reasons. The power to amend by notice (as opposed to regulation) makes future changes relatively quick and less subject to parliamentary scrutiny.

The notice itself has not been the subject of any reported litigation in Western Australia. Because it is a straightforward fee-setting instrument with limited discretion and straightforward amounts, it is unlikely to generate substantive legal challenges unless refund decisions are contested. The only litigation that might arise would be in the State Administrative Tribunal or the Supreme Court (judicial review) concerning:

• The Commission’s refusal to refund fees under clause 6 or 7. For example, a dispute over whether a design review was “started” before withdrawal.
• The Commission’s determination of the estimated cost of development for fee bracket purposes. If the Commission re-categorises an application after lodgement and demands a higher fee, an applicant might challenge that decision.
• An allegation that the Commission exceeded its power under the Act by charging fees not authorised by the notice.
• A claim that the fee structure is ultra vires the parent Act, perhaps on the ground that the Act only authorises “the fees prescribed” and the notice imposes amounts that are disproportionate to the cost of service. However, Australian courts generally give broad deference to fee-setting by regulation unless manifestly unreasonable.

No case citations are available because there are none. The amendments to the notice in 2025 were likely prompted by administrative need rather than litigation. Practitioners should monitor the State Administrative Tribunal database for any applications under the Planning and Development Act 2005 that mention the fee notice, but as of the compilation date, there are none.

Several aspects of the notice are easy to overlook and could trap an unwary applicant or adviser.

First, the design review fee structure is potentially very expensive for complex projects. The base fee for the State Design Review Panel is $12,000 for up to three reviews. If the Commission requests a fourth review, an additional $6,000 becomes payable. There is no cap on the number of reviews. An applicant could face multiple reviews, each adding $6,000. The notice does not define what constitutes a separate “design review” - it could be a full re-assessment of revised plans, a partial assessment, or an additional meeting. The applicant cannot compel the Commission to limit the number of reviews. This creates open-ended liability.

Second, the refund provisions are not as protective as they first appear. Under clause 6(2), the Commission “may” (not “must”) refund the application fee if the application is withdrawn. Even if the applicant withdraws very early, before any work is done, the Commission has absolute discretion to keep the fee. Only design review fees receive mandatory refund protections, and even then only if the review was not started. If the Commission’s staff have opened a file or begun reading material, they might consider the review “started”, triggering discretionary refund only. There is no objective definition of “started”.

Third, the fee for an application to amend an approval ($311) is a fixed, low amount. This might encourage applicants to treat amendment applications as inexpensive, but the design review fee can be triggered if the Commission requests a review of the amendment (cl 4(3)(c)). That design review fee could be $5,000 or $12,000, turning a cheap amendment into a costly one. Applicants should ask at the pre-lodgement stage whether a design review is anticipated.

Fourth, the 50% reduction for not-for-profits and community housing providers is not automatic; it depends on the applicant’s registration status at the time of payment. If an entity is registered but the registration is later cancelled retrospectively (e.g., by the ACNC), the Commission could arguably seek the unpaid balance. The notice does not address what happens if a registration is backdated or expiry occurs mid-assessment.

Fifth, the estimated cost of development is critical for determining the fee bracket, but the notice does not specify how the Commission verifies the estimate. A developer that provides an unrealistically low estimate to secure a lower fee risks having the application rejected as incomplete or, worse, being accused of providing false information. The Act’s general provisions about false or misleading statements would apply.

Sixth, the notice does not provide for any fee waiver or reduction for hardship, public benefit, or small business. The only concession is the 50% off for not-for-profits. A start-up developer with a modest project faces the full fee.

Seventh, the notice’s commencement is tied to section 11 of the Planning and Development Amendment Act 2023. If that section is not yet in operation, the notice is not yet in force (though the compilation table shows it commenced on 1 March 2024). Practitioners should verify the commencement of the parent Act provision.

Eighth, the compilation table shows that the 2025 amendment inserted Schedule 1. If an applicant used the notice before 1 July 2025 and paid a different fee, they may have been paying amounts that were not properly prescribed. Any pre-1 July 2025 payments may need to be reviewed for over or underpayment.

Compliance with the Planning and Development (Part 11B Fees) Notice 2024 is straightforward in concept but requires careful calculation and documentation.

Step one: Determine whether the proposed development qualifies as a significant development under the Planning and Development (Significant Development) Regulations 2024. If it does not, this notice does not apply; the normal local government fee structure applies. If it does, the applicant must prepare an estimated cost of development. The estimate should be realistic and defensible, as the Commission may query it. The fee bracket is determined by the cost at the time of application. For staged developments, the total cost of the entire project as described in the application governs, not just the first stage.

Step two: Calculate the application fee using Schedule 1. For a significant development application, identify which bracket the estimated cost falls into. Be mindful of the threshold discontinuities: a project estimated at $49.9 million pays $47,059, but a $50.1 million project pays $69,382 - a difference of $22,323 for a $200,000 cost increase. There is no mid-bracket formula; the fee jumps at each threshold. If the estimate is uncertain, consider whether to submit a higher estimate to avoid later re-categorisation or to accept the risk of challenge.

Step three: Determine whether a design review is required or advisable. If the regulations require a pre-lodgement design review (reg 6(1)(b)), the prospective applicant must engage an appropriate design reviewer before applying. The cost will be either $12,000 (panel) or $5,000 (Government Architect) for up to three reviews. If the applicant expects more than three reviews, budget for $6,000 or $2,500 per extra review. Consider whether to request the Government Architect (cheaper) rather than the full panel, but note that the Commission advises which reviewer will be used (cl 4(4)(a) or (b)). The applicant cannot unilaterally choose the cheaper option.

Step four: Confirm eligibility for the 50% reduction. If the applicant is a registered community housing provider (on the DAP register under reg 50 of the Planning and Development (Development Assessment Panels) Regulations 2011) or a registered not-for-profit entity (on the Commonwealth ACNC register), the fee is halved. The applicant must have current registration at the time of payment. It may be prudent to provide evidence of registration with the application to avoid later disputes.

Step five: Pay the fees to the Commission. The application fee is payable at lodgement. The design review fee is payable either before the design review is conducted (if the applicant requests it pre-lodgement) or upon the Commission’s request during assessment. The notice does not specify a time for payment of design review fees; presumably the Commission will set a due date in its request.

Step six: Manage refund risks. If the application appears unlikely to succeed or market conditions change, the applicant may consider withdrawing the application. Withdrawal before any design review is started triggers a mandatory refund of design review fees (not the application fee). The Commission may refund the application fee at its discretion - no guarantee. To maximise refund potential, document when each design review starts and finishes. If the Commission is slow or fails to conduct a design review by the time the application is determined, the design review fee must be refunded (cl 7). So timing records are important.

Step seven: If the application is approved and later needs amendment, budget for the $311 amendment fee, plus any potential design review fee if the Commission requests one for the amendment. The amendment fee is low, but the design review fee can be significant.

Step eight: Keep records of all payment receipts, correspondence about design review scheduling, and any withdrawal or determination notices. These will be critical for claiming refunds.

Non-compliance typically means the Commission will not accept or process the application. There is no penalty for late payment beyond the application being stalled. The real compliance burden is the upfront financial outlay, which for large projects can be tens of thousands of dollars before any assessment begins. That is a barrier to entry for smaller developers and a cost that must be factored into project feasibility.