Planning and Development (Region Planning Schemes) Regulations 2023

The regulations introduce or rely on several defined terms that structure their operation. Proposed scheme means a proposed region planning scheme. Proposed amendment means a proposed amendment to a region planning scheme. Minor region planning scheme amendment takes its meaning from section 56A of the Act; the regulations subdivide that category into two further classes: standard amendment (any minor amendment that does not qualify as a basic amendment) and basic amendment. A basic amendment is defined in regulation 3 as a minor amendment that falls into one of four categories: correcting an administrative or minor error; correcting an error in a map, plan or diagram; ensuring consistency between the scheme and a public planning document; or an amendment that is otherwise administrative or minor in nature. Additionally, it must be “highly likely that the amendment will have no adverse effect” on any land or any owner or occupier, and either the amendment is not referred to the EPA under section 38 of the Act because of section 38(3), or it is referred but the EPA informs the Commission that it should not be assessed. The “highly likely” threshold is a legal standard that invites judgement and potential dispute. Public planning document is broadly defined to include State planning policies, planning codes, and certain documents prepared by the Commission that are publicly available and involved public consultation. The term advertising period is central: the Commission must decide on a period not less than the statutory minimum (60, 42, or 14 days) and must publish the advertisement and the proposed scheme or amendment on a website for the whole of that period. The regulations also refer to the Commission, local government, public authority, and owner of land. Notably, the definition of “owner” is not set out in these regulations; it presumably derives from the Act or other legislation. The concept of submission is also key: it must be invited in the advertisement, must be made either electronically or in hard copy, and must be received within the advertising period. The Commission must consider submissions made in accordance with the requirements, but may consider non‑compliant submissions if it thinks appropriate (regulation 7(3)). There is no defined right to a hearing or to be heard beyond making a written submission. The regulations also introduce the concept of modifications after submission: when the Minister directs the Commission to consider and report on submissions under section 52(2) of the Act, the Commission must submit a report and the scheme or amendment with any modifications it considers appropriate (regulation 8(2)). If the EPA is involved, the Commission must give the EPA a separate report on environmental issues raised in submissions (regulation 8(4)). These concepts together create a layered system where the intensity of consultation scales down as the amendment becomes more minor, but the Commission retains broad discretion at each step.

The regulations directly affect the Western Australian Planning Commission, which bears all the procedural duties: deciding the advertising track, preparing advertisements, publishing online, issuing notices, receiving and considering submissions, and reporting to the Minister and the EPA. Local governments are directly affected because the Commission must give them written notice of proposed schemes and amendments, including a copy of the scheme for proposed schemes, and must invite submissions from them. Local governments whose districts are partly or wholly in the affected area must receive notice. They are also entitled to notice of basic amendments after Gazette publication. Public authorities that the Commission considers likely to be affected are also to be notified (on a “reasonable endeavours” basis) and invited to make submissions. Landowners are affected in two ways: for proposed schemes and non‑minor amendments, the Commission must use reasonable endeavours to give written notice to each owner whose land would have its zoning or reservation changed, or would otherwise be affected; for minor amendments (standard or basic) the same “reasonable endeavours” duty applies to owners whom the Commission considers likely to be affected. For basic amendments, there is no newspaper advertising and no direct notice duty to landowners beyond the “reasonable endeavours” obligation, which means owners may not receive individual notice if the Commission does not consider them likely to be affected. The general public is affected because they have the right to make submissions during the advertising period, but the method of drawing their attention varies: online publication is mandatory for all tracks, but newspaper advertising is mandatory only for proposed schemes and non‑minor amendments (at least two days) and discretionary for standard amendments; there is no newspaper requirement for basic amendments. Applicants who seek a scheme amendment (for example, developers) are not explicitly mentioned, but they are indirectly affected because the regulations govern how the Commission handles their proposals. The Environmental Protection Authority is affected when a proposed scheme or amendment has been referred to it and the Commission receives submissions raising environmental issues; the Commission must then give the EPA a copy of those submissions and a report. Practitioners (lawyers, planners, consultants) must understand the different tracks to advise clients on timing, likelihood of notice, and the weight that should be given to making a submission. The Minister is affected in that any direction under section 52(2) of the Act triggers the Commission’s reporting duties under regulation 8. Overall, the regulations create a procedural framework that touches a wide range of public and private actors, with the Commission acting as the central decision‑maker and gatekeeper.

The regulations impose specific duties on the Commission and grant certain rights to other parties. The Commission’s primary duty is to advertise the proposed scheme or amendment in accordance with the applicable regulation. For proposed schemes and non‑minor amendments (regulation 4), the Commission must decide an advertising period of at least 60 days, prepare an advertisement with specified content, publish the advertisement and the proposed document on a website for the whole period, arrange newspaper publication on at least two days (with the first as early as practicable), give written notice to each affected local government, and make reasonable endeavours to notify likely affected public authorities and landowners whose land would be affected by zoning or reservation changes. For standard minor amendments (regulation 5), the period is at least 42 days, newspaper publication is discretionary, and the Commission must give written notice to local governments and use reasonable endeavours to notify public authorities and landowners it considers likely to be affected. For basic amendments (regulation 6), the period is at least 14 days, there is no newspaper requirement, and the only notice requirement is to local governments (after Gazette publication under regulation 9(2)); however, regulation 6 does not itself require notice to landowners or public authorities, though the Commission may take additional steps. The Commission must invite public submissions in every advertisement, specifying methods and deadlines (regulation 7). The Commission must consider all submissions made in accordance with the invitation within the advertising period, and may consider non‑compliant submissions if it chooses. This is a duty to consider, not a duty to accept or respond individually. If the Minister directs under section 52(2) of the Act, the Commission must submit a report with copies of submissions and any modifications it considers appropriate (regulation 8). Where environmental issues are raised and the EPA is involved, the Commission must give the EPA a copy of those submissions and the Commission’s views. Regulation 9 imposes an additional duty: before preparing a region planning scheme, the Commission must notify affected or interested local governments at the earliest possible stage. After a basic amendment is published in the Gazette, the Commission must give notice to each affected local government.

The rights of others are limited to procedural entitlements. Local governments have the right to receive notice and to make submissions. Public authorities have the right to receive notice on a “reasonable endeavours” basis and to make submissions. Landowners have the right to receive notice (via reasonable endeavours) only if the Commission considers them likely to be affected; for basic amendments, there is no such duty before advertising. The general public has the right to make submissions within the advertising period, and the Commission must consider those that comply with the requirements. No person has a right to a hearing, to be notified of the outcome, or to be informed how their submission was treated. The Commission’s broad discretion to choose between the standard and basic amendment tracks, and to decide what “appropriate” means in advertising content and newspaper publication, means that the practical extent of these rights depends heavily on the Commission’s assessment. The regulations do not grant a right to challenge the Commission’s classification of an amendment or the adequacy of advertising.

The regulations themselves do not create any specific penalties or offence provisions. They are procedural regulations made under the Planning and Development Act 2005, and any breach of the duties they impose would likely need to be enforced through the mechanisms of the parent Act or through administrative law remedies such as judicial review. Failure by the Commission to comply with the advertising or notification requirements could potentially render a scheme or amendment procedurally invalid if a court finds that the statutory preconditions for making the scheme or amendment were not met. The principal Act contains general enforcement provisions, but these regulations are silent on consequences. This absence of express penalties means that the practical enforcement risk sits with the possibility of legal challenge by affected parties. For example, if the Commission incorrectly classifies a non‑minor amendment as a basic amendment and advertises for only 14 days, an affected landowner might argue that the process was ultra vires. The regulations do not provide an internal review mechanism or avenue of appeal; any challenge would be through the State Administrative Tribunal or the Supreme Court under general administrative law principles. The lack of explicit penalty may also reduce the incentive for the Commission to comply strictly with every detail, particularly the “reasonable endeavours” obligations, which are inherently soft. For practitioners, the absence of a penalty regime does not mean the regulations are costless; non‑compliance introduces legal risk that can delay or unravel a scheme, imposing significant costs on applicants and the public. The 2024 amendments to regulations 3‑7 and 9 may indicate that the original drafting had gaps that needed correction, but still no penalty provisions were added.

These regulations sit under the Planning and Development Act 2005 (the Act), specifically section 43(1)(a) which requires the Commission to advertise proposed region planning schemes and amendments. They do not replace the Act but supply the detailed procedural rules that the Act contemplates. Section 56A of the Act defines “minor region planning scheme amendment”; the regulations adopt that definition and then subdivide it. The regulations also interact with the Environmental Protection Act 1986 (the EP Act). Reference is made to sections 38, 48A, and 86A (though 86A is not mentioned in these regulations; only section 48A appears). Specifically, the definition of basic amendment requires that the amendment not be referred to the EPA under section 38 because of section 38(3), or if referred, that the EPA informs the Commission under section 48A(1)(a) of the EP Act that it should not be assessed. Regulation 8(3) and (4) trigger duties when the EPA has indicated that a proposed scheme or amendment should be assessed and submissions raise environmental issues. This creates a bridge between the land‑use planning process and environmental assessment under separate legislation. The regulations also refer to public planning documents, defined to include State planning policies, planning codes (added by the 2024 amendment), and certain Commission documents that have been through a public consultation process. This links these regulations to the body of strategic planning policies and codes that may themselves have separate statutory footing. For example, the Planning and Development (Local Planning Schemes) Regulations 2015 and the Planning and Development (Development Assessment Panels) Regulations 2011 are related but distinct; these region‑level regulations deal only with region planning schemes. They do not directly affect local planning schemes, though region planning schemes may prevail over inconsistent local schemes under the Act. The regulations do not affect private property rights directly, but they govern the process by which such rights may be altered through zoning or reservation changes. They are silent on compensation, acquisition, or development rights.

The regulations were originally published as SL 2023/108 on 12 July 2023 and came into operation on 1 August 2023. They were subsequently amended by the Planning and Development Regulations Amendment (Consequential Matters) Regulations 2024 (SL 2024/99), part 3, which was published on 12 June 2024 and came into effect on 1 July 2024. The 2024 amendment made several changes. Regulation 3 was amended to add “a planning code” as a sub‑paragraph (aa) in the definition of public planning document, presumably to reflect the introduction or formalisation of planning codes under the Act. Regulations 4, 5, 6, and 7 were each amended, likely to adjust the advertising or submission provisions, though the specific changes are not detailed in the text provided beyond the notation “amended: SL 2024/99 r. [X]”. Regulation 9 was also amended, with the addition of subregulation (2) requiring the Commission to give notice of a basic amendment to each affected local government after Gazette publication. The compilation table indicates that the regulations have been incorporated into a single instrument with these amendments. No further amendments are noted. The fact that the regulations were modified within a year of their commencement suggests that the original drafting may have had oversights or that policy adjustments were needed. Practitioners must use the amended version, not the original, and be aware that further amendments may occur.

The source text contains no reference to any litigation concerning these regulations. As at the date of the compilation (presumably late 2024), there are no reported court or tribunal decisions mentioned. This is unsurprising given the regulations are relatively new (in force from August 2023, amended July 2024). However, the absence of litigation does not mean the regulations are uncontroversial; the broad discretion they confer on the Commission may generate disputes that have not yet reached a published decision. Potential grounds for legal challenge include incorrect classification of an amendment as basic or standard, failure to comply with the “reasonable endeavours” notification duty, or failure to consider a submission. The lack of litigation history does not rule out future challenges, especially as the volume of scheme amendments increases. Practitioners should monitor West Australian planning tribunal and Supreme Court decisions for any interpretation of these regulations.

Several features of these regulations create risk of procedural error or unfairness. First, the Commission’s classification discretion is broad. The Commission decides whether an amendment is minor, and if minor, whether it qualifies as basic. The basic amendment definition requires the Commission to be satisfied that it is “highly likely that the amendment will have no adverse effect” on any land or owner. This is a subjective assessment with no published criteria. If the Commission chooses the basic track but a court later finds the amendment had an adverse effect, the entire advertising process could be invalid. Applicants and objectors have no mechanism to challenge the classification in advance. Second, newspaper advertising is optional for standard amendments (regulation 5(5): “If the Commission considers it appropriate to do so”). This means a standard amendment affecting many landowners may be advertised only online and by direct notice to some owners on a “reasonable endeavours” basis. Landowners who do not check the Commission’s website or whose physical address is not known may miss the submission window. Third, direct notice to landowners is qualified by “reasonable endeavours” in all tracks. This is a lower standard than a strict duty to notify. The Commission may satisfy the duty by sending one email or letter, even if it does not reach the owner. For basic amendments, there is no duty to notify landowners at the advertising stage at all; only local governments are notified. Fourth, the definition of basic amendment excludes any amendment referred to the EPA unless the EPA says it should not be assessed. This creates a potential trap: the Commission may begin a basic amendment process, but if the EPA later decides to assess (contrary to the Commission’s initial view?), the process may need to be restarted? The regulations do not address this scenario. Fifth, submissions must be made in accordance with the invitation’s requirements (method, period). The Commission may ignore a submission that does not comply (regulation 7(3)(b) - “may, if the Commission considers it appropriate”). This gives the Commission discretion to disregard a submission on technical grounds, risking disenfranchisement. Sixth, no right to a hearing exists. The entire process is written. There is no obligation to release submissions or to provide reasons for decisions on submissions. Seventh, modifications after submissions (regulation 8) are at the Commission’s discretion; there is no obligation to consult further if modifications are made, even if they are substantial. Eighth, the 14‑day period for basic amendments is very short; it may not provide realistic time for a landowner who is not individually notified to become aware and prepare a submission. Finally, the regulation does not address electronic submission failures or what happens if the website goes down. These gaps impose practical compliance burdens on practitioners to monitor websites, check for newspaper notices, and ensure clients receive written notice if the Commission chooses to send it. The regulations are also silent on costs: there is no provision for recovery of costs by submitters or by the Commission.

Compliance requires identifying the correct advertising track from the outset. The Commission must first determine whether the proposal is a proposed scheme or an amendment. If an amendment, it must determine whether it is a minor amendment under section 56A of the Act. If minor, it must then determine whether it qualifies as a basic amendment under regulation 3. The basic amendment test has three limbs: the amendment must fall within one of four categories (administrative error, map error, consistency with a public planning document, or otherwise administrative/minor); it must be “highly likely” to have no adverse effect on any land or owner; and it must not have been referred for EPA assessment in a way that requires assessment. If the amendment meets all limbs, the Commission may use the basic amendment track (regulation 6). If it is minor but not basic, the Commission should use the standard minor amendment track (regulation 5). If it is not minor (or is a proposed scheme), the full track (regulation 4) applies.

Once the track is selected, the Commission must decide the advertising period (at least 60, 42, or 14 days respectively) and prepare an advertisement in a form it considers appropriate, specifying where the document is published online, inviting submissions, and stating any other requirements. The advertisement and the proposed instrument must be published on a website for the entire advertising period. For regulation 4 tracks, the advertisement must be published in a newspaper circulating in the area on at least two days, with the first as early as practicable. For regulation 5, newspaper publication is discretionary. For regulation 6, no newspaper publication is required but may be done. The Commission must give written notice to each affected local government. For regulation 4 and 5 tracks, the Commission must use reasonable endeavours to notify public authorities and landowners likely to be affected. For regulation 6, there is no such duty at the advertising stage, but after Gazette publication the Commission must notify local governments (regulation 9(2)). The Commission must ensure the invitation for submissions complies with regulation 7: it must allow electronic and hard copy, set out the methods, state the period (matching the advertising period), and any other requirements. All submissions made within the period and in accordance with the requirements must be considered. The Commission may consider non‑compliant submissions but is not obliged to. Submissions from local governments and public authorities must be considered even if they do not comply with format? They are treated the same under regulation 7(4). If the Minister gives a direction under section 52(2), the Commission must prepare and submit a report with copies of submissions, its report, any EPA report, and the proposed instrument with modifications it considers appropriate. If EPA issues arise, the Commission must give the EPA a copy of relevant submissions and its views. The Commission should also keep records of its classification decision and the basis for concluding that a basic amendment has no adverse effect, as this may be scrutinised later. For practitioners advising clients, the key compliance steps are: monitor the Commission’s website and newspaper notices; ensure that any submission is made in the exact manner and within the period specified; check that the Commission has correctly classified the amendment and challenge it promptly if it seems wrong; and request written notice if the client is a landowner likely to be affected. Local governments should ensure they have systems to receive and respond to notices. Finally, the Commission must comply with regulation 9(1) by notifying local governments at the earliest possible stage before preparing a scheme, and regulation 9(2) after a basic amendment is gazetted.