On 1 March 2024, two new sets of regulations came into effect:
- Planning and Development (Planning Codes) Regulations 2024 (Planning Code Regulations)
- Planning and Development (State Planning Policies) Regulations 2024 (SPP Regulations)
These regulations include the processes to make, amend and repeal Planning Codes and State Planning Policies (SPPs), and replace the processes previously outlined in Part 3 of the Planning and Development Act 2005 (PD Act). To create a more contemporary and adaptable State planning system, risk-based amendment streams have been introduced for SPP and Planning Codes.
Minor amendments have also been made to the deemed and model provisions of the Planning and Development (Local Planning Scheme) Regulations 2015 (LPS Regulations) to replace references to State Planning Policies with ‘Planning Codes’ where required to implement the above-mentioned reforms, as well as including reference to Planning Codes in the relevant locations to ensure they are a matter to be considered in decision making.
The head of power for both SPPs and Planning Codes remains in the Planning and Development Act 2005 (PD Act) (Parts 3 and 3A respectively).
Role of Planning Codes and State Planning Policies
These legislative changes have introduced Planning Codes as a new planning instrument into the Western Australian planning system.
Planning Codes shall:
- Deal with any matter that can be dealt with by a local planning scheme as listed in Schedule 7 of the PD Act;
- Only have effect when read into local planning schemes; and
- Have the status of subsidiary legislation.
The Residential Design Codes now have the status of subsidiary legislation under the PD Act and are referred to as a Planning Code. They are now referred to as the Residential Design Code Volume 1 2024 and Residential Design Code Volume 2 2024.
State Planning Policies will:
- Focus on strategic policy, providing direction on land use planning matters of significance to Western Australia.
- No longer have the ability to be ‘read in’ to local planning schemes.
- Remain ‘due regard’ documents for decision making.
Key Changes to the SPP and Planning Code Process
The key changes to the process associated with SPPs and Planning Codes included in the new regulations are:
- Enables the review of part of a SPP or Planning Code, rather than the whole document having to be reviewed.
- Allows for the Western Australian Planning Commission (WAPC) to determine the classification of an amendment as administrative, standard, or substantial.
- Requires the Minister for Planning’s approval before a new Planning Code, SPPs or substantial amendment can be advertised.
Amendment streams for SPP and Planning Codes
The table below provides a summary of the three amendment streams available:
| Amendment Streams for Planning Codes | Advertising Period | Ministerial Approval to Advertise | |
|---|---|---|---|
| Administrative | A standard amendment to correct an administrative or minor error related to a map, plan or diagram; and/or a change to ensure consistency with a public planning document, subsidiary legislation or a government policy. These amendments are not likely to adversely affect any land or owner or occupier, and are not referred to the EPA or not being assessed by the EPA. | Not required | Not required |
| Standard | An amendment that the WAPC considers does not constitute a substantial alteration to the policy. | 60 days | Not required |
| Substantial | An amendment that is not a standard amendment. | 90 days or longer if WAPC determines | Required |
| Amendment Streams for State Planning Policies | Advertising Period | Ministerial Approval to Advertise | |
|---|---|---|---|
| Administrative | A standard amendment to correct an administrative or minor error related to a map, plan or diagram; and/or a change to ensure consistency with a public planning document, subsidiary legislation or a government policy. | Not required | Not required |
| Standard | An amendment that the WAPC considers does not constitute a substantial alteration to the policy. | 60 days | Not required |
| Substantial | An amendment that is not a standard amendment. | 90 days or longer if WAPC determines | Required |
Integration of Planning Codes into local planning schemes
The following changes have been made to the LPS Regulations to reflect Planning Codes as a new instrument referenced in local planning schemes, to ensure they are considered by decision makers:
- Definition of Standard amendment to reference Planning Codes (r.34)
- Scheme review requirements to reference Planning Codes (r.66).
Schedule 1 (Model Provisions) and Schedule 2 (Deemed Provisions) of the LPS Regulations have been amended as outlined below:
| Schedule in LPS Regulations | Amendments |
|---|---|
| Model Provisions |
|
| Deemed Provisions |
|
The PD Act provides for the R-Codes, as a Planning Code, to automatically be transitioned from a state planning policy to a planning code in planning schemes, meaning no individual scheme amendments are required to enact this change. Local governments can continue implementing the R-Codes as per standard practice.
Treatment of State Planning Policies in Planning Schemes
The amendments to the PD Act have now removed the ability for SPPs to be 'read into' planning schemes. The transitional provisions mean that any existing scheme provisions of this nature (in Cl. 27 & 28 of the model provisions of the LPS Regulations) no longer have legal effect. It should be noted that this does not affect the status of SPPs which remain due regard documents in all decision making.
Given the above, there is no urgency to remove references to State Planning Policies being read into in schemes. It is recommended, however, that local governments consider removing these superseded provisions through either a scheme amendment (which is likely to be a basic amendment) or at the next scheme review (if it is underway or imminent), to ensure that all SPP scheme references are reviewed, revised and deleted (if necessary) in a holistic manner.
If an entire SPP is currently read into a scheme, specific provisions could be developed if necessary to ensure the applicable requirement(s) of the SPP are addressed where a particular statutory effect is sought. In this regard, it is noted that more recently introduced SPPs include supplementary guidelines which provide further detail on expectations for planning scheme provisions. There may also be instances where a split between scheme and policy provisions would best achieve desired outcomes. Local area schemes teams at DPLH can provide further assistance to local government on the best approaches to achieve desired outcomes. An amendment of this nature (if not done as part of a scheme review) is likely to be a standard amendment.
More Information and Questions
If you require further information, please contact the Policy team on 6551 8002 or email policy@dplh.wa.gov.au.
For specific queries on scheme amendments relating to State Planning Policies or Planning Codes, please contact the relevant Local Area Schemes Team at the Department via info@dplh.wa.gov.au.
