Promoting investment in Western Australia: An overview of the State Development Bill

What is the object of the Bill?

The Bill aims to maintain WA’s high standards of regulatory protection, while also streamlining the approval process, and providing more certainty on end-to-end project approval timeframes. This is intended to ensure WA remains a globally competitive and attractive investment destination.

The object of the Bill is to provide for the coordination, facilitation and promotion of “State-significant development, while taking into account social and environmental considerations.

State-significant development means:

• Industrial development
• Sevelopment of infrastructure; or
• Other development or activities

of strategic or economic significance to WA.

What projects may benefit from it?

The WA Government has already stated that the Bill is intended to help WA secure investments in major clean energy projects and defence manufacturing projects, giving an indication of the areas which will initially be seen as of strategic and economic significance to WA.

For a project to benefit from the Bill, it will need to either be designated as a “priority project” or be located in a “State development area” (SDA).

Priority Projects

A project may only become a “priority project” by designation from the State Development Minister acting with approval from the Premier. In making this designation, the State Development Minister:

1. Must consider the object of the Bill, which is the coordination, facilitation and promotion of State-significant development, while taking into account social and environmental considerations
2. Must be satisfied the project is of strategic or economic significance to WA, or an area of WA. This may include being satisfied due to the project providing:

• Infrastructure
• Capital investment
• Employment opportunities
• Economic benefits
• Social benefits

Projects which are wholly residential developments cannot be designated as priority projects.

Before making a designation, the State Development Minister must also consult with the project proponent. The project proponent should be prepared to provide assessments of:

• The potential impact of the project
• The feasibility of the project
• How the project would satisfy a specified need or demand

State development areas

With the approval of the Premier, the State Development Minister may declare an SDA and set out how that area should be dealt with for the purposes of:

• Facilitating economic development, strategic industrial development or the provision of necessary infrastructure
• Protecting, conserving or enhancing the environment; or
• Otherwise promoting the objects of the Bill

In making the declaration, the State Development Minister must have regard to the object of the Bill, and must not make the declaration unless the Minister considers it appropriate to do so for one of the purposes above.

How will projects benefit?

Priority projects and projects in SDAs will each benefit from a whole-of-government approach towards their development. For priority projects, this means direct interventions from the State Development Minister or CG in the approvals process. For projects in SDAs, this means benefiting from coordinated development planning, to facilitate the efficient delivery of infrastructure and services to the project area.

Priority Projects

Where:

1. A public authority decision-maker has to make a decision that could cause or allow a priority project to be implemented.
2. The decision-making power originates in one of the “designated Acts” listed in Schedule 1 to the Bill (including, for example, the Mining Act 1978 (WA), the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Electricity Industry Act 2004 (WA), as well as all subsidiary legislation made under the designated Acts),

the State Development Minister has the power to issue one of several notices discussed below in order to fast-track the approval process.

Due regard notice

A due regard notice allows the State Development Minister (or the CG on delegated authority) to mandate that the relevant decision-maker gives due regard to specified considerations.

This notice cannot force or allow the decision-maker to have regard to anything it is not allowed to consider as part of the decision-making process under the designated Act.

The effect of a due regard notice is that, where under the designated Act a decision-maker is allowed to have regard to something but isn’t required to, the notice can turn this into a mandatory consideration.

Limits on this power include that:

• A due regard notice cannot be given to the Environmental Protection Authority, the Heritage Council of Western Australia or any other prescribed public authority, and cannot be given in relation to any decisions prescribed in regulations.
• A due regard notice cannot be given to another Minister regarding a decision they make personally unless the other Minister agrees to it.

Timeframe notice

A timeframe notice allows for the State Development Minister (or the CG on delegated authority) to ensure the timely passage of a priority project through the approvals process.

The timeframe notice establishes a timeframe, or varies an existing legislative timeframe, for a public authority to exercise its decision-making functions, or functions relating to that decision. When establishing or varying a timeframe through a timeframe notice, the State Development Minister must consider the processes and requirements relevant to the function, and the impact the timeframe notice could have on the performance of the function or another law. In all cases, the timeframe given for the function must not be less than 20 business days after the notice is given.

Timeframe notices may be given in respect of designated Acts under the Bill, as well as the Aboriginal Heritage Act 1972 (WA) (which is not otherwise subject to the Bill).

Limits on this power include that:

• Regulations can limit the functions a timeframe notice can be applied to.
• Before giving the notice, the State Development Minister must consult with the relevant public authority, to consider the processes and requirements relevant to the function. This is intended to prevent unintended consequences of the notice.

Joint decision notice

A joint decision notice, given by the State Development Minister (or the CG on delegated authority), requires the relevant public authority to coordinate with the CG or the Minister to consult and if possible, agree on the decision to be made by the public authority. When making this decision, the decision-maker must also consider the objective of the Bill.

If agreement cannot be reached, the decision is elevated to the State Development Minister and the responsible Minister for the public authority. If agreement still cannot be reached, the Premier has the ultimate say on the decision.

Limits on this power include that:

• The Minister must consult with the public authority before giving a joint decision notice.
• A joint decision notice cannot be given where the decision is to be made personally by another Minister (unless the Minister agrees to receiving the notice).
• A joint decision notice cannot be given to the Environmental Protection Authority, the Heritage Council of Western Australia, or the WA Planning Commission.

Modification order

A modification order allows the State Development Minister (with approval from the Premier) to provide that specified provisions of a designated Act do not apply, or apply with specified modifications, to the making of a decision in respect of a priority project.

The State Development Minister may only make a modification order where:

• In their opinion this will prevent or reduce the duplication of administrative processes.
• In their opinion, having regard to the object of the Bill, as well as the purpose of the relevant Act being modified, making the order will not prevent the priority project from being effectively regulated under law.

A modification order cannot be used to remove the need for a key regulatory authorisation, but it may modify the grounds on which the decision regarding that key regulatory authorisation is made, and the factors the decision-maker must consider.

The order may also include legally enforceable conditions which the project proponent must comply with.

A modification order is a significant power, and comes with checks and balances:

• A modification order must be presented to each house of Parliament and may be disallowed following a resolution from either house of Parliament.
• A modification order cannot modify the application of provisions which relate to joint federal / state assessments under the Environmental Protection Act 1986 (Cth), or the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Projects in SDAs

Projects in SDAs will benefit from the area being dealt with by all public authorities in a consistent and coordinated way, allowing for better future planning, and a more streamlined development.

This will be achieved through the State Development Minister making a State development plan (SDP) which can:

• Set out relevant economic, environmental, and social considerations for the area
• Set out the intended development and subdivision plans
• Identify required infrastructure and services
• Identify precincts
• Otherwise promote the plan area being used in accordance with the State development declaration

Once an SDP is in place, approval and decision-making processes in the SDA should become more coordinated, as public authorities must have due regard to the SDP when making decisions that could cause or allow development or an activity to be carried out in the SDA. The CG is also entitled to receive copies of applications relevant to the SDA, and written notice where a decision would grant an interest in land or cause land to cease to be reserved.

Essentially the SDP allows the CG to help ensure that the SDA is used for the purpose the WA Government has in mind, meaning major project proponents can feel more confident that the necessary land, infrastructure and services will be available without unwanted setbacks.

Key takeaways

• If enacted, the impact of the Bill will largely be determined by the discretion of the State Development Minister and the CG.
• Project proponents seeking to benefit from the reforms in the Bill will need to be able to demonstrate why their project is a strategically significant project.