A planning condition in Western Australia is valid only if it is imposed for a planning purpose, fairly and reasonably relates to the development, and is one a reasonable planning authority, properly advised, might impose. A local government approval lapses if the development is not substantially commenced within the period it sets or, where it sets none, within 2 years of the decision.
General informationThis page draws on the Department of Planning, Lands and Heritage’s guidance on the validity of conditions (last updated 26 February 2024) and on the deemed provisions and regulations it names. It is not advice about any condition or approval; the decision-maker that granted an approval can explain its conditions.
The three tests a condition must pass
The State Administrative Tribunal and other appeal bodies in Australia follow the approach of the case Newbury DC v Secretary of State for the Environment [1981] AC 578, and the department applies its three tests to development and subdivision conditions alike.
1. A planning purpose
The department suggests one question: would the approval have to be refused if the condition were left off? If not, the condition needs special and precise justification. That a condition will do no harm is not a reason to impose it. A condition repeating controls that another law already applies is not normally necessary, and one that cuts across another agency’s jurisdiction is likely to be unreasonable. The department’s example: emissions regulated under the Environmental Protection Act would not normally need a planning condition, but separation distances, which that regime does not control, might.
2. A real link to the development
The condition has to bear a direct relationship to the proposal and its effect on its surroundings, which the department calls “need and nexus”. Its example is a condition to upgrade adjoining roads: that only stands if the upgrade arises from the effects of the development, rather than simply being a better outcome for the public.
3. Reasonableness
A condition may place a continuing restriction on how land is used, if there are good planning reasons, but not one that takes away the benefit of the approval. Limiting the opening hours of an entertainment venue to protect local amenity can be reasonable; limiting them so far that the business cannot run properly would not be. An unreasonable condition does not become reasonable because the applicant offered it or agreed to it.
When a referral agency asks for a condition, part of the decision-maker’s role is to judge whether the proposal itself makes it necessary. For consistent wording, the Commission publishes a schedule of model subdivision conditions, and the Western Australian Local Government Association has prepared one for development conditions.
One kind of condition is avoided altogether: one that depends on someone else’s consent, such as closing a road, getting an easement from a neighbour or obtaining another authority’s approval. These are called ambulatory conditions, because meeting them may be out of the applicant’s hands.
How an approval can be shaped
- It can cover the whole development, the whole except a part it names, or only a named part.
- It can require further details of works or use to be approved before work starts, but only where those details would not substantially change what was approved.
- It can be limited in time, a temporary approval, which does not change the period within which the development must begin.
- It cannot carry a condition that future infrastructure contributions may be required under a development contribution plan that is not yet in place.
Approvals run with the land, not the owner, so an approval and its conditions can still operate after the property is sold.
When an approval lapses
| Who granted it | Period | Counted from |
|---|---|---|
| Local government | 2 years | The date of the determination |
| Development Assessment Panel | 4 years | The day the approval is granted |
| The Commission, under Part 11B | 4 years | The day the approval is granted |
Where an approval states its own period, that period applies instead, and in every case the approval lapses if the development has not been substantially commenced in time. “Substantially commenced” means that some substantial part of the approved work has been performed.
Changing or cancelling an approval
For a local government approval, the owner of the land may apply to extend the commencement period, amend or delete a condition, change an aspect of the development that would not substantially alter it, or cancel the approval. The request is made and decided like a fresh application, and may be made during or after the commencement period. For a minor amendment, the local government may waive or vary the usual requirements. A refusal to amend or cancel can be reviewed by the State Administrative Tribunal.
A panel approval can be changed in the same ways by the panel, on an application lodged with the local government, or by the responsible authority under the planning scheme. A Part 11B approval is changed on Form 11B-2, and an extension granted after it has lapsed brings it back into effect.
Approval for work already done
A responsible authority may approve development that has already been started or carried out. Nothing but that approval makes unlawful development lawful, and once it is granted, carrying the development on is taken to be lawful. The application follows the same procedures as any other. Whether to approve, and on what conditions, is for the decision-maker; the decision clock guide sets out the steps, and review at the Tribunal covers challenging a condition.