Four words to chill the heart of democracy

ANDREW SMITH is a former East Fremantle mayor, Dalgety Street resident and democratic town planning expert.

FOUR simple words ‘despite any legal instrument’ threatens our way of life and our democracy (“Urban land ‘wars’ about to escalate,” Herald, 12/08/2023).

These words were once a temporary legal amendment which early this year was made permanent by the WA government, triggering the most explosive changes ever to our land planning system.

One of the most cynical political power grabs in WA history,  the new Part 17 of the WA Planning Act favours powerful property owners and developers to the point they can simply ignore nearly every check and balance in our planning system built up over the last 100 years.

They can now pitch any project over $20 million straight to the super-charged WA Planning Commission which can then sweep aside WA’s Heritage Act, Contaminated Sites Act, Swan and Canning Rivers Management Act, or any policy, plan, zoning or by-law introduced by your local council.

Kott Gunning, WA lawyers in 2020, but now closed, have given the only clear advice on the scope of the amendment to date in cool, calm ‘lawyerly’ language: “The WA Planning Commission is not bound or restricted by any ‘legal instrument’,” they found, other than the Environmental Protection Act. 

And most importantly the legal opinion states “or any other scheme, code, policy, plan, local law, by-law, rule, condition, notice or other instrument … or other legislation”. (Full report at

Despite searching countless planning department documents, the Chook couldn’t find any mention of the real scope of these changes put out by then-premier Mark McGowan, former planning minister Rita Saffioti or any government official when they were enacted.

In the 1980s WA Inc was the last time WA saw such ‘politically-inspired’ cosy relations between ‘top end of town’, ‘four-on-the-floor’ business entrepreneurs and WA Labor governments. The Royal Commission eventually called by then Labor premier Carmen Lawrence saw tears all round, some careers and reputations in ruins and heartfelt pledges of “never again”.

Well, in our view here comes WA Inc V2, as well as the escalation of stressful suburban land skirmishes and a huge resurgence of angry local protests when property owners affected by fast-tracked development have no where else to turn. 

All the power is now in the hands of too-few politicians and a small number of senior bureaucrats, some of whom are development industry ‘insiders’. 

They control all the cards to benefit the most powerful developers in the state. 

All these developer applicants have appeal rights to the State Administrative Tribunal which are denied to those adversely affected by an ‘economically-beneficial development’.

The amendment was designed to boost the WA economy against any economic downturn from the Covid pandemic, when everyone from premier Mark McGowan down, was panicked. 

But the downturn never happened. In fact many parts of the economy prospered, while the development industry bloated by build-orders, actually ‘blew up’ with many smaller building companies going broke. 

But instead of expiring in December this year, the so-called emergency legislation was quietly made permanent by a back bench-bloated WA Labor government just before premier Mark McGowan, exhausted, headed off into his own sunset. 


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