The weight to be applied to the R-Codes under the Deemed Provisions

It is well understood that the Residential Design Codes (R-Codes) are a State Planning Policy prepared under the auspices of the Planning and Development Act 2005 (WA) (PD Act) and are a material consideration in any application for residential development approval in this state (including subdivision and development).

There has been a spate of recent cases in the State Administrative Tribunal (SAT) dealing with the application of the R- Codes in the context of subdivision and development approvals in various local government areas providing helpful analysis on the manner in which the R-Codes are to be interpreted and applied in a WA context.

The essence of those cases indicates that the manner in which the R-Codes are applied and more particularly, the weight to be attributed to them in a particular context can vary.

In the matter of Baker Investments Pty Ltd v City of Vincent¹, Senior Member McNab and Member De Villiers made the following finding in relation to the nature and status of the R-Codes in the context of the Deemed Provisions set out at schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) (at [126] and [127]):

126 As already noticed, the R-Codes are a 'State planning policy' (SPP). Cf Hickey Lawyers v Gold Coast City Council [2005] QPEC 22; [2005] QPLR 597 dealing with conditions and special, perhaps extended, powers dealing with 'infrastructure charging' policies (not cited in Kakulas), noted by Stein at page 87. Section 77 of the PD Act deals with SPPs and town planning schemes as follows (emphasis added):

77. State planning policies, effect of on scheme

1. Every local government in preparing or amending a local planning scheme

(a) is to have due regard to any State planning policy which affects its district; and

(b) may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.

2. Where a scheme includes a provision referred to in subsection

(a) the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and

(b) the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.

3. Modifications referred to in subsection

(a) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection

(b) which is inconsistent with the modifications.

127 In our view, the principles articulated in Kakulas above, See above under, 'Development of a minor nature under TPS 1?' as to the status of any instrument labelled and classified as 'policy', also underpin, in large measure, the result in Dumbleton and must also control how the effects of s 77 of the PD Act, so far as is relevant, are to be viewed or interpreted. After all, any policy (even a SPP) which is incorporated into a town planning scheme remains just that, policy, and therefore by definition as the Tribunal said in Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111, at [23]:

… provides a guideline of the principles that the respondent [or this Tribunal] can be expected to apply when making decisions[;]… it does not provide a binding set of principles that must be applied in all cases: Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGRA 433

That interpretation is indeed consistent with the SAT decision in a more recent matter involving subdivision, namely Avoda Pty Ltd and Western Australian Planning Commission², in which Member Eddy made the following comment in relation to the circumstance of a local planning scheme incorporating the R-Codes (at [57]):

This does not have the effect that the AR (Armadale Redevelopment) Scheme requires that a proposed subdivision comply with the requirements of the R-Codes.  That fact that any later development of lots created by the proposed subdivision would be required to comply with the R-Codes (unless the AR Scheme provides otherwise) is a relevant factor in determining whether or not to approve the proposed subdivision as it would not be appropriate to approve subdivision of land to create effectively undevelopable lots: see Bormolini  and Western Australian Planning Commission [2014] WASAT 121 (at [29] – [36])”.  This does not mean the R-Codes are elevated over any other policy prepared and adopted for the purpose of guiding decision – making in relation to the subdivision

Interestingly however, another recent decision of the SAT in Kaizen Property Developments Pty Ltd v City of Armadale³ offered a different interpretation.  This case involved a preliminary issue in relation to whether or not the introduction of clause 67 (c) of the Deemed Provisions altered the status of the R-Codes such that the Tribunal must have “due regard” to the R-Codes as a policy only, rather than as part of the scheme.  Relevantly, Member Quinlan made the following finding (at [61]):

The Tribunal does not agree with the submission made by the applicant that the R-Codes have not been incorporated into the scheme by the operation of clause 4.2.2 of the scheme (Armadale Local Planning Scheme No.4 – LPS4) and therefore the R-Codes are simply a policy like any other policy which can be departed from if there are good reasons to do so in a particular case.  The Tribunal finds that the R-Codes are incorporated into the Scheme by the plain and ordinary words of clause 4.2.2 of LPS4 and by a contextual analysis of the scheme.  By the operation of clause 4.2.2 of the Scheme the R-Codes have been elevated above a State planning policy.

The SAT went further (at [69]) to say that”

Clause 67 of the Deemed Provisions is an exhaustive list of considerations for determining development applications and clause 4.2.2 is elevating the status of the R-Codes from a State planning policy to giving it a legislative effect by providing that the development of land for any residential purpose dealt with by the R-Codes is to conform with the R-Codes.

This finding is made on the basis of the earlier comment of the SAT in the same case that (at [66]):

Therefore, the Tribunal finds that “due regard” as it is employed in the chapeau to clause 67 of the Deemed Provisions may have a different meaning or emphasis or wait afforded to it, depending on the particular facts and circumstances of a proposed development, the context and the sub clause rather than the meaning of the phrases found in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141.

Lavan Comment

As can be seen from the above decisions, there is a certain degree of variability in relation to the interpretation, and weight to be applied to the considerations outlined in clause 67 of the Deemed Provisions (and in particular the R-Codes).

We suspect that the variability in weight to be applied to policy will be the subject of further decisions in the SAT to further clarify the point in the context of individual and often differing local planning schemes that exist in a WA context (irrespective of the intended purpose of the Deemed Provisions).

That being the case, it is important that careful consideration be made of your proposal in the context of a relevant local planning scheme in light of these recent cases in the SAT and that good planning/legal advice is sought in relation to the appropriate interpretation of that framework to the context of your development.

If you have any queries in relation to the operation of the R-Codes or any other planning framework document relevant to your development in a local planning scheme context please contact the Lavan Planning and Environment team.