What exactly are the “R-Codes” in the post-Design WA landscape?

A significant planning reform has recently been implemented in Western Australia, with the suite of planning documents known as Design WA Stage One being gazetted on 24 May 2019.

Perhaps the most significant aspect of Design WA Stage One is that the Residential Design Codes (R-Codes) have been wholly restructured.  In particular, the old Part 6 has been carved out of the historical R-Codes and now forms a separate planning document, which deals exclusively with apartments.  The historical R-Codes, minus the old Part 6, are now known as State Planning Policy 7.3 – Residential Design Codes Volume 1 (SPP7.3 Vol 1), whereas the new stand-alone planning document dealing with apartments is known as State Planning Policy 7.3 – Residential Design Codes Volume 2 – Apartments (SPP7.3 Vol 2).

There have been numerous Supreme Court and State Administrative Tribunal decisions over the years dealing with the question of how the R-Codes are to be applied in a legal context.  It is likely that many of these precedents may have to be revisited in the coming years, given Design WA Stage One and the fact that the R-Codes have now effectively been split into two separate documents.

A particular issue that could potentially arise concerns the legal relationship between local planning schemes on the one hand and SPP7.3 Vol 1 and SPP7.3 Vol 2 on the other hand.

On this note, the term “R-Codes” is defined in clause 1 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) as follows: “means the Residential Design Codes prepared by the Western Australian Planning Commission under section 26 of the Act, as amended from time to time”.  The Deemed Provisions definition of “R-Codes” would apply throughout the State and would seem to prevail over any inconsistent definition that is contained within a local planning scheme.

At face value, it is not entirely clear whether both SPP7.3 Vol 1 and SPP7.3 Vol 2 would come within this definition of “R-Codes” in the Deemed Provisions.

Notably, the definition of “R-Codes” in the Deemed Provisions seems to refer to a single document (rather than to multiple documents), which document may be amended from time to time.  On this note, inspecting the Government Gazette confirms that whilst SPP7.3 Vol 1 is technically an amendment to the historical R-Codes (including a change of name), SPP7.3 Vol 2 has been created as an entirely new State Planning Policy and is not an amended form of an existing State Planning Policy.  Despite being described as separate volumes of the same document, in substance, it would appear that SPP7.3 Vol 1 and SPP7.3 Vol 2 are in fact entirely separate State Planning Policies, rather than being different volumes of the same State Planning Policy.

This position would create at least some legal doubt as to whether SPP7.3 Vol 2 is part of the “R-Codes” for the purpose of the Deemed Provisions definition.

If SPP7.3 Vol 2 is not part of the R-Codes for the purpose of the Deemed Provisions, then there would be a number of apparent legal consequences that flow.  For example, many local planning schemes contain provisions saying that the R-Codes are to be read as forming part of the local planning scheme (pursuant to section 77 of the Planning and Development Act 2005 (WA)), which effectively gives the R-Codes legal effect and makes them binding. 

If such a local planning scheme provision does not capture SPP7.3 Vol 2, then it would seem that SPP7.3 Vol 2 would merely be a due regard planning instrument for the purpose of assessing a development application and its provisions could be departed from in circumstances there was a cogent reason to do so.  This could be important in the case of an apartment development.

It will be interesting to see how planning decision-makers, as well as the Supreme Court and the State Administrative Tribunal, approach the interpretation and application for SPP7.3 Vol 1 and SPP7.3 Vol 2 and whether anything in this new structure will change the way in which the R-Codes have traditionally been understood.  At face value, the flexibility has the potential to assist in the development of opportunities that may not otherwise arise but may alternatively result in a level of uncertainty in the manner in which discretion is exercised, affecting the viability of projects requiring funding. 

If you have any questions in relation to Design WA Stage One and the R-Codes, please do not hesitate to contact Lavan.