Australia: The R-Codes and the deemed provisions in WA town planning schemes

Last Updated: 21 December 2017
Article by Philip Mavor

The State Administrative Tribunal (Tribunal) held recently in Kaizen Property Developments Pty Ltd and City of Armadale [2017] WASAT 123 (Kaizen) that the R-Codes had been incorporated into the City of Armadale Local Planning Scheme No. 4 (Scheme) and that a planning application had to conform with the provisions of the R-Codes.

Refusal of the development application

In Kaizen the applicant made an application seeking development approval for six two story residential dwellings as well as retention of an existing single residential dwelling. The City refused the application on the basis that the proposed development did not conform with the provisions relating to grouped dwellings under Part 5 of the State Planning Policy 3.1: Residential Design Codes (R-Codes).

The applicant sought a review of that refusal in the Tribunal

The relevant legislation

The Planning and Development (Local Planning Schemes) Regulation 2015 (WA) provide in Schedule 2 a number of provisions which are deemed to be included in every local planning scheme in Western Australia (Deemed Provisions).

Clause 67 of the Deemed Provisions provides that in considering an application for development approval the local government is to have 'due regard' to a number of specified matters, including at 67(c) – "any approved State planning policy;"

Under s.257B(3) of the Planning and Development Act 2005 (Planning and Development Act), if a Deemed Provision is inconsistent with a provision in the local planning scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.

The R-Codes are a State Planning Policy prepared by the Western Australian Planning Commission pursuant to the Planning and Development Act. The R-Codes outline standards for residential development, and, with certain exceptions, are a material consideration in an application for residential development in Western Australia.

In Kaizen, the R-Codes had been incorporated into the Scheme under clause 4.2.2 of the Scheme, which read as follows – "[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the R-Codes is to conform with the provisions of those Codes."

Issue: the weight to be afforded to the R-Codes

The Tribunal dismissed the appeal.

One of the determinative issues before the Tribunal in Kaizen was whether the introduction of the Deemed Provisions produced an inconsistency between clause 4.2.2 of the Scheme and clause 67(c) of the Deemed Provisions, such that by the operation of s.257B(3) of the Planning and Development Act, clause 67(c) prevails over clause 4.2.2 of the Scheme.

The question was whether clause 67(c) of the Deemed Provisions had altered the status of the R-Codes such that a local government (with the Tribunal in review standing in the shoes of the local government) considering an application for development approval only had to have 'due regard' to the R-Codes as a policy (from which it could depart), as opposed to determining whether the proposed development 'conforms' with the R-Codes.

The Tribunal noted that the Scheme had legislative force, and that the ordinary principles of statutory interpretation apply to interpretation of the Scheme. The Tribunal also agreed with the City's submission that clause 67 is a general provision and, as a general principle of statutory interpretation, a general provision should not be utilised to read down the specific provision found in clause 4.2.2 of the Scheme.

The Tribunal did not agree with the submission made by the applicant that the R-Codes had not been incorporated into the Scheme by the operation of clause 4.2.2 of the Scheme, and that the R-Codes were simply a policy which could be departed from if there were good reasons to do so in a particular case.

The Tribunal held that the R-Codes were incorporated into the Scheme by the plain and ordinary words of clause 4.2.2 of the Scheme, and by a contextual analysis of the Scheme.

The Tribunal determined that the functions being performed by clause 4.2.2 of the Scheme were not inconsistent with clause 67(c) of the Deemed Provisions, and accordingly s.257B(3) of the Planning and Development Act had no operative effect.

Clause 67 of the Deemed Provisions was an exhaustive list of considerations for determining development applications, while clause 4.2.2 was held to be elevating the status of the R-Codes from a State planning policy to give it 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.

The R-Codes had been incorporated into the Scheme in clause 4.2.2, which operates to elevate the R-Codes above consideration as only policy to which 'due regard' should be given.

Accordingly, by operation of clause 4.2.2 of the Scheme, the proposed development in Kaizen was required to conform to the R-Codes.

Notice for local governments

If local governments wish developments in their area to conform to the R-Codes, then they should ensure that their town planning scheme contains provisions that directly incorporate the R-Codes into their scheme (see clause 25 of the Model Rules).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Philip Mavor
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