Planning Codes

Important changes to the planning law framework in Western Australia came into force on 1 March 2024.

Clause 65 of the Planning and Development Amendment Bill 2020 (WA) inserts Part 3A to the PD Act, which now governs prescriptive and mandatory instruments as “Planning Codes”.

In our earlier article Significant And Imminent Changes To Planning Regulation In Western Australia | Lavan, we had discussed that the Residential Design Codes (R-Codes) will cease to be a State Planning Policy and will instead be classified under this new concept of “Planning Codes”.

According to the Department of Planning, Lands and Heritage (DPLH), these changes are meant to ensure “a more contemporary and adaptable State planning policy suite”.

As a refresher, the R-Codes now have the status of subsidiary legislation under the Planning and Development Act 2005 (WA) (PD Act). DPLH confirm this change reflects the wide-spread application of the R-Codes as a technical planning document.

As we previously confirmed, these reforms do not substantially change how the R-Codes already operate, in the sense the R-Codes already functioned more as a legislative instrument than as a policy in the traditional sense.

According to the Explanatory Memorandum, these changes sought to address some of the issues that were evident within the previous planning system, notably that:

• The development of the State Planning Policies had reached such a state of evolution that they could not be considered policies anymore;
• Even with the incorporation process provided for within Section 77(1)(b) of the PD Act, recent judicial determinations questioned the extent to which State Planning Policies could ever become more than a mere policy; and
• The ambiguity regarding the legal status of the R-Codes was problematic given their importance within the planning system.

The R-Codes are now divided into Residential Design Code Volume 1 2024 (which deals with development of all single house, grouped dwelling, and multiple dwellings coded R60 and below) and the Residential Design Code Volume 2 2024 (which deals with development of multiple dwellings coded R80 and above).

These changes also saw the introduction of the Planning and Development (State Planning Policies) Regulations 2024 and the Planning and Development (Planning Codes) Regulations 2024, which respectively set out the processes for making, amending, and repealing the State Planning Policies and Planning Codes. These Regulations replace the processes previously outlined in Part 3 of the PD Act.

DPLH have confirmed that, presently, they have no plans to introduce further Planning Codes on top of the R-Codes, but this option remains open to them. If DPLH were to introduce further Planning Codes, they confirmed those would be subject to stakeholder and public consultation prior to coming into effect.

In respect of these new Planning Codes, DPLH confirmed that, under this new system, the Planning Codes will deal with any matter that can be dealt with by a local planning scheme (pursuant to Schedule 7 of the PD Act) but will only have effect when read into that local planning scheme.

The State Planning Policies will now focus on strategic policy to provide direction on land use planning matters of significance to WA and they will no longer have the ability to be ‘read in’ to local planning schemes, but they will remain as ‘due regard’ documents for decision-making.

According to DPLH, the key changes under this new system can be summarised as follows:

• The new regulations allow the review of part of a State Planning Policy or Planning Code, rather than requiring review of the whole document;
• The Western Australian Planning Commission (WAPC) will be able to determine the classification of an amendment as administrative, standard, or substantial; and
• The Minister for Planning is required to provide approval before a new Planning Code, State Planning Policy, or substantial amendment is advertised.

If you have any questions in relation to the changes to the R-Codes or the PD Act in general, please feel free to contact the Lavan Planning & Environment team.