SAT Rules On Flexibility Under R-Codes To Vary Minimum Lot Sizes

In the recent State Administrative Tribunal (SAT) decision of Taylor and Western Australian Planning Commission [2023] WASAT 16, the SAT found that the Western Australian Planning Commission (WAPC) is legally able to vary (by more than 5%) the minimum and average lot sizes imposed by the Residential Design Codes Vol. 1 (R-Codes) in granting a subdivision approval.

The facts

The applicants, Mr & Mrs Taylor, applied to the WAPC for approval to subdivide their land, which was coded R15 under the relevant local planning scheme. The subdivision application proposed to create two lots, being 539m² (Lot 1) and the other being 440m² (Lot 2), with the average lot area being 536m².  The subdivision application contemplated a variation to the average lot size required under the R-Codes of almost 20% and the minimum lot size requirement under the R-Codes by 7% for Lot 1, and 24% for Lot 2.

Clause 5.1.1 of the R-Codes provides that:

…the WAPC in consultation with the local government may approve the creation of a survey strata lot or strata lot for a single house or a grouped dwelling of a lesser minimum site area than that specified in Table 1 provided that the proposed variation would be no more than 5% less in area than that specified in Table 1…

The WAPC refused the subdivision application because it proposed to vary the average and minimum lot size by more than 5% which they deemed was in conflict with the local planning scheme.

The Taylor’s appealed that decision to the SAT.

This decision of the SAT focused on the preliminary issue of:

Whether approval of the application for subdivision would conflict with the provisions of the … [Scheme] for the purposes of s 138(2) …

The WAPC position on the preliminary issue was that:

1. the R-Codes had been incorporated into, and form part of, the local planning scheme;
2. the proposed subdivision was inconsistent with, and was therefore in conflict with, the R-Codes; and
3. the proposed subdivision was therefore legally impermissible.

The applicants argued that:

1. the incorporation of the R-Codes by cl 25 of the local planning scheme was limited in its scope to the concept of 'development', which does not include subdivision; and
2. in any event, the R-Codes are concerned with development, which (again) does not include subdivision (that is, to the extent that cl 5.1.1 of the R-Codes is concerned with the WAPC's role in approving subdivisions, the clause is for guidance only).

The findings

The SAT found that when a state planning policy has been incorporated into a local planning scheme, as was the case here, the application of that policy cannot be limited (for example, to only apply parts of the R-Codes that relate to development and not subdivision). Doing so would be to apply the clause incorporating the policy in a manner that is inconsistent with the clear words of s 77(2)(a) of the Planning and Development Act 2005 (WA) which requires that the local planning scheme is to be read as if the policy is ‘set out in full in the scheme’.

That being the case, given that the R-Codes, in their entirety, form part of the local planning scheme, cl 5.1.1 of the R-Codes, which limits the WAPC’s discretion to vary the minimum or average lot size by no more than 5% must be given its full force and effect. However, the SAT raised four matters of context and purpose which counteract the assertion that this provision must be strictly applied.

Firstly, the purpose of the R-Codes, as a whole, is concerned not with applications for subdivision, but development approval for residential development.

Secondly, the ‘design principles’ contained in Part 5 of the R-Codes only apply where the deemed to comply provisions are not met/satisfied.

Thirdly, the deemed to comply provisions of cl 5.1.1 are directed to applications for development approval under a scheme where the subdivisional process has already been completed and the resulting lot size is already known.

Finally, cl 2.5.3 of the R-Codes, properly construed, is concerned with the power to approve development applications and is not concerned with the WAPC’s subdivisional decision-making power.

Based on the above, the Tribunal found that cl 5.1.1 of the R-Codes plays no real, active role within the R-Codes.

When determining, then, if the subdivision application conflicted with the local planning scheme, the SAT highlighted that the WAPC is only required to give due regard to a local planning scheme, and therefore, there is still discretion for the WAPC to approve a subdivision application in circumstances where it does not meet the minimum requirements for lot sizes.

Lavan comment

This SAT decision confirms that land may have subdivision potential, even where the minimum lot area requirements of the R-Codes are not met. As the SAT identified, despite the fact that the R-Codes are often incorporated into local planning schemes, there remains a discretion under the R-Codes for the WAPC to approve subdivision applications which do not meet the minimum requirements prescribed by the R-Codes.

If you have any questions in relation to this case or any aspect of the R-Codes or subdivision applications, please do not hesitate to contact the Lavan Planning and Environment team.