ABDULLAH and CITY OF BELMONT - [2025] WASAT 110

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ABDULLAH and CITY OF BELMONT [2025] WASAT 110
MEMBER:   MR R POVEY, MEMBER
HEARD:   8 AND 16 JULY 2025
DELIVERED          :   10 OCTOBER 2025
FILE NO/S:   DR 152 of 2024
BETWEEN:   SITI SHAHRIZAT ABDULLAH
First Applicant
AMIRAH ABDULLAH
Second Applicant
RAWS SHARIFF
Third Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Town planning - Development application - Refusal - Hosted short-term rental accommodation - Unhosted short-term rental accommodation - Short-term accommodation - Holiday house - Residential amenity - Character of the locality - Locational requirements of the planning framework - Whether there is a cogent reason to depart from local planning policy - Adverse planning precedent - Orderly and proper planning

Legislation:

City of Belmont - Local Planning Scheme No. 15, Sch 1, cl 1.7.1, cl 3.2, cl 3.4.2, cl 3.4.2(b)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 61(2)(eb), cl 61(9), cl 64, cl 67(2)(a), cl 67(2)(b), cl 67(2)(g), cl 67(2)(m), cl 67(2)(n), cl 67(2)(t), cl 67(2)(w), cl 67(2)(y), cl 67(2)(zb)
Planning and Development Act 2005 (WA), s 4, s 252(1), s 257B, s 257B(2), s 257B(3)
Residential Design Codes Volume 1
Short-Term Rental Accommodation Act 2024 (WA)
Short-Term Rental Accommodation Regulations 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 31(1)
Strata Titles Act 1985 (WA), s 3(1)

Result:

Decision of respondent affirmed
Application for review dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Third Applicant	:	In Person
Respondent	:	Mr J Algeri (as Planning Advocate)

Solicitors:

First Applicant	:	In Person
Second Applicant	:	In Person
Third Applicant	:	In Person
Respondent	:	Altus Planning (as Agent)

Case(s) referred to in decision(s):

Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Coughlan and Shire of Augusta-Margaret River [2022] WASAT 110
Hope and City of Joondalup [2007] WASAT 8
Jasinski and City of Mandurah [2020] WASAT 2
Maciejewski and City of Belmont [2025] WASAT 47
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This case deals with a development application for a change of land use at No 52 Pearl Road, Cloverdale (subject site or No 52). The applicants seek approval for a change of use of an existing grouped dwelling to 'short term accommodation'[1] (proposed development). The First Applicant, Mrs Siti Abdullah, owns the two grouped dwellings on the parent lot and will reside at the other grouped dwelling, No 52A Pearl Road (No 52A) and, together with her family, will manage the proposed development.
[1] Exhibit 3, page 1.
Previously, in 2019, the City of Belmont (City) granted temporary development approval for use of the subject site as 'short stay accommodation', allowing accommodation of up to six guests.[2] Then, in September 2024, the City refused to grant further development approval.
[2] Applicants' Bundle of Documents, pages 3 - 4, Exhibit 7.
Following mediation and an invitation by the Tribunal, made pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), on 24 March 2025 the City refused the proposed development for four reasons:[3]
1.Having regard for Clause 67 (2)(g) of the Planning and Development (Local Planning Schemes) Regulations 2015 the site is contrary to Objective 4 (b) and Clause 8.1 of Local Planning Policy No.19.
2.Having regard for Clause 67 (2)(g) of the Planning and Development (Local Planning Schemes) Regulations 2015 and Objective 4 (c) of Local Planning Policy No. 19, the use would adversely impact the character and amenity of the surrounding residential area or nearby residents.
3.Having regard for Clause 67 (2)(g) of the Planning and Development (Local Planning Schemes) Regulations 2015 the use is contrary to Objective 4 (d) of Local Planning Policy No.19.
4.Having regard for Clause 67 (2)(b) of the Planning and Development (Local Planning Schemes) Regulations 2015, approval would be contrary to proper and orderly planning, and would set an undesirable precedent.
[3] Exhibit 3, page 29.
The applicants seek review of that decision pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
In these reasons, I will firstly outline some further background, the final hearing (hearing), briefly describe the subject site and proposed development, the relevant locality and the planning framework, before turning to consider and determine the five issues which the parties agree arise in this proceeding.
For the reasons that follow, I have determined 'the correct and preferable decision' pursuant to s 27(2) of the SAT Act is to dismiss the application for review and affirm the decision of the City.

Background

Short-term rental accommodation (STRA) in a form that uses existing residential dwellings has, in a relatively short time, become a common type of tourist accommodation catering to the diverse needs of visitors to various parts of WA.
There has been an evolving planning and regulatory response to the emergence of this type of STRA, which culminated in 2024 with amendments to Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) and the introduction of the Short-Term Rental Accommodation Act 2024 (WA) and its associated regulations.[4]
[4] Being the Short-Term Rental Accommodation Regulations 2024 (WA).
These changes flow from an earlier 2019 report of a Parliamentary Inquiry into 'Managing the impact of the rapid increase of Short-Term Rentals in Western Australia'[5] and the publication, in November 2023, of the Western Australian Planning Commission - Planning for Tourism and Short-term Rental Accommodation Guidelines (WAPC Guidelines) and the Western Australian Planning Commission - Position Statement: Planning for Tourism and Short-term Rental Accommodation (WAPC Position Statement).
[5] Respondent's s 24 Bundle of Documents, pages 33 - 197, Exhibit 3.
Using this guidance, the City, in 2024, adopted Local Planning Policy No 19 - Short-Term Rental Accommodation (LPP 19).

The hearing

The hearing was conducted on 8 and 16 July 2025. At the commencement of the hearing, together with the parties, I undertook a view of the subject site, including the interior of the proposed development, and its surrounds.
At the end of the view, we passed No 23 Stanley Street, Belmont, which is the subject of a recent decision by the Tribunal involving a 'holiday house' in the City. I refer to the decision of Member Lavery in these reasons as Maciejewski.[6]
[6] Maciejewski and City of Belmont [2025] WASAT 47.
At the hearing, I heard expert evidence from Mr Nicholas Reddy, a town planner, called by the City. He is employed by the City in the position of Senior Planning Officer and prior to the hearing he filed a witness statement with the Tribunal, which at the hearing he adopted as his evidence-in-chief and he was cross-examined.
The applicants, who are self-represented, did not adduce any expert evidence. Instead, they rely on their bundle of documents accepted into evidence at the hearing,[7] and they cross-examined Mr Reddy.

Hearing 'de novo'

[7] Exhibit 7 and Exhibit 9.

As observed in Jasinski and City of Mandurah [2020] WASAT 2, at [24] - [30], in the exercise of its review function, the Tribunal deals with the matter in accordance with the general principles set out in s 17 of the SAT Act. The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the City, as the original decisionmaker.
However, the Tribunal is not limited to the statement of reasons given by the City, as set out in s 27(3) of the SAT Act and may take into account any additional or new information that was not at the disposal of the City at the time the decision was made, as set out in s 27(1) of the SAT Act.
The hearing is therefore 'de novo', as set out in s 27(1) of the SAT Act, and is not confined to the matters and information that were before the City at the time of its decision to refuse the proposed development.
The purpose of the review is to produce the 'correct and preferable decision at the time of the decision upon the review', as set out in s 27(2) of the SAT Act and the powers of the Tribunal in s 29(3) of the SAT Act are to:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision,
and, in any case, to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the City, as set out in s 29(5) of the SAT Act.

The subject site and proposed development

The subject site, I find:
(a)is zoned 'Residential' under City of Belmont Local Planning Scheme No 15 (LPS 15 or Scheme) with a residential density coding of R20;
(b)has an area of 443m² and is the front strata lot of two strata lots on the parent lot. The parent lot is rectangular in shape with a frontage of 17.84 metres to Pearl Road, side boundaries of 61.16 metres and an area of 1098m²;
(c)has been developed with a five bedroom grouped dwelling; and
(d)is located approximately 3 kilometres away from the nearest tourist accommodation located on Great Eastern Highway.
The proposed development, I find, is to:
(a)use the grouped dwelling which is to be booked via short-stay accommodation providers;
(b)provide three car parking bays, including two in a double lock up garage;
(c)have a three night minimum stay;
(d)accommodate a maximum of 12 guests at any one time by allowing for twin sharing of the five bedrooms and the 'computer room', which is also proposed to be used as a bedroom for guests;[8]
(e)have one booking at a time, with no house sharing; and
(f)have a check-in time of between 2.00 pm and 6.00 pm and check-out by 10.00 am.
[8] The 'computer room' was observed at the view being furnished as a bedroom for two guests.
The management plan provides, among other things, that the owner of the subject site will reside at No 52A and, together with her family, manage the proposed development.

The relevant locality

There is no dissent, and I find, that the relevant locality in this case is as identified by Mr Reddy in the aerial image at Attachment 2 of his witness statement. This image shows the locality as the properties on both sides of Pearl Road from Scott Street to Nos 41 and 42 Pearl Road as well as Nos 223, 225 and 227 Scott Street and Nos 425, 427 and 429 Belgravia Street, at the rear of the subject site.[9]
[9] Witness Statement of Nicholas Reddy, Attachment 2, Exhibit 4.
Mr Reddy's evidence, which I accept, explains why he identifies this locality:[10]
I have defined the locality based on properties I consider likely to be impacted by the proposal. I consider that the primary impacts potentially arising from the proposal relate to amenity impacts such as noise, traffic, parking and access to the property, to the extent the impacts go beyond those normally expected in a residential setting.
[10] Witness Statement of Nicholas Reddy, para 24, Exhibit 4.
As observed at the view, land uses in the locality are residential with the exception of a child care premises at No 50 Pearl Road (No 50) which adjoins the north-western side boundary of the subject site. Mr Reddy identifies that No 50 is approved to operate with a maximum of 46 children and is open between 6.30 am to 6.30 pm Monday to Friday.[11]
[11] Witness Statement of Nicholas Reddy, para 81, Exhibit 4.
I will consider the impact of the proposed development on the amenity of the locality later at Issue 4, commencing at [74].

The planning framework

The relevant planning framework which I have considered in determining this application includes:
(a)PD Act;
(b)LPS 15 which incorporates the Deemed Provisions;
(c)LPP 19;
(d)WAPC Position Statement; and
(e)WAPC Guidelines.

Clause 67(2) of the Deemed Provisions

The Deemed Provisions, at cl 67(2), provides a list of matters which a local government, or the Tribunal as the decision-maker in this case, is to have due regard, to the extent those matters are relevant. Mr Reddy identifies the relevant cl 67(2) matters, which I accept, are:[12]
[12] Witness Statement of Nicholas Reddy, para 35, Exhibit 4.
(a)the aims and provisions of this Scheme (including any planning codes that are read, with or without modifications, into this Scheme) and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting, including—
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following —
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.

Issues for determination

At the hearing, the parties agreed five issues arise for determination by the Tribunal, being:
(1)What is the land use classification of the proposed development under LPS 15?
(2)Is the proposed development consistent with the objective of the Residential zone?
(3)Is the proposed development consistent with LPP 19, and if not, is there a cogent reason to depart from the policy?
(4)Will the proposed development have an unacceptable impact on the amenity of the locality?
(5)Will approval of the proposed development set an undesirable precedent?
I will commence with Issue 1 and Issue 2 and then move to Issue 4, relating to impact on amenity, as my findings to this issue will be relevant to Issue 3 because amenity considerations are one of the assessment criteria and one of the objectives of LPP 19.[13] I will then consider and determine Issue 3 and Issue 5 before determining the matter overall.

Issue 1 - What is the land use classification of the proposed development under LPS 15?

[13] At cl 8.3 and cl 4(c) of LPP 19.

The applicants contend the proposed development is Hosted STRA as the First Applicant will reside permanently at No 52A.[14]
[14] Exhibit 6, Applicant's Statement of Issues, Facts and Contentions (SIFC), para 57.
The City classified the proposed development as 'short-stay accommodation'[15] and also contends 'that for the purpose of the Deemed Provisions the [proposed development] falls under the Unhosted [STRA] definition'.[16] The City submits the applicants have incorrectly sought for the proposed development to be classified as Hosted STRA, as defined in the Deemed Provisions, and submits it cannot be Hosted STRA because:[17]
(a)The owner or occupier, or an agent of the owner or occupier, does not reside in the dwelling to be used for STRA; and
(b)There is no ancillary dwelling on the same lot as the dwelling sought to be used for STRA that the owner or occupier, or an agent of the owner or occupier will live in.
[15] Respondent's SIFC para 10, Exhibit 2.
[16] Respondent's SIFC, para 36, Exhibit 2.
[17] Respondent's SIFC , para 35, Exhibit 2.
In an attempt to address this difficulty, the applicants propose the City lodge a caveat over No 52 and No 52A. The caveat would provide that 'in the event that either property is sold by the owner, the development approval for the change of use to short term accommodation at [No 52] will immediately cease in effect'.[18]
[18] Respondent's SIFC, para 9(b), Exhibit 2.
I observe that by cl 61(2)(ea) of the Deemed Provisions, Hosted STRA is exempt from requiring development approval. If I were to find as the applicants contend, this would provide them an immediate remedy.
Given the differing positions of the parties it is, therefore, important to consider and characterise the land use of the proposed development. The power for the Tribunal to characterise the land use of a development is well settled.[19]

Land Use definitions under LPS 15

[19] See, for example, the decision of Barker, P in Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125 at [16].

LPS 15 at Sch 1 contains Land Use definitions. 'Short stay accommodation' is defined to mean:[20]
… the accommodation of short stay guests providing on site facilities for the convenience of guests and, management of the development, where occupation by any person is limited to a maximum of three months in any 12 month period, and excludes any other use falling within a use class specifically defined in this scheme.

Definitions under the Deemed Provisions

[20] Respondent's s 24 Bundle of Documents, page 298, Exhibit 3.

The Deemed Provisions[21] at cl 1 provides definitions for 'hosted short-term rental accommodation', 'short-term rental accommodation', 'short-term rental arrangement' and 'unhosted short-term rental accommodation'. These definitions, which need to be considered together, are as follows:
[21] Since being amended in September 2024.
hosted short-term rental accommodation means any of the following —
(a)short-term rental accommodation where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the dwelling, resides at the same dwelling during the short-term rental arrangement;
(b)short-term rental accommodation that is an ancillary dwelling where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the other dwelling on the same lot, resides at that other dwelling during the short-term rental arrangement;
(c)short-term rental accommodation that is a dwelling on the same lot as an ancillary dwelling where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the dwelling, resides at the ancillary dwelling during the short-term rental arrangement.
…
short-term rental accommodation —
(a)means a dwelling provided, on a commercial basis, for occupation under a short-term rental arrangement; but
(b)does not include a dwelling that is, or is part of, any of the following —
(i)an aged care facility as defined in the Land Tax Assessment Act 2002 section 38A(1);
(ii)a caravan park;
(iii) a lodging-house as defined in the Health (Miscellaneous Provisions) Act 1911 section 3(1);
(iv)a park home park;
(v)a retirement village as defined in the Retirement Villages Act 1992 section 3(1);
(vi)workforce accommodation.
short-term rental arrangement means an arrangement under which —
(a)a dwelling, or part of a dwelling, is provided for occupation by a person; and
(b)the person occupies the dwelling, or part of the dwelling, for a period or periods not exceeding a total of 3 months in any 12month period.
…
unhosted short-term rental accommodation means short-term rental accommodation that —
(a)is not hosted short-term rental accommodation; and
(b)accommodates a maximum of 12 people per night

The operation of the Deemed Provisions

The Deemed Provisions have effect and may be enforced as part of each local planning scheme, whether they are prescribed before or after the scheme comes into force.[22]
[22] PD Act, s 257B(2).
Further, s 257B(3) of the PD Act provides that if a deemed provision that has effect as part of a local scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.

Is the proposed development Hosted STRA?

The starting point is the definition of Hosted STRA in the Deemed Provisions.[23] It is clear that part (a) of the definition is not applicable here as the owner or occupier, or an agent of the owner or occupier, will not reside at the same dwelling as the STRA.
[23] Identified earlier at [37].
As I will come to explain, I accept the uncontested expert evidence of Mr Reddy that parts (b) and (c) of the definition are also not met because there is no ancillary dwelling in this case.[24]
[24] Witness Statement of Nicholas Reddy, para 57, Exhibit 4.
The Deemed Provisions, at cl 1, give the term 'ancillary dwelling' the same meaning as in the R-Codes. The R-Codes define 'ancillary dwelling' as a:[25]
… self-contained dwelling on the same site as a dwelling which may be attached to, integrated with or detached from the dwelling.
[25] R-Codes, Volume 1, page 128.
'Site' is defined in the R-Codes which, in the case of a grouped dwelling, means:[26]
… the area occupied by the dwelling, together with any area allocated (whether by way of a strata title scheme or otherwise) for the exclusive use or benefit of that dwelling.
[26] R-Codes, Volume 1, page 132.
Here, there is one dwelling on the subject site and no ancillary dwelling. This much is accepted by the applicants.[27] The lodgement of a caveat, as the applicants propose, cannot, in my view, create an 'ancillary dwelling' or transform the proposed development so it can lawfully be classified as Hosted STRA.
[27] ts 87, 8 July 2025.
Similarly, the fact that the owner intends to reside at No 52A does not create an ancillary dwelling and does not transform the proposed development so that it can lawfully be classified as Hosted STRA.
At the hearing, the applicants concede the proposed development cannot meet the definition of Hosted STRA[28] but despite this they continued to describe it that way. This was unhelpful. All I can take from this is that, in their submission, it will operate, in essence, in the same way. However, in my view, this misses the point of correctly identifying the land use.
[28] ts 87 - 88, 8 July 2025.
For the reasons given above, I am satisfied, and I find, the proposed development does not meet the definition of Hosted STRA under the Deemed Provisions.

Is the proposed development a 'holiday house'?

The applicants also submit the land use of the proposed development should be considered a 'holiday house' because the grouped dwelling at No 52 is 'a single dwelling on one lot'.[29] As I will explain, I do not accept this submission.
[29] ts 85 - 86, 8 July 2025.
'Holiday house' is defined in LPS 15 to mean:[30]
… a single dwelling on one lot used to provide short-term accommodation but does not include a bed and breakfast.
[30] Respondent's s 24 Bundle of Documents, page 293, Exhibit 3.
The definition of 'lot' in s 4 of the PD Act specifically does not include a lot as defined in s 3(1) of the Strata Titles Act 1985 (WA). Further, cl 1.7.1 of LPS 15 requires, unless the context otherwise requires, words and expressions used in the Scheme have the same meaning as in the PD Act.
Therefore, as the grouped dwelling at No 52 sits on a strata titled lot,[31] it does not sit on its own lot as the term 'lot' is defined in the PD Act and, it follows, the proposed development does not meet the LPS 15 definition of 'holiday house'.

What then is the land use of the proposed development?

[31] Respondent's SIFC, para 3(c), Exhibit 2 and Applicant's SIFC, para 8, Exhibit 6.

Mr Reddy's evidence is that the proposed development meets the land use definition of 'short stay accommodation' under LPS 15.[32] However, since September 2024, the Deemed Provisions include definitions of 'Hosted STRA' and 'Unhosted STRA'.[33] I earlier addressed the Hosted STRA definition and concluded it cannot be applied in this case.
[32] Witness Statement of Nicholas Reddy, para 40, Exhibit 4, and with the definition identified earlier at [36].
[33] Definitions identified earlier at [37].
Mr Reddy accepts, later in his written evidence, that the proposed development may meet the definition of Unhosted STRA under the Deemed Provisions but, for reasons he does not explain, he considers it more appropriate to apply the 'short stay accommodation' land use definition of LPS 15.[34] As mentioned, the City also contends that, for the purpose of the Deemed Provisions, the proposed development is Unhosted STRA.[35]
[34] Witness Statement of Nicholas Reddy, para 61, Exhibit 4.
[35] Respondent's SIFC, para 36, Exhibit 2 and ts 25 - 26, 8 July 2025.
Ultimately though, and as Mr Reddy accepts,[36] nothing of substance in terms of land use permissibility in this case turns on whether the definition of Unhosted STRA is applied instead of the LPS 15 'short stay accommodation' definition. This is because the use is of similar character and neither land use is identified in the Zoning Table (Table 1) of LPS 15. As a result, either land use is required to be treated as a use not listed.
[36] Ibid.
The Unhosted STRA definition in the Deemed Provisions, in my view, more precisely describes the proposed development and considering s 257B(3) of the PD Act, this definition should, in my view, be applied in this case.
Given the above, I am satisfied, and I find, the land use of the proposed development is 'Use not listed - Unhosted STRA'.
Further, because the proposed development does not meet the requirements in cl 61(2)(eb) of the Deemed Provisions, it is not exempt from the requirement to obtain development approval. The Deemed Provisions, at cl 61(9), provides the circumstances that development approval is required for Unhosted STRA. Considering these provisions, development approval is, I find, required for the proposed development. There is no evidence before me that suggests otherwise.

Issue 2 - Is the proposed development consistent with the objective of the Residential zone?

Whether the proposed development, being a 'Use not listed - Unhosted STRA', is consistent with the objective of the Residential zone is relevant in this case because of the use not listed provisions of LPS 15, which I will now consider.

Use not listed provisions of LPS 15

In respect to unlisted uses, cl 3.4.2 of LPS 15 provides:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:
a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures contained in Clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2; or
c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
There is one objective of the Residential zone which is set out in cl 3.2 of LPS 15 and provides:
The purpose and intent of the Residential Zone is to increase the population base of the City of Belmont by permitting a mix of single housing and other housing types to reflect household composition and thereby increase the resident population.
As part of its original consideration, the City advertised the proposed development consistent with the requirements of cl 3.4.2(b). I observe this aligns with cl 7 of LPP 19 which explains that where a defined STRA land use is not provided for in Table 1 it will be treated as a 'Use Not Listed' and advertised accordingly.[37]
[37] Respondent's s 24 Bundle of Documents, page 232, Exhibit 3.
In opening submissions, Mr Algeri, agent for the City, identifies that this was the City's position when it embarked on its planning assessment, but submits 'the ultimate decision of the respondent was that [the proposed development] wasn't consistent with the objectives of [the Residential] zone'.[38] I do not accept this submission. This is because the City refused the development for four reasons and these reasons, I observe, do not include that the proposed development is not consistent with the objective of the Residential zone.[39]
[38] ts 24, 8 July 2025.
[39] See [3].
Further, in closing submissions, Mr Algeri submits that because the proposed development is not a residential land use and, therefore, not a 'housing type', it will not increase the residential population of the City and that a STRA use 'or, indeed, any other form of [STRA], does not meet the objectives of the [Residential] zone as it is not a residential use'.[40]
[40] ts 10, 16 July 2025.
I also do not accept this submission, as I will explain.
I observe that 'child care premises', such as the adjoining No 50, is an 'A' use under Table 1 meaning it is a use not permitted unless the local government has exercised its discretion by granting development approval after advertising the proposal in accordance with cl 64 of the Deemed Provisions. A child care premises is a non-residential use that may be approved in the Residential zone with the exercise of discretion.
Considering Table 1 further, I observe there are other nonresidential uses capable of approval in the Residential zone. Of some relevance here is the inclusion of 'Serviced Apartments' as a land use capable of approval in the Residential zone. Its definition expressly provides for 'self-contained short-stay accommodation for guests'.[41]
[41] Respondent's s 24 Bundle of Documents, page 298, Exhibit 3.
Therefore, I do not accept the City's submission that Unhosted STRA is contrary per se, or even in this case, to the objective of the Residential zone simply because, as the City submits, it is not a residential land use.
I do, however, accept the uncontested evidence of Mr Reddy that the proposed development may be consistent with the objective of the Residential zone[42] as set out in cl 3.4.2(b) of LPS 15. His evidence also aligns with the policy approach of LPP 19. At the hearing the applicants also did not argue otherwise.[43]
[42] Witness Statement of Nicholas Reddy, para 43, Exhibit 4.
[43] ts 89, 8 July 2025.
As to how the exercise of planning discretion should be guided in relation to STRA uses, I accept the City has adopted LPP 19 for this purpose, and I will consider this local planning policy at Issue 3, commencing at [98]. However, after providing my findings to Issue 2, I will move to Issue 4 and consider and determine the impact of the proposed development on the amenity of the locality.

Findings - Issue 2

I am satisfied, and I find, the proposed development may be consistent with the relevant objective of the Residential zone for three reasons.
Firstly, the uncontested evidence of Mr Reddy is that the proposed development may be consistent with the objective of the Residential zone.
Secondly, LPP 19, at cl 7, accepts that STRA, such as the proposed development, will be treated as a use not listed and advertised accordingly, reflecting that such applications should be considered on their merits, following advertising, consistent with cl 3.4.2(b) of LPS 15.
Thirdly, Table 1 provides that in the Residential zone planning discretion exists to allow certain non-residential land uses. Therefore, it cannot be correct, in my view, that non-residential land uses are inconsistent per se with the objective of the Residential zone and therefore not permitted.

Issue 4 - Will the proposed development have an unacceptable impact on the amenity of the locality?

'Amenity' is defined in the Deemed Provisions, at cl 1, and means:
… all those factors which combine to form the character of an area and include the present and likely future amenity.
The case authorities on evaluating amenity are well-known and settled. In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora), at [304], the former Town Planning Appeal Tribunal set out a three-step test for evaluating amenity as follows:[44]
(1)establish the existing amenity in an objective sense;
(2)evaluate the manner in which the proposed development will affect the existing amenity; and
(3)assess the degree of impact on the locality.
[44] In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] - [22] Barker J generally endorsed that approach but added that consideration of amenity should take account of future amenity. That is now expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.
LPP 19 objective 4(c) is:[45]
Ensure STRA does not adversely impact on the character and amenity of the surrounding residential areas or nearby residents.
[45] Respondent's s 24 Bundle of Documents, page 230, Exhibit 3.
Unhelpfully, the City's SIFC overlooks the adjoining 46 place child care premises at No 50.[46] This notwithstanding, the City contends the proposed development is likely to have an adverse impact on the character and amenity of the surrounding residential area and its residents and is contrary to policy objective 4(c).
[46] Respondent's SIFC, para 3, Exhibit 2.
The applicants submit that No 50 is unoccupied at night and that during weekdays there is audible noise that can be heard at the subject site from this premises caused by children playing.[47] The applicants also submit that the closest immediately adjoining residential dwellings are 23 metres from the proposed development, being separated by outbuildings and a large backyard.[48]

Applying the three-step test from Tempora

[47] Applicant's SIFC, para 73, Exhibit 6.

[48] Applicant's SIFC, para 76, Exhibit 6.

Considering the first step in Tempora, the existing amenity of the locality, the evidence of Mr Reddy is that it 'is consistent with a quiet suburban residential character, consisting of primarily single detached houses and grouped dwellings'.[49] His evidence acknowledges the presence of No 50 and he says that during its opening hours there is a 'marginal increase' in vehicles parking at the premises and on Pearl Road.[50] However, the photographic evidence, which I accept, and includes photos taken by Mr Reddy and by the applicants, is that routinely there is a pattern of on-street parking in Pearl Road and in the car park of No 50 when it operates.[51]
[49] Witness Statement of Nicholas Reddy, para 78, Exhibit 4.
[50] Witness Statement of Nicholas Reddy, para 82, Exhibit 4.
[51] Witness Statement of Nicholas Reddy, Attachment 3, Exhibit 4 and Applicant's Bundle of Documents, pages 15 to 61, Exhibit 7.
The residential built form and use, together with the operation of No 50 as a child care premises and its accompanying traffic movements and car parking, I accept, constitute the existing amenity of this locality. Considering this, the locality is not, on the evidence before me, one with a pristine residential amenity or character, but one which is impacted by the presence and operation of No 50.
As to the second step, the manner which the proposed development will affect the existing amenity, the evidence of Mr Reddy draws from his experience of other STRA properties. He says the potential impacts are noise, traffic and parking and that these 'impacts arise because of the tendency for short-term users to carry out those activities in a manner that is irregular, or more intense, when compared to what would be expected in a residential setting'.[52] I accept this may be generally the case as it is consistent with the Tribunal's observations regarding STRA in Hope and City of Joondalup [2007] WASAT 8 at [48].
[52] Witness Statement of Nicholas Reddy, para 91, Exhibit 4.
As to the third step, Mr Reddy's evidence, in my view, does not address the degree of impact the proposed development will have in the locality. I accept, Mr Reddy informed his opinion about the character of the locality, and its amenity, with an inspection at which he observed residential built form and also car parking associated with No 50 at various times of the day and evening.[53] However, his written evidence does not go further to opine as to the degree of impact the proposed development will have on the locality. This is, in my view, a significant shortfall.
[53] Witness Statement of Nicholas Reddy, paras 25 - 33, Exhibit 4.
Mr Reddy, in his written evidence, observes the residential built form at the subject site and one car parked in the bay closest to Pearl Road and another parked at No 52A.[54] This does not, in my view, establish the proposed development will adversely impact the amenity of the locality. From this evidence, it appears the proposed development, in my view, will be unremarkable from other residential dwellings in the locality.
[54] Witness Statement of Nicholas Reddy, para 29, Exhibit 4.
Mr Reddy, under questioning about possible noise impacts of the proposed development, identifies the outdoor area of the subject site which abuts private open space of properties in Scott Street but are somewhat separated by existing outbuildings on these lots.[55] However, when cross-examined about whether any complaints had been received by the City, Mr Reddy concedes no complaints have been received since the proposed development commenced operation under the 2019 temporary approval and continued, apparently, since without authorisation.[56] This historical evidence,[57] in the absence of anything contrary, is sufficient, in my view, in this case to establish that the proposed development will not have an unacceptable impact on the amenity or on the character of the locality.
[55] ts 56 - 57, 8 July 2025.
[56] ts 69, 8 July 2025.
[57] The history of the site is a relevant consideration under cl 67(2)(w) of the Deemed Provisions.
As to future amenity, Mr Reddy's evidence, which I accept, is that the future amenity is likely to remain unchanged because the City has no current intention to amend the zoning or applicable planning framework.[58]

The applicants' property management plan

[58] Witness Statement of Nicholas Reddy, paras 87 - 88, Exhibit 4.

A further consideration is the applicants' property management plan, as it involves the owner of the subject site residing permanently at No 52A, and together with her family, managing the proposed development.
Mr Reddy accepts that '[s]trict implementation of a management plan could potentially mitigate the potential amenity impacts resulting from the use of the property as [STRA]'.[59] He later opines that the measures are not all reasonably enforceable as they rely on the applicants '24hour attendance at the rear property'.[60] However, Mr Reddy accepts other measures in the property management plan are 'what you would normally expect within a property management plan'.[61]
[59] Witness Statement of Nicholas Reddy, para 99, Exhibit 4.
[60] Witness Statement of Nicholas Reddy, para 100, Exhibit 4.
[61] ts 50, 8 July 2025.
His concerns about the property management plan centre on the ability for the City to enforce the requirement for the owner of the subject site to reside permanently at No 52A. However, Mr Reddy concedes, fairly in my view, this could be addressed by a condition of approval requiring implementation of the property management plan.[62]
[62] Ibid.
The importance of this aspect of the property management plan is, I accept, that the owner will be in close proximity to respond to guest enquiries and be able to promptly address concerns of neighbours, or the City, should they arise.

Submissions from the public received by the City

The proposed development was advertised for public comment as part of the City's initial assessment of the application.[63] This resulted in three submissions being received by the City, each objecting. However, two submissions do not identify their address and the third is from outside the locality.[64] No submitters were called to give evidence. I, therefore, accord these submissions no weight.
[63] Submissions received are a relevant consideration under cl 67(2)(y) of the Deemed Provisions.
[64] ts 41 - 43, 8 July 2025.
The applicants provided five pro-forma letters of support from residents of three properties in Pearl Road, within the locality, and which were apparently sent to the City, but after the development application was first refused.[65] The occupants of No 51 and No 53 Pearl Road, opposite the subject site, advise the proposed development does not affect the amenity of their neighbourhood.
[65] The development application was initially refused by the City by a decision notice dated 13 September 2024. The letters in the Applicant's Bundle of Documents, pages 10 - 14, Exhibit 7 are dated 28 September 2024.
These residents were also not called to give evidence at the hearing and, as a result, the basis for their opinions, I accept, could not be tested. However, I accept they live in close proximity to the proposed development, which has apparently continued to operate and, on the evidence of Mr Reddy, without complaint. I accord these submissions little weight in coming to my findings on this issue.

Findings - Issue 4

Considering the evidence before me, I am satisfied, and I find, the proposed development will not have an unacceptable impact on the character and amenity of the locality and, therefore, meets cl 8.3 and policy objective 4(c) of LPP 19. This is for four reasons.
First, the evidence of Mr Reddy does not, identify that the proposed development will negatively impact the amenity and character of the locality to any degree.
Second, the residential amenity and character of the locality is not pristine because of the adjoining 46 place child care premises at No 50, a commercial use, and this activity forms an obvious part of the character and amenity of the locality.
Third, when the proposed development operated under temporary approval in 2019, and apparently since without authorisation, there have been no complaints received by the City which, in this case, indicates it does not impact the character and amenity of the locality.
Fourth, the applicants' property management plan requires that the owner of the subject site will reside at No 52A and, together with members of her family, manage the proposed development which should enable amenity related concerns, or complaints, to be promptly addressed if they arise.

Issue 3 - Is the proposed development consistent with LPP 19, and if not, is there a cogent reason to depart from the policy?

The City contends that the overarching objective of LPP 19 is to locate Unhosted STRA in, or near, areas associated with tourism land uses and amenity and away from more traditional residential areas.[66]
[66] Respondent's SIFC, para 39, Exhibit 2.
It is common ground[67] that the proposed development does not meet the location criteria in cl 8.1 of LPP 19 which identifies that STRA is to be located 'within 400 metres of a high frequency public transport stop located on Great Eastern Highway and an existing tourist accommodation use (i.e. Hotel)'.[68]
[67] Respondent's SIFC, para 41, Exhibit 2 and Applicant's SIFC, paras 11 and 65, Exhibit 6.
[68] Respondent's s 24 Bundle of Documents, page 234, Exhibit 3.
The applicants, however, point to a Bed and Breakfast approved by the City at No 6 Ellard Avenue, Belmont (No 6) as also being outside of the location criteria identified in cl 8.1.[69]
[69] Applicants' SIFC, paras 66 - 67, Exhibit 6.
As to this submission, I accept the uncontested expert evidence of Mr Reddy, that No 6 was approved by the City in 2012 and that 'Bed and Breakfast' is a 'discretionary' land use in the Residential zone under Table 1.[70] Further, Mr Reddy asserts that No 6 is not a relevant consideration here because the City granted its approval in 2012 which was before changes to the Deemed Provisions in 2024 that introduced the exemptions for Hosted STRA.[71]
[70] Witness Statement of Nicholas Reddy, para 74, Exhibit 4.
[71] Witness Statement of Nicholas Reddy, para 75, Exhibit 4.
Therefore, the applicants submission which seeks to draw similarities between the proposed development and No 6 is, in my view, misplaced.
As to the other assessment criterion in cl 8 of LPP 19, the City accepts the proposed development meets the car parking requirements in cl 8.2.[72] This is consistent with the uncontested evidence of Mr Reddy, who also says the proposed development does not contravene cl 8.4, relating to strata developments, or cl 8.5 which prescribes instances in which STRA will not be supported.[73] Clause 8.3 requires consideration of amenity and I found, at Issue 4, that the proposed development is acceptable from a character and amenity perspective in the locality.[74]
[72] ts 55, 8 July 2025.
[73] Witness Statement of Nicholas Reddy, para 67, Exhibit 4.
[74] See [94] - [97].
The applicants also submit that LPP 19 is inadequate to cater for the demands and needs of guests, nor does it support and encourage fair competition in the accommodation industry. They contend the actual number of homes that meet all the criteria in LPP 19 is 'very miniscule'[75] and that the City has failed to understand the requirements of international, interstate and local visitors in determining factors that guests consider when booking accommodation.[76] In essence, they submit LPP 19 is defective.
[75] Applicants' SIFC, para 61, Exhibit 6.
[76] Applicants' SIFC, para 62, Exhibit 6.
As to evidence to support this submission, the applicants rely on the evidence of Mr Reddy, given under cross-examination, of only three development applications for Unhosted STRA that meet the location criteria of cl 8.1 lodged with the City since the policy was adopted and, that further, he was unsure if any of these applications have been determined.[77]
[77] ts 78, 8 July 2025.
This does not, in my view, establish that LPP 19 is unsound as a local planning policy and I do not accept the applicants submission that it is. As Member Lavery observed in Maciejewski at [69], LPP 19 is a 'contemporary policy that aligns with the WAPC's Position Statement and Guidelines'. I agree - because, in my view, the WAPC Position Statement and WAPC Guidelines place a focus on, among other things, the designation of appropriate locations for Unhosted STRA outside of tourism zones[78] and on the consideration of local housing supply.[79]
[78] Respondent's s 24 Bundle of Documents, page 223, Exhibit 3 - cl 5.2.2.2, WAPC Position Statement.
[79] Respondent's s 24 Bundle of Documents, pages 222 - 223, Exhibit 3 - cl 5.2.2.1, WAPC Position Statement.
The uncontested evidence of Mr Reddy, which I accept, is that when developing LPP 19, the City considered a range of these planning factors including appropriate locations for Unhosted STRA, the location of existing tourism accommodation, and their levels of occupancy, as well as the City's local long-term housing supply.[80]
[80] Witness Statement of Nicholas Reddy, paras 106 - 108 and Attachment 5, Exhibit 4.
Therefore, I accept LPP 19 is central to the consideration of the exercise of planning discretion in this case and, by virtue of cl 67(2)(g) of the Deemed Provisions, is to be given due regard.
As the proposed development does not meet all the assessment criteria in cl 8, it is necessary to consider the proposed development against the policy objectives at cl 4, which I will turn to next.

Objectives of LPP 19

Objectives 4(b), 4(c) and 4(d) are relevant in this case. I considered objective 4(c), relating to impact on character and amenity, at Issue 4 and found the proposed development satisfies this objective.
Objective 4(b) states:
Ensure STRA is appropriate for its location by being located near other short-term accommodation and tourist accommodation uses (such as hotels and motels along Great Eastern Highway) and accessible for visitors by being near high frequency public transport stop.
The uncontested expert evidence of Mr Reddy is that the proposed development does not meet this objective. He says this objective is itself consistent with the WAPC Position Statement at cl 5, 'Policy Measures' which promotes the location of tourist accommodation in areas with the highest tourism amenity and adequate separation from, or management of, any interface with residential land uses.[81]
[81] Witness Statement of Nicholas Reddy, paras 106 and 108, Exhibit 4.
As the proposed development is not located near other short-term accommodation or tourism accommodation uses, being approximately 3.3 kilometres from the nearest tourist accommodation in Great Eastern Highway,[82] or within proximity of a high frequency bus stop,[83] the proposed development, I am satisfied, and I find, does not meet objective 4(b).
[82] Witness Statement of Nicholas Reddy, para 67, Exhibit 4.
[83] Ibid and ts 58, 8 July 2025.
Objective 4(d) is:
Safeguard the primary purpose of residential areas in providing residential dwellings which are affordable and available on a long-term basis.
The applicants submit that renting No 52 on a long-term basis will not provide 'affordable' housing to meet objective 4(d) because it should generate a higher weekly market rental than an average property in Cloverdale where, they submit, the average rent is approximately $650 per week.[84] The applicants point to one example of a property at 271D Fulham Street, Cloverdale listed on realestate.com.au for $855 per week as the highest rental listing in Cloverdale (on 15 May 2025). This is for a town house with three bedrooms and two bathrooms,[85] not five bedrooms and four bathrooms as at No 52.
[84] Applicants' SIFC, para 79, Exhibit 6.
[85] Applicants' Bundle of Documents, page 9, Exhibit 7.
I do not accept this is evidence that No 52 may not be affordable if rented on a long-term basis. At its highest, the applicants' evidence identifies a rental income that may be achieved at another, unrelated, property in Cloverdale albeit, I accept, a property smaller than the subject site. The applicants adduced no other evidence, expert or otherwise, that could be tested at the hearing that may establish if No 52 may or may not be 'affordable' if rented on a long-term basis.

The Urbis Report

As to housing being available on a long-term basis, which is also part of objective 4(d), the applicants rely on a report prepared in November 2023 by consultants, Urbis, for 'airbnb', titled 'Short-Term Rental Accommodation and Housing in Australia' (Urbis Report).[86]
[86] Exhibit 9.
The Urbis Report examines the relationship between STRA and housing affordability in Australia. The applicants did not call the author of this report as a witness; however, they submit the report demonstrates that Unhosted STRA does not have a strong relationship to housing availability or affordability because only 1.1% of the total housing stock in Western Australia is used for Unhosted STRA.[87]
[87] Applicants' SIFC, paras 52 and 55, Exhibit 6 and ts 32, 16 July 2025.
Mr Reddy considers the Urbis Report in his written evidence and argues it should be given no weight for two reasons.[88] First, it was commissioned by 'airbnb', a key industry stakeholder with a vested interest in the perceived impact of STRA on housing availability and affordability in Australia. Second, he says it presents generalised findings based on statewide and national data, without consideration of the local housing context of the City. Mr Reddy was not crossexamined by the applicants as to this evidence.
[88] Witness Statement of Nicholas Reddy, para 127, Exhibit 4.
While the weight to be accorded to the Urbis Report is a matter for the Tribunal, I accept it should be treated with caution, not least because its author was not made available for cross-examination at the hearing.
Further, and as Mr Reddy identifies, I accept the findings in the Urbis Report have, at best, a limited application here because they are not specific to the circumstances of the City. Therefore, I accord no weight to the Urbis Report in coming to my findings.
Mr Reddy's uncontested evidence, which I accept, is that if the proposed development operates as Unhosted STRA it would not be available as a residential dwelling for long-term occupancy.[89] I accept that is so, and on this basis, it cannot be said that the proposed development safeguards the primary purpose of residential areas such that it meets objective 4(d).
[89] Witness Statement Nicholas Reddy, para 134, Exhibit 4.
Considering the above, I am satisfied, and I find, the proposed development does not meet objective 4(d) of LPP 19.

Is there a cogent reason to depart from LPP 19?

The correct approach to the application of planning policy is settled. Decision-makers are to have due regard to relevant policy, but the inflexible application of policy without considering the site specific factors, or a policy which purports to fetter all, or part of a discretion, is unlawful.[90]
[90] See Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [27] - [28].
While I accept that a policy cannot replace the discretion available to a decision-maker, in that a policy cannot be inflexibly applied, as Barker J observes in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], 'the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.
Further, Pritchard J states in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [182]:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
(Footnotes omitted)
The City contends there is no cogent reason to depart from LPP 19 which is a policy that aligns with the WAPC Position Statement and the WAPC Guidelines, which the City further submits are more important documents.[91]
[91] ts 17, 16 July 2025.
The City also relies on the Tribunal's decision in Coughlan and Shire of Augusta-Margaret River [2022] WASAT 110 (Coughlan), at [61] - [64], which considered the question of whether there was a cogent reason to depart from the applicable local planning policy addressing the location of a holiday house in that case. Despite the presence of two existing holiday houses in the street, the Tribunal held that the development represents a further encroachment into the locality and that approval 'would increase pressure for further similar developments'.[92] In Coughlan, at [76], the Tribunal identified the cumulative impact of further encroachment would undermine the purpose and objectives of the applicable local planning policy. The City submits approval here could result in a similar cumulative impact, undermining the LPS 15 objective of the Residential zone and the objectives of LPP 19.[93]
[92] Coughlan at [64].
[93] ts 24, 16 July 2025.
The applicants, on the other hand, submit there are four reasons which provide a cogent basis to depart from LPP 19, being:[94]
(1)The parent lot, with two grouped dwellings, has been developed to the maximum number of dwellings allowed under LPS 15 and this distinguishes this case from Maciejewski, which involved an R20/40 coded site, containing a single dwelling, with significant further development potential. The applicants also submit the closest residential neighbour is 23 metres away and that the amenity of the locality is affected by No 50 and activity from the international and domestic airports.
(2)The proposed development will cater to a niche market because it can accommodate large groups and that this is supported by cl 1.2.1 of the WAPC Guidelines which addresses Tourism objectives and encourages 'facilitating a variety of holiday accommodation types' and 'innovative tourism and short-term rental accommodation and facilities that respond to market needs'.[95]
(3)Patrons of the proposed development will not use public transport and instead will use hire vehicles or ride-share to access the subject site.
(4)The Urbis Report demonstrates that STRA is not a significant contributor to the housing crisis, with 1.1% of housing stock in WA used for Unhosted STRA.
[94] ts 30 - 32, 16 July 2025.
[95] Respondent's s 24 Bundle of Documents, pages 201 - 202, Exhibit 3.
Considering the applicants' four reasons they do not, as I will explain, amount to a sound basis, grounded in planning law or principle, to depart from LPP 19, in the circumstances of this case.
While I accept the factual circumstances here differ from Maciejewski, that does not itself provide a cogent reason to depart from LPP 19. That the subject site is developed with two grouped dwellings, in my view, simply reflects what is permissible under LPS 15.
Even considering the presence of No 50, or the 23 metre setback to neighbours, or the noise impact of the airport, about which there is no evidence before me, each of these considerations relate to amenity and, therefore, do not contribute to a cogent basis to depart from objectives 4(b) and 4(d) of LPP 19, which address location of STRA and impacts on long-term housing supply respectively.
Further, considering the applicants' submission that the proposed development accords with cl 1.2.1 of the WAPC Guidelines, I observe that the setting of 'tourism objectives' when read in its correct context allow a local government to 'facilitate a variety of holiday accommodation types including short-term rentals … in preferred locations'.[96] It is uncontroversial the proposed development is not in a location preferred under LPP 19. It is also not in proximity to other tourism uses. That the proposed development can accommodate large groups does not, therefore, in my view, provide a cogent basis to depart from the policy.
[96] Respondent's s 24 Bundle of Documents, page 201, Exhibit 3.
As to transport, that patrons may choose not to access the proposed development by public transport cannot, in my view, form a cogent basis to depart from LPP 19 and its objective 4(b). The applicants adduce no evidence that gives foundation to their submission that patrons will not use public transport.
The evidence before me is that there is no high frequency bus route servicing the locality and, therefore, there is limited opportunity to use public transport to access the subject site. Public transport is, I accept, relevant when considering the location of STRA in this case. This is not only because it is identified in LPP 19. It is also a factor in the WAPC Position Statement, at cl 5.2.2.2, which deals with the location of short-term rental accommodation, and identifies '… accessibility to transport routes and public transport services' as relevant.[97]
[97] Respondent's s 24 Bundle of Documents, page 223, Exhibit 3.
As to the Urbis Report, I considered this earlier, at [117] - [121], and accorded it no weight, therefore the report's findings do not provide a cogent reason to depart from LPP 19. Further, the expert evidence of Mr Reddy as to existing tourist accommodation in the City, along Great Eastern Highway, is that when LPP 19 was prepared the City's analysis 'revealed a supply of approximately 1400 rooms'.[98] Mr Reddy asserts when this was cross-referenced with Tourism WA occupancy rates, it indicated an ample supply of tourist accommodation.[99] This contrasts with an erosion in the availability of long-term housing in the City, which Mr Reddy says, and I accept, have listings and vacancy rates at historic lows of 0.2%.[100]
[98] Witness Statement of Nicholas Reddy, para 125, Exhibit 4.
[99] Ibid.
[100] Ibid.

Finally, the uncontested expert evidence of Mr Reddy is that having considered the proposed development, he has not identified or been presented with any factors that provide cogent planning reasons to depart from LPP 19.[101]
[101] Witness Statement of Nicholas Reddy, para 135, Exhibit 4.
As I explain above, I agree.

Findings - Issue 3

The proposed development is not, I find, consistent with certain aspects of LPP 19 because it does not meet the relevant locational criteria at cl 8.1 or two relevant policy objectives at cl 4, being objective 4(b) and objective 4(d). Further I am satisfied, and I find, there is no cogent basis to depart from LPP 19. This is for four reasons.
First, while No 52 and No 52A represents the maximum development potential of the parent lot, this does not provide, or contribute to, a cogent reason to depart from LPP 19 because approving one of the grouped dwellings to be used for Unhosted STRA undermines objective 4(d).
Second, as to the presence of the child care premises at No 50, neither LPP 19, nor the WAPC Position Statement and WAPC Guidelines, identify that 'child care premises' is a land use that should be closely located with STRA because doing so will bring about an identifiable planning or land use benefit. Considering this, and the observations of Pritchard J in Marshall, the presence of No 50 does not, in my view, give rise to a sound basis, grounded in planning principle, to depart from LPP 19.
Third, the lack of negative amenity impact arising from the proposed development does not, of itself, or when considered in combination with the other factors the applicants identify, provide a cogent reason to depart from LPP 19. This is because approval of the proposed development raises concerns of impact on local long-term housing supply, in circumstances where there is, on the evidence before me, ample supply of tourist accommodation in the City, and the subject site lacks close proximity to tourist attractions and to high frequency public transport.
Fourth, while the property management plan, which requires the owner of the subject site to reside at No 52A, responds to amenity considerations, it also does not provide a cogent reason to depart from LPP 19 because this does not overcome the location of the proposed development lacking close proximity to other tourism uses and attractions or its use impacting local long-term housing supply.

Issue 5 - Will approval of the proposed development set an undesirable precedent?

For precedent to be relevant here, both tests set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [74] must be satisfied:
(1)That the proposed development or subdivision is not itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
As to the first test, the parties agree the proposed use is not in itself unobjectionable.[102] This is because it is uncontentious that the subject site is outside the location identified in cl 8.1 of LPP 19. I agree the first Nicholls test is satisfied.
[102] ts 103, 8 July 2025 and ts 22, 16 July 2025.
As to the second test, the City points to the evidence of Mr Reddy[103] and contends the subject site is not unique and therefore, there is more than a mere chance or possibility of later undistinguishable applications.[104] The City submits its earlier submission,[105] drawing on Coughlan and identifying the potential for cumulative impact is, therefore, also relevant here.[106]
[103] Witness Statement of Nicholas Reddy, paras 138 - 142, Exhibit 4.
[104] ts 22 - 23, 16 July 2025.
[105] At [128].
[106] ts 23, 16 July 2025.
The applicants, in their SIFC, contend the proposed development would not set an undesirable precedent and identify five reasons:[107]
(1)The proposed development received temporary approval in 2019 and it has operated without complaint from neighbours and that the neighbours now support its on-going use as STRA.
(2)The subject site is so unique it cannot be found anywhere else in the City because of the proximity to other dwellings, being at least 23 metres away, and the presence of the adjoining child care premises at No 50. As to No 50, they submit this closes in the evening and no one resides there overnight.
(3)The owner is the same for both No 52 and No 52A and the owner will reside at the rear dwelling to ensure the proposed development is 'hosted'.
(4)The grouped dwelling at the subject site consists of five bedrooms and four bathrooms.
(5)The subject site is conveniently and centrally located to popular tourist attractions such as Belmont Forum, Perth International Airport, Perth CBD, Caversham Wildlife Park and Fremantle.
[107] Applicants' SIFC, paras 81 - 82, Exhibit 6.
As to these five reasons, I do not accept they are factors which when considered individually, or in combination, make No 52 unique, as I will explain.
Considering the first reason, that the proposed development previously received a temporary approval and operated without complaint and that, the applicants submit, neighbours apparently now support the STRA use does not, in my view, demonstrate that these characteristics are unique to the subject site. The applicants adduce no evidence to establish that this is unique in the City.
As to the second reason, that the subject site adjoins a child care premises abutting residential development, the written evidence of Mr Reddy, which I accept, identifies numerous other child care premises which also adjoin grouped dwelling developments.[108] Similarly, the fact that the proposed development is setback 23 metres from existing dwellings does not establish the subject site is unique. The applicants adduce no evidence to establish that such a setback from other dwellings is unique in the City.
[108] Witness Statement of Nicholas Reddy, Attachment 4, Exhibit 4.
Considering the third reason, the evidence of Mr Reddy is that, drawing from his experience as a planning officer at the City, it is common for a landowner to retain ownership of both grouped dwellings.[109] Considering this evidence, common ownership of grouped dwellings is not unique. Common ownership is an attribute that can, in my view, be readily replicated at other grouped dwelling developments in the City, even for those that, like the subject site, abut an existing child care premises. Further, that the owner is to reside at No 52A, as I have explained, does not transform the proposed development so that it is Hosted STRA.[110]
[109] Witness Statement of Nicholas Reddy, para 138, Exhibit 4.
[110] See earlier at [40] - [47].
Considering the number of bedrooms and bathrooms at the grouped dwelling on the subject site, which is the fourth reason, this does not make the proposed development unique and the applicants adduce no evidence to provide a foundation for this submission. Considering the planning framework which permits grouped dwellings in the locality, there appears to be no difficulty replicating a similarly sized grouped dwelling on a similar lot with an R20 density code. This characteristic is therefore, on the evidence before me, not unique.
Finally, considering the applicants fifth reason, being located in proximity to certain tourist attractions. This is also not unique because other dwellings in the locality, and even in other parts of the City, including grouped dwellings, share a similar proximity to the tourist attractions the applicants identify.

Findings - Issue 5

I am satisfied, and I find, approval of the proposed development would set an undesirable precedent for three reasons.
First, on the evidence before me, the proposed development satisfies the first test in Nicholls because the proposed development, being located outside of the area identified in cl 8.1 of LPP 19, is not itself unobjectionable.
Second, the factors identified by the applicants do not, on the evidence before me, when considered individually, or collectively, mean the proposed development is unique in the City. Therefore, the second Nicholls test is also satisfied and, as a result, there is more than a mere chance of later undistinguishable applications which would likely result in the potential for cumulative impact of similar Unhosted STRA outside of the location identified in cl 8.1 of LPP 19 and, more broadly, an undermining of the local planning framework.
Third, the expert planning evidence of Mr Reddy is that approval of the proposed development will set an undesirable precedent in the City.

Conclusion

The proposed development involves a change of use to 'Use not listed - Unhosted STRA'. I also determined, by virtue of cl 3.4.2(b) of LPS 15, this is a land use that may be capable of approval in the Residential zone.
I have considered the proposed development against the provisions of the local planning framework, which includes LPS 15 and LPP 19, and I have found it does not meet the location criteria at cl 8.1 of LPP 19 and two of the four policy objectives, being objective 4(b) and objective 4(d).[111]
[111] Objective 4(a) is not relevant in this case.
However, I have found that the proposed development will not have an adverse impact on the amenity or the character of the locality and therefore meets cl 8.3 and objective 4(c) of LPP 19.
Further, having considered whether there is a cogent reason to depart from LPP 19, I have found, in the circumstances of this case, the reasons identified by the applicants fall well short of a cogent reason to depart from the policy.
Finally, applying the two tests in Nicholls, I considered whether or not approval of the proposed development would give rise to an undesirable precedent. I concluded that it would because there is more than a mere chance or possibility of later undistinguishable applications for Unhosted STRA in the City.
Notwithstanding these findings, I acknowledge I retain a discretion to approve the proposed development. However, considering that there is no cogent reason to depart from LPP 19 in this instance and weighing up my findings to the other issues before me for determination and having given due regard to the relevant matters in cl 67(2) of the Deemed Provisions, the 'correct and preferable' decision, pursuant to s 27(2) of the SAT Act, for the reasons I have outlined, is to affirm the decision of the City to refuse the proposed development and dismiss the application for review.
For these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.The decision of the respondent is affirmed.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
10 OCTOBER 2025