B and F Holdings (WA) Pty Ltd and City Of South Perth - [2009] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: B & F HOLDINGS (WA) PTY LTD and CITY OF SOUTH PERTH [2009] WASAT 17

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: 20 AND 21 JANUARY 2009

DELIVERED : 28 JANUARY 2009

FILE NO/S: DR 331 of 2008

BETWEEN: B & F HOLDINGS (WA) PTY LTD
FAZELY HOLDINGS PTY LTD
Applicants
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning Development application Three twostorey grouped dwellings Housing density Dual R20/R30 coding Proposed development R30 Development may not exceed R20 unless at least seven of 14 performance criteria are met Whether Tribunal has jurisdiction to hear and determine the proceedings Whether Tribunal has power to determine if at least seven performance criteria are met Whether proposed housing density is capable of approval Whether at least seven performance criteria are met Whether performance criteria are 'site requirements' prescribed by local planning scheme and capable of variation under Scheme Boundary walls Visual impact

Legislation:

City of South Perth Town Planning Scheme No 6, cl 3.2, cl 4.1, cl 4.2, cl 7.8, cl 7.8(1), cl 7.8(1)(a), cl 7.8(1)(b)(i), cl 7.8(2)(c), Sch 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242, s 252, s 252(1), s 252(2)
Planning and Development Bill 2004
Residential Design Codes of Western Australia (2008), cl 4.1.3, cl 6.1, Table 1
State Administrative Tribunal Act 2004 (WA), s 29(1)
Town Planning and Development Act 1928 (WA), s 8A, s 8A(1)

Result:

Development approval refused

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen with Ms A Patterson
Respondent: Mr P Wittkuhn

Solicitors:

Applicants: Lavan Legal
Respondent: McLeods

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

Anthony Hordern and Sons Ltd & Ors v The Amalgamated Clothing and Allied Trades Union of Australia (1933) 47 CLR 1
Owners of Strata Plan 18449 and City of Joondulup [2005] WASAT 304; (2005) 150 LGERA 346
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants sought review of the City of South Perth's decision to refuse development approval for the construction of a grouped dwelling development at a residential density of R30. The site is subject to a dual density coding of R20/30 under which development may not exceed R20 unless the Council is satisfied that at least seven of 14 performance criteria are met. The City of South Perth considered that only four performance criteria are met.
The Tribunal held that it has power to determine whether at least seven performance criteria are met, even though the City of South Perth had determined that only four performance criteria are met. The Tribunal has this power in order to decide whether the grant of development approval is in the discretion of the Council and, therefore, whether the Tribunal has jurisdiction to entertain the application for review. The Tribunal also has power to determine whether at least seven of the performance criteria are met, because the Tribunal has the functions and discretions corresponding to those exercisable by the Council in making the decision to refuse development approval, including the function to decide whether at least seven performance criteria are met.
The Tribunal determined that only four of the performance criteria are met and that the proposed housing density is therefore not capable of approval. In particular, the Tribunal found that:
•performance criterion (ii) is not met, because the established character of two of the three adjoining properties does not reflect a housing density greater than R20;
•performance criterion (viii) is not met, because the Single House character of the relevant part of the focus area has not changed significantly;
•performance criterion (xii) is not met, because it requires the retention of a pre-existing, well-established and substantial tree, whereas a Native Frangipani tree relied on by the applicants was planted after the development application was lodged, is barely noticeable and makes practically no contribution to the greening of the environment; and
•performance criterion (xiii) is not met, because the proposed landscaping in the area between the building and the street frontage is not of a standard which is exceptional and is in an area that forms part of a private courtyard of the front unit as it is within the private domain of that unit.
The application for review was dismissed and the decision of the City of South Perth was affirmed.

Introduction

These proceedings involve an application brought by B & F Holdings (WA) Pty Ltd and Fazely Holdings Pty Ltd (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of South Perth (City or Council) to refuse a development application for the construction of three two‑storey grouped dwellings at No 47 (Lot 11) Preston Street, Como (site).

Site and locality

The site is located on the southern side of Preston Street between Coode Street to the west and McDonald Street to the east. The site has a frontage of 16.09 metres to Preston Street and an area of 1,009.5 square metres.
At the time when the development application was lodged with the City on 3 December 2007, the site contained a single‑storey house located on the front half of the block. The house was subsequently demolished and the site cleared, with the exception of an immature Native Frangipani tree (Hymenosterum flavum) located near the front boundary of the site. This tree was planted by the applicants in about June 2008 and currently has a narrow trunk, sparse canopy and a height of approximately 3.5 metres. More will be said about this tree and its significance in the proceedings below.
The site is surrounded by a mix of low to medium density residential developments. However, there is a distinctly different predominant character between the southern and northern sides of Preston Street between Coode Street and McDonald Street.
The southern side of Preston Street, between Coode Street and McDonald Street, comprises 10 properties with a total of 14 dwellings. Seven of the properties contain single houses, one (No 45 Preston Street, adjoining the site to the west) contains three grouped dwellings and two (No 198 Coode Street and No 51‑51A Preston Street) contain two grouped dwellings each. However, on the two properties containing two grouped dwellings each, the buildings at the street frontage have the appearance of single houses. The southern side of Preston Street, between Coode Street and McDonald Street, is, therefore, characterised by single houses.
The northern side of Preston Street, between Coode Street and McDonald Street, comprises 12 properties with a total of 29 dwellings. Six of the properties contain single houses, one property contains eight grouped dwellings, and five properties contain three grouped dwellings each. The character of the northern side of Preston Street, between Coode Street and McDonald Street, is, therefore, mixed in terms of residential density.

Planning framework

The site is zoned 'Urban' under the Metropolitan Region Scheme and is zoned 'Residential' and has a dual density coding of 'R20/30' under the City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme). The site is located in Precinct 8 ‑ Como Beach under cl 3.2 of TPS 6.
The proposed development has a density of R30. Clause 4.2 of TPS 6 states that, where land has dual density coding, development shall not exceed the lower density coding 'unless the Council is satisfied that the minimum number of performance criteria prescribed for that dual density coding are met'. The performance criteria are contained in Sch 3 of the Scheme. Relevantly, the Council may permit the site to be developed at a density exceeding R20, to a maximum of R30, where any seven or more of 14 performance criteria set out in Sch 3 of the Scheme are met to Council's satisfaction.
It is common ground between the parties that four performance criteria are met and six performance criteria are not met. The principal dispute between the parties is whether the remaining four performance criteria are met. If at least three of the four remaining performance criteria are met, then the Council, and the Tribunal on review, may permit the site to be developed to the proposed density of R30. However, if at least three of the outstanding performance criteria are not met, then, subject to an argument advanced by the applicants in relation to discretion to approve the proposed development under cl 7.8 of TPS 6, it is common ground that the proposed development is incapable of approval. This is because the area of the site allocated for each of the grouped dwellings and the average of those areas is less than the minimum and average site areas prescribed by cl 6.1 and Table 1 of the Residential Design Codes of Western Australia (2008) (Codes) for the R20 coding. Clause 4.1 of TPS 6 states that, unless otherwise provided in the Scheme, the development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of the Codes.

Issues for determination

The following three principal issues arise for determination in this review:
1.Whether the Tribunal has jurisdiction to hear and determine the proceedings.
2.Whether the proposed housing density is capable of approval.
3.Whether the proposed boundary walls are acceptable.
A number of other issues were identified in the City's statement of issues, facts and contentions. However, the expert planning and traffic engineering witnesses agreed that these issues were either satisfactorily resolved by application of relevant performance criteria, or were capable of being satisfactorily resolved by the imposition of appropriate conditions of approval, in the event that the proposal is capable of approval and otherwise merits approval. It is unnecessary to discuss these issues.
The Tribunal will address each of the three principal issues in turn.

Does the Tribunal have jurisdiction to hear and determine the proceedings?

Mr Mark Ritter, who owns and resides with his family at No 49 Preston Street, Como, which adjoins the site to the east, was granted leave by the Tribunal under s 242 of the PD Act to make a written submission in relation to whether the Tribunal has jurisdiction to determine the proceedings. The Tribunal granted leave to Mr Ritter to make the submission, because neither party proposed to argue that the Tribunal does not have jurisdiction to entertain the proceedings. The Tribunal declined leave to Mr Ritter under s 242 of the PD Act to make submissions generally in relation to the application, because the other matters which he proposed to address were encompassed within the issues raised by the City, and the City called Mr Ritter as a witness in its case, thereby enabling him to express his concerns in relation to the proposal.
Mr Ritter submitted that the Tribunal does not have jurisdiction to hear and determine the proceedings, because the Tribunal's jurisdiction under s 252 of the PD Act is limited to the review of discretionary decisions of the Council, whereas the decision which is the subject of the application was not such a decision. Mr Ritter argued that the refusal of the development application was mandated by the proper application of cl 4.2 and Sch 3 of TPS 6. As the Council was not satisfied that at least seven of the performance criteria were met, it had no discretion to exercise as to whether or not to approve the proposed development.
However, as the Tribunal explained in Owners of Strata Plan 18449 and City of Joondulup [2005] WASAT 304; (2005) 150 LGERA 346 (Strata Plan 18449) at [18], s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act), which was in substantially the same terms as s 252(1) of the PD Act, set out three conditions which have to be satisfied in order for there to be a right of review, namely:
(i)approval of the application must be in the discretion of the responsible authority under the applicable local planning scheme;
(ii)a person must have applied to the authority for approval; and
(iii)the authority must have refused the application or granted it conditionally.
The Tribunal held in Strata Plan 18449 that, both on a literal and purposive interpretation of the enabling section, it was open to the Tribunal to categorise a proposed use to determine whether it was in the discretion of the responsible authority to approve it under the applicable scheme and, therefore, to determine whether the Tribunal had jurisdiction to entertain the application for review, even though the responsible authority had itself categorised the use proposed in the development application which it refused. The Tribunal also held that it had the power to categorise a use in order to come to the correct and preferable decision on a review within its jurisdiction.
Similarly, in this case, the Tribunal has jurisdiction to determine whether it was in the discretion of the Council to approve the development application under TPS 6 and, therefore, to determine whether the Tribunal has jurisdiction to entertain the application for review. In particular, the Tribunal has power to determine whether at least seven of the relevant performance criteria are met to its satisfaction in order to determine whether the grant of development approval is in the discretion of the responsible authority and therefore whether the Tribunal has jurisdiction to entertain the application for review.
The Tribunal also has power to determine whether seven or more of the relevant performance criteria are met to its satisfaction because, under s 29(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal has the functions and discretions corresponding to those exercisable by the Council in making the reviewable decision. The reviewable decision in this case was the decision of the Council to refuse to grant development approval for the proposed development. The function of the Council to determine whether at least seven of the relevant performance criteria are met to its satisfaction and, therefore, whether the proposed housing density is capable of approval under the Scheme, was exercisable by it in making the reviewable decision. It refused to grant development approval for 11 reasons, including that the proposed development does not meet the required number of performance criteria to allow development at R30 density, having regard to the relevant criteria contained in Sch 3 of TPS 6.
Mr Ritter submitted that Strata Plan 18449 is distinguishable from the current application. Mr Ritter observed that the particular question posed to the Tribunal in Strata Plan 18449 was whether, on the proper interpretation of s 8A of the TPD Act, the Tribunal had jurisdiction to categorise the use proposed in a development application in circumstances where the responsible authority had itself categorised the use, whereas s 252(2) of the PD Act now answers the question directly in the context of the PD Act. Section 252(2) of the PD Act specifically provides that an applicant may apply to the Tribunal for a review of a responsible authority's decision under a local planning scheme as to the classification of a use under the local planning scheme.
Mr Ritter also noted that, during the second reading speech of the Planning and Development Bill 2004, the Hon Alannah MacTiernan MLA, Minister for Planning and Infrastructure, said that the equivalent clause to what is now s 252(2) of the PD Act was intended to confer 'additional rights of appeal … in respect of decisions of a local government as to the characterisation of a use under a planning scheme'.
Mr Ritter, therefore, submitted that, while s 252(1) of the PD Act is in 'effectively identically terms' to s 8A(1) of the TPD Act, the inclusion of s 252(2) in the PD Act indicates that s 252(1) 'is not intended to provide a right of review where the responsible authority determines that the preconditions to the exercise of a discretion have not been met'.
However, having regard to the analysis of s 8A(1) of the TPD Act and earlier authorities in relation to that section in Strata Plan 18449, the Minister's statement in the second reading speech appears to reflect an erroneous understanding of the law. On the proper analysis of the earlier decisions, it was not, in fact, necessary to create a further review right in order for the Tribunal to have jurisdiction to undertake a classification of a use under a local planning scheme.
Although, as Mr Ritter contended, the Parliament must have intended by the inclusion of s 252(2) of the PD Act 'to make it plain that there was a right of review in circumstances where the responsible authority's categorisation of the proposed use leads to the refusal or conditional approval of a planning application', it could not have been the intention of the Parliament to restrict review rights under the PD Act or to remove jurisdiction or power from the Tribunal which it otherwise had under s 252(1) of the PD Act to determine an application for review in relation to the refusal or conditional approval of a development application.
It follows that the Tribunal has jurisdiction to hear and determine the proceedings.

Is the proposed housing density capable of approval?

As noted earlier, it is common ground between the parties that four of the relevant performance criteria are met and six are not met. The dispute between the parties relates to the four remaining performance criteria, namely, performance criteria (ii), (viii), (xii) and (xiii).

Performance criterion (ii)

Performance criterion (ii) states as follows:
The site is adjoined on at least two boundaries by a lot or lots which:
(A) have been re‑subdivided or developed with; or
(B) are the subject of a current Planning Approval for;
a greater number of dwellings than previously existed or currently exist on such lots.
Performance criterion (ii) refers to the following objective:
To give recognition to the perception that, to some extent, development to the lower density could be inconsistent with the established character of adjoining properties, and therefore partially supports higher density development on the subject site.
The site is adjoined by three lots, namely, No 45 Preston Street to the west, No 49 Preston Street to the east and No 206 Coode Street to the south.
The expert town planning witnesses who gave evidence, Mr Benjamin Doyle, called by the applicants, and Mr Lloyd Anderson, called by the City, agreed that No 45 Preston Street has been re‑subdivided and redeveloped with a greater number of dwellings than previously existed, namely, three grouped dwellings in place of a former single house. Mr Doyle and Mr Anderson also agreed that No 206 Coode Street has not been re‑subdivided or redeveloped with a greater number of dwellings than previously existed, because it continues to comprise a single house with a tennis court at the rear adjoining the site.
However, Mr Doyle pointed out that No 49 Preston Street previously formed the western half of a parent lot known as Lot 280. The parent lot was subdivided to create two lots, No 49 Preston Street and No 51 Preston Street. Number 51 Preston Street was subsequently further subdivided to enable a second dwelling to be constructed at the rear of that property. Mr Doyle, therefore, considered that the parent Lot 280 has been re‑subdivided and redeveloped with a greater number of dwellings than previously existed on that lot, namely, three dwellings in place of an original single house.
Mr Anderson disagreed. In Mr Anderson's opinion, having regard to the objective of the performance criterion, the site is adjoined to the east by No 49 Preston Street, not by parent Lot 280.

Having regard to the objective, the Tribunal does not consider that performance criterion (ii) is met. The objective requires that the established character of the adjoining property reflects a housing density greater than R20, because otherwise, development of the site at R20 could not be inconsistent with the established character of the adjoining property so as to partially support higher density development on the site.
The site is currently adjoined to the east by No 49 Preston Street which contains a single house at a residential density of R10. Even if the reference to an adjoining lot in the performance criterion extended to parent Lot 280, its re‑subdivision and redevelopment reflected a residential density of R10. The subsequent re‑subdivision of No 51 Preston Street resulted in a residential density of R15 over the combined area of former Lot 280. The re‑subdivision and redevelopment of Lot 280 cannot, therefore, satisfy the objective of the performance criterion and, hence, cannot meet the performance criterion.
The applicants also noted that No 206 Coode Street is capable of being redeveloped for up to four dwellings under the R20 density code 'as of right'. They submitted that 'a flexible approach to the performance criteria recognises that the adjoining lots can be further subdivided without the exercise of discretion'.
However, subdivision of No 206 Coode Street at a residential density of R20 could not satisfy the objective and, hence, the performance criterion. Development of the site to a residential density of R20 could not be inconsistent with the character of an adjoining property reflecting the same residential density. Development of an adjoining property at a residential density of R20 does not support higher density development of the site than R20. Furthermore, No 206 Coode Street could potentially remain in its current form as a single house with a residential density well below R20.

Performance criterion (viii)

Performance criterion (viii) states as follows:
At least 80% of the originally subdivided lots on the same side of the street as the development site and within the same focus area:
(A)have been re‑subdivided for, or redeveloped with, a greater number of dwellings than were originally constructed on those lots; or
(B)are the subject of a current planning approval for a greater number of dwellings than were originally constructed or currently exist on those lots.
Performance criterion (viii) refers to the following objective:
To assist towards higher density redevelopment of remnant sites, where surrounding redevelopment has significantly changed the former Single House character of the relevant part of the focus area. In offering such assistance, this criterion acknowledges both the compatibility and equity of higher density development on the remnant sites.
Performance criterion (viii) also refers to the following interpretation:
(i)Council deems that the former Single House character of the relevant area has sufficiently changed when 80% of the lots in question have been redeveloped to a higher density.
(ii)The term 'focus area' means the section of a street extending from one cross[-]intersection to the next cross[-]intersection, together with the residential properties fronting onto both sides of that section of the street.
(iii)In the case of existing re‑subdivisions in the focus area, no distinction is made between recent re‑subdivisions and earlier re‑subdivisions. The criterion only recognises approved subdivisions.
Mr Doyle relied on a deposited plan dated 27 August 1906 which showed that, at that time, the southern side of Preston Street in the focus area comprised four lots. As this area now comprises 10 lots and 14 dwellings, Mr Doyle considered that 100% of the originally subdivided lots on the same side of the street as the site and within the same focus area has been re‑subdivided for, or redeveloped with, a greater number of dwellings than were originally constructed on those lots, thus satisfying performance criterion (viii). Mr Doyle emphasised interpretation (iii) that 'no distinction is made between recent re‑subdivisions and earlier re‑subdivisions'.
In contrast, Mr Anderson considered that performance criterion (viii) is not met. Having regard to the objective, Mr Anderson considered that the re‑subdivision of the 1906 lots did not satisfy the performance criterion, because the southern side of Preston Street retains its Single House character.
Having regard to the objective and the interpretation provisions, the Tribunal does not consider that performance criterion (viii) is met. While interpretation (iii) states that no distinction is made between recent and earlier re‑subdivisions, as Mr Peter Wittkuhn, counsel for the City, submitted, the historical aerial photographs in evidence show that the Single House character of the relevant part of the focus area did not 'crystallise' for at least half a century after the 1906 deposited plan was produced. Importantly, once it was established, the Single House character of the relevant part of the focus area has not changed significantly. Only 30% of the lots have been redeveloped to a higher density than the former Single House character. Furthermore, two of the three higher density developments appear at the Preston Street frontage to reflect a Single House character. At No 51‑51A Preston Street to the east of the site, the original house appears to have been retained at the front of that property and a new house has been constructed at the rear in a battleaxe arrangement. At No 198 Coode Street, on the corner of Preston Street and Coode Street, the two grouped dwellings each have a different architectural presentation and scale. The Single House character of the southern side of Preston Street in the focus area has only changed, in substance, on one property, namely, No 45 Preston Street, which adjoins the site to the west and which clearly presents as three grouped dwellings at a density of R30.
Having regard to the objective and interpretation provisions, the expression 'the originally subdivided lots' in performance criterion (viii) refers to the lots existing when the Single House character of the relevant part of the focus area came into being. Interpretation (iii) emphasises that, from that point on, earlier as well as recent re‑subdivisions to a higher density than Single Houses are relevant in determining whether the Single House character of the relevant part has changed.
Having regard to the objective and interpretation provisions, at least 80% of the originally subdivided lots on the same side of the street as the development site and within the same focus area have not been re‑subdivided or redeveloped with a greater number of dwellings than were originally constructed on those lots. Moreover, the Single House character of the relevant part of the focus area has not changed significantly, and the site could not be regarded as a 'remnant site'. Performance criterion (viii) is not met.

Performance criterion (xii)

Performance criterion (xii) states as follows:
The proposal incorporates retention of at least one appropriate tree.
Performance criterion (xii) refers to the following objective:
While most trees offer environmental benefits in relation to solar screening, bird life habitat and air quality, this criterion particularly encourages the preservation of:
(i)those trees which contribute significantly to the greening of the environment due to their prominence when viewed from either neighbouring streets or dwellings; and
(ii)the more visually attractive trees;
recognising that large and visually attractive trees give the City of South Perth a character which is highly valued by its residents, and one which, in the short term, cannot easily be replaced if destroyed.
Performance criterion (xii) also refers to the following interpretation provisions:
(i)The term 'appropriate tree' refers to a tree which, in the opinion of the Council having due regard to the findings of an Arboriculturalist as referred to in paragraph (iii) of this Interpretation, has all of the following attributes:
(A)Contribution to streetscape or neighbouring area ‑ a tree located in prominent view from neighbouring streets or dwellings.
(B)Attractiveness ‑ a tree which is visually pleasing and has not been insensitively pruned.
(C)Size ‑ a tree at least 4 metres in height at the time the current application for planning approval is submitted.
(D)Appropriateness of species and location ‑ a tree which will flourish to maturity without detriment to the tree or structural damage to any adjacent building, fence or paving, having regard to space available for roots and foliage canopy.
(E)Health and life expectancy ‑ a tree in good health and which has more than 20 years to the end of its natural life expectancy.
As noted earlier, about six months after the applicants lodged the development application with the City, they planted a Native Frangipani tree close to the front boundary of the site. Ms Tamara Wilkes‑Jones, the City Landscapes Officer, expressed the opinion that the tree satisfies performance criterion (xii). Ms Wilkes‑Jones considered that the tree is an appropriate species, in an appropriate location and in good health. She said that the tree has a life expectancy of more than 20 years. Ms Wilkes‑Jones said that, although the tree does not contribute significantly to the streetscape at present, it is likely to grow to a height of 9 metres and have a width of 5 metres, and will ultimately become quite an attractive addition to the streetscape. She expressed the opinion that the tree is likely to reach a height of 4 metres within about six months.
Mr Doyle, and the applicants, relied on the evidence of Ms Wilkes‑Jones.
In contrast, Mr Anderson did not consider that the tree satisfies performance criterion (xii). Mr Anderson explained that the intent of the performance criterion is to find and retain an existing mature tree on-site, rather than to import a new tree onto a site. Mr Anderson did not consider that a tree brought onto the site after the application was made could satisfy the performance criterion.
Performance criterion (xii) requires that the proposal incorporate 'retention' of at least one 'appropriate tree'. While town planning is usually focused on the future, it is implicit in the word 'retention' in the performance criterion, in the word 'preservation' in the objective and generally in the objective and interpretation provisions, and explicit in interpretation provision (i)(C), that the relevant tree must pre‑exist the making of the development application. The Native Frangipani tree cannot, therefore, satisfy the performance criterion.
Furthermore, it is apparent when the performance criterion is read in light of the objective and interpretation provisions, that it requires the retention and preservation of a well‑established and substantial tree which presently contributes significantly to the greening of the environment due to its prominence and which is visually attractive. The Native Frangipani tree is barely noticeable and makes practically no contribution to the greening of the environment.
As the Native Frangipani tree is not a pre‑existing, well‑established and substantial tree, performance criterion (xii) is not met.

Performance criterion (xiii)

Performance criterion (xiii) states as follows:
The portion of the site forward of the proposed building and extending to the primary street boundary, incorporates landscaping of exceptional quality, which is highly visible from the street.
Performance criterion (xiii) refers to the following objective:
To encourage exceptional quality and visually accessible landscaping of development sites[,] thereby enhancing the attractiveness of the streetscape.
Performance criterion (xiii) also refers to the following interpretation provisions:
(i)The term 'portion of the site forward of the proposed building and extending to the primary street boundary,' means an area of land used exclusively for landscaping, having a minimum area of 50 square metres and a minimum dimension of 5.0 metres measured in any direction.
(ii)The term 'exceptional quality' means landscaping of a standard which the Council considers to be exceptional, comprising the following:
(A)reticulated planting including at least one tree with a minimum height of 3.0 metres when planted which, in the opinion of the Council, is likely to grow to a minimum height of 4.0 metres within 12 months; and
(B)other decorative landscaping features.
(iii)The area referred to in paragraph (i) of this interpretation, shall not:
(A)be paved other than for the creation of a pedestrian access path;
(B)be fenced above a height of 1.0 metre other than by way of open grille type material, extending to a maximum height of 1.8 metres, with the solid components between any supporting piers comprising no more than 20%. The remaining 80% of the space between piers shall be open so as to preserve a clear view of the landscaping and of the building façade; or
(C)form part of a private courtyard of a dwelling.
With the exception of a small truncation for the driveway, the portion of the site forward of the proposed building and extending to the Preston Street boundary is proposed to form part of the strata lot of Unit 1. This area has dimensions of approximately 12 metres by 5 metres and is shown on the landscaping plan as containing the Native Frangipani tree referred to earlier, and shrubs and groundcovers in the north‑western part, some groundcovers or climbers along the other fences, paved footpaths, lawn, decorative paving and a water feature. During the hearing, the applicants proposed to amend the landscaping plan to replace the decorative paving with turf. The applicants also indicated that they would accept a condition ensuring that the fence complies with interpretation (iii)(B) so as to have an open appearance.
Ms Wilkes‑Jones expressed the opinion that the landscaping proposed between the building and the street satisfies performance criterion (xiii). In particular, she noted that the landscaping plan incorporates a number of species of shrubs, groundcovers and climbers, as well as the tree, and other decorative landscaping features, including the water feature. Mr Doyle was also of the opinion that performance criterion (xiii) is met if the fencing is carried out in accordance with the interpretation provision.
In contrast, Mr Anderson expressed the opinion that performance criterion (xiii) is not met. Mr Anderson referred to the area between the building and the street frontage as 'a private courtyard' of Unit 1.
The Tribunal considers that performance criterion (xiii) is not met for two reasons.
First, the Tribunal does not consider that the landscaping is of a standard which is exceptional, given that the overwhelming majority of the area comprises paved footpath and turf. Having regard to the length of the frontage and the size of the area in question, exceptional quality and visually accessible landscaping requires considerably more substantial planting and considerably less footpath and turf.
Second, contrary to interpretation (i), the area would not be 'used exclusively for landscaping', and contrary to interpretation (iii)(C), the area would 'form part of a private courtyard of a dwelling'.
Mr Doyle expressed the opinion that the area between the building and the street boundary is not a 'private courtyard' because the residents of Unit 1 have access to a paved alfresco area adjoining the eastern boundary of the site, which is 'private' in the sense that it cannot be viewed from the street, whereas the front area is not 'private', because it can be viewed from the street.
However, the area between the building and the street boundary:
•is larger than the alfresco area;
•has a better functional relationship with the family room and lounge room; and
•has a northern orientation and therefore significantly better solar access than the alfresco area.
Furthermore, interpretation (iii) contemplates that the area between the proposed building and the street boundary can form part of a 'private courtyard' of a dwelling, even though it is open to view from the street, as it both precludes the area from forming part of a private courtyard and requires that the fencing must be open. Consequently, a 'private' courtyard in the interpretation does not mean private in the sense that one cannot be seen from the street, but rather, in the sense that it is part of the private domain of a dwelling. The area in question is part of the private domain of Unit 1.
The Scheme plainly sees a conflict between an area forming part of the private domain of a dwelling and performing the function envisaged by performance criterion (xiii). This is consistent with the statement in interpretation (i) that the area must be 'used exclusively for landscaping'. If the area forms part of a private courtyard of a dwelling, it will not be used exclusively for landscaping, but will also be used for domestic activities, such as children's play, recreation and entertaining. Notwithstanding that this area could be seen from the street, its other qualities referred to earlier suggest that it would be used for these and other domestic purposes.
Finally, the applicants suggested that, if the Tribunal were not satisfied that the proposal incorporates landscaping of exceptional quality, it should grant approval subject to a condition that the landscaping plan be amended to incorporate landscaping of exceptional quality. It appears that the City may have adopted this approach in other applications.
In Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124, the Tribunal stated, at [85], as follows:
… A condition cannot lawfully defer, for later consideration, a non‑incidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] ‑ [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. For example, in this case, dust mitigation and landscaping are incidental aspects of the proposed development. However, in the case of a concrete batching plant, dust is likely to be a central aspect, and in certain cases, landscaping might well be a central aspect of the development in relation to which the consent authority needs to be satisfied at the time it grants development approval.
Because land that has dual density coding cannot be developed in a manner that exceeds the lower density coding unless the Council is satisfied that the minimum number of performance criteria prescribed for the dual density coding are met, landscaping referred to in a performance criterion is a central aspect of a development in relation to which the Council needs to be satisfied at the time it grants development approval. The Council cannot lawfully approve development on the basis that performance criterion (xiii) is met unless it has before it a landscaping plan on the basis of which it is satisfied that the portion of the site forward of the proposed building incorporates landscaping of exceptional quality.
It follows that the proposal satisfies only four of the 14 prescribed performance criteria. The proposed development is, therefore, incapable of approval under cl 4.2 of TPS 6.

Clause 7.8 of TPS 6

However, the applicants contend, alternatively, that cl 7.8 of TPS 6 empowers the approval of the proposed development notwithstanding that the development does not comply with the requirements of cl 4.2 of TPS 6.

Clause 7.8 of TPS 6 states as follows:
(1)(a)Subject to sub‑clause (2), if a development the subject of an application for planning approval does not comply with site requirements prescribed by the Scheme with respect to:
(i)minimum lot area;
(ii)plot ratio;
(iii)setbacks;
(iv)open space;
(v)carparking;
(vi)landscaping; and
(vii)related matters;
the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.
(b)The power conferred by this sub‑clause may only be exercised if the Council is satisfied that:
(i)approval of the proposed development would be consistent with the orderly and proper planning of the precinct and the preservation of the amenity of the locality;
(ii)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the precinct or upon the likely future development of the precinct; and
(iii)the proposed development meets the objectives for the City and for the precinct in which the land is situated as specified in the [P]recinct Plan for that precinct.
(2)The power conferred by sub‑clause (1) of this clause shall not be exercised by the Council with respect to:
…
(c)the requirements prescribed under the Residential Design Codes.
The applicants referred in particular to the site requirements of 'minimum lot area', 'landscaping' and 'related matters' in cl 7.8(1)(a) of TPS 6.
However, the relevant minimum lot area is not 'prescribed by the Scheme', but rather, is prescribed by the Codes with which the Scheme requires conformity in cl 4.1(3). Furthermore, cl 7.8(2)(c) of TPS 6 states explicitly that the power conferred by cl 7.8(1) of the Scheme shall not be exercised by the Council with respect to the requirements prescribed under the Codes.
Performance criteria (xii) and (xiii) are not, relevantly, 'site requirements' prescribed by the Scheme with respect to landscaping. Rather, these are requirements which enable consideration of a development application that proposes a residential density greater than R20.
Furthermore, as Gavin Duffy CJ and Dixon J held in Anthony Hordern and Sons Ltd & Ors v The Amalgamated Clothing and Allied Trades Union of Australia (1933) 47 CLR 1 at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
It follows that, on the proper interpretation of the Scheme, even if the performance criteria prescribe 'site requirements' with respect to minimum lot area, landscaping or related matters, cl 7.8 of TPS 6 would not empower the approval of the proposed development, because cl 4.2 and Sch 3 of the Scheme contain specific conditions and restrictions which must be observed.
Finally, and in any case, it would be contrary to orderly and proper planning to approve a development by overriding a specific assessment prescribed by the Scheme through application of a general discretion. Therefore, even if cl 7.8 of TPS 6 conferred a discretion to approve the proposed development, cl 7.8(1)(b)(i) of the Scheme would not allow that discretion to be exercised in the circumstances of this case.
It follows that the R30 housing density proposed in the development application is not capable of approval.

Are the proposed boundary walls acceptable?

As the proposed housing density is not capable of approval, a merit consideration of the development application does not arise.
However, as Mr Ritter expressed significant concerns in relation to three proposed boundary walls, the Tribunal will express brief observations in relation to their acceptability as a matter of merit.
During the concurrent evidence of the expert planning witnesses, Mr Anderson expressed the opinion that, if the walls were reduced in height to no more than 2.7 metres above Mr Ritter's ground level at the boundary, then the visual impact of the walls would be acceptable. The Tribunal considers that, if the site were capable of approval at a residential density of R30 (which we have found it is not), then the three proposed boundary walls would be acceptable if reduced in height to no more than 2.7 metres above ground level at Mr Ritter's property. However, as the site can only be developed at a residential density of R20, the proposed boundary walls are not acceptable in terms of reasonable amenity expectations at a coding of R20.

Conclusion

The housing density proposed in the development application is R30. The proposed housing density is not capable of approval under TPS 6. It follows that the application for review must be dismissed and the decision of the Council to refuse development approval must be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 7 August 2008 to refuse development approval for three two‑storey grouped dwellings at No 47 (Lot 11) Preston Street, Como is affirmed.

I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER