BAKER INVESTMENTS PTY LTD and CITY OF VINCENT

[2016] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BAKER INVESTMENTS PTY LTD and CITY OF VINCENT [2016] WASAT 115

MEMBER:   MR P McNAB (SENIOR MEMBER)

DR B DE VILLIERS (MEMBER)

HEARD:   26 APRIL, 27 AND 30 MAY, 13 JUNE 2016

DELIVERED          :   22 SEPTEMBER 2016

FILE NO/S:   DR 389 of 2015

BETWEEN:   BAKER INVESTMENTS PTY LTD

Applicant

AND

CITY OF VINCENT
Respondent

Catchwords:

Town planning ­ Development application ­ Variation of previous development approval granted by local government ­ Approval included obligation to provide for obscure glazing ­ Obligation for obscure glazing shown on approved plans but not expressed as a formal condition ­ Negotiations and compromise on original planning application - Affected neighbours involved in process - Consent orders of Tribunal part of approvals process - Whether variation application an abuse of process given settlement of matter by way of consent orders - Intervening event since building was the erection of a screen wall between affected neighbours and the development - Screen wall marginally improved privacy - Whether 'material change' in circumstances rebutting allegation of abuse of process - Changes in planning framework and impact of screen wall held to be a material change in circumstances - Review held not to be an abuse of process - Whether 'development of a minor nature' under town planning scheme and local policy and therefore exempt from need for approval - Variation held not to be development of a minor nature - Jurisdiction to consider variation application limited to variation which would 'not substantially change' original development - Application held to substantially change original development - Whether alternatively an application to amend a condition - Tribunal finding obligation in substance a condition of development - Extent of assessment turned on whether 'minor amendment' to original approval - Application held to be a minor amendment - Status of Residential Design Codes (R-Codes) as State policy - R-Codes incorporated by law into town planning scheme - Relevant deemed-to-comply standard under R-Codes was met - Whether compliance therefore mandated approval - R-Codes held to remain as instruments of policy and therefore did not relevantly bind Tribunal - Factors relevant to exercise of discretion included planning history of site extending to circumstances of previous approval - Importance of reasonable visual privacy as a significant value in planning law - Development would not be approved nowadays under amended R-Codes - Insufficient justification provided to warrant approval of variation - Application refused - Words and phrases: 'abuse of process'; 'condition'; 'development of a minor nature'; 'minor amendment'; 'material change in circumstances'; 'substantially change'

Legislation:

City of Vincent Town Planning Scheme No 1, cl 19(1), cl 33(d)
Environmental Planning and Assessment Act 1979 (NSW), s 96(2)(a), s 97B
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 60(1)(i), cl 67, cl 68, cl 77, Sch 1 cl 25, Sch 2, Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 77, s 241(1)(a)
Planning and Environment Act 1987 (Vic), s 87(1)(d)
Residential Design Codes (2015), cl 2.5.4, cl 5.1.3, cl 5.4.1 C1.1 C1.2
State Administrative Tribunal Act 2004 (WA), s 31, s 46(1)

Result:

Application for review is dismissed

Summary of Tribunal's decision:

Baker Investments Pty Ltd (Baker) sought a variation on a previous development approval granted by the City of Vincent (City).  The original development approval was for a new two-storey apartment complex with 18 multiple dwellings.  One aspect of the approval was an obligation placed upon the developer to affix obscure glazing in the form of a durable plastic film applied to certain upstairs windows.  The obligation to provide for obscure glazing did not take the form of a condition of development, but appeared on all of the approved development and building plans.  The purpose of the film was to substantially diminish the overlooking of some of the neighbours' mainly private outdoor recreational areas.  In its application to the City, Baker had sought to remove the obscure glazing on three of the upstairs apartments' windows.  The City had refused the variation.

After the film had been affixed, a screen wall was lawfully erected between the neighbours and the development to secure acoustic privacy for the neighbours and to create a visual barrier with respect to the ground floor units.  This affected the amount of sunlight received by those units, making their sale more difficult.  The final form of the original approval included certain consent orders made in this Tribunal.  Certain affected neighbours participated in the mediation and the negotiations leading up to the making of the consent orders.  The negotiations produced compromises on all sides, including the obligation to provide for obscure glazing.

Baker contended that the screen wall now enhanced visual privacy.  The City conceded that it had a marginal effect.  Baker also contended that the development otherwise complied with the Residential Design Codes (R-Codes).  The R-Codes were amended in October 2015 and one consequence was that nowadays the development would not be approved.

Baker was permitted to apply for a variation following a separate change in the planning law, by way of regulation, in October 2015.  This change to the planning framework inserted comprehensive 'deemed provisions' into the City's town planning scheme (TPS).  The deemed provisions came into force after Baker had applied for variation approval with the City, but nothing turned upon that fact.  However, before the Tribunal could consider the effect of the deemed provisions, a threshold question arose.  The City alleged that Baker's application was an attempt to re-litigate matters settled by the Tribunal's consent orders.  The City asked, as a matter of practice and procedure, for the matter to be struck out by the Tribunal as an abuse of process.  However, assuming that the matter was in fact being re-litigated, that might still be possible if there had been a 'material change in circumstances'.

In Victoria, planning law permitted an amendment of a planning approval if there was a 'material change' in circumstances.  Factors considered relevant in Victoria included a relevant change in the planning framework, or the character of the area.  Although in Victoria these were non-procedural, substantive matters (and the strike out application here was procedural), the Tribunal considered that the Victorian decisions nevertheless provided useful guidance on the issue of 'material change'.  After all, the provisions were in the planning area and were aimed at the same target: the provision of an adequate explanation in order to justify the revisiting of a matter that had been 'settled'.  The Tribunal held that here there had been a material change in circumstances because of the effect of the deemed provisions (which included a power to grant a variation); the changes to the R-Codes; and because of the erection of the screen wall itself.  The Tribunal refused to strike out the application to the Tribunal as an abuse of process.

The review therefore proceeded, with Baker asserting that because what was being proposed was development of a minor nature under the TPS, it was exempt from the need to obtain planning approval.  The exemption operated by way of local policy made by the City.  The Tribunal did not accept that that was the effect or intention of the policy.  In any case, such a policy could not operate to cut down the City's powers in relation to consideration of a variation, powers found elsewhere in the planning framework.  These had superior or overriding operation given their source in the regulation inserting the deemed provisions into the TPS.

However, in order for the review to proceed, the application for a variation had to either: (a) relate to the amendment or deletion of a condition of the original development; or (b) if approved, the variation could 'not substantially change' the original development.  The Tribunal considered the New South Wales planning cases on the question of 'substantial' and concluded that, in the circumstances, the removal of the glazing could not be said to be 'not substantial'.  Obscure glazing was imposed here after a merits assessment to make the development more acceptable.  That assessment pursued an important value in planning law, namely, minimising overlooking to the extent practicable.  However, the application was otherwise saved because the obligation to provide for obscure glazing, whilst not in the form of a condition, was, in substance, the same as a condition.  Alternatively, the obligation to build in accordance with the plans (which showed the obscure glazing) amounted to a condition of approval.

The Tribunal having jurisdiction in the matter, the next issue was the extent of assessment.  This turned upon whether the variation could be seen as a 'minor amendment' to the original approval.  That expression appeared in a different, but related, context in New South Wales planning law.  The cases there were applied by the Tribunal in reaching the conclusion that, having regard to the scale of the original development, the proposed variation did not change the cumulative or overall effect of it and, further, that a significant reassessment of the original development was not required.  Thus, the proposal was a 'minor amendment' and the Tribunal had a discretion as to the extent of assessment.  The Tribunal decided that the factors in that assessment, mainly identified by the City, were to be found in the relevant planning matters enumerated in the deemed provisions as 'matters to be considered by local government'.  These provisions included visual privacy principles and consideration of the R-Codes.  Visual privacy was a planning value of some importance and relevance, and the Tribunal considered some of the local cases illustrating the same.  Having regard to previous cases, the Tribunal took an expansive view of the matters that could be considered in its assessment.  This included consideration of the planning history of the site which extended to the circumstances of the original approval.

Baker contended, however, that the R-Codes contained a deemed­to­comply provision which was applicable here.  It related to the setbacks between the neighbours' boundary and the original development.  These setbacks were required to protect visual privacy.  Here, those setbacks had been met, and the language of the R-Codes implied that mandatory approval must then follow.  The R-Codes were given elevated status, by operation of law, such that they were incorporated into the TPS.  Nevertheless, the Tribunal held that the R-Codes still retained their status as policy, albeit State policy.  A discretion remained with the Tribunal to approve or refuse the variation, having regard to the relevant factors identified in the planning framework.

On the merits of the proposal, the Tribunal noted that the original development could not nowadays be approved (having regard to the amended R­Codes); that it was an unusual or atypical form when compared with development in the immediate locality; that there had been a previous plot ratio concession in circumstances of negotiation and agreement; and that there continued to be a line of sight from the apartments to some neighbouring 'sensitive areas' (even if marginally diminished by the screen wall).  On balance, the Tribunal concluded that refusal of the variation was the correct decision.  In effect, insufficient justification had been provided warranting approval of the proposed variation.  Accordingly, the application for review was dismissed.

Category:    A

Representation:

Counsel:

Applicant:     Mr P McQueen

Respondent:     Mr C Slarke

Solicitors:

Applicant:     Lavan Legal

Respondent:     McLeods

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

Bailey and City of South Perth [2006] WASAT 235

Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111

Cann and City of Fremantle [2012] WASAT 211

City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91

City of Belmont and Town of Victoria Park [2014] WASAT 46

City of Belmont, Branca and City of Stirling [2014] WASAT 77

Coshott v Woollahra Council [1996] NSWLEC 256

Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111

D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99

Dumbleton and Town of Bassendean [2005] WASAT 145

Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326

Erujin Pty Ltd v Western Australian Planning Commission [2011] WASAT 50; (2011) 75 SR (WA) 42

Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45

Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415

Green v Brisbane City Council [2004] QPEC 51

Groeneveld v Wollongong City Council [2009] NSWLEC 149

Joint Property Ownership Pty Ltd and City of Subiaco [2013] WASAT 76

Jolin Nominees Pty Ltd v Moreland City Council [2006] VCAT 467; (2006) 145 LGERA 357

Kakulas and City of Stirling [2013] WASAT 168

Lin v Council of the City of Sydney [2014] NSWLEC 1029

Malvestuto Pty Ltd v Shire of Yarra Ranges [2001] VCAT 1788

Marchmont Group Pty Ltd and Town of Vincent [2007] WASAT 177

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Moto Projects No. 2 Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298

Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

O'Callaghan and City of Unley [1997] SAERDC 444

Pigliardo v Town of Vincent [2007] WASAT 104; (2007) 52 SR (WA) 340

Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143

Puma Energy Australia and City of Cockburn [2016] WASAT 36

S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167

Saunders and City of Nedlands [2005] WASAT 190

Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124

Shirley v Waverley Council [2011] NSWLEC 1154

SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2015] WASAT 40

SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22

SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 266

Smith v City of Charles Sturt [2006] SAERDC 70

Tselepis v Port Phillip City Council [2009] VCAT 593

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

TABLE OF CONTENTS

Introduction

The subject land and its planning history

Subject land

Planning approvals history

The current matter: further modification sought

Screen wall

Expert and other evidence

The issues

Erujin principle: abuse of process?

Material change?

Criteria for merits review

Development of a 'minor nature' under TPS 1?

Substantial change?

Amending a condition?

Extent of waiver: 'minor amendment' to approval

Merits-based assessment

Visual privacy: what is the extent of overlooking?

Visual privacy: principles

Deemed-to-comply

Factors relevant to the exercise of planning discretion

Conclusions

Final orders

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. The applicant, Baker Investments Pty Ltd (applicant), is the owner of No 86 Hobart Street, Mount Hawthorn in the City of Vincent (subject land or site).  The applicant sought to vary a previous development approval issued by the City of Vincent (City or respondent).  The applicant sought a change to a requirement for obscure (that is, less visually permeable) window glazing to that of clear glazing in respect of some four upstairs apartments' windows in a new two-storey building comprised of 18 apartments (that is, 18 multiple dwellings) built on the subject land.

2. The original purpose of this obscure glazing was to help protect the visual privacy of certain northern neighbours.  This reduction in the effects of overlooking was to be achieved by the affixing of certain durable material (namely a plastic film, designed for that purpose) to the relevant windows.

3. The City has resisted the alteration to the development approval, even alleging that the application was an abuse of process, given a previous settlement of the matter in the State Administrative Tribunal (Tribunal).  Two affected northern neighbours, who had previously reached 'agreements' with the applicant, were also opposed to the proposed alteration.

4. It would emerge in these proceedings that the motivation for the variation was, in part, the alleged impact of a so-called 'screen wall', erected after the development was built (and with the permission of the City) and constructed between the subject land and the two affected neighbours.  It was suggested that this screen wall adversely affected the economics of the development on the subject land by making two of the ground floor apartments more difficult to sell by reason of 'reduced amenity'.

5. It was also suggested that the screen wall reduced the overlooking impact and that the protection of visual privacy has been sufficiently protected by compliance by the applicant with the Residential Design Codes (R­Codes).  This is said to have been achieved by sufficient setbacks between the subject land and the northern neighbours.  The respondent conceded that the screen wall would have a 'marginal' impact on improving visual privacy.

6. From the relatively simple premise of a change in window glazing on only a few windows has emerged a lengthy, detailed, and legally complex planning case, argued over some four days in the Tribunal.

7. In summary, the Tribunal has concluded as follows.

   •The applicant has not sought to reopen or re-litigate a matter already determined in the Tribunal.  That is, there has not been any abuse of process by the applicant, as had been alleged by the respondent.  Therefore, the Tribunal has jurisdiction to undertake the review.

   •The proposed development was not exempt, as a 'minor nature' development, from the need to obtain planning approval under the City of Vincent Town Planning Scheme No 1, read with the City's 'Minor nature development' policy.

   •Although the current application was not authorised under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Local Planning Regulations), Sch 2, as it would 'substantially' change the original approval for development, the application was saved because it could be classified as an 'amendment or deletion' of a condition of that development (that is, the obligation to affix obscure glazing).

   •As the proposed development was nevertheless a 'minor amendment', the Tribunal had discretion to consider the extent to which under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 the proposal should be assessed or considered.

   •The fact that under the R-Codes (which had been given, apparently, elevated status), the proposed development met a deemed-to-comply standard for visual privacy did not mandate approval of the proposed development by the Tribunal.  The R-Codes remained policy.  The Tribunal retained a discretion to approve or not approve the proposed variation.

   •The relevant factors for assessment or consideration of the proposed development on its merits were wide­ranging (and included consideration of the previous 'agreement' reached between the parties).

   •The consideration or application of those various factors led, on balance, to a decision to refuse the variation sought.

8. Accordingly, the obligation to affix the obscure glazing should remain.  Therefore the Tribunal has, for the extensive reasons that now follow, dismissed the review.

The subject land and its planning history

1. Before turning to the issues involved it will be necessary to set out some of the detailed background to the development, and the relevant history of dealings with the site, going back some years.

1. The following description and history of the subject land is mainly common ground and is drawn from the respondent's statement of issues, facts, and contentions, incorporating, where necessary, the additional comments of the applicant.  Where additional matters of common ground have emerged during the hearing, then these matters have also been incorporated into this chronology.

Subject land

1. The subject land:

   a)is zoned 'Residential' under the City of Vincent Town Planning Scheme No 1 (TPS 1);

   b)is subject to a residential density coding of R30;

   c)has an area of 2,031m² with a 50 metres frontage to Hobart Street, and a 42 metres frontage to Shakespeare Street;

   d)abuts properties to the north known as No 44 Shakespeare Street and No 19 Dunedin Street, and abuts three other properties to the east at numbers 13, 15 and 17 Dunedin Street (all such abutting properties are subject to a lower residential density coding of R20); and

   e)these neighbouring properties to the north are the 'affected neighbours' already referred to above.[1]

Planning approvals history

[1] See above, under 'Introduction'.

1. An application submitted by the applicant to develop 18 two-storey multiple dwellings comprised of 14 two-bedroom and four single­bedroom dwellings on the subject land was deemed refused by the City back in 2013.  The applicant then applied to the Tribunal for a review of that refusal in proceedings DR 427/2013.

2. This followed an earlier successful conditional approval given by the City in October 2012 for a development on the site comprising 11 two­bedroom multiple dwellings and two single-bedroom multiple dwellings.

3. Pursuant to an invitation to the City to reconsider its deemed refusal decision, issued in these 2013 proceedings under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), on 17 December 2013 the respondent refused to approve the multiple dwelling development in the form then proposed. (It should be noted that the applicant disputes whether such a refusal arose out of a s 31 invitation for reconsideration, but nothing of substance turns upon this disagreement.)

4. According to the respondent, 'the parties and affected neighbours then commenced negotiations' which led to the applicant preparing an amended development application for 18 multiple dwellings on the subject land comprised of 15 two­bedroom and three single­bedroom dwellings.

5. On 28 January 2014, in the same proceedings (DR 427/2013), the Tribunal issued certain orders including the following:

   In view of a modified proposal to be submitted [by the applicant] on or before 31 January 2014, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) the [r]espondent is invited to reconsider its decision at its meeting on 25 February 2014.

6. At the respondent's meeting held on 25 February 2014, the City resolved to grant development approval to the amended proposal subject to a number of conditions (February 2014 approval).  The parties then undertook further negotiations concerning the conditions of approval, and reached agreement on them.  Reflecting the final agreement of the parties, on 12 March 2014, the Tribunal, by consent, ordered as follows:

   The planning approval authorised by the Council at its meeting on 25 February 2014 is modified as follows: (i) Condition 1.6 [dealing with underground power arrangements] is deleted; (ii) Condition 2.2 [dealing with clothes drying arrangements] is deleted.

7. By further order of the Tribunal, leave was then granted, pursuant to s 46(1) of the SAT Act, for the applicant 'to withdraw the proceeding' and the proceeding was consequently withdrawn.

8. On 20 June 2014, the applicant applied to the respondent to 'amend aspects of [this] SAT approval'. The variations were described in these proceedings as 'minor'. The respondent approved this application on 20 August 2014 (August 2014 approval). How this was achieved in light of the restrictions on, if not the impossibility of, effecting such amendments prior to the introduction of cl 77 ('Amending or cancelling development approval') found in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (discussed at length below[2]), was not explained.  Nevertheless, this issue need not detain us, as no party has sought to agitate the issue and it is immaterial to the much wider issues that have to be decided in this review.

   [2] See below under, 'Criteria for merits review' and 'Factors relevant to the exercise of planning discretion'.

9. On 6 November 2014, the respondent issued a Building Permit for the development.  The plans approved in the Building Permit include, in effect, modifications to aspects of the August 2014 approval.

10. All of the approvals (that is to say, the February 2014 approval by the City, the SAT approval of 12 March 2014, the respondent's August 2014 approval, and the City's related Building Permit of November 2014) indicate:

    a)the north-facing bedroom windows for Units 2, 12, 13 and 14 were to have fixed obscure glass below 1800 millimetres in height; and

    b)the north facing ensuite windows for Units 2, 12, 13 and 14 were to have 100% fixed obscure glazing.

The current matter: further modification sought

1. By a further application dated 5 August 2015, the applicant applied to the respondent for approval of a development described by the applicant as a 'Minor amendment to DA [that is, 'development approval'] approval (sic)'.  The substance of the application was to amend the previously approved plans by changing the obscure glazing on the upper floor northern windows (that is, bedrooms 1 and 2 in Units 2, 12, 13 and 14[3]) to clear glazing (glazing application).

   [3] The applicant no longer seeks to remove the obscure glazing from bedroom 2 ('the 'east most window') of Unit 14.  Unit 2 is not the subject of this review.

2. The applicant lodged an application for review in this Tribunal on 26 October 2015, on the basis that the glazing application had been deemed refused.  That review is, of course, the current proceedings.

3. On 5 November 2015, the respondent purported to issue a 'Notice of determination on application for development approval' advising that the glazing application had been formally refused, for the following reasons:

   Removal of the screening from the windows on the upper storey facing the northern boundary is contrary to:

   1.The terms agreed in relation to planning approvals No.5.2013.393.1[4] and No.5.2014.352.1[5] as denoted on the approved plans, in each instance; and

   2.The consent order issued by the State Administrative Tribunal[6] which gives effect to the approval No.5.2013.393.1.[7]

Screen wall

[4] Presumably, an administrative reference to the February 2014 initial approval by the City.

[5] Presumably, an administrative reference to the August 2014 approval by the City.

[6] By Tribunal order, dated 12 March 2014, referred to above in these reasons.

[7] That is, the February 2014 initial approval of the City.

1. On 28 July 2015, the respondent approved a screen wall on the neighbouring land (that is, within No 44 Shakespeare Street and No 19 Dunedin Street), and adjacent to the common boundary with the subject land.  The screen wall has a total length of approximately 33.4 metres.

2. The height of the screen wall varies over its length.  As constructed, it is between approximately 250 millimetres and 850 millimetres higher than the pre­existing dividing fence between the land and its northern neighbours.  The applicant adds that the screen wall is 'approximately 3.3 metres high when measured from the ground level' of the subject land (and perhaps as high as 3.45 metres at one point).

3. The applicant relies upon the fact of the approval and the construction of the screen wall as reducing the amount of sunlight available to the ground floor Units 4 and 5 and reducing the extent of the overlooking of the northern neighbours.  These matters are said by the applicant to be a relevant change in circumstances that justify the Tribunal reopening and revisiting the previous planning approvals.

4. The respondent concedes that the screen wall 'does reduce the potential extent of overlooking from the upper floor northern windows to a degree' (see further below[8]).

Expert and other evidence

[8] See further below under, 'Visual privacy: what is the extent of overlooking?'.

1. The parties called their expert town planners, Ms Stephanie Radosevich for the applicant and Ms Gabriela Poezyn for the respondent.  Mr Domenico Minniti, from Domination Homes, the registered builder of the development, also gave evidence for the applicant.[9]  Various photographs were received from all of the parties.

   [9] Mr Minniti has been heavily involved in the development (as agent), including negotiating its progress with the City and the neighbours.

2. Evidence was also received from the representatives of the owners of the neighbouring properties, Mr Tony Reed (from No 44 Shakespeare Street)[10] and Mr Bruce Webber (from No 19 Dunedin Street).[11]

   [10] The applicant submitted that the images produced by Mr Reed, and received by the Tribunal, should 'be understood in the context that Mr Reed admitted in cross-examination, that he took the photographs from [an] elevated position' and that Mr Reed 'could not confirm precisely from where the image was taken'.

   [11] The applicant also submitted that Mr Webber's suggestion in his evidence 'that there were views into [his] outdoor living area and one of the bedrooms on his property' from Unit 13 was not supported by any other evidence and was also said to be 'inconsistent with the objective photographic evidence' received by the Tribunal, as well as the view conducted during the hearing.

3. Much of the evidence traversed the planning history of the site, the negotiations between the parties (including various representations made to Council) and, in effect, the parties' respective expectations and understandings of what had transpired over the years.  Attempts were also made by all of the witnesses to assess the impact of overlooking with and without the obscure glazing and the screen wall.

4. The Tribunal was materially assisted by an extensive site visit in the presence of the parties and the other witnesses.  That view entailed quite detailed inspections of the upstairs rooms themselves (currently fitted with the obscure glazing); comparative rooms in the apartment complex; the screen wall (from all sides), and the extent of the overlooking of the neighbouring properties, particularly as regards the pool/outdoor area at No 44 Shakespeare Street.

5. We will return to this evidence as may be necessary, below.

The issues

1. Logically, the issues present themselves as follows:

   1)Is the application for review an attempt by the applicant, as alleged by the respondent, to, in effect, re-litigate a matter already determined in the Tribunal?

   2)If not, should the Tribunal uphold the review, as the applicant submits, as the proposed development is exempt altogether from the need to obtain planning approval under TPS 1?

   3)If not, and the proposed development needs planning approval, can it be classified under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 as amending or cancelling development approval' in that it falls within one of the following two categories: (a) a development that would 'not substantially change' the originally approved development; or (b) the 'amendment or deletion' of a condition of that development (notwithstanding the obligation sought to be varied is not expressed formally as a condition)?

   4)If so, in either case, is the proposed development a 'minor amendment' giving the Tribunal a discretion as to the extent to which under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 the proposal should be assessed or considered?

   5)In any case, does the fact that under the R-Codes the proposed development meets a deemed-to-comply standard for visual privacy mandate approval of the development by the Tribunal?

   6)If not, what are the relevant factors for assessment or consideration of the proposed development?

   7)Does the consideration or application of those factors lead to an approval or a refusal for the variation sought?

Erujin principle: abuse of process?

1. We turn to consider the respondent's first contention: that the Tribunal may not consider the review because the matter was settled between the parties in previous litigation, namely proceedings DR 427/2013 (see above[12]).

   [12] See above under, 'Planning approvals history'.

2. Overall, the applicant denies that the 'mere existence' of obscure glazing as indicated on the approved plans could ever be seen as a 'condition' of approval; nor was it ever the subject of any of the approvals by the Tribunal or the respondent; nor had the issue ever been relevantly 'litigated'; nor indeed were the 'historical negotiations' between the parties relevant to any current task of the Tribunal.

3. In Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 (Erujin) Allanson J, on an appeal from this Tribunal, said (at [54], internal citations omitted):

   … an attempt to re-litigate a matter that has been disposed of by earlier proceedings may be an abuse of process … So long as the issue of law or fact which has been determined in the earlier judgment can be identified, the court [and the Tribunal] and the parties may be protected against an abuse of process by way of attempted re-litigation of the issue already judicially determined.

4. The Tribunal's error of law identified in Erujin related, it appears, to the basis of certain conditions imposed by the Tribunal, by consent, upon an earlier subdivision application. His Honour said, at [65]:

   [B]ecause the consent orders do not determine the basis for the imposition of the conditions, they cannot decide as a matter of substance whether those conditions should be imposed on a subsequent application in relation to the same land, or to a subdivision where there has been 'no relevantly significant change in circumstances'.

5. In the subsequent proceedings in this Tribunal (Erujin Pty Ltd v Western Australian Planning Commission [2011] WASAT 50; (2011) 75 SR (WA) 42) the Tribunal, constituted by Senior Member Parry, as he then was, said (at [40] ­ [41], emphasis added):

   The administration of justice encompasses both procedural and substantive aspects.  Allanson J determined that, while a consent order can found an abuse of process, it was an error of law to extend what was actually decided by the consent orders in the earlier proceeding to include the basis or reasons for the imposition of the conditions.  However, irrespective of the basis or reasons for making the consent orders, the Tribunal made a final decision in the earlier proceeding in terms of the consent orders and the circumstances have not changed in any material way.

   Having reconsidered the matter, the Tribunal has determined that important procedural aspects of the administration of justice in terms of finality of litigation and efficiency and economy in the conduct of litigation – the latter aspect being of heightened significance in the work of the Tribunal – each warrant a finding that the current proceedings involve an abuse of the Tribunal's process by re-litigation of a decided matter.  As the Tribunal has made a final decision in terms of the consent orders and the circumstances have not changed in any material way, it would bring the administration of administrative justice into disrepute to allow the current proceedings to continue …

6. Thus, the respondent submitted here that as the approved plans had indicated obscure glazing and those plans had formed the basis of an approval reflected in final consent orders in this Tribunal, it would be an abuse of process for the matter to be in effect 're-litigated' in the current review.

7. Assuming, for present purposes, that the elements of the principle stated in Erujin otherwise have application to the circumstances here, a finding of a relevant material change in circumstances would mean that no abuse of process has been demonstrated in the bringing of the review.

8. The term 'material change in circumstances' has a broadly analogous statutory basis in Victorian planning law (see Planning and Environment Act 1987 (Vic), s 87(1)(d)) albeit in a substantive and not a procedural sense, dealing as it does with the cancellation or amendment of planning approvals by the Victorian Civil and Administrative Tribunal (Victorian Tribunal).

9. Nevertheless, a consideration of relevant Victorian planning cases might identify circumstances of relevant interest.  It is clear that the Victorian Tribunal does not, nowadays, take a narrow view of what circumstances may meet the requirement of a material change: Jolin Nominees Pty Ltd v Moreland City Council [2006] VCAT 467; (2006) 145 LGERA 357 at [18]. Further, the Tribunal noted in SITA Australia Pty Ltd v Greater Dandenong City Council [2007] VCAT 156; (2007) 150 LGERA 266, at [69], that the word 'circumstances' appearing in the provision 'is a broad term which does not just relate to facts but may encompass many factors'.

10. In Malvestuto Pty Ltd v Shire of Yarra Ranges [2001] VCAT 1788 (Malvestuto) the Tribunal said, (at [5] ­ [7], internal citations omitted):

    [A] change of intention on the part of the applicant is not a material change of circumstances … [We] are mindful that for a change in circumstance to be material, that change must be at least relevant in that there must be some connection between the change relied on and the amendment of the permit [planning approval] sought.  A change in the character of the area after the issue of a permit has been held to be a material change of circumstance … Is a change in planning controls which occurs after a permit has been issued a material change in circumstance?  Where the change in planning controls results in less demanding or less stringent requirements applying to the land compared to the requirements which were in place when the [approval] was granted and issued, it has been held that such change does constitute a material change in circumstances … But in the case before us the change in planning controls has resulted in more stringent or more demanding controls applying to the land in that the minimum allotment size has increased … and the effect of that change is that the [approval] now sought to be amended could not be granted under the current controls.  The amendments sought to this [approval] would, if allowed, not alter the fact that the [approval] could not be granted under the current controls.  In our view the gazettal of the [relevant] Planning Scheme has not been a material change of circumstances because of the lack of connection or nexus between the change in controls and the amendments sought.  In other words, we are of the view that the change of circumstance relied on was not material because it was not relevant to the amendment(s) sought by the applicant …

11. Thus, if planning law permits a variation to or modification of a previous planning approval (see now, for this State, Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 77 ('Amending or cancelling development approval')[13]) it may also provide the standard for that fresh approval (as occurs in Victoria).  Of course, no question of an abuse of process arises if a proceeding is properly confined to the exercise of that ameliorating provision.

    [13] Clause 77 of Sch 2 is the source of the Tribunal's jurisdiction in this review.

12. However, where the statutory standard is expressed in the same general terms as procedural law relating to an abuse of process ('material change'), and is in the same field of endeavour (that is, planning law) and, conceptually, is aimed at the same target, namely the provision of a suitable explanation before a settled state of affairs may be altered or revisited, then, in our view, such cases might well be helpful in illustrating a material change in circumstances in a planning case where an abuse of process is alleged.

Material change?

1. Here, the applicant submits 'that there has been a material change in circumstances through the construction of the 3.3 metre high boundary wall such that the obscuring glazing is no longer required'.  The applicant further contends that the screen wall 'increases the visual privacy from the upper floor northern units'.  Importantly, in reply, the respondent submitted in its statement of Issues, Facts, and Contentions that (emphasis added):

   The screen wall has been built for the purpose of securing acoustic privacy for the northern neighbours and creating a visual barrier to the ground floor units of the multiple dwelling development on the [subject land].  The screen wall was not built for the purpose of increasing visual privacy from the upper floor northern units on the [subject land], as visual privacy was already protected by the obscure glazing.  The screen wall does reduce the potential extent of overlooking from the upper floor northern windows to a degree, but the reduction is not capable of being described as significant, either quantitatively or qualitatively.

2. As will be recalled, on 26 October 2015, the applicant lodged with the Tribunal its application for a review of its 5 August 2015 application to remove the obscure glazing from the window, based upon a deemed refusal.  As will also be recalled, on 5 November 2015, the respondent purported to refuse the application.

3. Importantly, in October 2015 two significant events occurred which affected the planning framework applicable to the assessment of the August 2015 application.

4. First, on 19 October 2015, wide-sweeping changes occurred by reason of the commencement of the Local Planning Regulations. The Local Planning Regulations included Sch 2, which created comprehensive deemed provisions 'overriding', to the extent of any inconsistency, significant parts of TPS 1. One of the reforms effected by the deemed provisions was the introduction of a provision (see, cl 77(1) of Sch 2) authorising a local government to amend or delete any condition or to 'to amend an aspect of the development approved which, if amended, would not substantially change the development approved'. Prior to that point, there was, as the respondent submitted, 'no power under [TPS 1] for the [r]espondent to approve an amendment to a development approval previously granted'. This submission should be accepted. See, City of Belmont and Town of Victoria Park [2014] WASAT 46 (City of Belmont).  In that case, as was noted in a case which applied City of Belmont, Branca and City of Stirling [2014] WASAT 77 (at [23]),

   … a distinction was drawn between a lawful application seeking fresh planning approval augmenting or extending development for which approval has already been granted and an unlawful application 'varying' what has been previously approved.  This latter restriction applies because a consent to the development of land 'is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title'.

   See also, Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 (Coventry Square WA).

5. The respondent properly conceded that it would be open for the Tribunal, if it advanced to hear the merits of the case, to so proceed upon the basis that the applicant could 'seek leave [in the Tribunal] to amend the application so as to have it determined pursuant to [cl] 77(1) [of Sch 2] of the deemed provisions'. We have proceeded upon that basis.

6. Secondly, the R-Codes were amended, with effect on 23 October 2015.  These changes 'concern[ed] multiple dwellings' and effected other 'incidental changes'.

7. As will appear in more detail below, amongst other matters, both the deemed provisions in Sch 2 and the R-Codes (including as amended in 2015) have been relied upon by the parties, or have otherwise been agitated in the review.

8. In our view, where a screen wall has been erected that has or may have some effect on privacy issues in a development (analogous perhaps to Malvestuto's reference to a 'change in the character of the area'), and where there has also been a significant and relevant change in the planning framework, then it could not be said to be an abuse of process, where the Tribunal has jurisdiction to undertake a review, for the applicant to seek to agitate those issues in good faith in a review in this Tribunal concerning that development.

9. We therefore overrule the respondent's attempt to strike out the proceeding as an abuse of process.

Criteria for merits review

1. The respondent submits that if the current review invokes cl 77(1) of Sch 2, then because of the consequential operation of the Local Planning Regulations the proposal should be assessed by reference to at least the full panoply of planning matters, as may be applicable, referred to in cl 67 of Sch 2. See, cl 77(2)(a) of Sch 2 requiring such applications for amendment 'to be made in accordance with the requirements in Pt 8 [of Sch 2 dealing with applications for development approval] and dealt with under [Pt 9 of Sch 2, dealing with the procedure for dealing with applications for development approval] as if it were an application for development approval'. Part 9 of Sch 2 includes cl 67's planning criteria.

2. Such issues as are specified in cl 67 of Sch 2 cover, as aspects of orderly and proper planning, the usual matters that planners (and their schemes) might direct attention to ranging from consideration of relevant planning policies (including the R-Codes) through to the site and its history, and heritage, environmental and amenity considerations. Here, the respondent specially notices 'the amenity of the locality (in particular [amenity considerations connected with] the northern neighbours) and the history of the site on which the development is proposed'.[14]  The application of the expression 'the history of the site' will be considered below in the context of the application of D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99, where the Tribunal took an expansive view of the meaning of that expression.

   [14] Clause 67(n) and cl 67(w) of Sch 2.

3. We will return to these matters below.[15]  First, however, we must deal with the applicant's argument that planning approval might not be needed at all.

Development of a 'minor nature' under TPS 1?

[15] See below under, 'Conclusions'.

1. The applicant contended that the amendment sought should be classified as 'development of a minor nature' in respect of which planning approval is simply not required at all.  Clause 33(d) of TPS 1 exempts:

   (d)development of a minor nature listed in a planning policy as exempt from the requirement to obtain planning approval[.]

2. The City's relevant Local Planning Policy is LPP 7.5.1 ('Minor nature development').  That Policy, made in 2001 and amended in 2005 and 2013, is expressly referenced to cl 33 of TPS 1 (which does not otherwise define what such 'minor' development is) and provides as follows:

   1.Development of a minor nature does not require planning approval and is generally characterised as:

   1.1small in scale and composition and which will not unduly adversely affect the locality by way of emissions of any kind nor generate excessive amounts of traffic;

   1.2of a temporary nature occurring on one-off occasions (although may occur on a number of days) but not of any permanent nature or reoccurrence;

   1.3uses of a limited nature considered to support or be ancillary to the overall operations of the primary approved use;

   1.4uses which will not adversely affect the amenity, streetscape or day-to-day activities of the locality or any other use which, in the opinion of the City of Vincent, constitutes a minor use; and

   1.5not located in a [heritage] place …

3. Clause 2 of LPP 7.5.1 lists, non-exhaustively, examples of such minor development, including certain fences and walls, limited excavation activities, pergolas and similar structures and other small-scale activities and structures (such as swimming pools and signs).  However, the applicant draws attention to the final clause, cl 2.20, of LPP 7.5.1 which appears to go further and provides as follows:

   2.Development of a minor nature includes but is not limited to such development/activities as:

   …

   2.20Works that fully comply with the acceptable development provisions of the [R-Codes] and the City of Vincent Policies, where applicable.

4. The applicant contends that this clause of TPS 1 should be read with cl 61(1)(i) of Sch 2, which provides as follows:

   61.Development for which development approval not required

   (1)Development approval of the local government is not required for the following works ­

   …

   (i)the carrying out of any other works specified in a local planning policy or local development plan that applies to the development as works that do not require development approval[.]

5. The applicant submitted that:

   The construction contended for by the [a]pplicant, gives force and effect to [these clauses] and is consistent with the minor nature of removing obscure glazing from the relevant bedroom windows, where the windows are setback sufficiently to comply with the deemed provisions of the R­Codes.[16]

   [16] See, cl 2.5.4 of the R-Codes, discussed below under 'Deemed-to-comply'.

6. Putting to one side the effect, if any, of cl 2.20 of LPS 7.5.1, there is nothing in the text of LPP 7.5.1 that resembles or contemplates the circumstances of this case.  This is hardly surprising because at the time the policy was made or amended the removal of a condition or an analogous application amounting to a variation or amendment of planning approval was not possible (see the references to City of Belmont, above[17]).

   [17] See above under, 'Material change?'.

7. Similarly, it is highly unlikely that cl 2.20 was drafted, assuming it were possible to have that effect, with the situation of a variation or amendment in mind.  To reach a different conclusion would perhaps be 'an example of extraordinary prescience had the drafter … foreseen a proposal of this kind': Green v Brisbane City Council [2004] QPEC 51 at [39].

8. LPP 7.5.1 does not, and could not at the time it was drafted, have application to the applicant's circumstances. Nothing in cl 61(1)(i) of Sch 2 alters that situation.

9. In any case, where Sch 2 of the Local Planning Regulations provides a deemed mechanism for and regulates the issue of variations or amendments to planning approvals (see cl 77 of Sch 2, discussed below), to ascribe to LPP 7.5.1 such an effect as the applicant contends for would be to arguably elevate the policy above its source of authority.

10. In Kakulas and City of Stirling [2013] WASAT 168 (Kakulas), the Tribunal was dealing with policies that apparently 'controlled' the scope of a clause in a town planning scheme, in that they 'mandated a particular outcome that both the respondent and, on review, this Tribunal must give effect to'. The Tribunal held (at [21] ­ [23], internal citations omitted):

    [It is an] axiomatic proposition that a written policy cannot by itself, and no matter how clear its terms, fetter a statutory discretion or, for that matter, alter, detract from or impair a legislative instrument.  This is because policy must conform to any law.  Secondly, and related to this point, there is the well known public law maxim expressed as 'the spring cannot rise higher than its source' … Thus, the [relevant policy] is the 'spring', as a subsidiary instrument, [and] receives its operational validity by being issued under and being recognised by [the town planning scheme], which is the superior 'source'.  To elevate this policy, in effect to controlling status, would require, I think, assuming that it were possible, legislative intention expressed in clear terms to support the legislative instrument itself being changed by what is here, in effect, fairly ephemeral 'quasi-legislation' (that is, a written policy).

11. Thus, in Kakulas the Tribunal concluded (at [34], emphasis added) that:

    [T]he only sound way in which the clause can be read in the light of [these principles] is to acknowledge that the requirements … ultimately flow from the application of a written policy.  And, being policy, it is always open to the decision-maker to depart from its application for any satisfactory planning case made out, having regard to the merits of the particular matter.

12. Further, to give LPP 7.5.1 the effect contended for by the applicant would, in our view, lead to an inconsistency with cl 77 of the deemed provisions, as that clause provides for 'a comprehensive and exhaustive set of considerations' when amendments and variations to planning approvals are to be considered (cf Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma Energy) at [45]). Such an inconsistency is resolved in favour of cl 77 by operation of law: see the references in Puma Energy, at [30].

13. Given this conclusion, on this occasion it is unnecessary, with respect, to address Mr Slarke's alternative argument that in any event '[t]he removal of a plastic film (obscure glazing) does not amount to "works" in [any] relevant sense' within the meaning of LPP 7.5.1.

14. Notwithstanding that the applicant's application is not a 'minor development' in terms of TPS 1, the applicant nevertheless claimed, in the alternative, that in terms of cl 77(3) of the deemed provisions (Local Planning Regulations, Sch 2), 'the application relates to a minor amendment to the development approval'. We will return to this topic in a moment.

Substantial change?

1. We have already mentioned that the deemed provisions include the introduction of a provision (see, cl 77(1) of Sch 2) authorising a local government to amend or delete any condition or 'to amend an aspect of the development approved which, if amended, would not substantially change the development approved' (emphasis added). Clause 77(3), so far as is relevant, goes on to provide as follows:

   … the local government may waive or vary a requirement in Part 8 [of Sch 2 dealing with applications for development approval] or this Part in respect of an application if the local government [or, on review, this Tribunal] is satisfied that the application relates to a minor amendment to the development approval.

2. In New South Wales, s 96(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) deals with the 'Modification of consents'. That provision is treated as a jurisdictional, threshold question. So far as is relevant, the section provides as follows (emphasis added):

   (2)… A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

   (a)it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) …

3. This statutory formulation is, in our view, sufficiently in pari materia with cl 77(1)(c) of Sch 2 such that cases from that jurisdiction may usefully elucidate the meaning of the expression 'not substantially change'. Thus, in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J said:

   In my opinion 'substantially' … means essentially or materially or having the same essence … In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations.

4. This formulation was expressly approved by the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 per Mason P. In Moto Projects No. 2 Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, Bignold J described the Court's task as follows, at [56]:

   The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum.  Rather, the comparison involves an appreciation, qualitative, as well as quantitative of the developments being compared in their proper context (including the circumstances in which the development consent was granted).

5. In planning cases, questions of whether alterations 'substantially change' an 'aspect' of the original development will be highly fact specific, perhaps impressionistic to some degree but always require the exercise of 'planning judgment' in a relevantly wide, rather than narrow, context, as indicated above by the New South Wales cases.

6. Viewed only in a quantitative sense, the proposed amendment here would, if approved, 'not substantially change the [original] development approved'.  The 'essence' of the development as 18 multiple dwellings (with a particular physical presentation, design, built form and building footprint) would remain unaffected.  All that appears to be affected would be four of many windows on one boundary of the development.  However, viewed qualitatively, the issue can be seen quite differently.

7. The applicant properly conceded that 'obscure glazing may have formed part of discussions between the parties'.  We, however, are in no doubt that, as the respondent asserted (and the neighbours testified), the obscure glazing was the direct result of a negotiated attempt by all parties to address overlooking concerns on the northern property boundary.  Further, it seems very likely that this outcome was at least, in part, a 'trade-off' for an increase in the plot ratio, a position that favoured the developer by permitting higher density development.[18]

   [18] See Mr Minniti's email (in evidence) dated 24 February 2014.  Mr Minniti in effect attempted to follow Stein's advice in dealing with amenity issues: 'Any experienced developer, knowing there is opposition to his or her proposal, will … obtain letters supporting his proposal': Stein, at page 206.

8. This whole outcome was not an incidental part of the development approval process.  Rather the result accommodates the concerns expressed in various provisions in the R-Codes[19] which emphasise design and related matters with a view to reasonably protecting privacy and minimising overlooking.  See, for example, R-Codes, 2015 Part 3: details of screening to accompany application; 5.1.3: lot boundary setbacks; 5.4.1: visual privacy design principles (and deemed-to-comply C1.2); and 'Figure series 10' (the 'cone of vision').  Indeed, in planning cases such concerns are universal and, as it has been said elsewhere, '[t]here is a substantial body of [planning] case law which addresses the issue of overlooking': Smith v City of Charles Sturt [2006] SAERDC 70 at [27].[20] That was a case that dealt with a South Australian design principle which required that: 'Direct overlooking from upper level habitable room windows and external balconies, terraces and decks to habitable room windows and the primary area of useable private open spaces of other dwellings should be minimised …': [11].

   [19] The R-Codes are directed at 'provid[ing] a comprehensive basis for the control of residential development throughout Western Australia': WAPC Planning Bulletin 109/2013 at page 1.

   [20] Cases illustrating the Western Australian approach are discussed below under, 'Visual privacy principles'.

9. We will return to these matters below.[21]

   [21] See below under, 'Visual privacy: principles'.

10. In Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143 (Pozzobon) Commissioner Dixon was dealing with an application to modify a planning consent under s 96(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW). The Commissioner accepted evidence that the original development's 'height and setback … [had] needed to be "shrunk" in order to protect impacts on [the] views and privacy of the adjoining properties'. The context of the original approval included (at [39] ­ [41]):

    [An] assessment report [that] consider[ed] at length the development's impacts on the views and privacy of adjoining properties, most of whose owners object to this application … In response to every objectors' concern about views [the planning officer] recommend[ed] in his assessment report: 'Conditions of consent to lower each dwelling further … and to increase the setbacks have been included in the Recommendation'[,] only then [did] he conclude[:] 'The view sharing that will result from the amended design as further conditioned is considered adequate' … The site­specific considerations incorporated into the consent by way of condition[s] 18 and 23 clearly attempt to share the views available from the properties adjoining the site … The amendments required by the conditions also attempt to reduce the bulk and scale of the development given its proximity and impacts on adjoining properties.

1. On an application to remove conditions 18 and 23, Commissioner Dixon, after considering the relevant authorities, concluded as follows (internal citations omitted, at [45] ­ [49], emphasis added):

   In the circumstances in which the development consent was granted I must assess whether the modifications proposed alter the approved development without radical transformation … While a modified development can create some changes in the external appearance of the approved development such changes should not create more than 'modifications' to the originally approved development … After a consideration of the consent and the circumstances in which the development consent was granted including the planning assessment report [see above] and [the planner's] oral evidence '...that the deletion of conditions 18 and 23 would not result in a development that is qualitatively substantially the same as the development for which consent was originally granted' … I am not satisfied as required by s 96(2)(a) that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

   I do not accept the [applicant's planner's] view that the conditions can be deleted without radical transformation of the originally approved development.  Based on the evidence before me the approved development encompasses the amendments required by conditions 18 and 23 of the consent.  They are part of the design and ultimately the consent.  The conditions cannot as the applicant submits be unnecessary and excessive in circumstances where they were imposed after a merit assessment to make the development acceptable on the site.  In this case they are not substantially the same and I have no power to make the compendious modifications sought …

2. For similar reasons, we are not satisfied that if the development approval here were to be amended it would not substantially change the development.  In Pozzobon, the relevant conditions 'attempt[ed] to reduce the bulk and scale of the development given its proximity and impacts on adjoining properties'.  Obscure glazing was also imposed here, like Pozzobon, 'after a merit[s] assessment to make the development acceptable on the site'. The imposition of obscure glazing supports an important value in planning law (minimising overlooking to the extent practicable) and was, if not critical, certainly central to the applicant's development approval here. Its removal would, in our view, effect substantial change to the development and is accordingly not authorised under cl 77(1)(c) of Sch 2.

Amending a condition?

1. Nevertheless, the review may proceed if the application for the removal of the imposition to provide obscure glazing can be alternatively characterised as 'amend[ing] or delet[ing] any condition to which the approval is subject': cl 77(1)(b) of Sch 2.[22]

   [22] To the extent that it might be suggested that the status of something as 'only' a condition is correct, then this would be apt to mislead, as in planning law '[i]t is the conditions that create the true shape of the development'.  See, Peter McNab and Matthew Goyder, 'The Nature and Validity of Conditions and the Grounds for Impugning Them', Australian Environmental Law Digest, June 2015, 3 ­ 10, at n 11 thereof citing L A Stein, Principles of Planning Law (2008) at 216 (Stein).  (A reference in passing to this note, found in other reasons of the Tribunal, was recently reproduced by Chaney J in City of Swan v Snowdale Holdings Pty Ltd [2016] WASC 260 at [31].) The point is perhaps demonstrated immediately above when 'substantial change' was the result in NSW caused by the removal of just two related planning conditions in Pozzobon.

2. In our view, those words appearing in cl 77(1)(b) of Sch 2, can be read as wide enough to pick up the obligation to impose obscure glazing even if the obligation is not expressed in the express form of a condition.

3. It is true that obscure glazing commonly appears as an express condition in both this jurisdiction (see, for example, Joint Property Ownership Pty Ltd and City of Subiaco [2013] WASAT 76 at [46]) and in other Australian planning jurisdictions (see, for example, O'Callaghan and City of Unley [1997] SAERDC 444; Tselepis v Port Phillip City Council [2009] VCAT 593 and Shirley v Waverley Council [2011] NSWLEC 1154). However, as has been noted: 'The Tribunal favours, generally speaking, substance over form if that course is permitted …': Coventry Square WA at [31]. In our view, in the circumstances that we are dealing with, removing the requirement for obscure glazing is analogous in substance to amending or deleting a condition of development.

4. In the alternative, we accept Mr Slarke's submission that a requirement to develop in accordance with approved plans (as was imposed upon the developer here) amounts to 'a condition of approval that the building be in accordance with those plans' even if the requirement to provide obscure glazing was not made more explicit in the terms of the instrument of approval: City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91, at [46] per Chaney J.

5. The Tribunal therefore has jurisdiction to proceed with the review under cl 77(1) of Sch 2.

Extent of waiver: 'minor amendment' to approval

1. The extent to which such an amendment is assessed or otherwise dealt with is dependent upon the terms of cl 77(3) of Sch 2, which is set out above.[23]

   [23] See above under 'Substantial change'.

2. Although the amendment is not, for the reasons set out above, a development of a 'minor nature' under TPS 1, and is otherwise relevantly 'substantial' in its effect (for other purposes), can the amendment nevertheless be classified as 'relat[ed] to a minor amendment to the [original] development approval', in terms of cl 77(3) of Sch 2? If so, the Tribunal has a discretion in that it 'may waive or vary a requirement' in either Part 8 of Sch 2 (dealing with applications for development approval) or Part 9 of Sch 2 (dealing with the procedure for dealing with applications for development approval).

3. In New South Wales, s 97B of the Environmental Planning and Assessment Act 1979 (NSW) deals with the leave of the Court for the filing of an amended development application.  Costs consequences, in favour of the Council, may follow depending upon whether a 'minor amendment' is involved.[24] 

   [24] The provision's legislative history and purpose are critiqued in: Mark Hamilton, 'Amendments to s 97B of the EP&A Act: Amelioration of a poor policy decision or rectification of bad drafting?' (2012) 17 Local Government Law Journal 127.

4. The term 'minor amendment' is not defined in the New South Wales Act.  In Coshott v Woollahra Council [1996] NSWLEC 256 Bannon J, dealing with proposed amendments to be made in respect of a single dwelling in the context of s 97B, said:

   It is a matter of degree whether changes are major or minor.  In a small project any change may be major.  In a large scale project such as a three or four storey Vaucluse mansion, the relative effect of change may be minimal.

5. In S J Connelly Pty Ltd v Ballina Shire Council[2010] NSWLEC 167 (S J Connelly) Biscoe J reviewed a long line of authorities in this area including Futurespace Pty Ltd v Ku-Ring-Gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45 (Futurespace) (Pepper J); Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415; Groeneveld v Wollongong City Council [2009] NSWLEC 149 (Preston CJ, noting 're-alignment of the road and the new methods of construction of the road' and the consequences 'for the retention or removal of the trees'); and Nanevski Developments Pty Ltd v Rockdale City Council [2009] NSWLEC 1423 ('cumulative effect of … changes in the number of car spaces, the number and nature of facilities and amenities provided for residents, the number of beds for residents, the number of staff and the facilities provided for the staff').

6. As his Honour noted in S J Connelly, at [7], in all of these cases the Court was not satisfied that the amendments were minor and accordingly ordered the applicant to pay the Council's costs pursuant to s 97B of the New South Wales Act.

7. In S J Connelly itself, Biscoe J found that despite the fact that the actual 'physical changes' proposed could be considered 'minor', changes of use 'of most of the residential strata lots in a hotel from "short term" to "permanent and short term" accommodation' meant that no minor amendment was involved.

8. On the other hand, in Lin v Council of the City of Sydney [2014] NSWLEC 1029, Commissioner Brown, applying Pepper J's analysis in Futurespace, held that the following changes amounted to 'minor development' (at [70]):

   •access to Unit 2 has been modified to provide internal site access between the unit and the communal letterboxes and waste area,

   •bicycle parking has been provided,

   •there is no reliance on the western pathway for access yet it is maintained as an alternative access,

   •the rear elevation has been amended to provide consistency between the floor plans and elevation,

   •the access stairs to the upper units have been amended to be at the rear of the eastern heritage item at 15 Briggs St,

   •the depth of the 1st floor balconies servicing Units 5 and 6 have been increased from 0.9 m to 1.5 m,

   •[U]nits 1 and 4 have been amended from a 2-bedroom dwelling to a 1 bed [and] study,

   •[U]nits 5, 6, 7 and 8 have been amended from 1-bedroom units to studios,

   •a dividing fence between the rear private open space areas has been provided, and

   •[U]nit 3 has been amended to be adaptable

9. Her Honour's Futurespace analysis was as follows (at [42], internal citations omitted):

   (a)first, the question of what is 'minor' is one of fact and degree;

   (b)second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development;

   (c)third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor;

   (d)fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor;

   (e)fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor;

   (f)sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;

   (g)seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor; and

   (h)eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative.

10. Commissioner Brown said, at [72] ­ [73] (emphasis added):

    If the amendments are considered in light of the principles in Futurespace, I am satisfied that they are minor.  The most significant of the changes involves the amendment to the access for [U]nit 2.  This amendment (and even if combined with the other amendments) does not change the cumulative or overall effect in the context and location of the proposed development (Principle (b)) or require a significant re-assessment of the development application (Principle (c)).

    For these reasons, an order for costs under s 97B is not justified.

11. There are parallels in this area with the question in this and other jurisdictions of whether leave to amend a development application should be permitted when an application is before the Tribunal.  Unlike the situation in this State, in New South Wales the situation is indirectly regulated by a statutory reference to costs.  In SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2015] WASAT 40 the leading authorities on the issue are considered and the Tribunal there granted leave to amend, holding that the 'substance or essence' of the original proposal was not so altered or varied by the proposed amendments so as to amount to a new proposal.

12. Notwithstanding the different statutory purpose, we are content to apply, with respect, Pepper J's helpful analysis of factors from Futurespace in determining whether we may be 'satisfied that the application relates to a minor amendment to the development approval' for the purpose of considering whether this Tribunal 'may waive or vary a requirement' in either Part 8 of Sch 2 (dealing with applications for development approval) or Part 9 of Sch 2 (dealing with the procedure for dealing with applications for development approval).

13. In our view, the effective amendment of a condition affecting the provision of obscure glazing to four windows, having regard to the scale of the development (18 multiple dwellings), 'does not change the cumulative or overall effect in the context and location of the proposed development'.  Nor does it 'require a significant re-assessment of the development application'.

14. The amendment can therefore be properly considered as a 'minor amendment'.

15. Accordingly, we turn to consider the extent of the waiver or variation, if any, of the requirements of Parts 8 and 9 of Sch 2.

16. In our view, the matter should proceed upon an assessment by the Tribunal of the planning merits based upon the factors mentioned already,[25] deriving from the matters enumerated in cl 67 of Sch 2 of the Local Planning Regulations, so far as may be relevant. Uppermost in these matters is, as has already been noticed, the application, directly or indirectly, of the privacy standards found primarily, but not exclusively, in the R-Codes. We will return to these matters towards the conclusion of our reasons.[26]

Merits-based assessment

[25] See above under, 'Criteria for merits review'.

[26] See below under, 'Factors relevant to the exercise of planning discretion'.

1. We therefore turn to consider, to the extent required and in the context of the relevant matters set out in cl 67 of Sch 2, the relationship between the original development, the proposal to remove the obscure glazing condition, and its potential impact, and the R-Codes, both so far as is relevant in the form that the R-Codes existed at the time of the original approval and after the R­Codes' amendment[27].

   [27] The R­Codes were amended with effect from 23 October 2015.

2. Before turning to these matters, we will attempt to record what was asserted, respectively, by both parties as to the facts regarding the extent of overlooking in the context of the screen wall.  We will then turn to the relevant planning principles germane to visual privacy in this jurisdiction.

Visual privacy: what is the extent of overlooking?

1. After all the evidence was in, Mr Slarke, counsel for the City summed up the impact of the screen wall as follows:

   (a)[there is] no material difference to the extent of overlooking from bedroom 1 of [U]nit 14 into 19 Dunedin Street, as the screen wall is almost wholly obscured by a ground floor structure in [U]nit 5 …;

   (b)adjacent to bedrooms 1 and 2 of Unit 13 and bedroom 2 of Unit 12, the screen wall is between 600 mm and 900 mm higher than the dividing fence.  Consequently the screen wall will prevent overlooking into the pool area of 44 Shakespeare Street to the extent of approximately an additional 1.18 [metres] to 2.9 [metres], depending on the angle of view.  There remains a line of sight between the windows and a person in the rear of 44 Shakespeare Street for distances up to approximately 1.9 [metres] and 3.7 [metres] from the screen wall, depending on where the viewers are located … These changes amount to a difference of about 1 to 3 paces in an outdoor entertaining [pool] area 13.7 [metres] in depth;

   (c)from bedroom 1 of Unit 12 the screen wall makes virtually no difference to the extent of overlooking into 44 Shakespeare Street …

2. Consequently, Mr Slarke maintained his opening position (see above[28]), saying in his final address:

   The extent of change due to the screen wall [on the evidence before the Tribunal] should be characterised as insignificant or, at worst, moderate.  It should not be characterised as being of substantial import.  The erection of the screen wall does not remove the reason for having obscure glazing in the upper floor north facing windows; namely the loss of amenity due to the potential for and perception of overlooking from multiple bedroom windows into 'sensitive' areas.  The erection of the screen wall is a change in degree only.

   [28] See above under, 'Screen wall'.

3. On the other hand, on the same evidence, Mr McQueen, counsel for the applicant, submitted that, as to Unit 12, the current view looking north from bedroom 1 was dominated by the roof of the out building on the Reed property.  The view north from bedroom 2 of Unit 12, whilst looking into the rear garden of the Reed property (44 Shakespeare Street), did not, it was said, include a view of the pool and was limited to a view of the pool fencing.  Mr McQueen further submitted that the view of the Reed property during the hearing, confirmed by reference to the diagrams of Ms Poezyn (the expert planner called by the respondent) was that 'the head of a 1.6 metre person would be visible between 4 and 5 metres inside the property boundary'[29].  It was submitted (and said to be critical) that there was no view into the habitable rooms of the Reed property.  Finally, there was no material view into the Webber property from Unit 12, only the tree of the Webber property was said to be 'visible to any great extent' from bedroom 2 of Unit 12 in particular.

   [29] As appears immediately above, the respondent estimates that a range of between 1.9 metres and 3.7 metres would be more accurate.

4. As to Unit 13, Mr McQueen submitted that, in terms of the view into the neighbouring properties from Unit 13, the evidence showed a 'distant view over [part of the] roof structure' of the subject land, then over the screen wall into the Reed property, and then an 'angled view' into the Webber property.  It was submitted by the applicant that the view conducted during the hearing and the drawings of Ms Poezyn, demonstrated that the view was 'of a person of 1.6 metres in height [standing] in the Reed property, between 4 and 5 metres into the property'[30].  Once again, there was, it was submitted, no view into habitable rooms at either the Reed or the Webber property.  Further, in terms of the view north west from bedroom 2 of Unit 13, the out building and roof of the out building dominated, as well as the rooves of other properties, including the orange tiled roof of the property behind the Reed property.

   [30] As appears immediately above, the respondent estimates that 3.7 metres or less would be more accurate.

5. In respect of Unit 14, Mr McQueen submitted that the clearest view into the rear garden of the Webber property was from bedroom 2 of Unit 14.  Although it was conceded that part of the rear garden and the children's play area were visible, it was submitted that the site inspection demonstrated that the view into the Webber property from bedroom 2, did not include any view of the covered outdoor area, nor into any habitable rooms.[31]  The view to the northwest from bedroom 1 of Unit 14 (that is, looking back towards the Reed property) was an 'angled view' that showed once again, so it was submitted, the roof of the out building, as well as a partial view of the pool fencing.  There was no view into habitable rooms.  As to the view from bedroom 1 of Unit 14, looking northeast to the Webber property, it was submitted that the foreground was dominated by the roof structure forming part of the development on the subject land.  There was also said to be a view of a small cubby house structure in the rear garden of the Webber property, although the view was, it was submitted 'dominated by the existing significant tree[32] in the Webber property'.

   [31] In any event, as indicated above, the applicant no longer seeks to remove the obscure glazing from bedroom 2 ('the 'east most window') of Unit 14

   [32] The tree may have been trimmed by the time of the site visit.

1. We will return to these factual matters below, when considering our conclusions on the merits of the proposal.[33]

Visual privacy: principles

[33] See below under, 'Conclusions'.

1. In Pigliardo v Town of Vincent [2007] WASAT 104; (2007) 52 SR (WA) 340, reference is made by the Tribunal, at [26], to an 'unreasonable significant adverse impact in terms of privacy'. In Bailey and City of South Perth [2006] WASAT 235 the Tribunal said, at [27] ­ [29] (original emphasis):

   It is clear from … cases such as MacAdams and City of Joondalup [2006] WASAT 121, Saunders and City of Nedlands [2005] WASAT 190 and Newman and Town of Cottesloe [[2005] WASAT 83 (affirmed Newman v Town of Cottesloe (2005) 40 SR (WA) 303)], that the applicant bears, to some extent, a practical burden of persuading the decision­maker, or this Tribunal on review, that legitimate privacy concerns ­ which are, of course, not absolute but are emphasised in the [R-Codes] ­ are properly addressed by the applicant's particular proposal. I draw attention to what [was] said in Saunders and City of Nedlands at [37]:

   This Tribunal takes as its starting point the need to guard against [the] 'privacy standard' set out in the R Codes from being eroded.

   [The Tribunal] was then citing Newman and Town of Cottesloe.  There, the Tribunal acknowledges, at [38]:

   It is not the intention of the [R-Codes] to make habitable and outdoor spaces of a neighbour invisible from the neighbouring dwelling.  An attempt is made in the [R-Codes] to achieve a compromise between avoiding overlooking and ... [enabling] reasonable development to proceed.

   The Tribunal continued [in Saunders and City of Nedlands]:

   It seems clear enough that the current proposal before the Tribunal (dealing with actively habitable rooms overlooking, as they do, a corner of the neighbour's bedroom and his outdoor entertainment area) generally seems to run counter to the central tenets of the R­Codes as manifested in the passages set out above [not reproduced].

   Those provisions particularly emphasise a combination of adequate measures with a starting point or presumption, in effect, generally favouring the protection of reasonable privacy where active living rooms (as here) are involved.  Thus interpreted, the [applicant] bears the practical burden of persuading the regulatory authority that reasonable privacy has been protected and in a way that necessarily minimises the impact of the ameliorating measures on the amenity of the subject of the protection.

2. In the selection of relevant cases dealing with visual privacy found in McLeod (ed), Planning & Development WA[34] the learned authors specially notice Cann and City of Fremantle [2012] WASAT 211 at [54], as follows:

   [A]lthough overlooking from bedrooms may be more easily tolerated by some than overlooking from more active areas, that is not necessarily the case.  For instance, where greater use of a pool and adjacent areas below a master bedroom window are likely to be actively used in summer, the prospect of being overlooked at any time at random would not be easily tolerated or welcomed.

   [34] McLeod (ed), Planning & Development WA, Presidian Legal Publishing, Planning Case Notes at paragraph [18.960.20], 'Overlooking'.

3. Nevertheless, we accept the need, as far as is practicable, for objective evidence on the question of overlooking, and understandable caution in cases where suggestions are made of possible over sensitivity by affected neighbours.  See, for example, Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124 and Marchmont Group Pty Ltd and Town of Vincent [2007] WASAT 177, cited by the applicant. The cones of vision in the R-Codes are an example of an attempt to provide some objectivity in this process.

4. As may be expected, we have taken all of these matters into account in reaching our conclusions on the merits of the proposal.

Deemed-to-comply

1. However, before addressing the merits question, we must consider an alternative argument advanced by the applicant to the effect that under the R­Codes, overlooking has been satisfactorily addressed, and that the Tribunal must not, therefore, refuse to grant planning approval.  Clause 2.5.4 of the R­Codes (then and now) provides that (emphasis added):

   The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the R­Codes and the relevant provisions of the scheme and any relevant local planning policy.

2. The applicant contended that the Tribunal could 'not refuse to grant approval' for the following reasons:

   All 5 bedroom windows in [U]nits 12, 13 and 14, in respect of which the obscure glazing is sought to be removed, comply with the deemed provisions of part 6 [of the R-Codes] dealing with visual privacy.  In particular, by reference to clause C 1.1, the major openings to all 5 bedrooms, have a minimum setback of 4.5 metres to the northern boundary of the [subject land] adjacent to the Reed property at 44 Shakespeare Street and the Webber property at 19 Dunedin Street.

3. The respondent accepts that 'the upper floor setback of 4.5 [metres] to [the] bedrooms satisfies the deemed-to-comply requirement for visual privacy' found in the R-Codes at element 5.4.1, C1.1 ('Visual privacy').

4. Clause 19(1) of TPS 1 provides that the R-Codes 'are to be read as part of [TPS 1]'. This position is also reflected in cl 25 of the 'model provisions' found in the Local Planning Regulations, Sch 1.[35]

   [35] The R-Codes 'are a longstanding State Planning Policy ('SPP') of the WAPC that are automatically introduced by reference into local planning schemes by virtue of s 77 of the Planning and Development Act 2005 … via provisions in the Model Scheme Text [now the 'model provisions']': WAPC Planning Bulletin 109/2013 at page 1. Section 77 of the Act is discussed immediately below.

5. Such a provision is of long-standing provenance.[36]  Assuming, for the moment, that we have before us a relevant 'application' and that 'the application satisfies the deemed-to-comply provisions of the R­Codes', a question then arises whether the injunction in cl 2.5.4 ('shall not refuse to grant approval') binds this Tribunal and, if so, then mandates a decision in favour of the applicant.

   [36] Counsels' researches produced cl 2.3.4(4) of the R-Codes as at 2002 and cl 2.5.4 of the R-Codes as at 2010.

6. The respondent pointed to a consistent line of analogous Tribunal decisions that have rejected the argument that compliance with the R­Codes necessarily mandates the grant of development approval.  In Dumbleton and Town of Bassendean [2005] WASAT 145 (Dumbleton), the Tribunal (constituted by a panel including Chaney DCJ, as he then was, and Senior Member Parry, as he then was), noticed, at [13], the following clause appearing in the town planning scheme:

   Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [R-Codes] shall conform to the provisions of these codes.

7. The Tribunal nevertheless held, at [20], that:

   … The effect of [the clause] is not to mandate approval of every development application which conforms to the provisions of the R­Codes.  Nor is its effect to permit the refusal of a development application which conforms to the R­Codes only where a more stringent, corresponding provision is contained in the Scheme.  Rather, on its proper construction, [the Scheme] permits the refusal of an application for planning consent where, taking into account each of the relevant considerations identified … it is appropriate, in the exercise of planning discretion, to refuse the application …

8. Thus, in Pigliardo v Town of Vincent [2007] WASAT 104; (2007) 52 SR (WA) 340 (a case already noticed above, because of its references to visual privacy[37]), the Tribunal could observe that, at [26]:

   We consider that this is a case in which the Dumbleton principle has application.  Although the fact that the proposed development conforms to the visual privacy provision in [the R-Codes] is significant in relation to whether there is an unreasonable significant adverse impact on [a neighbouring property] in terms of privacy for the purposes of [the Locality Plan], we find that, in the particular circumstances of this case, the location of the three courtyards at the middle level of the proposed development involves an unreasonable significant adverse impact in terms of privacy on the rear verandah and rear garden of [the neighbouring property] …

   [37] See above under, 'Visual privacy: principles'.

9. As already noticed, the R-Codes are a 'State planning policy' (SPP).[38] Section 77 of the Planning and Development Act 2005 (WA) (PD Act) deals with SPPs and town planning schemes as follows (emphasis added):

   [38] CfHickey Lawyers v Gold Coast City Council [2005] QPEC 22; [2005] QPLR 597 dealing with conditions and special, perhaps extended, powers dealing with 'infrastructure charging' policies (not cited in Kakulas), noted by Stein at page 87.

   77.State planning policies, effect of on scheme

   (1)Every local government in preparing or amending a local planning scheme ­

   (a)is to have due regard to any State planning policy which affects its district; and

   (b)may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.

   (2)Where a scheme includes a provision referred to in subsection (1)(b) ­

   (a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and

   (b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.

   (3)Modifications referred to in subsection (2)(b) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection (2)(a), which is inconsistent with the modifications.

10. In our view, the principles articulated in Kakulas above,[39] as to the status of any instrument labelled and classified as 'policy', also underpin, in large measure, the result in Dumbleton and must also control how the effects of s 77 of the PD Act, so far as is relevant, are to be viewed or interpreted. After all, any policy (even a SPP) which is incorporated into a town planning scheme remains just that, policy, and therefore by definition as the Tribunal said in Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111, at [23]:

    … provides a guideline of the principles that the respondent [or this Tribunal] can be expected to apply when making decisions[;] … it does not provide a binding set of principles that must be applied in all cases: Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGRA 433.

    [39] See above under, 'Development of a minor nature under TPS 1?'

11. Consistent with this position, s 241(1)(a) of the PD Act enjoins the Tribunal 'to have due regard to relevant planning considerations' including 'any State planning policy which may affect the subject matter of the application'. Arguably, such a provision would have been largely unnecessary if SPPs were to be given the elevated, self-executing status that the applicant argued for here.

12. All of this is consistent with the tenor of Mr Slarke's submissions, with which we agree, that however cl 2.5.4 of the R-Codes is to be sourced or read, it must be construed so as not to erode the discretion of the relevant decision­maker to determine an application for planning approval or an amendment under, as the case may be, either cl 68 ('Determination of applications') or cl 77 ('Amending or cancelling a development approval') of the deemed provisions (Sch 2).

13. In the alternative, the applicant contended that a 'rebuttable presumption [in the applicant's favour] is created in the … planning framework' when cl 2.5.4 of the R-Codes is satisfied.  It was submitted that reference back to the history of the site and the negotiations between the parties would be insufficient or impermissible to rebut that presumption.  With respect to Mr McQueen, we disagree.  Talk of a 'rebuttable presumption' (as opposed to talk of a 'practical burden' upon a party: cf the discussion in our final conclusions[40]) might be apt to mislead in planning cases where a wide, but controlled, discretion is given to the decision­maker, as is the case here.

    [40] See below under, 'Conclusions'.

14. In any event, the applicant's reliance on deemed-to-comply provisions seems problematic in the broader circumstances of this case.  Immediately below, the Tribunal considers the wide range of factors it may properly take into account in resolving the applicant's application 'on the merits'.

Factors relevant to the exercise of planning discretion

1. The respondent, as noted above,[41] accepts that 'the upper floor setback of 4.5 [metres] to [the] bedrooms satisfies the deemed-to-comply requirement for visual privacy' found in the R-Codes. However, for the reasons given immediately above, that does not put an end to the matter. Further, as we have determined, under cl 67 of Sch 2, a decision­maker is to have 'due regard' to the following matters in making planning decisions (so far as they appear relevant to the current matter):

   [41] See above under, 'Deemed-to-comply'.

   …

   (b)the requirements of orderly and proper planning … ;

   (c)any approved State planning policy [such as the R-Codes];

   ...

   (m)the compatibility of the development with its setting including 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)…;

   (ii)the character of the locality;

   (iii)social impacts of the development;

   ...

   (w)the history of the site where the development is to be located;

   (x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

   ...

   (zb)any other planning consideration the local government considers appropriate.

Conclusions

1. In our view, even upon an apparently straight-forward application to amend just one condition, the factors set out immediately above from cl 67 of Sch 2, which direct attention to, amongst other things, the regulatory framework, planning history, the impact of proposals, the site and its context, should be read widely so as to draw in as necessary the past and the present as to planning and development of the subject land.

2. Even standing alone, the concept of 'orderly and proper planning' is one of very wide import.  In SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22, the Tribunal considered the decision of Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), concluding, at [119], as follows (emphasis added):

   Marshall suggests that a decision-maker might have regard to a wide variety of relevant sources and material in order to discharge the duty of exercising a [planning] discretion …

3. We have already mentioned above D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99, as to the meaning of the expression 'the history of the site' appearing in cl 67 of Sch 2.[42]  There, at [66], after considering various authorities, the Tribunal said:

   In our view, this factor ('history of the site') should be considered as 'broad and general' enough to include considerations such as any historical deficiencies or difficulties demonstrated with respect to a site's current use.  The 'history' of a site might well extend to any valid planning factor that arises from relevant events of the past in respect of a site and its future use or development.

   [42] See above under, 'Criteria for merits review'.

4. Consideration of 'the past' in this review leads to an acknowledgement of the undoubted compromise reached on the part of the developer, the respondent, and the neighbours to permit the development to proceed.  Whilst it is true, as Stein suggests that '[t]he development control process is … a fixed series of steps, the outcome of which is not, by its legal form, subject to negotiation and discussion',[43] such compromises are, in truth, the oil that helps turn the wheels of planning practice, no less in this Tribunal (in the high settlement rate by mediation of matters[44]) as with local governments (leading up to their final determinations).  This process is reflected in the need, in appropriate cases, for consultation with neighbours, as occurred here.[45]

   [43] Stein, at page 136 (emphasis added).

   [44] 'Because of the complex issues in dispute, planning appeals are [the] perfect candidates for negotiated outcomes; there is no imperative for a zero-sum outcome because, in planning, there are no perfect solutions, only satisfactory ones': Stein, at page 263 (citation omitted).

   [45] 'The R-Codes have been amended to allow the applicant, instead of the decision maker, to undertake consultation with neighbours': WAPC Planning Bulletin 109/2013 at page 3.

5. We can see no warrant for avoiding the gravitational pull of what was previously thought to be a 'reasonable' outcome insofar as visual overlooking was concerned, at least as at that point in time.  Thus, in Saunders and City of Nedlands [2005] WASAT 190 the Tribunal could properly refer to being 'influenced and informed in part by the context of what has already gone before' in reaching a planning judgment on proposals for privacy screening: at [40] (emphasis added). We are similarly influenced here but, of course, not controlled by what has gone before.

6. Mr Slarke submitted that any departure from that compromise required sufficient justification for the change.  We respectfully agree.  There is, in effect, a practical burden placed upon the applicant to justify the unravelling of a previous position reached by compromise.  Here, that has been attempted, principally by reference to the erection of the screen wall.  But regard must be had to the purpose of the wall; and the effect of that wall, as we observed on site, must be seen as relatively marginal, and perhaps even more so in relationship to what the developer actually seeks to achieve by removing some of the obscure glazing.

7. Consideration of 'the present' means, amongst other things, acknowledging that with the amendments to the R-Codes in 2015 the current development would not nowadays be approved.  Mr Slarke submitted that:

   [I]n consequence of the [2015] changes to the R-Codes, proposals for multiple dwellings on land coded R30 (such as 86 Hobart Street) are now dealt with under Part 5 (not Part 6) of the R-Codes, and are subject to minimum site area requirements (among other things).  A maximum of 6 multiple dwellings could now be approved on the site, as opposed to the 18 dwellings that have been constructed.  Putting it another way, for 18 multiple dwellings (including 3 single dwellings) to be approved on an R30 lot today, the lot would have to be at least 4950 m² ­ as opposed to the 2031 m² area of 86 Hobart Street.

8. This fact, combined with the 'unusual or atypical' form of the current development in the immediate locality (a point conceded by the applicant's expert planner[46]); the previous plot ratio concession (and how that came about); the continued line of sight from the subject land to some 'sensitive areas' (even if marginally diminished by the screen wall); and the amenity impact on the northern neighbours, all militate against approval of the removal of the obscure glazing obligation.

   [46] T/s, 30.5.16 at page 118.

9. All of these matters may be considered by the application of cl 67 of Sch 2 on a variation proposal. The careful weighing up and balancing of all of them, as we have done, firmly favours the respondent's position and, in our view, Mr McQueen's analysis of the extent of overlooking set out above,[47] even if mainly or wholly accepted, does not detract from this overall position.

   [47] See above under, 'Visual privacy: what is the extent of overlooking?'

1. Accordingly, the obscure glazing obligation should not be disturbed.  The review should be dismissed.

Final orders

1. For the reasons given above:

   1.The application for review is dismissed.

   2.The decision under review is affirmed.

   I certify that this and the preceding [143] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MR P McNAB, SENIOR MEMBER