Baker Investments Pty Ltd v City of Vincent - [2017] WASC 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BAKER INVESTMENTS PTY LTD -v- CITY OF VINCENT [2017] WASC 263

CORAM: LE MIERE J

HEARD: 28 FEBRUARY 2017

DELIVERED : 6 SEPTEMBER 2017

FILE NO/S: GDA 17 of 2016

BETWEEN: BAKER INVESTMENTS PTY LTD
Appellant
AND
CITY OF VINCENT
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR P McNAB (SENIOR MEMBER)

DR B DE VILLIERS (MEMBER)

Citation :BAKER INVESTMENTS PTY LTD and CITY OF VINCENT [2016] WASAT 115
File No :DR 389 of 2015

Catchwords:

Town planning and development - Development approval - Where amendment or variation of previous development approval sought - Removal of obscured glazing - Whether appellant was exempt from need to obtain planning approval - Whether proposal development compliant and Tribunal must approve - Whether decision of Tribunal so unreasonable that no reasonable decision-maker could have made it

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(4), sch 2
Planning and Development Act 2005 (WA), s 26, s 68(1), s 77(1), s 257B
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P McQueen
Respondent: Mr C A Slarke

Solicitors:

Appellant: Lavan
Respondent: McLeods Barristers & Solicitors

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

Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union (1932) 47 CLR 1
Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Hall v Jones (1942) 42 SR (NSW) 203
Minister for Immigration v Nystrom (2006) 228 CLR 566
Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375
LE MIERE J:

Summary

The appellant sought an amendment or variation of a previous development approval granted by the respondent, the City of Vincent. 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 on the developer to affix obscure glazing in the form of a durable plastic film applied to certain upstairs windows. The obligation to provide 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.
After the film had been affixed, a screen wall was lawfully erected between the neighbours and the apartment complex 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 appellant contended that the screen wall enhanced visual privacy.
The appellant applied to the City for approval of an amendment to the development approval to remove the obscure glazing from the windows on the upper storey facing the northern boundary. The City refused the application.
The appellant applied to the Tribunal for a review of the City's refusal of the application. The appellant asserted that because what was being proposed was development of a minor nature under the local planning scheme, the City of Vincent Town Planning Scheme No 1 (TPS1), it was exempt from the need to obtain planning approval. The appellant further contended that the development is compliant with the relevant planning framework relating to matters that the local government is to have due regard to and is therefore in accordance with the requirements of ordinary and proper planning.
The City contended that the application was an abuse of process by the re‑litigation of a decided matter because the Tribunal had previously determined that the multiple dwelling development should be approved with obscure glazing on the upper floor north facing windows. Alternatively, the City contended the application should be dismissed on the merits for the following reasons. First, at the time the application was lodged in August 2015 there was no power under the Scheme for the City to approve an amendment to the development approval previously granted. The proposal to remove the obscure glazing could only be considered as an aspect of a new application for the multiple dwelling development and was processed by the City on that basis. Secondly, the application could only be determined as an application pursuant to cl 77(1) of the Deemed Provisions to amend a development approval. The Deemed Provisions, which came into effect on 19 October 2015, apply to all local planning schemes including TPS1. In considering the merits of an application to amend a development approval, regard must be had to the matters set out in cl 67 of the Deemed Provisions and the requirements of orderly and proper planning. It is not consistent with orderly and proper planning to reduce the amenity of the northern neighbours by approving the application.
The Tribunal found that the application was not an abuse of process. It is not necessary to further refer to that matter. The Tribunal considered the application as an application to amend the development approval under cl 77(1) of the Deemed Provisions. The Tribunal undertook a merits based assessment of the application, taking into account relevant matters set out in cl 67 of the Deemed Provisions, and concluded that it should not approve the removal of the obscure glazing obligation.
The appellant now applies for leave to appeal from the decision of the Tribunal. The appeal can only be brought on a question of law. There are three proposed grounds of appeal to the following effect. First, the Tribunal erred in law by failing to find that removing the glazing is a development which is exempt from the need to obtain planning approval. Secondly, the proposed development complied with the 'deemed to comply' provisions of the Residential Design Codes (R‑Codes) and the Tribunal erred in law by not finding that the effect of the relevant planning instruments is that the proposed development must be approved. Thirdly, the decision of the Tribunal in refusing the proposed development is so unreasonable that no reasonable decision‑maker could have made that decision.
For the reasons which follow the appellant will be granted leave to appeal but none of the grounds of appeal are made out and the appeal will be dismissed.

The 2014 development approvals

I will begin by referring to the applications for approval of the apartment complex development. An application by the appellant to develop 18 two storey multiple dwellings was deemed refused by the City in 2013. The appellant applied to the Tribunal for a review of that refusal. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) the Tribunal invited the City to reconsider its decision. The City refused to approve the multiple dwelling development in the form then proposed. The parties and affected neighbours commenced negotiations which led to the appellant preparing an amended development application for 18 multiple dwellings, comprised by 15 two bedroom and three single bedroom dwellings. In January 2014 in view of the modified proposal submitted by the appellant, the Tribunal again invited the City to reconsider its decision.
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 undertook further negotiations and reached agreement. On 12 March 2014 the Tribunal, by consent, made orders reflecting the agreement of the parties. The order provided that the planning approval authorised by the City at the meeting of its council on 25 February 2014 was modified by deleting some conditions. The appellant withdrew its application for review.
In June 2014 the appellant applied to the City to amend aspects of the Tribunal approval. The City approved this application on 20 August 2014 (August 2014 approval). On 6 November 2014 the City issued a building permit for the development.
All of the plans the subject of the approvals (the February 2014 approval, the Tribunal orders of 12 March 2014, the August 2014 approval) and the November 2014 building permit, show:
(a)the north facing bedroom windows for units 2, 12, 13 and 14 were to have fixed obscure glass below 1800 mm in height; and
(b)the north facing ensuite windows for units 2, 12, 13 and 14 were to have 100% fixed obscure glazing.
At the time of the hearing before the Tribunal construction of the multiple dwelling development was ongoing and approaching substantial completion.

The glazing application

On 28 July 2015 the City approved a screen wall on the neighbouring land and adjacent to the common boundary with the subject land. The screen wall is 33.4 m long. Its height varies over its length. As constructed it is between 250 mm and 850 mm higher than the pre‑existing dividing fence between the land and its northern neighbours. The appellant says that the wall is approximately 3.3 m high when measured from the ground level of the subject land. The wall reduces the amount of sunlight available to the ground floor units 4 and 5 and reduces the extent of the overlooking of the northern neighbours. The City concedes that screen wall reduces the potential extent of overlooking from the upper floor northern windows 'to a degree'.
On 5 August 2015 the appellant applied to the City for approval of a development described as a minor amendment to development approval. The application was to amend the previously approved plans by changing the obscure glazing on the upper floor northern windows to clear glazing (the glazing application). On 26 October 2015 the City had not approved the application and the appellant applied to the Tribunal for review on the basis that the glazing application had been deemed refused. On 5 November 2015 the City refused, or purported to refuse, the glazing application. The City stated that removal of the screening from the windows on the upper storey facing the northern boundary is contrary to the terms agreed in relation to the planning approvals of the City in February 2014 and August 2014 as denoted on the approved plans and the consent orders issued by the Tribunal which gives effect to the February 2014 approval.

Legislative regime

It is convenient to outline the relevant legislative framework before addressing the Tribunal's reasons for decision and the grounds of appeal.
TPS1 was made pursuant to the Town Planning and Development Act 1928 (WA). It continues in force as a local planning scheme under the Planning and Development Act 2005 (WA) (PD Act) and has effect as if it were enacted by the PD Act: PD Act s 68(1).
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) took effect on 19 October 2015. Regulation 10(4) provides that the provisions in Schedule 2 to the Regulations are Deemed Provisions to which s 257B of the PD Act applies and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text. Under s 257B of the PD Act 'Deemed Provisions' have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force. If a Deemed Provision is inconsistent with another provision of a local planning scheme to which the Deemed Provision applies, the Deemed Provision prevails and the other provision, to the extent of the inconsistency, is of no effect.
Part 7 of the Deemed Provisions is entitled 'Requirement for development approval'. Clause 60 provides that a person must not commence or carry out any works on land unless the person has obtained the development approval of the local government or the development is of a type referred to in cl 61. Clause 61(1) provides that development approval of the local government is not required for the works in [(a)] to [(j)]. Paragraph (i) is
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.
Part 8 of the Deemed Provisions is entitled 'Applications for development approval' and deals with such matters as the form of an application, material to accompany it and advertising applications. Clause 65 provides that the procedures set out in pts 7, 8 and 9 apply, with any necessary modifications, to an application for development approval for development already commenced or carried out.
Part 9 is entitled 'Procedure for dealing with applications for development approval'. Clause 67 provides that in considering an application for development approval the local government is to have due regard to the matters there set out to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The matters set out are the sort of matters one would expect a planning authority to have regard to.
Clause 77(1) of the Deemed Provisions provides that an owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to amend or delete any condition to which the approval is subject or amend an aspect of the development approved which, if amended, would not substantially change the development approved. Clause 77(2) provides that such an application is to be made in accordance with the requirements in pt 8 and dealt with under pt 9 as if it were an application for development approval. Clause 77(3) provides that despite cl 77(2) the local government may waive or vary a requirement in pt 8 or pt 9 in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval. Clause 77(4) provides that the local government may determine an application under cl 77(1) by approving the application with or without conditions, or refusing the application.
TPS1 pt III contains provisions relating to development requirements. Clause 19 provides that the R‑Codes are to be read as part of the Scheme and, unless otherwise provided in, or consistent with, the Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the R‑Codes is to conform to the provisions of those codes. Clause 19 is authorised by s 77(1) of the PD Act which provides that a local planning scheme may include a provision that a specified State planning policy (which includes the R‑Codes) is to be read as part of the Scheme.
TPS1 pt IV contains provisions relating to planning approval. Clause 32 provides that a person shall not begin or continue development of any land or building in the Scheme area unless it is a development exempted by cl 33, without first having applied for and obtained planning approval. Clause 33 provides that planning approval is not required for, amongst other developments:
(d)development of a minor nature listed in a planning policy as exempt from the requirement to obtain planning approval.
Clause 47 of TPS1 provides that the council may make planning policies. Clause 47(9) provides that a planning policy shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text shall prevail. Local Planning Policy 7.5.1 (LPP7.5.1) is a planning policy adopted by the council of the City pursuant to cl 47 of TPS1. LPP7.5.1 states that its objective is to define development of a minor nature which, although complying with provisions of TPS1, is exempt from the need to obtain planning approval in accordance with cl 33(d) of TPS1. LPP7.5.1 cl 1 provides that development of a minor nature does not require planning approval. LPP7.5.1 cl 2.20 provides that development of a minor nature includes:
works that fully comply with the acceptable development provisions of the Residential Design Codes and the City of Vincent Policies, where applicable.
The R‑Codes are the Residential Design Codes prepared by the Western Australian Planning Commission under s 26 of the PD Act. The stated purpose of the R‑Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia. Part 2 deals with the R‑Codes approval process. Clause 2.5.4 provides that:
The decision‑maker shall not refuse to grant approval to an application where the application satisfies the deemed to comply provisions of the R‑Codes and the relevant provisions of the scheme and any relevant local planning policy.
Part 5 of the R‑Codes sets out design elements for single houses, grouped dwellings and certain multiple dwellings. Section 5.1 is entitled 'Context'. Its objectives include to ensure that residential development meets community expectations in regard to appearance, use and density, and to ameliorate the impacts of building bulk, privacy and overshadowing an adjoining properties. Clause 5.1.1 deals with site area. The deemed to comply requirement C1.1 is that the development complies with the dwelling type and site area requirements set out in Table 1 and provisions there set out. In effect, the Table sets out a minimum site area requirement for multiple dwellings in areas with different density codes. Section 5.4 deals with building design. The objectives include to design buildings to minimise adverse impact on the privacy of adjoining dwellings. Clause 5.4.1 is concerned with design principles concerning visual privacy. Clause 5.4.1 C1.1 provides that, in relation to the apartment complex in this case, a setback of 4.5 m from the lot boundary satisfies the deemed to comply requirements.

Appellant's arguments before the Tribunal

The appellant contended that the glazing application did not require approval for the following reasons. TPS1 cl 33(d) provides that planning approval is not required for a development of a minor nature listed in a planning policy as exempt from the requirement to obtain planning approval. The glazing application complies with the acceptable development provisions of the R‑Codes and accordingly the effect of cl 2.20 of LPP7.5.1, which is a planning policy, is that the proposed development is a development of a minor nature. Therefore the effect of cl 33(d) of TPS1 is that planning approval is not required for the glazing application. Further, cl 77(3) of the Deemed Provisions provides that the local government may waive or vary a requirement in pt 8 or pt 9 in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval. The glazing modifications are of a minor nature as listed in LPP7.5.1 and pt 4 of TPS1 and therefore the application is exempt from the requirement to obtain planning approval.
Alternatively, the appellant contended that if planning approval was required, the Tribunal must grant it for the following reasons. The application complies with the acceptable development provisions of the R‑Codes. TPS1 cl 19 provides that the R‑Codes, which includes cl 2.5.4 of the R‑Codes, are to be read as part of the Scheme. The application satisfies the deem to comply provisions of the R‑Codes and the relevant provisions of the Scheme and any relevant local planning policy and therefore, cl 2.5.4 of the R‑Codes requires that the decision‑maker shall not refuse to grant approval.

Tribunal decision

The Tribunal first dealt with the appellant's argument that planning approval was not needed at all. The Tribunal found that LPP7.5.1 did not apply to the glazing application. Further, in any case, to give to LPP7.5.1 the effect contended for by the appellant would lead to an inconsistency with cl 77 of the Deemed Provisions because that clause provides for a comprehensive and exhaustive set of considerations when amendments and variations to planning approvals are to be considered. Such an inconsistency is resolved in favour of cl 77 by operation of law.

Having rejected the appellant's argument that planning approval was not required at all, the Tribunal then considered whether cl 77(1) of the Deemed Provisions authorised the City to approve the proposed amendment to the development approval by approving the removal of the obscure glazing. The Tribunal found that the glazing application was an application to amend a condition to which the approval is subject or alternatively to amend an aspect of the development approved which, if amended, would not substantially change the development approved. Therefore, the Tribunal had power to approve the glazing application under cl 77 of the Deemed Provisions.
The Tribunal then considered the appellant's argument that in terms of cl 77(3) of the Deemed Provisions 'the application relates to a minor amendment to the development approval' and hence the Tribunal had power under cl 77(3) of the Deemed Provisions to waive or vary a requirement in pt 8 or pt 9 in respect of the glazing application. The Tribunal concluded that the amendment sought by the glazing application could properly be considered as a 'minor amendment'. The Tribunal then turned to consider the extent the Tribunal should waive or vary, if any, the requirements of pts 8 and 9 of the Deemed Provisions. The Tribunal considered that the matter should proceed upon an assessment by the Tribunal of the planning merits based upon the factors deriving from the matters enumerated in cl 67 of the Deemed Provisions. The Tribunal then embarked upon a merits based assessment of the glazing application. The Tribunal concluded that weighing up and balancing the relevant factors favours refusal of the application for approval of the removal of the obscure glazing obligation. Accordingly, the Tribunal dismissed the application for review.

Ground 1 (exempt development) in outline

Ground 1 is that the Tribunal ought to have found that the proposed development did not require planning approval and the Tribunal erred in law by failing to find that removing the glazing is a development which is exempt from the need to obtain planning approval. It might be thought that there is something curious about an application for approval of a development on the ground that approval is not required. However, I pass over that curiosity and will address the substance of this proposed ground of appeal.
In expounding this ground counsel for the appellant, Mr McQueen, submitted that there are two ways in which it may be concluded that the proposed development is exempt from the need for development approval. The first is by the application of cl 33(d) of TPS1. The second is by the application of cl 61(1)(i) of the Deemed Provisions.
Clause 60 of the Deemed Provisions provides that a person must not commence or carry out any works unless the person obtained the development approval of the local government or the development is of a type referred to in cl 61. Any provision of TPS1, including cl 32 and cl 33, which provides that planning approval is not required for any development other than a development which is of type referred to in cl 61 of the Deemed Provisions is inconsistent with cl 60 of the Deemed Provisions and by reason of s 257B(3) of the PD Act, to the extent of the inconsistency, is of no effect. Accordingly, in so far as ground 1 relies upon the contention that the Tribunal ought to have found that the proposed development came within cl 33(d) of TPS1, it must fail. Therefore, the issue raised by ground 1 is whether the Tribunal ought to have found that the proposed development came within cl 61(1)(i) of the Deemed Provisions as informed by LPP7.5.1. In particular, the appellant relies on cl 61(1)(i) of the Deemed Provisions read with cl 2.20 of LPP7.5.1 to support its contention that the removal of obscure glazing as proposed does not require development approval under TPS1.
The City says that the appellant's contention is misconceived because the exemption from 'development approval' provided by cl 61(1) of the Deemed Provisions does not apply to an application to amend a pre‑existing development approval under cl 77(1)(b) or (c). Clause 61 is concerned with works which have not yet been commenced, and for which development approval would otherwise be required by cl 60. Where development approval has already been obtained, any proposed amendment to the approval is to be dealt with under cl 77. The issue raised by the City involves the interpretation of cls 60, 61 and 77 of the Deemed Provisions.

Some principles of statutory interpretation

The Regulations are subordinate or delegated legislation. The general principles of statutory interpretation apply to delegated legislation: Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389, 398.
The High Court has on many occasions emphasised the primacy of the text and context in interpreting statutory provisions. In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 the Court stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text [39]. (citations omitted)
A statutory instrument, like any document, must be read in its entirety. Every provision in an instrument must be read, not as if it were entirely divorced from its context, but as part of the whole instrument. Considering only the section of an instrument that seems immediately applicable to the problem at hand 'is as likely to lead to a misconception of the total effect of the provision as is the reading of a passage of a novel out of context': Pearce and Geddes Statutory Interpretation in Australia, (8th ed) [4.2]. The apparent scope of a provision may be limited by other provisions in the instrument. Different statutory provisions must be read in such a way that they will fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own. In interpreting a statutory provision the court examines the text in its statutory context and the structure of the act or instrument as a whole: see for example the approach of the High Court in Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375.
One principle of statutory interpretation based on syntactical presumptions is that where a law prescribes a particular way of doing something, it is implied that that is the only way that something can be done. The principle is described by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union (1932) 47 CLR 1, 7:
When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercise and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
See also Minister for Immigration v Nystrom (2006) 228 CLR 566, at 586 per Gummow and Hayne JJ.
A related syntactical presumption is that the general cannot detract from the specific, that is specific provisions will prevail over general provisions to the extent of any conflict.
A further principle of statutory interpretation is that the court will take into account the consequences of giving a particular meaning to a statutory provision. This is an aspect of the purposive approach to interpretation. In Hall v Jones (1942) 42 SR (NSW) 203, 208 Jordan CJ said:
[A] court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense.

Clause 61 does not apply to the glazing application

Examination of the structure of the Deemed Provisions as a whole shows that cls 60 and 61 do not apply to an application to amend a development approval which has been granted by the local government or to amend or delete any condition of the approval or any aspect of the development approval.
Part 7 of the Deemed Provisions, which includes cls 60 and 61, provides for development approval of the local government to commence or carry out any works on land in the Scheme area. Clause 65, which is in pt 8 (Applications for development approval), provides for an application for development approval for development already commenced or carried out. Part 9 is entitled 'Procedure for dealing with applications for development approval'. Clause 76 provides that an affected person may apply to the Tribunal for a review of a reviewable determination, which means a determination by the local government to refuse an application for development approval or to grant approval subject to conditions or to refuse to amend or cancel approval on an application made under cl 77. Clause 77 provides for an owner of land in respect of which development approval has been granted by the local government to apply for the approval to be amended or cancelled. Clause 77(2) requires such an application to be made in accordance with the requirements in pt 8 and dealt with 'as if it were an application for development approval'.
That overview of relevant provisions shows that the Deemed Provisions distinguish between an approval amending a development approval which has been granted by the local government and approval of a development for which no development approval has been granted. Clause 77 makes specific provision for an application to amend development approval that has been granted. Clause 76 differentiates between an application for development approval under cl 60 and an application to amend a development approval under cl 77. Clause 77(2) which provides that an application to amend a development approval is to be dealt with 'as if it were an application for development approval' makes it clear that the Deemed Provisions distinguish between an application to amend a development approval and an application for development approval, that is for approval of a development for which no approval has been granted.
Clause 61 is relevant to development approvals for which no approval has been granted but not applications to amend development approvals that have been granted. Where development approval has already been obtained, an application to amend the approval is to be dealt with under cl 77. That is, in substance, what the Tribunal determined.
The City submits, and I accept, that it would be contrary to the planning purpose of both cl 77 and the requirement to obtain and comply with the terms of the development approval if cl 61(1)(i) allowed individual aspects of a previously approved development to be amended without approval. To do so would allow the alteration of aspects of the approved development which, individually or cumulatively, were important to the exercise of discretion to approve, thereby undermining the basis for the initial approval. To do so would also create practical difficulties in enforcement, because the development as constructed would be different from the approved plans.
The appellant's contention that no development permission is required to amend the previously approved development is inconsistent with the obligation to obtain approval under cl 77(1) for an amendment to an aspect of a development previously approved. Ground 1 is not made out.

Ground 2: Tribunal must approve application

The appellant says that, having found that the proposed development complied with the deemed to comply criteria of cl 5.4.1 C1.1 of the R‑Codes, the proposed development must be approved and in failing to reach this conclusion the Tribunal did not correctly apply the relevant statutory provisions and therefore erred in law.
The appellant's argument is as follows. The City accepts, and the Tribunal found, that the upper floor setback of 4.5 m to the bedrooms satisfies the deemed to comply requirement for visual privacy in the R‑Codes at element 5.4.1 C1.1; that is, the proposed development complies with the deemed to comply criteria of cl 5.4.1 C1.1 of the R‑Codes. Clause 19.1 of TPS1 provides that the R‑Codes are to be read as part of the Scheme. Clause 2.5.4 of the R‑Codes provides that the decision‑maker, in this case the Tribunal, shall not refuse to grant approval to an application where the application satisfies the deemed to comply provisions of the R‑Codes and the relevant provisions of the Scheme and any relevant planning policy. It is not contended that the glazing application does not satisfy the relevant provisions of the Scheme and LPP7.5.1.
This ground of appeal fails for three reasons. First, cl 2.5.4 of the R‑Codes does not apply to an application under cl 77(1) of the Deemed Provisions to amend a development approval. Part 2 of the R‑Codes, which includes cl 2.5.4, sets out the R‑Codes approval process. Clause 2.1.1 states that the R‑Codes approval process is illustrated in the process flow chart. The process flow chart commences as follows:

Proponent prepares an appropriate proposal for the site addressing relevant R‑Code, scheme and local planning framework requirements

↓

Proponent liaises with decision‑maker (if necessary)

↓

Proposal

A proposal for residential development for a particular site prepared to meet the requirements of the R‑Codes

It is apparent from the flow chart that the application referred to is an application for development of a site, not an application to amend an approval already granted. That is confirmed by a consideration of the R‑Codes as a whole. The purpose of the R‑Codes is to provide a 'comprehensive basis' for the control of residential development: cl 1.2. There is nothing in the R‑Codes to the effect that one element of the design may be considered in isolation from the other elements of the whole design.

Clause 2.5.4 refers to an application which satisfies the deemed‑to‑comply provisions of the R‑Codes. In context, 'an application' refers to an application for development, not an application to amend a development approval that has been granted.
Secondly, if, contrary to my finding, cl 2.5.4 of the R‑Codes applies to an application to amend a development approval granted, that provision as read as part of the Scheme is inconsistent with cl 77(3) and (4) of the Deemed Provisions.
Clause 77(3) provides that the local government may waive or vary a requirement in pts 8 or 9 in respect of an application to amend a development approval if the local government is satisfied that the application relates to a minor amendment to the development approval. The effect of cl 77(3) is that if the local government is satisfied that the application relates to a minor amendment to the development approval it has a discretion whether or not to waive or vary a requirement in pts 8 or 9 in respect of the application. The Deemed Provisions do not provide that the local government must waive the requirements in pt 8 or pt 9 when it is satisfied that the application relates to a minor amendment to the development approval nor that if it is so satisfied the local government must approve the application.
Clause 77(4) provides that the local government 'may' determine an application made under subclause (1) by approving the application, with or without conditions, or refusing the application. The provision confers a discretion on the local government. The local government may approve the application with conditions or refuse it notwithstanding that the particular element of the development design which is sought to be amended complies with the deemed to comply provisions of the R‑Codes. If a Deemed Provision is inconsistent with another provision of a local planning scheme to which the Deemed Provision applies, the deemed provision prevails and the other provision, to the extent of the inconsistency, is of no effect.
Thirdly, in any event, the glazing application does not satisfy the deemed to comply provisions of the R‑Codes merely because the element of the design which is sought to be amended meets the deemed to comply provisions of the R‑Codes. The R‑Codes are concerned with the residential development, not merely one element of it. The City submits that the development, as amended if the application was approved, would be substantially non‑compliant with the deemed to comply requirements for plot ratio and does not conform to the minimum site area requirements of the R‑Codes. The Tribunal accepted at [139] and [140] of its reasons that the development did not comply with the R‑Codes in that it does not comply with the minimum site area requirements under pt 5 of the R‑Codes. Therefore, the application does not satisfy the deemed to comply provisions of the R‑Codes because the amended development, as sought to be approved, does not satisfy the deemed to comply provisions. Ground 2 fails.

Ground 3 - unreasonableness

Ground 3 is that the decision of the Tribunal in refusing the application is so unreasonable that no reasonable decision‑maker could have made that decision. In its written submissions the appellant formulated its argument on this ground as follows. Given the development was exempt from the need to obtain development approval under cl 33(d) of TPS1 and 61(1)(i) of the Deemed Provisions, when read together with LPP7.5.1, and also compliant with the relevant deemed to comply provision of cl 5.4.1 C1.1 of the R‑Codes, incorporated into TPS1 by cl 19(1) of TPS1 and s 77(1)(b) of the PD Act, together with the fact that the Tribunal accepted the appellant's analysis of the alleged impact of overlooking on neighbouring properties, the decision of the Tribunal, in refusing the proposed development, is so unreasonable that no reasonable decision‑maker so informed, could have made that decision.
The premise of that argument is not made out. The development was not exempt from the need to obtain development approval. The development approval, if the amendment was granted, would not comply with the deemed to comply provisions of the R‑Codes. The Tribunal did not accept the appellant's analysis of the alleged impact of overlooking on neighbouring properties. At [108] to [112] of its reasons for decision the Tribunal set out the parties' contentions concerning the impact of the screen wall on overlooking the neighbours. At [138] the Tribunal said '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'. At [140] the Tribunal found that
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.
At [141] the Tribunal said:
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, even if mainly or wholly accepted, does not detract from this overall position. (citations omitted)
The Tribunal's reasoning is that the careful weighing up and balancing of all of the factors favours the respondent's position. The Tribunal went on to say that even if it mainly or wholly accepted Mr McQueen's analysis of the extent of overlooking that does not detract from the overall position, but it did not accept that analysis.
The appellant's amended ground of appeal is that given the Tribunal ought to have found that the proposed development was 'minor nature' as defined in TPS1 and read together with LPP7.5.1 in any event is also compliant with the relevant deemed to comply provision of cl 5.1.3 of the R‑Codes incorporated into TPS1 by cl 19 the decision of the Tribunal is so unreasonable that no reasonable decision‑maker so informed could have made the decision. As I have said, whilst the development, if the glazing was removed, would comply with cl 5.1.3 of the R‑Codes, it would not comply with the minimum site area requirements (among other things) of the R‑Codes.

The appellant says that even if this application fails on grounds 1 and 2, in all the circumstances there is no justification for refusing the application in any event, particularly as there is no evidence or consideration to put forward to sustain a finding that the development should be refused, and in that sense, the decision is also manifestly unreasonable.
Ground 3 is not made out. The Tribunal considered the evidence in relation to visual privacy and the extent of overlooking and the principles applicable to visual privacy. The Tribunal addressed factors relevant to the exercise of planning discretion and set out its conclusions on the merits at [133] to [142]. The Tribunal considered the evidence and relevant planning principles in concluding that the development should be refused on the merits. The Tribunal exercised its discretion having regard to matters it was entitled to have regard to. Its decision was not so unreasonable that no reasonable decision‑maker could have made it. Ground 3 is not made out.

Conclusion

The appellant has advanced arguments going to the construction of TPS1, the Deemed Provisions and relevant policy documents. I will grant leave to appeal. However, the appeal will be dismissed.