BERRIMEL NO 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL

[2017] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BERRIMEL NO 2 PTY LTD and PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 93

MEMBER:   MS L EDDY (MEMBER)

HEARD:   28 MARCH 2017

DELIVERED          :   29 JUNE 2017

FILE NO/S:   DR 322 of 2016

BETWEEN:   BERRIMEL NO 2 PTY LTD

Applicant

AND

PRESIDING MEMBER OF THE METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning - Development application - Review of decision of development assessment panel - Application for leave to amend proposed development - Whether amended development proposal is excluded development for purposes of Planning and Development (Development Assessment Panels) Regulations 2011 (WA) - Whether home business is incidental to multiple dwellings - Whether amended development proposal is different in essence from matter that was before original decision­maker - Whether discretion to give leave to amend development proposal should be exercised

Town planning -  Development application - Multiple dwelling with four storeys -  Whether there is discretion to approve four storey building under local planning scheme - Whether cl 5.3.5 of Town of Cottesloe Local Planning Scheme No 3 applies to proposed development

Legislation:

Planning and Development (Development Assessment Panel) Regulations 2011 (WA), reg 3, reg 3(2), reg 4A(3), reg 5, reg 6, reg 7, reg 8, reg 8(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, cl 67
Planning and Development Act 2005 (WA), Sch 7, cl 6, cl 7, cl 8, cl 9, s 171A, s 172, s 242
Town of Cottesloe Local Planning Scheme No 3, Sch 1 cl 2, cl 4, cl 5, cl 6.4, cl 7.5, Table 2

Result:

Application for leave to further amend the application the subject of review in these proceedings refused

Summary of Tribunal's decision:

The applicant had applied for development approval from the Metro­West Joint Development Assessment Panel for a four storey multiple dwelling with a small café on the ground floor on a site in Cottesloe.  When the application was refused, the applicant commenced review proceedings in the Tribunal.  Following mediation, the applicant applied to amend the development proposal the subject of review in the Tribunal proceedings.  The relevant aspect of the proposed amendment was to remove the café on the ground floor and replace it with a small area that was to be used as a home business within the meaning of the Town of Cottesloe Local Planning Scheme No 3.  The respondent objected to the proposed amendment.  After hearing from the parties the Tribunal determined that it did not have discretion to grant the requested leave to amend the proposed development, or if it did have that discretion, leave should not be granted.  The Tribunal determined that in the circumstances, the proposed home business use was incidental to the multiple dwelling use.  It followed from that finding that the proposed amendments would render the proposed development of the type that would come within the definition of an 'excluded application' for the purposes of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA). Therefore, the amended proposal was one that the applicant could not have elected to have determined by the Metro­West Joint Development Assessment Panel. The Tribunal determined that this change meant that the proposed amendment was in substance a new application. Even if it were not, the Tribunal considered it was not appropriate in the circumstances to allow the proposed amendment in proceedings where the Town of Cottesloe, who would have been the relevant decision­maker if that application had been the original application for development approval, was not the respondent to the proceedings.

The Tribunal also considered whether, as the respondent and the Town of Cottesloe submitted, the proposed development, being a four storey building, was capable of approval under the Town of Cottesloe Local Planning Scheme No 3.  The Tribunal determined that this issue could not be determined in the absence of evidence and should be dealt with at the final hearing of the matter.

Category:    B

Representation:

Counsel:

Applicant:     Mr P McQueen

Respondent:     Ms C Ide

Solicitors:

Applicant:     Lavan Legal

Respondent:     State Solicitor's Office

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

City of Armadale v Hendry [2014] WASCA 209

City of Swan v Taylor [2005] WASCA 88

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

Snowdale Holdings and City of Swan [2015] WASAT 88

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. In July 2016, Peter D Webb and Associates, on behalf of the applicant, requested development approval to demolish the existing three storey building comprising nine multiple dwellings on No 220 (Lots 14 and 15) Marine Parade, Cottesloe and construct a four storey building comprising four multiple dwellings and a café (proposed development).  On the basis of the anticipated construction costs being $9.65 million, the applicant opted to have the application determined by the Metro­West Joint Development Assessment Panel pursuant to the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAPRegulations).

2. On 29 September 2016, the Metro­West Joint Development Assessment Panel refused the application for development approval for the proposed development.  On 20 October 2016, the applicant lodged an application for review of that decision in the Tribunal.

3. On 9 January 2017 the applicant applied for leave to amend the proposed development under review in the Tribunal proceedings.  The amended proposal removed the café element of the proposed development, reconfigured the car parking and access, reduced the overall height of the proposed building (but not reducing the number of storeys) and removed the proposed roof terrace.  The respondent objected to this application and the matter was listed to a special appointment on 28 March 2017.

4. On 30 January 2017, the applicant lodged with the Tribunal further amended plans in which the proposed development was amended by changing the 'café' use on the ground floor to 'home business', reconfigured car parking and access, reduced the overall height of the proposed building, removing the proposed roof terrace and some consequential minor amendments to internal and external walls to facilitate those changes (Final Amended Proposed Development).

5. On 24 February 2017, the respondent lodged with the Tribunal and served on the applicant a Statement of Issues for Determination at Special Appointment.  In that document, the respondent identified that the following issues arise for determination in respect of the applicant's application for leave to amend the proposed development the subject of review in the Tribunal:

   1)Whether the Final Amended Proposed Development constitutes an 'excluded development application' as defined under reg 3 of the DAP Regulations.

   2)If the answer to issue 1 is yes, whether the Tribunal's discretion should be exercised to grant leave to the applicant to amend the application for review to the Further Amended Proposal.

   3)If the answer to issue 2 is yes, whether there is discretion under the Town of Cottesloe Local Planning Scheme No 3 (LPS 3 or Scheme) to approve the proposed development with regard to the number of storeys proposed, namely four storeys. Consideration of this issue requires determination of:

   a)Is the application for the proposed development properly made pursuant to cl 4.11.4 of LPS 3?

   b)Is cl 5.3.5 of LPS 3 applicable to the proposed development?

6. On 3 March 2017 the Town of Cottesloe applied for leave to make submissions pursuant to s 242 of the Planning and Development Act2005 (WA) (PD Act) in relation to the matters to be determined at the special appointment. After hearing from the parties, the Tribunal determined, on 23 March 2017, that the Town of Cottesloe has leave to make oral submissions in relation to the proper interpretation of the provisions of LPS 3 in relation to height at the special appointment.

7. For the purpose of determining the preliminary issues identified by the respondent, the Tribunal accepted into evidence:

   1.respondent's statement of issues for determination at the special appointment, dated 24 February 2017 (Exhibit 1);

   2.set of plans drawn by RM Davey & Associates, job no 664RMD, revision D, dated December 2016 (Exhibit 2); and

   3.letter from Peter D Webb and Associates to the State Administrative Tribunal dated 31 January 2017 in which a summary of the changes that had been made to the proposed development by the Further Amended Proposed Development (Exhibit 3).

Whether the Final Amended Proposed Development constitutes an 'excluded development application'

1. Section 171A of the PD Act provides, amongst other things, that the Governor may make regulations prescribing a class or kind of development application which must be determined by a Development Assessment Panel and a class or kind of development application which an applicant may opt to have determined by a Development Assessment Panel.

2. Regulation 6 of the DAP Regulations prescribes three kinds of development applications for the purposes of s 171A of the PD Act in relation to which an applicant may opt to have the application determined by a Development Assessment Panel. Relevantly, development in a district outside of the district of the City of Perth that has an estimated cost of $2 million or more and less than $10 million is one of the prescribed kinds of development in reg 6 of the DAP Regulations. As such, the proposed development, being a proposal for four multiple dwellings and a café with an estimated construction cost of $9.65 million, was one in relation to which the applicant could, and did, opt to have determined by a Development Assessment Panel. However, reg 4A(3) of the DAP Regulations effectively removes the option to elect determination by a Development Assessment Panel in relation to an 'excluded development application'. The term 'excluded development application' is relevantly defined in reg 3 of DAP Regulations as:

   … development application for approval of ­ 

   (a)construction of ­

   …

   (iii)less than 10 multiple dwellings and any associated carport, patio, outbuilding and incidental development[.]

3. Regulation 3(2) of the DAP Regulations identifies 'incidental development' as one of the terms which, in the DAP Regulations, has the meaning given to the term in State Planning Policy 3.1 ­ Residential Design Codes (R Codes).  In Appendix 1 of the R Codes, 'incidental development' is defined as:

   Development which is associated with or attached to a dwelling and incidental to its main residential functions.

4. Thus the question arises as to whether the Final Amended Proposed Development, which incorporates a home business as opposed to the originally proposed café, is an 'excluded development application'.

5. The respondent submits that a home business is a use that is incidental to the use of the proposed building as multiple dwellings.  The respondent points to the definition of 'home business' in cl 2 of Sch 1 of the LPS 3 which specifies that it is a use where a business service or profession is carried out in a dwelling or on land around a dwelling by an occupier of the dwelling.  The respondent submits that a home business use is therefore one that cannot arise independently of the dwelling use on the land.

6. Further, the respondent submits that the predominant use of the site contemplated by the Final Amended Proposed Development is the residential dwelling use.  The home business is proposed to occur in an area of approximately 29m² which is an insubstantial proportion of the proposed building area.

7. The applicant cites the decision of the Tribunal in Snowdale Holdings and City of Swan [2015] WASAT 88 (Snowdale), at [58] ­ [63] and submits that an incidental use is one that does not require planning approval. Therefore, 'if planning approval is required to consider different considerations that arise, then a land use cannot be said to be sufficiently incidental to the predominant use of the land such that it can be considered under the heading of the predominant use'. The applicant points to the separate definitions of 'multiple dwelling' and 'home business' in LPS 3 and to the fact that each of these use types has a different classification in the zoning table of LPS 3. It is submitted that, because 'home business' is a use that is not permitted unless the local government has exercised its discretion by granting planning approval after having advertised the proposal, whereas a proposal for a 'multiple dwelling' does not require advertising, these uses require different levels of planning consideration. As such, it is submitted, the 'home business' use cannot be an incidental use.

8. Further, the applicant submits that the Scheme identifies that a 'home business' use requires planning approval, while a 'home office', which is a less intense land use, does not require planning approval under LPS 3.  The scale and intensity of a 'home business', which can involve the use of employees who are not occupiers of the related dwelling, is such that it cannot be properly described as incidental to the multiple dwelling use.

9. The definition of 'incidental use' in the R Codes is unfortunately not very helpful given its circular nature.  It is, however, clear that to be 'incidental' within the meaning of the R Codes, a use must be associated with or attached to a dwelling and incidental to the dwelling's main residential functions.

10. Her Honour Justice Johnson, in the decision of City of Swan v Taylor [2005] WASCA 88, considered in the context of the planning scheme there under consideration, that the dictionary definition of 'incidental to' was of assistance in understanding the meaning of the term 'incidental use'. Her Honour stated at [67] that determination of whether a particular use of land is incidental to another land use 'requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use'. This statement has been referred to with approval in a number of subsequent decisions of the Tribunal and the Supreme Court in relation to what is meant by incidental use.

11. The Court of Appeal made the following statements in the decision of City of Armadale v Hendry [2014] WASCA 209 (Hendry), at [58] in relation to the concept of an incidental use for which development approval was not required:

    … Also, the primary judge was correct, generally for the reasons he gave, in holding that whether an activity is incidental to a permitted use is a question of fact and degree and involves an evaluation of, relevantly, the regularity and extent of the activity.  Further, the primary judge was correct, generally for the reasons he gave, in deciding that, on a proper construction of the Scheme as a whole, the fact that under the Scheme an activity (for example, 'vehicle wrecking') is a prohibited use on land zoned 'Residential' does not derogate from the operation of cl 4.4.4.  In other words, if a use that would otherwise be a prohibited use (for example, 'vehicle wrecking') is merely incidental to the residential use of land zoned 'Residential', the incidental use will not be unlawful.

12. Senior Member McNab stated in Snowdale, at [59] that 'attention must be directed to the nature of the "separate" activity, its scale and the "regularity and extent" of the activities involved'.

13. In this case the activity contemplated by the use 'home business' as defined in LPS 3 is a business, service or profession carried out by an occupier of one of the dwellings and which:

    (a)does not employ more than 2 people not members of the occupier's household;

    (b)will not cause injury to or adversely affect the amenity of the neighbourhood;

    (c)does not occupy an area greater than 50 square metres;

    (d)does not involve the retail sale, display or hire of any goods of any nature;

    (e)in relation to vehicles and parking does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and

    (f)does not involve the use of an essential service of greater capacity than normally required in the zone[.]

14. There are no details provided in relation to the exact nature of the 'home business' contemplated on the site in this case.  The room identified as the location for the home business use is approximately 29m² in size and there is one car parking bay allocated to the 'home business' use.

15. The difference in the type of discretion given under the zoning table of the Scheme if approval were being sought independently for a proposed separate activity of 'home business' is not to the point.  In the same way, as seen in the Hendry decision referred to above, that it is not to the point that a use may be a prohibited use in a zone.  If it is an incidental use there will not be any need to obtain development approval for that use (unless there are some works involved).

16. The scale of the proposed 'home business' in terms of physical size is insignificant in comparison to the total size of the Final Amended Proposed Development.  That fact alone is not determinative in this case.  However, the small size of the area allocated will have some limiting effect on the extent and nature of the activities that can be carried out in the home business.

17. There cannot be any retail or display and the activity may not have any adverse impact on amenity, otherwise the activity will not come within the meaning of 'home business' for the purposes of the Scheme.  Thus the regularity and extent of the activities cannot be such that they have an impact on amenity.

18. Importantly, the very nature of the home business use is, pursuant to its definition, a subservient use that may only arise in connection with the dwelling use.  It is a use that cannot be conducted other than on land with a dwelling and by the occupier of the dwelling.  By its nature and by way of its size in this case, the home business is incidental to the proposed building's residential functions.

19. The Tribunal is satisfied that this particular proposed 'home business' is incidental to the multiple dwelling use proposed on the site.  The Final Amended Proposed Development does come within the meaning of an 'excluded development application' for the purposes of the DAP Regulations.

Whether leave to amend the application for review should be granted

1. The principles in relation to determination of an application for leave to amend an application for review made to the Tribunal pursuant to the PD Act were helpfully summarised by Senior Member McNab in SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2015] WASAT 40, at [10] ­ [17]. As Senior Member McNab stated, at [11]:

   … the issue is one of looking at the substance of the amendment or variation sought.  The authorities suggest, speaking generally, that the issue of substance is to be approached liberally, and with a 'broad brush'.  To some extent also a pragmatic approach may be taken on the issue of whether the amended development application remains in essence the same proposal as was considered by the decision­maker below.

2. The parties agreed that the Final Amended Proposed Development is not different in essence to the original proposed development and, as such, they agreed that the Tribunal has discretion to grant the application for leave to amend the application for review.  Despite that agreement, I am not persuaded as to the correctness of the position taken by the parties.

1. The context in which one must consider whether the amended development application remains in essence the same proposal as considered by the decision-maker below, includes, where the decision­maker below was a Development Assessment Panel, the parameters on a Development Assessment Panel's power to determine a development application.  It seems to me that if a change to a development application has the effect that it renders the application one that could not be determined by a Development Assessment Panel, the development application is in substance of a different nature.  This is so, even though the physical changes are, in this case, not dramatic.

2. In any event, even if the Final Amended Proposed Development is not in essence a different proposal, the Tribunal is not satisfied that it should exercise its discretion to allow the proposed amendment in the circumstances of this case.  If the applicant had lodged a development application in the form of the Final Amended Proposed Development initially, that application would have been determined by the Town of Cottesloe and not by the respondent.  The entity that would be the appropriate respondent in any review proceedings would, consequently, have been different. 

3. The PD Act and the DAP Regulations carve 'excluded development applications' out of the purview given to the Development Assessment Panels.  To grant leave to amend a development application so as make it become of a type never intended to be determined by a Development Assessment Panel, in proceedings where the Development Assessment Panel and not the Town of Cottesloe is the respondent, is inappropriate.

4. Additionally, there is a question as to whether the Tribunal, in these proceedings standing in the shoes of the respondent, would have the power to determine the Final Amended Proposed Development on its merits. 

5. Regulation 8(1) of the DAP Regulations provides that:

   Despite any other provision of the [PD] Act or a planning instrument, any DAP application for approval of development within a district for which a DAP is established ­

   (a)must be determined by the DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

   (b)cannot be determined by the local government for the district or the Commission.

6. The term 'DAP application' is defined in reg 3 of the DAP Regulations to mean:

   (a)a development application prescribed under regulation 5; or

   (b)a development application prescribed under regulation 6 in respect of which the applicant has made an election under regulation 7[.]

7. The original development application was of a kind prescribed under reg 6 of the DAP Regulations and the applicant made an election under reg 7 of the DAP Regulations.  That application was therefore properly before the respondent and it had the power to determine that application.  However, the Final Amended Proposed Development is a development application that is not of a kind prescribed by reg 5 or reg 6 of the DAP Regulations. 

8. Arguably, if the changes to the proposed development contemplated by the Final Amended Proposed Development do not have the effect of creating in substance a new development application, the original development application, as amended, must still be determined by the respondent, or rather the Tribunal standing in the respondent's shoes, pursuant to reg 8 of the DAP Regulations.  This is because the 'DAP application' is still effectively the original development application, which the respondent was required to determine. 

9. Alternatively, one could take the view that at the time the Tribunal comes to determine the merits of the Final Amended Proposed Development the nature of the changes means that the development application is no longer of a kind prescribed by reg 5 or reg 6 of the DAP Regulations.  As such, it is no longer a 'DAP application' within the meaning of the DAP Regulations.  In that case, the respondent, and in its shoes the Tribunal, no longer has authority to make that determination. 

10. In my view, the latter is the correct position.  This is another reason why the Tribunal should not grant leave to amend the development application the subject of review in these proceedings.

Is there discretion under LPS 3 to approve the Proposed Development?

1. The respondent submits that the proposed development, whether as per the original development application or in the form of the Final Amended Proposed Development, is unable to be approved under LPS 3. 

2. Clause 5.3 of LPS 3 provides relevantly that:

   5.3.1The following provisions operate as exclusions and variations to the Residential Design Codes and apply notwithstanding any provisions to the contrary in the Residential Design Codes.

   5.3.2In this clause 'Residential Development' means any development for residential purposes dealt with by the Residential Design Codes.

   5.3.3Building Height

   Despite anything contained in the Residential Design Codes to the contrary, the building height for Residential Development shall comply with the provisions of clause 5.7.

   …

   5.3.5Redevelopment of existing grouped dwellings or multiple dwellings

   Despite anything contained in the Residential Design Codes and notwithstanding the density codes shown on the Scheme Map, existing grouped dwellings or multiple dwellings that exceed a density code shown on the Scheme Map at the Gazettal date of the Scheme can, with the approval of the local government, be redeveloped at a density higher than that shown on the Scheme Map, equal to, but not exceeding the existing built density, subject to the proposed development ­

   (a)complementing the character of the streetscape;

   (b)not detrimentally increasing the mass, scale or surface area of the development relative to existing development on surrounding properties;

   (c)resulting in improved landscaping of the land;

   (d)providing adequate and safe means of vehicular and pedestrian access to the land; and

   (e)providing an adequate number of car parking spaces on the land.

   Furthermore, and notwithstanding any other clause in this Scheme, the proposed development may be considered for additional building height (maximum one additional storey) over the prevailing permissible building height for the locality where, in the opinion of the local government, the original number of dwellings (and their replacement plot ratio) cannot be appropriately accommodated on the lot without an increase in height.

3. Clause 5.7 of LPS 3 provides:

   5.7.1In this clause ­

   'Building Height' means the maximum vertical distance between any point of natural ground level and the uppermost part of the building directly above that point (roof ridge, parapet, or wall), excluding minor projections above that point.

   'Storey' means that part of a building between the top of any floor and the top of the floor next above, or if there is no floor above, between the top of the floor and the ceiling above it; but does not include any undercroft space designed or used for a lift shaft, stairway, meter room, bathroom, shower room, laundry, water closet, other sanitary compartment, cellar, corridor, hallway, lobby, the parking of vehicles, storeroom without windows or workshop appurtenant to a car parking area, where that floor­to­floor or floor to­ceiling­space as defined herein is not higher than 1 metre above the footpath level measured at the centre of the land along the boundary to which the space has frontage, or where that floor­to­floor or floor to­ceiling­space as defined herein is below the level of the natural ground level measured at the centre of the site as determined by the local government.

   'Wall Height' means the vertical distance between ­

   (a)any point of natural ground level; and

   (b)the level of the roof or the top of a parapet from that point in accordance with Figures 1, 2, 3 or 4 in Schedule 11.

   5.7.2All buildings shall comply with each of the following maximum heights, as applicable to the building ­

   (a)1 storey

   (i)Building Height (inclusive of wall and roof height; including to top of a parapet) - 6.0 metres maximum height.

   (b)2 storeys

   (i)Building Height ­ 8.5 metres maximum height.

   (ii)Wall Height (to level of roof) ­ 6.0 metres maximum height.

   (iii)Wall Height (to top of a parapet) ­ 7.0 metres maximum height.

   (c)More than 2 storeys

   (i)Building Height ­ 8.5 metres, plus 3.0 metres for each storey more than 2, maximum height.

   (ii)Wall Height (to level of roof) ­ 6.0 metres, plus 3.0 metres for each storey more than 2, maximum height.

   (iii)Wall Height (to top of a parapet) ­ 3.0 metres for each storey up to the highest storey, plus 4.0 metres for the highest storey, maximum height.

   5.7.3Unless otherwise provided for in the Scheme, all development shall comply with the requirements of Table 2 in relation to height.

   Note: Development in the Development Zone is subject to the requirements in Schedule 14 and any approved Structure Plan, as required by clause 6.2.

   5.7.4In the Residential Zone the local government may permit a third storey to be located within the roof space of a dwelling, provided that the development complies with the maximum wall and roof height requirements stipulated in clause 5.7.2 and also provided that, in the opinion of the local government, the dwelling will retain the appearance of a two­storey dwelling and will not unduly adversely affect local amenity.

   5.7.5In the case of proposed alterations, additions or extensions to existing dwellings in the Residential, Residential Office, Town Centre, Local Centre, Foreshore Centre and Restricted Foreshore Centre zones, the local government may vary the maximum heights specified in Table 2 and clause 5.7.2, where in its opinion warranted due the circumstances and merits of the proposal, having regard to:

   (a) The existing heights of the dwelling;

   (b)Any relevant Local Planning Policy or Design Guidelines;

   (c)Any heritage considerations relating to the dwelling;

   (d)Relevant planning considerations identified in Clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015;

   (e)Adequate direct sun into buildings and appurtenant open spaces;

   (f)Adequate daylight to major openings into habitable rooms;

   (g)Access to views of significance;

   (h)Building design to ameliorate the visual effects of height including consideration of setting­back the side walls of added storeys from the side walls of existing buildings; and

   i)The amenity of adjoining properties, including road and public open space reserves, and the character of the streetscape;

   and subject to the development:

   (a)Not exceeding the existing number of storeys or, where that is already exceeded, not exceeding the existing number of storeys;

   (b)Not exceeding the height of the existing dwelling, unless the Council is satisfied with the design and its implications having regard to the above criteria; and

   (c)In the Foreshore Centre Zone, the development not exceeding the requirements of clause 6.4.3.1 (a) and (b).

   An application for planning approval requiring the exercise of the discretion under this clause is to be advertised in accordance with clause 9.4 and the notice of the application is to include such reference to the variation sought to any height standard or requirement as the local government thinks fit.

4. Table 2 in LPS 3 provides for a maximum building height of two storeys in the Residential zone.  Therefore the respondent submits that the maximum building height for any building on the site is three storeys.  This is because the site has an existing multiple dwelling that exceeds the density code shown the Scheme map at the date of gazettal of the Scheme.  Therefore, pursuant to cl 5.3.5 of LPS 3, it is open to approve a redeveloped building at the existing built density with a maximum of one additional storey to the prevailing permissible building height which, the respondent submits, is that of the residential zone.

5. The applicant submits that the original development application and the Final Amended Proposed Development are made pursuant to cl 4.11.4 of LPS 3, which deals with non­conforming uses.  The applicant submits that the factors required to be considered in determining the merits of its development application are those contained in cl 4.11.4 of LPS 3 and cl 5.3.5 has no application in this case.

6. In the alternative, the applicant submits that if cl 5.3.5 of LPS 3 applies to its development application, the 'prevailing permissible building height for the locality' is not two storeys.

7. The Town of Cottesloe submits that, whether or not the proposed development is in connection with a non-conforming use, cl 5.3.5 of LPS 3 is applicable.  The Town of Cottesloe agrees with the respondent that pursuant to cl 5.3.5 of LPS 3, read together with cl 5.7 of the Scheme, the maximum height of any building that can be permitted to be constructed on the site is three storeys.

8. The starting point is to consider whether or not the applicant's development application is made pursuant to cl 4.11 of LPS 3.  Clause 4.11 of LPS 3 provides:

   4.11.1A person must not ­

   (a)alter or extend a non-conforming use;

   (b)erect, alter or extend a building used in conjunction with or in furtherance of a non-conforming use; or

   (c)change the use of land from an existing non-conforming use to another use, other than as set out in clause 4.9(a),

   without first having applied for and obtained planning approval under the Scheme.

   4.11.2An application for planning approval required by this clause is to be advertised in accordance with clause 9.4.

   4.11.3Despite anything contained in the Zoning Table, the local government may approve the change of use of land from an existing non-conforming use to a use that is not permitted under this Scheme, if the local government considers that the proposed use is less detrimental to the amenity of the locality than the existing non-conforming use and is closer to the intent of the zone.

   4.11.4In determining an application for a change of use of land from an existing non-conforming use to a use that is not permitted under this Scheme, or to alter or extend a non-conforming use, or to erect, alter or extend a building used in conjunction with or in furtherance of a non-conforming use, the local government is to have regard to the objectives of the zone in which the use or building is located and is to determine the development requirements applicable to the land.

9. The term 'non-conforming use' is defined in Sch 1 of LPS 3 as having the same meaning as it has in the PD Act. In s 172 of the PD Act, the only place in the PD Act where the term 'non-conforming use' is defined, it is stated that:

   non-conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7[.]

10. Clauses 6 and 7 of Sch 7 of the PD Act provide:

    Zoning

    (1)Zoning of the scheme area for appropriate purposes.

    (2)Designation of uses in zones as permitted, prohibited or requiring approval.

    Controls for land management

    Controls for land or site management for matters to which this Act relates.

11. It is relevant to note that Sch 7 of the PD Act deals with matters which may be dealt with by a planning scheme. Clause 8 and cl 9 of Sch 7 of the PD Act, which are not referred to in the definition of 'non­conforming use' in the PD Act, deal with development standards and controls:

    8.Development standards

    Standards for the development of any class or kind of building, structure, work or advertisement including standards in respect of ­

    (a)size;

    (b)appearance;

    (c)placement;

    (d)location;

    (e)number;

    (f)landscaping;

    (g)open space;

    (h)parking;

    (i)measures to maximise energy efficiency;

    (j)any other activity or requirement arising from the development.

    9.Development controls

    Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest.

12. The applicant submits the existing use of the site for nine multiple dwellings is a non-conforming use as the density code that applies to the site under the Scheme map is R25.  Under that density coding, the applicant submits, it would not be open to approve nine multiple dwellings on the site as it only has an area of 728m². 

13. It is not in dispute that the current use of the site for nine multiple dwellings existed prior to the gazettal of LPS 3 and was lawful. 

14. A fundamental difficulty with the applicant's argument is that the existing use of the site as a multiple dwelling is a use that is permissible on the site under LPS 3. It is identified as a 'D' (not permitted unless the local government has excised its discretion by granting planning approval as required by cl 4.8 of LPS 3) use in R25 land according to the Zoning Table in LPS 3. The applicant's submission that the built form of the use and the number of multiple dwellings that exist on site has to be considered is not to the point. The application of the requirements of the R Codes pursuant to cl 5.2 of LPS 3 (or more correctly pursuant to cl 67 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations2015 (WA) is not a provision of the Scheme that deals with the matters in cl 6 or cl 7 of Sch 7 of the PD Act.

15. In any event, there is nothing in the Scheme that prohibits, on residential zoned land identified as having a density code of R25 on the Scheme map, the development of any particular number of multiple dwellings.  In considering a development application, the decision maker is required to have due regard to state planning polices, which includes the R Codes.  Nothing in LPS 3 incorporates the provisions of the R Codes into the Scheme. 

16. In addition, cl 5.3.5 of LPS 3 expressly provides that an existing multiple dwelling that exceeds the density code shown on the Scheme map can, with the approval of the local government, be redeveloped at a density higher than shown on the Scheme map subject to the matters specified in that clause.  Therefore, it would be permissible under LPS 3 to redevelop the site to the same density as currently exists on the site.

17. There is no 'non-conforming use' of the site within the meaning of LPS 3.  Therefore, the Tribunal is not satisfied that cl 4.11 of LPS 3 has any application to the applicant's proposed development.  The Tribunal is satisfied that cl 5.3.5 of LPS 3 is applicable.

18. The argument of the respondent and the Town of Cottesloe that it is not open to approve a proposed development on the site of four storeys relies on an interpretation of cl 5.3.5 of LPS 3 that 'prevailing permissible building height for the locality' means the maximum building height specified in Table 2 of LPS 3 in relation to land of the type of zoning in the locality.  The Town of Cottesloe submits that this interpretation arises because of the use of the word 'permissible'.  It is submitted that this means what is permissible under the Scheme and does not include existing, permitted, building heights.

19. A difficulty with this argument is that what is permissible under LPS 3 in terms of building height is not restricted to the building heights identified in Table 2 of the Scheme. 

20. Clause 5.7.3 of LPS 3 states that all development shall comply with the requirements of Table 2 in relation to height 'unless otherwise provided for in this Scheme'. Clause 5.7.4 of LPS 3 is an example of one such provision whereby the local government may vary the maximum heights specified in Table 2 in certain circumstances. Clause 6.4 of LPS 3 also contains different provisions in relation to maximum building height for specified sites within the foreshore zone. Clause 7.5 of LPS 3 is potentially another such provision as it allows variation of a development standard or requirement specified in the Scheme if necessary in order to preserve a heritage place or to enhance or preserve heritage values in a heritage area.

1. In addition, if it had been intended that the limitation was to be determined only by reference to the maximum building height specified for the relevant zone in Table 2 of LPS 3, it is difficult to see why that would not have been stated.  It is the case that local planning schemes are not drafted by parliamentary counsel and, as such, care must be taken not to assume that conventions of drafting that might generally be expected to be adopted in the drafting of legislation will have been known or understood by drafters of a local planning scheme.  However, the reference to 'permissible' building heights does seem to me, in the context of this Scheme, to be a use of language more consistent with an intention to convey all permissible building heights rather than simply those specified in Table 2 of LPS 3.  In my view, the fact that cl 5.5.3 of LPS 3 contemplates there potentially being a range of permissible building heights by referring to the 'prevailing' permissible building height supports this interpretation.

2. The Tribunal is persuaded that the phrase 'prevailing permissible building height' taken in context does concern what is permissible under LPS 3.  It does not require, or invite, an audit of the heights of existing buildings within a locality.  Permissibility is a concept that is used in the Scheme (as in most local planning schemes) to convey what is able to be approved under the Scheme. It is a different concept to that of consideration of the consistency or otherwise of a proposal with an established streetscape, to the effect of a proposal on the amenity of a locality or to the lawfulness of any existing development despite non­conformity with relevant provisions of LPS 3.

3. In this case, the Tribunal does not have before it any agreed facts or evidence in relation to what is the relevant locality for the purposes of cl 5.5.3 of LPS 3 as applied to the proposed development.  It was submitted on behalf of the Town of Cottesloe that 'having regard to the area surrounding the [site], no matter how the "locality" is interpreted for the purposes of cl 5.3.5, the locality of the [site] is zoned "Residential" under LPS 3 and therefor the "prevailing permissible building height for the locality" is two storeys'.  However, the Tribunal is unable to determine the correctness or otherwise of that submission.

4. The Tribunal is also, at this stage of the proceedings, unable to identify what is the prevailing permissible building height within any particular locality. 

5. Therefore the Tribunal is unable to determine whether or not a four storey redevelopment of the site would be permissible under LPS 3.

Orders

The Tribunal makes the following orders:

1.The application for leave to further amend the application the subject of review in these proceedings made on 30 January 2017 is refused.

2.The matter is listed for a further directions hearing on 14 July at 2.30pm.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS L EDDY, MEMBER