BHY ALEXANDER UNIT TRUST and CITY OF NEDLANDS
[2021] WASAT 41
•17 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BHY ALEXANDER UNIT TRUST and CITY OF NEDLANDS [2021] WASAT 41
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
MS M CONNOR, MEMBER
HEARD: 13 AND 14 AUGUST AND 5 OCTOBER 2020 - WRITTEN CLOSING SUBMISSIONS FILED ON 31 DECEMBER 2020, 8 JANUARY 2021 AND 15 JANUARY 2021
DELIVERED : 17 MARCH 2021
FILE NO/S: DR 96 of 2020
BETWEEN: BHY ALEXANDER UNIT TRUST
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Development application - Four storey (above basement garage) multiple dwelling development - Subdivision and construction of substantial two storey single houses on residential properties in immediate locality of site following up-coding from R10 to R20 and R25 - Further up-coding from R20 to R80 and from R25 to R60 - Whether proposed development achieves R-Codes Volume 2 Element Objectives for design elements 2.2 Building height, 2.5 Plot ratio and 3.2 Orientation - Whether proposed development is compatible with its setting - Whether proposed development will have unacceptable adverse impact on amenity of adjoining property
Legislation:
City of Nedlands Local Planning Scheme No. 3, cl 7(2), cl 9, cl 16(2), cl 17, cl 18(2), cl 25(1), cl 26
City of Nedlands Town Planning Scheme No. 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 4, cl 4(3), cl 67(2)(a), cl 67(2)(g), cl 67(2)(m), cl 67(2)(n)
Planning and Development Act 2005 (WA), s 77(1)(b), s 77(2)(a), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 7.3 - Residential Design Codes Volume 2 – Apartments
Result:
Application for review dismissed
Decision of respondent to refuse to grant development approval for four storey (above basement garage) building comprising four multiple dwellings at No. 6 Alexander Road, Dalkeith affirmed
Summary of Tribunal's decision:
BHY Alexander Unit Trust sought review by the Tribunal of the decision of the City of Nedlands to refuse to grant development approval for the construction of a four storey (above basement garage) building comprising four multiple dwellings at No. 6 Alexander Road, Dalkeith.
The site and adjoining and adjacent properties on the eastern side of Alexander Road between Philip Road to the north and Waratah Avenue to the south were up-coded to R80 and the properties on the opposite, western side of Alexander Road in this section were up-coded to R60 under the City of Nedlands Local Planning Scheme No. 3 on 16 April 2019 in order to enable medium-rise medium density residential development. However, the immediate locality of the site had previously been up-coded from R10 to R20 (on the eastern side of the road) and R25 (on the western side of the road) under an amendment to the former City of Nedlands Town Planning Scheme No. 2 on 15 February 2005 in order to enable higher low density residential development in place of the original very low density residential development. This resulted in the subdivision of seven of the ten up-coded properties into two lots each and the construction of substantial two storey single houses on half (eight) of the current residential properties in the immediate locality, including on the three properties adjoining and adjacent to the site to the north and on the two properties adjoining and adjacent to the site to the south. Because of their relatively recent construction, quality and value, the eight new single houses in the immediate locality of the site are unlikely to be demolished in the foreseeable future. The Tribunal observed that these unusual planning (subdivision and development) characteristics of the immediate locality of the site require greater sensitivity from new development - and greater sensitivity than is displayed in the proposed development - in terms of height, bulk and scale fronting the street than would otherwise be the case in an area up-coded to R80. The Tribunal found that the proposed development is discordant and incompatible in its height in terms of its immediate streetscape setting and presents to the street with excessive bulk and scale when viewed in its immediate streetscape context.
The Tribunal determined that the proposed development warrants refusal in the exercise of planning discretion, because it does not achieve the Element Objectives for design elements 2.2 Building height, 2.5 Plot ratio and 3.2 Orientation in State Planning Policy 7.3 - Residential Design Codes Volume 2 - Apartments, is not compatible with its streetscape setting and will have an unacceptable adverse impact on the amenity of the adjoining property to the south at No. 8A Alexander Road by reason of overshadowing and bulk and scale. Ultimately, this is the case because the proposed development is one storey too high in the western half of the site and the ground floor finished floor level is (at least) 0.7 metre above existing ground level within the footprint of the development with the consequence that the overall height of the building is also too high. The ground floor finished floor level should be as low as is practicable while still at or above existing ground level within the footprint of the building and incorporating basement parking.
The Tribunal determined that the correct and preferable decision at the time of the decision upon the review is to refuse development approval for the proposed development.
Category: B
Representation:
Counsel:
| Applicant | : | Mr JC Skinner |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311
Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Vespoli and City of Stirling [2013] WASAT 161
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
BHY Alexander Unit Trust (applicant) seeks review by the Tribunal, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Nedlands (City, Council or respondent) to refuse to grant development approval for the construction of a four storey (above basement garage) building comprising four multiple dwellings at No. 6 (Lot 381) Alexander Road, Dalkeith (site).
In these reasons, we will firstly describe the site and locality, the proposed development and the planning framework. We will then set out the six principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, we have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in the exercise of planning discretion, is to refuse to grant development approval for the proposed development, because it does not achieve the Element Objectives for design elements 2.2 Building height, 2.5 Plot ratio and 3.2 Orientation in State Planning Policy 7.3 Residential Design Codes Volume 2 Apartments (RCodes Volume 2), is not compatible with its streetscape setting and will have an unacceptable adverse impact on the amenity of the adjoining property at No. 8A Alexander Road by reason of overshadowing and bulk and scale.
Site and Locality
The site is a regularly shaped, original 'quarter acre' residential lot, with an area of approximately 1,012m2 and a frontage to Alexander Road to the west of 20.04 metres. The topography of the site falls generally by approximately 0.5 to 0.6 metre from north to south. The site contains a one storey single house, associated outbuildings and a pool at its rear or eastern end.
The site is located on the eastern side of a relatively short section of Alexander Road between Philip Road to the north and Waratah Avenue to the south.[1] Under the City of Nedlands Town Planning Scheme No.2 (TPS 2), which was gazetted on 18 April 1985, the properties in this section of Alexander Road, at that time comprising 12 original quarter acre lots (six on each side), were (other than a commercial property at the south-eastern corner, which forms part of the Dalkeith Neighbourhood Centre) zoned 'Residential' and, like most other residential properties in Dalkeith, subject to a residential density coding of 'R10'. However, property owners in this section of Alexander Road worked with the City to have their properties re-coded to enable subdivision. On 15 February 2005, Amendment No. 148 to TPS 2 (Amendment 148) was gazetted, upcoding the then five residential properties at Nos. 2 to 10 Alexander Road, on the eastern side of Alexander Road between Philip Road and the commercial property, to 'R20', and up-coding the then five residential properties at Nos. 1 to 9 Alexander Road, on the western side of Alexander Road between Philip Road and the residential property at the north-western corner of the intersection of Alexander Road and Waratah Avenue, to 'R25'. Following the gazettal of Amendment 148, seven of the ten upcoded properties, namely Nos. 2, 4 and 8 Alexander Road, on the eastern side of the road, and Nos. 1, 3, 5 and 7 Alexander Road, on the western side of the road, were each subdivided into two lots. Other than Nos. 1 and 2 Alexander Road, which retain their original, approximately 20 metre-wide frontage to Alexander Road (with the former rear parts of these properties now comprising separate lots with their frontages to Philip Road to the north), the other new lots created by the subdivisions run eastwest and have a relatively narrow frontage of approximately 10 metres to Alexander Road. Of the 10 properties up-coded by Amendment 148, only three, namely the site and No. 10 Alexander Road, on the eastern side of the road, and No. 9 Alexander Road, on the western side of the road, remain original quarter acre lots.
[1] See Waratah Village Precinct Area Plan reproduced at [7] below.
Furthermore, substantial two storey single houses have been constructed on the new lots created by subdivision at No. 2 (in 2016), No. 3A (in 2008), No. 4A (in 2009), No. 4B (in 2009), No. 7A (in 2013), No. 7B (in 2013), No. 8A (in 2014-2015) and No. 8B (in 20142015) Alexander Road. Significantly, in terms of key issues in this case, the site is now flanked by new two storey single houses on the three properties to its north (Nos. 2, 4A and 4B Alexander Road) and on the two properties to its south (Nos. 8A and 8B Alexander Road). Original one storey single houses now only remain at the site and No. 10 Alexander Road, on the eastern site of the road, and at Nos. 1 (a subdivided lot), 3 (a subdivided lot) and 9, on the western side of the road. The original single house at No. 5 (now Nos. 5A and 5B) Alexander Road has been demolished and these properties are vacant. There is also an original one storey single house at the property at the south-western corner of this section of Alexander Road, which was not subject to upcoding by Amendment 148.
When the City prepared and resolved to adopt and advertise the draft City of Nedlands Local Planning Scheme No. 3 (LPS 3 or Scheme) to replace TPS 2 in 2016, the proposed density coding of the site and the other residential properties in the section of Alexander Road between Philip Road and Waratah Avenue was the same as under (Amendment 148 to) TPS 2. However, the Western Australian Planning Commission (Commission) required changes to be made to draft LPS 3 before it was advertised, including up-coding the site and the other residential properties on the eastern side of Alexander Road between Philip Road and Waratah Avenue to 'R80' and up-coding the properties on the western side of Alexander Road between Philip Road and Waratah Avenue to 'R60'. Draft LPS 3 was advertised in this form from December 2017 to March 2018. Although the Council resolved on 31 July 2018 to not support draft LPS 3 in this form, the Scheme was gazetted on 16 April 2019 in terms which include the up-coding of the site and the other residential properties on the eastern side of Alexander Road between Philip Road and Waratah Avenue, as well as the properties to the east on the southern side of Philip Road and west of Adelma Road, to R80, and upcoding the properties on the western side of Alexander Road between Philip Road and Waratah Avenue, as well as properties to the north of Philip Road and to the south of Waratah Avenue, to R60. We reproduce immediately below the Waratah Village Precinct Area Plan prepared by the City showing the outline of the Waratah Village Precinct (which includes the site) overlaid on the Scheme Map under LPS 3.[2]
[2] Respondent's supplementary s 24 bundle of documents (Exhibit 4) tab 8.
In addition to residential properties, which are now coded R80 under LPS 3, fronting Alexander Road to the west and Philip Road to the north, the street block on which the site is located, bounded by Alexander Road to the west, Philip Road to the north, Adelma Road to the east and Waratah Avenue to the south, also comprises commercial, mixed commercial and residential, and community use properties generally fronting Waratah Avenue to the south and occupying most of the southern half of the street block. This land is zoned 'Mixed Use' and coded 'R-AC3' under LPS 3 and comprises the Dalkeith Neighbourhood Centre (R-AC3 coded area). The site diagonally abuts the R-AC3 coded area at its south-eastern corner. While the R-AC3 coded area generally fronts Waratah Avenue, the westernmost property forming part of that area, which is commercial property referred to at [5] above, has frontages to both Waratah Avenue and Alexander Road and forms the south-eastern corner of Alexander Road between Philip Road and Waratah Avenue (R-AC3 coded property). The R-AC3 coded property lies four properties to the south of the site, separated from the site by Nos. 8A, 8B and 10 Alexander Road.
The Tribunal had the benefit of expert planning evidence from Mr Aaron Lohman, who was called by the applicant, and Ms Amanda Butterworth, who was called by the City. The planning expert witnesses disagree as to the demarcation of the relevant immediate locality for the purposes of assessing whether the proposed development achieves the Element Objectives for design elements 2.2 Building height and 2.5 Plot ratio in the R-Codes Volume 2 and whether the proposed development is compatible with its setting in terms of streetscape. Mr Lohman considers that 'the locality of the development includes all the land bound by Alexander Road, Philip Road, Adelma Road, [and] Waratah Avenue coded R80 to R[]AC3 and the abutting Residential zoned land coded R60'.[3] Ms Butterworth disagrees with Mr Lohman's 'description of the relevant locality' and considers that the relevant locality for the purposes of the issues arising for determination in this case is 'the immediate locality being the section of Alexander Road between Philip Road and Waratah Avenue on both sides of the road, noting that the western side has an R60 zoning [coding] and the southern [eastern] side has an R80 zoning [coding]' and also noting that 'the southernmost site on the eastern side is zoned [coded] R[-]AC3, but I still consider that relevant because it fronts on to this section of Alexander Road'.[4] Ms Butterworth then gave the following evidence:[5]
In terms of the R[-]AC3 coded area on Waratah Avenue, which is historically a local centre, I consider the character of that area to be quite different as compared to the character of, say, the Alexander Road frontage area between Philip Road and Waratah Avenue. So I wouldn't put that R[-]AC3 [coded] area or that local centre area I wouldn't consider that to be the immediate locality because of the difference in characteristics of the site.
[3] Witness statement of Aaron Thomas Lohman dated 4 August 2020 (Exhibit 14) [22].
[4] ts 5960,13 August 2020.
[5] ts 60,13 August 2020.
We prefer and accept Ms Butterworth's evidence in relation to the demarcation of the relevant immediate locality for the purposes of assessing whether the proposed development achieves the Element Objectives for design elements 2.2 Building height and 2.5 Plot ratio in the R-Codes Volume 2 and whether the proposed development is compatible with its setting in terms of streetscape, because as Ms Butterworth said, 'the character of … [the R-AC3 coded] area … [is] quite different as compared to the character of … the Alexander Road frontage area between Philip Road and Waratah Avenue'.[6] Furthermore, in terms of assessment of the proposed development under the Element Objectives of the RCodes Volume 2 in relation to Building height and Plot ratio and as to streetscape compatibility, in addition to having a significantly different character to the R-AC3 coded area, the section of Alexander Road between Philip Road and Waratah Avenue forms a relatively confined and defined pocket of residential development. This is because Alexander Road does not continue along the same alignment north of Philip Road, but rather 'dog legs' to the east, thus defining the northern end of this pocket by residential development on land coded R60 directly to the north of the alignment of Alexander Road through this pocket, and the southern end of this pocket is defined by a triangular shaped reserve bounded by Alexander Road to the west, Waratah Avenue to the north and Genesta Crescent to the south-east. Consequently, we accept Ms Butterworth's evidence that the relevant 'immediate locality' for the purposes of assessment of the proposed development in terms of key issues in this case concerning building height, plot ratio and compatibility with the streetscape setting, is the section of Alexander Road between Philip Road and Waratah Avenue.
Proposed Development
[6] ts 60,13 August 2020.
On 15 October 2019, the applicant applied for development approval from the City under LPS 3[7] for the construction of a five storey (above basement garage) building comprising five multiple dwellings (one on each floor) at the site. The development application was advertised and the City received a total of 79 individual submissions, 75 of which were objections and four of which were in support of the application, and two petitions against the proposal. On 18 February 2020, the applicant lodged amended plans which reduced the height of the proposed development to four storeys and the number of multiple dwellings to four (one on each floor). The amended plans were not advertised.
[7] No application for approval under the Metropolitan Region Scheme was submitted.
The development application was recommended for approval, subject to 23 conditions, by the City's assessing planning officers in their report to the Planning and Development Committee. However, at its meeting on 14 April 2020, the Planning and Development Committee recommended that the Council should refuse the proposed development.
At its meeting on 28 April 2020, the Council resolved, contrary to its assessing planning officers' recommendation, to refuse to grant development approval for the proposed development for the following four reasons:[8]
1.The proposal does not meet the [E]lement [O]bjective of O2.5.1 of the Residential Design Codes Volume 2 in that the overall bulk and scale of the development is not consistent with the existing character of the area. The proposal does not meet the [E]lement [O]bjective O3.2.2 of the Residential Design Codes Volume 2 in that the development will have a significant impact on the amenity of the neighbour to the immediate south at [No.] 8A Alexander Road due to the existence of a relatively new dwelling at [No.] 8A, and overshadowing of approximately 90% of the home's roof space in May, June and July compromising solar access with little ability to adapt (e.g. roof skylights are unlikely to make much difference).
2.Approval of the development would not be consistent with [cl] 67(m) of the matters to be considered under the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 in that the development is not compatible within its setting due to the bulk and scale of the development being incongruous with the existing buildings in the immediate locality.
3.Approval of the development would not be consistent with [cl] 67(n) of the matters to be considered under the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 in that the development adversely impacts upon the amenity of the locality due to the size and scale of the development, including the impact of overshadowing on the southern neighbouring property.
4.Approval of the application would not be consistent with the aims of the City of Nedlands Local Planning Scheme No. 3, particularly aim (a) which is to protect and enhance local character and amenity. The proposal is of greater bulk and scale than the existing buildings in the immediate locality and has the potential to adversely impact upon the amenity of the locality, particularly the southern neighbouring property due to overshadowing.
Planning Framework
[8] Respondent's s 24 bundle of documents dated 3 July 2020 (Exhibit 3) tab 9 page 34.
The site is zoned 'Urban' under the Metropolitan Region Scheme. As indicated earlier, the site is zoned 'Residential' with a residential density coding of 'R80' under LPS 3.
The aims of LPS 3, which are set out in cl 9, and the planning principles that 'represent best practice urban planning for established urban areas' under cl 2.1 of the City of Nedlands Local Planning Strategy (LP Strategy), which, under cl 7(2) of LPS 3, the 'Scheme is to be read in conjunction with', state, in part, as follows:[9]
(a)Protect and enhance local character and amenity[.]
(b)Respect the community vision for the development of the district[.]
(c)Achieve quality residential built form outcomes for the growing population[.]
[9] Exhibit 4 tab 1 page 6.
Under cl 16(2) of the Scheme, the objectives of the Residential Zone are as follows:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
•To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.
Clause 5.1 Population and Housing of the LP Strategy states as follows:[10]
To facilitate potential realisation of the specified housing targets through a strategic approach that aims to conserve and enhance the quality of the City of Nedlands' existing attractive residential neighbourhoods. Strongly encourage development of a considerable number of additional dwelling units of a diverse nature within the targeted infill areas.
[10] Exhibit 4 tab 1 page 13 (original emphasis).
The LP Strategy Map identifies the site and the immediate locality as 'Existing Residential Area' and identifies the R-AC3 coded area as a 'Neighbourhood Activity Centre' and as a 'Redevelopment/Development Area' for 'Targeted Infill'.[11] Clause 5.1 of the LP Strategy sets out 'strategies', including the following, to achieve the intention set out in the preceding paragraph:[12]
…
•Facilitate redevelopment opportunities for medium density residential development within Neighbourhood Centres.
•Aim to achieve residential densities within and in the immediate vicinity of Neighbourhood Centres in line with the scale of the particular centre.
•Facilitate greater diversity, specifically higher density multiple and grouped dwelling developments in targeted infill areas to provide a diverse range of dwelling types to accommodate changes in population trends.
•Develop controls to ensure key sites are not underdeveloped, thus ensuring existing residential character is protected long term and development is focused in a few specified locations.
•Maintain established residential urban areas to ensure the retention of the existing residential character and lot configurations.
[11] Exhibit 4 tab 1 page 8.
[12] Exhibit 4 tab 1 page 13.
Consistently with the aims of the Scheme, the planning principles stated in the LP Strategy and the objectives of the Residential Zone set out at [15]-[16] above, cl 5.8 of the LP Strategy states as follows:[13]
Retain and enhance the character and streetscape of the City's existing residential areas whilst promoting best practice urban design principles in targeted infill areas. Maintaining and enhancing high quality streetscapes will be of the upmost [sic] importance to decision[]making, and developments will need to respond to the unique character of each precinct.
[13] Exhibit 4 tab 1 page 17 (original emphasis).
Clause 5.8 Urban Design, Character and Heritage of the LP Strategy contains specific 'strategies', including the following, to achieve the intention set out in the preceding paragraph:[14]
•Ensure the Local Planning Scheme and other development controls are in place to retain and enhance the existing character of each identified precinct.
•Develop mechanisms to promote and/or incentivise best practice urban design outcomes in areas experiencing change and in areas of transition (for example, between precincts, corner sites, different densities/land uses, targeted infill areas etc.).
•Further understand the elements that contribute to streetscapes to inform consistent statutory control.
…
[14] Exhibit 4 tab 1 page 17.
Similarly also, under cl 5.9.12 of the LP Strategy, the specific 'strategies' for the Dalkeith Precinct, in which the site is located, are as follows:[15]
•Retain and enhance the character and streetscape of the existing residential areas, in order to protect the established character of this precinct.
•Facilitate consolidation and realisation of the existing development potential for non-residential and residential purposes within the Dalkeith Neighbourhood Centre.
•Facilitate increased dwelling diversity by providing for increased residential density in the immediate vicinity of the Dalkeith Neighbourhood Centre, in line with the scale of the centre.
[15] Exhibit 4 tab 1 page 25.
Under the Zoning Table in cl 17 of the Scheme, the use and development class 'Residential' is a 'P' use in the Residential Zone, meaning, under cl 18(2) of the Scheme, that 'the use is permitted if it complies with any relevant development standards and requirements of this Scheme'.
Section 77(1)(b) of the PD Act states that a local government, in preparing or amending a local planning scheme, '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…'. Pursuant to s 77(1)(b) of the PD Act, cl 25(1) of the Scheme provides that '[t]he R-Codes, modified as set out in clause 26, are to be read as part of this Scheme'. Section 77(2)(a) of the PD Act states that where a local planning scheme includes a provision referred to in s 77(1)(b), 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 [the PD Act], were set out in full in the scheme'. Clause 26 of LPS 3 does not relevantly modify the R-Codes Volume 2 in terms of any of the issues for determination in this review.
We will refer to relevant provisions of the R-Codes Volume 2 when we consider the issues concerning those provisions below.
Issues for determination
The following six principal issues arise for determination in this review:
1.Does the proposed development achieve the R-Codes Volume 2 Element Objectives for design element 2.2 Building height?
2.Does the proposed development achieve the R-Codes Volume 2 Element Objectives for design element 2.5 Plot ratio?
3.Does the proposed development achieve the R-Codes Volume 2 Element Objectives for design element 3.2 Orientation?
4.Is the proposed development compatible with its setting?
5.Will the proposed development have an unacceptable adverse impact on the amenity of No. 8A Alexander Road?
6.Would approval of the proposed development be consistent with orderly and proper planning?
We will address each of these issues in turn.
Does the proposed development achieve the R-Codes Volume 2 Element Objectives for design element 2.2 Building height?
The R-Codes Volume 2 explains at page iv that it is a 'performancebased policy', rather than a 'deemed-to-comply' policy, for the assessment of residential development applications on land coded R40 and above under the applicable local planning scheme. The RCodes Volume 2 states, in particular, as follows:[16]
Performance-based policy
This is a performance-based policy. Applications for development approval need to demonstrate that the design achieves the objectives of each design element. While addressing the Acceptable Outcomes is likely to achieve the Objectives, they are not a deemedtocomply pathway and the proposal will be assessed in context of the entire design solution to ensure the Objectives are achieved. Proposals may also satisfy the Objectives via alternative means or solutions.
[16] R-Codes Volume 2 page iv (original emphasis).
Clause 1.2.2 of the R-Codes Volume 2 identifies provisions of the document which may be amended or replaced by local governments. In particular, cl 1.2.2 of the R-Codes Volume 2 states that '[w]here consistent with Element Objectives, local governments may prepare and adopt local planning policies … that amend or replace the Acceptable Outcomes of … [specified] sections of the R-Codes Volume 2 [including] … [a]ll of Part 2'.[17] Part 2 of the R-Codes Volume 2 contains primary controls to manage the form and scale of residential development, including Building height (design element 2.2) and Plot ratio (design element 2.5).
[17] R-Codes Volume 2 page 4 (original emphasis).
The stated 'intent' of design element 2.2 Building height of the RCodes Volume 2 is as follows:[18]
The apparent height of new development shall be appropriate to the streetscape and desired character of the area and shall not adversely impact the amenity of adjoining properties. Building height is one of the factors that define building envelopes. In this policy it is expressed in storeys relative to natural ground level. Building height limits guide the intended scale of streetscapes and manage impacts between development and neighbours in terms of solar access, wind, and visual privacy.
Default building height limits for all development covered under this policy are defined by the Primary Controls in Table 2.1. Table 2.1 also includes provisions and guidance for boundary wall height limits to moderate the most direct effect of height on neighbours.
Height limits may be varied through local planning instruments in response to local character and context. Applicants must therefore address height provisions in applicable local planning instruments, where these differ to the default requirements of Table 2.1.
[18] R-Codes Volume 2 page 16 (original emphasis).
The Element Objectives and the Acceptable Outcomes of design element 2.2 Building height of the R-Codes Volume 2 are as follows:[19]
[19] R-Codes Volume 2 page 17 (original emphasis).
ELEMENT OBJECTIVES
Development is to achieve the following Element Objectives:
O 2.2.1The height of development responds to the desired future scale and character of the street and local area, including existing buildings that are unlikely to change.
O 2.2.2The height of buildings within a development responds to changes in topography.
O 2.2.3Development incorporates articulated roof design and/or roof top communal open space where appropriate.
O 2.2.4The height of development recognises the need for daylight and solar access to adjoining and nearby residential development, communal open space and in some cases, public spaces.
ACCEPTABLE OUTCOMES
In Part 2 only, Acceptable Outcomes are default provisions to assist in satisfying the objectives. In order to achieve the Element Objectives, proposals may require additional and/or alternative design solutions in response to the site conditions, streetscape and design approach where specified in the local planning framework (clause 1.2).
A 2.2.1Development complies with the building height limit (storeys) set out in Table 2.1, except where modified by the local planning framework, in which case development complies with the building height limit set out in the applicable local planning instrument.
The 'building height limit (storeys) set out in Table 2.1',[20] referred to in Acceptable Outcome A 2.2.1 of the R-Codes Volume 2, is four storeys for development on land coded R80 and three storeys for development on land coded R60. Table 2.1 also states 'refer [to Table] 2.2' in relation to 'Building height (storeys)'.[21] Table 2.2 states that the '[i]ndicative overall building heights in metres' for four storeys is 15 metres and for three storeys is 12 metres.[22]
[20] Original emphasis.
[21] R-Codes Volume 2 page 15 (original emphasis).
[22] R-Codes Volume 2 page 16.
The proposed development is four storeys (and it is not in dispute that it is less than 15 metres) in height and therefore 'complies with the building height limit (storeys) set out in Table 2.1', which is the 'Acceptable Outcom[e] [being] the default provisio[n] to assist in satisfying the [Element] [O]bjectives', under cl A 2.2.1 of the R-Codes Volume 2, 'except where modified by the local planning framework, in which case development complies with the building height limit set out in the applicable local planning instrument'.[23]
[23] Original emphasis.
At its meeting on 31 March 2020, the Council resolved to '[i]mmediately initiate a Local Planning Policy to establish a 10 metre height limit in Alexander Road and [at Nos.] 26, 28, 29, 31, 33 & 35 Philip Road, Dalkeith' and to 'initiat[e] a [S]cheme amendment to reduce the zoning [coding] of all recently up[-]coded properties on Alexander Road from R60 and R80 to R35'.[24] Under the heading 'Justification' for these resolutions, the Council Minutes refer to '[t]he current development application for #6 Alexander [R]oad being 4 STOREYS' as being 'totally inappropriate and 268 residents rejected the proposal (see petition filed 20/11/19)' and as not complying with the aims of LPS 3, because:[25]
•The height, bulk, and scale of the proposed development is inconsistent with and unsympathetic to its setting and the desired character and amenity of the area. IT Changes [sic] the street completely.
•The building unreasonably impacts the amenity of the neighbouring properties in respect to overlooking and overshadowing due to its excessive height, bulk and scale.
•This development does not respect the community vision of the development of the district.
[24] Exhibit 14 Annexure 4 page 83.
[25] Exhibit 14 Annexure 4 page 84.
The Council Minutes of 31 March 2020 also contain 'Administration Comment' in which the Council's planning officers recommended against initiating a local planning policy to establish a 10 metre height limit in Alexander Road and at the nominated properties on Philip Road and a Scheme amendment to down-code the properties on Alexander Road which had been up-coded by LPS 3. The planning officers recommended against initiating a local planning policy to establish a 10 metre height limit, because the City was 'currently formulating the Waratah Precinct Plan (Local Planning Policy) of which preliminary consultation was undertaken with the community and landowners in November 2019'.[26]
[26] Exhibit 14 Annexure 4 page 84.
However, as required by the Council's resolution, the City's planning officers prepared a local planning policy to establish a 10 metre height limit in Alexander Road and at the nominated properties on Philip Road (Height LPP). The Height LPP was publicly advertised in June and July 2020 and resulted in 54 submissions being received, of which 53 were in support and one objected to the draft policy. At its meeting on 25 July 2020, the Council did not accept its planning officers' recommendation that it defer final consideration of the draft Height LPP so that it 'can give consideration of [sic] the Waratah Village local character and distinctiveness study, character analysis, built form modelling, draft Waratah Village Local Precinct Plan and final adoption of Amendment No. 8 to [LPS 3]',[27] and resolved to adopt the Height LPP under cl 4(3) of the deemed provisions in local planning schemes set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) and cl 1.2.2 of the RCodes Volume 2.
[27] Respondent's second supplementary s 24 bundle of documents dated 30 September 2020 (Exhibit 18) tab 2 page 107.
Clause 2.1 of the Height LPP contains a map showing that the policy applies to the site and its immediate locality on both sides of Alexander Road between Philip Road and Waratah Avenue (other than the R-AC3 coded property) as well as five properties north of Philip Road and five properties south of Waratah Avenue on the western side of Alexander Road. Clause 2.3 of the Height LPP relevantly states that '[t]his Policy replaces Acceptable Outcome [A] 2.2.1 of Element 2.2 Building [h]eight of [the R-Codes Volume 2]'[28] and cl 4.1 of the Height LPP contains the relevant policy measure that '[a]ll development is to have a maximum building height of 10.0 [metres] above natural ground level'.[29] Clause 3 of the Height LPP sets out the objectives of the policy as follows:[30]
3.1Protect and enhance local character and amenity.
3.2Respect the community vision for the development of the district.
3.3Ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks of street.
[28] Original emphasis.
[29] Exhibit 18 tab 2.
[30] Exhibit 18 tab 2.
It is common ground between the parties - and clearly the case that having been prepared, adopted and published in accordance with the procedures set out in cl 4 of the deemed provisions, the Height LPP has effect and is to be given 'due regard' by the Tribunal under cl 67(2)(g) of the deemed provisions and, further, that it has the 'quasilegislative effect'[31] of replacing the Acceptable Outcome under cl A 2.2.1 of the RCodes Volume 2 of compliance with the building height limit of four storeys on land coded R80 and three storeys on land coded R60 set out in Table 2.1 of the R-Codes Volume 2 with compliance with the building height limit of 10 metres above natural ground level on land to which it applies. In this regard, although the 'intent' of design element 2.2 states that '[i]n this policy [building height] is expressed in storeys'[32] and Planning Guidance PG 2.2.2 of the R-Codes Volume 2 states that 'Building heights should typically be expressed in storeys to allow flexibility of design solutions at ground and roof levels, promote generous floor to ceiling heights and provide for future building adaptability',[33] design element 2.2 Building height in the R-Codes Volume 2 does not mandate the expression of a substituted Acceptable Outcome building height limit as being expressed in storeys (rather than in metres). It is also common ground between the parties and clearly the case that although the proposed development does not comply with the Acceptable Outcome building height limit of 10 metres above natural ground level, as it now is under cl A 2.2.1 of the R-Codes Volume 2 and the Height LPP, because the R-Codes Volume 2 is a 'performancebased policy', the proposed development can still satisfy design element 2.2 Building height by achieving Element Objectives O 2.2.1 O 2.2.4.
[31] Applicant's submissions in reply dated 15 January 2021 (applicant's submissions in reply) [7].
[32] Original emphasis.
[33] R-Codes Volume 2 page 17 (bolded emphasis original and italicised emphasis added).
However, there is a dispute between the parties as to whether the Tribunal is required to consider and determine the appropriate weight to be given to the building height limit of 10 metres above natural ground level under the Height LPP in the assessment of the proposed development in this case. The City submits that, because the Height LPP is 'in the nature of a quasilegislative instrument, … [it] therefore has a character which is different to a "standard" local planning policy which is intended to guide the exercise of planning discretion' and that 'the question of weight does not arise in the context of the legal effect of the Height LPP on Acceptable Outcome A 2.2.1'.[34] This submission is correct as far as it goes, but the Height LPP has significance beyond its quasilegislative role of replacing the Acceptable Outcome building height limit of four storeys with 10 metres above natural ground level for the purposes of development on the site. It is agreed between the expert planning witnesses, and common ground between the parties, that as Mr Lohman said in his evidence, in assessing whether a development achieves Element Objectives O 2.2.1 - O 2.2.4 of the RCodes Volume 2, the Acceptable Outcome building height limit under cl A 2.2.1 'inform[s] the future scale and character of the street and local area'.[35] The City submits:[36]
Notwithstanding any perceived limitations the Height LPP may have, the [r]espondent invites the Tribunal to conclude that the fact the adoption of the Height LPP has the effect of replacing the primary control for building height within Alexander Road unequivocally indicates that the R[-]Codes Volume 2 primary controls for the R 80 density cannot be taken as expressing the desired height, scale or character of Alexander Road, at least on an interim basis until the precinct planning is completed.
[34] Respondent's closing submissions dated 8 January 2021 (respondent's closing submissions) [45].
[35] Exhibit 14 [111].
[36] Respondent's closing submissions [46].
Given that the Height LPP has broader significance by informing the future likely scale and character of the relevant locality, we accept the applicant's submission that, 'apart from [its] technical quasilegislative effect [of replacing the Acceptable Outcome building height limit on the site of four storeys with 10 metres above natural ground level under cl A 2.2.1 of the R-Codes Volume 2], and in circumstances where the proposed development does not meet the replaced primary control and is to be considered by reference to the Element Objective[s]',[37] the question of what weight is to be given to the Height LPP arises by analogy with planning law decisions concerning the application of 'standard' local planning policies which are intended to guide the exercise of planning discretion. Furthermore, we accept the applicant's submission that, 'having regard to the various matters that are set out in [its] submission[s] concerning the Height LPP, no weight should be given to the Height LPP [in the Tribunal's assessment of whether the proposed development achieves Element Objectives O 2.2.1 - O 2.2.4 of the R-Codes Volume 2] or its apparent intent in terms of (for example) indicating the desired future character of the area'.[38]
[37] Applicant's submissions in reply [7].
[38] Applicant's submissions in reply [7].
As the Tribunal[39] said in Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311 at [99]:
In the exercise of planning discretion, the Tribunal is guided by the planning principles that find expression in the policies forming the planning framework, but will depart from the application of those planning principles where there is a cogent reason to do so in the circumstances of the case …
[39] Judge Parry DP and Mr P de Villiers M.
Although the primary purpose and function of the Height LPP is not to guide the exercise of planning discretion in the same way as typical local planning policies forming part of the planning framework, it is nevertheless intended, in part, to guide the assessment of whether the proposed development achieves the Element Objectives. This is a relevantly analogous purpose to the function of typical local planning policies.
Planning law decisions have identified principles which apply in relation to the determination of the weight to be given to local planning policies in planning assessments by the Tribunal and original planning consent authorities. Although the range of considerations is not closed, and other matters may be relevant in a particular case, the Tribunal has consistently referred to and applied criteria endorsed by the former Town Planning Appeal Tribunal[40] in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at 16, which were restated in the early Tribunal[41] decision in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [51] as follows:
(a)whether [the local planning policy] is based on sound town planning principles;
(b)where it is a public, rather than a secret policy;
(c)whether it is a public policy conceived after considerable public discussion;
(d)the length of time that a policy has been in operation; and
(e)whether it has been continuously applied.
[40] Professor LA Stein DC, Ms V Allan M and Mr PB Arney M.
[41] Ms B Moharich M, Ms M Connor M and Mr J Adderley Sess M.
Moreover, and significantly in this case, as the Tribunal[42] said in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [35], 'in having [due] regard to a policy, the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application'. Such a policy is unlikely to be based on sound town planning principles, is unlikely to have been conceived after considerable public discussion, would be in operation for a relatively short time and would not have been continuously applied (and, indeed, would be intended to be applied for the first time in assessing the particular pending development application). Furthermore, obviously, the pending development application would not have been conceived and designed to address a planning policy which was formulated in response to it. While strategic planning is necessarily fluid and constantly evolving, orderly and proper planning is premised on strategic planning guiding the formulation and assessment of development applications, rather than a particular development application being the catalyst for the formulation and adoption of a planning policy that is then used to assess that application. The principle stated in Ridgecity Holdings Pty Ltd and City of Albany has been consistently applied by the Tribunal.[43]
[42] Judge Chaney DP, Mr DR Parry SM and Ms M Connor M.
[43] See McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 [87][89] (Mr DR Parry SM, Ms M Connor M and Mr A Ednie-Brown Sess M), Vespoli and City of Stirling [2013] WASAT 161 (Mr P de Villiers Sess M) [41]-[45] and Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86 (Ms D Quinlan M) [61].
It is clear from the stated '[j]ustification' for initiating the Height LPP in the Council Minutes of its meeting on 31 March 2020 set out at [33] above that, as the applicant submits, 'the proposed development the subject of this proceeding was clearly the sole catalyst for the initiation of the draft [Height] LPP and the timing of the adoption of the [Height] LPP'.[44] Moreover, we are not satisfied that the Height LPP is based on sound planning principles. As indicated earlier, it was initiated and adopted contrary to the City's planning officers' advice, which referred to ongoing strategic planning for the Waratah Village Precinct. Furthermore, although cl A 2.2.1 of the R-Codes Volume 2 does not preclude building height being expressed in metres, it clearly contemplates that modification by the local planning framework of 'the building height limit (storeys) set out in Table 2.1'[45] will be by substituting a different number of storeys for the default provision. The R-Codes Volume 2 explains that 'in Part 2 the Planning Guidance is for local governments in preparing modifications to the Primary Controls through the local planning framework to respond to local character and contexts'.[46] As Planning Guidance PG 2.2.2 indicates 'Building heights should typically be expressed in storeys to allow flexibility of design solutions at ground and roof levels, promote generous floor to ceiling heights and provide for future building adaptability'.[47] Planning Guidance PG 2.2.3 states that '[w]hen applying storey-based building height limits Table 2.2 shows indicative building height in metres that would normally correlate to number of storeys, with typical allowances for ceiling heights, floor structure, services, rooftop articulation and topographic changes'.[48] Although a building height limit of 10 metres above natural ground level would permit the construction of a three storey building, it would curtail good building design and adaptability, as it is two metres less than the 'indicative building height in metres that would normally correlate to' three storeys stated in Table 2.2. Furthermore, Planning Guidance PG 2.2.8 states that '[w]hen adjusting height controls, test in tandem with plot ratio to ensure the settings are well aligned'.[49] However, the Height LPP does not, when adjusting the height control, 'test [it] in tandem with plot ratio [as to which it is silent] to ensure the settings are well aligned' and therefore it does not appropriately 'respond to local character and contexts'.[50] In addition, setting a blanket 10 metres above natural ground level building height limit across the whole of the properties on the eastern side of Alexander Road between Philip Road and Waratah Avenue does not enable appropriate transition in building height on the eastern parts of those properties where they adjoin or abut the R-AC3 coded area in relation to which the Acceptable Outcome building height limit under cl A 2.2.1 and Table 2.1 of the R-Codes Volume 2 is six storeys. The Height LPP, formulated as it clearly was in response to the proposed development, does not demonstrate the integrated and fine grain analysis that is required to appropriately determine a substituted Acceptable Outcome building height limit. Finally, in relation to whether the Height LPP is based on sound town planning principles, we note that although, during cross-examination, Ms Butterworth suggested that a potential sound town planning basis for the policy is that 'we've got an issue with the east-west lots potentially overshadowing as part of the development and redevelopment of those lots',[51] she then properly agreed with the proposition that '[n]one of that appears anywhere in the justification for this policy when it was put forward by [C]ouncil'.[52]
[44] Applicant's closing submissions dated 31 December 2020 (applicant's closing submissions) [44].
[45] Original emphasis.
[46] R-Code Volume 2 page iv (bolded emphasis original and italicised emphasis added).
[47] Bolded emphasis original and italicised emphasis added.
[48] R-Codes Volume 2 page 17 (original emphasis).
[49] R-Codes Volume 2 page 17 (original emphasis).
[50] R-Codes Volume 2 page iv (original emphasis).
[51] ts 150, 14 August 2020.
[52] ts 150, 14 August 2020.
In relation to the other established criteria concerning the weight to be given to a local planning policy in a planning assessment referred to earlier, we accept the applicant's following submissions:[53]
(a)the [Height] LPP was not conceived after considerable public discussion, but was conceived as a reaction or response to the … [proposed development] the subject of this proceeding, and contrary to the repeated advice and recommendations of the City's own planning officers;
(b)the [Height] LPP has only been in operation for a very short period of time; and
(c)the [Height] LPP has not yet been applied, and this matter will be the first potential application of the [Height] LPP.
[53] Applicant's closing submissions [52].
For the reasons set out above, we accept the applicant's submission that 'for the purposes of both the provisions of the R-Codes [Volume 2] and also [cl] 67[(2)](g) of the [d]eemed [p]rovisions, no weight [should] be given to the provisions of the [Height] LPP in the determination of this proceeding'.[54] However, giving no weight to the Height LPP, for the reasons which follow, we find that the proposed development does not achieve Element Objectives O 2.2.1 and O 2.2.4 of the R-Codes Volume 2.
[54] Applicant's closing submissions [53].
As Ms Butterworth acknowledges in her evidence, consideration of whether the proposed development achieves Element Objective O 2.2.1 of the R-Codes Volume 2 requires a broader assessment than whether the proposed development responds to the desired future scale and character of Alexander Road, because it refers to responding to the desired future scale and character 'of the street and local area'.[55] As Ms Butterworth also recognises in her evidence, '[t]he "local area" would extend somewhat further [than the dwellings on both sides of Alexander Road between Philip Road and Waratah Avenue] and would include residential zoned parts of Philip Road and Waratah Avenue leading into their respective intersections with Alexander Road'.[56] However, for the reasons she gives, we accept Ms Butterworth's evidence, given immediately after the evidence referred to in the preceding sentence that:[57]
In terms of what consideration is most important, I consider that the desired future scale and character of Alexander Road, and the existing buildings that are unlikely to change in it, should be given more weight than the same considerations for the local area, as:
(a)the street provides immediate streetscape, character and development context;
(b)the impact of the development's height will be primarily if not wholly within the street; and
(c)the local area includes part of the Waratah Avenue neighbourhood centre, which is subject to a different zoning and development context.
[55] Emphasis added.
[56] Witness statement of Amanda Jane Butterworth dated 3 August 2020 (Exhibit 12) page 20.
[57] Exhibit 12 page 20.
Significantly, in terms of the desired future scale and character of the relatively confined and defined section of Alexander Road between Philip Road and Waratah Avenue, as indicated earlier, 10 of the 11 original quarter acre residential properties were up-coded on 15 February 2005 from R10 to R20 (the site and two properties to the north and two properties to the south on the eastern side of the road) and R25 (the five properties on the western side of the road, not including the property in the south-western corner of this section of Alexander Road) and seven of the 10 up-coded properties were subsequently subdivided into two lots each. Most significantly, in terms of the desired future scale and character of Alexander Road between Philip Road and Waratah Avenue, eight substantial two storey single houses were constructed relatively recently on lots created by subdivision, which are half of the 16 Residential zoned properties in the immediate locality of the site. Even including the R-AC3 coded property at the south-eastern corner of the immediate locality of the site, the new substantial two storey single houses occupy almost half of the properties in the immediate locality.
The City called Ms Maria Tutor, who owns and resides at No. 8A Alexander Road, to give evidence. Ms Tutor bought what was then a vacant lot at No. 8A Alexander Road in 2011 for $1,003,000. She then spent approximately $1,500,000 constructing a substantial two story single house on the property. Ms Tutor is a licenced real estate agent and has worked as a real estate agent since 2006, including in the Dalkeith area. Although she was not called as an expert witness, the applicant did not object to her evidence in relation to the sale prices of newly constructed houses in the immediate locality of the site, her estimate of the market value of her own property, or evidence given by her on the basis of those market values. Ms Tutor was not required for cross-examination and no contrary evidence was presented. We accept Ms Tutor's evidence that, based on relatively recent sales of No. 7A Alexander Road ($2,875,000 on 31 January 2018), No. 7B Alexander Road ($3,150,000 on 26 May 2017) and No. 8B Alexander Road ($2,725,000 on 14 June 2017), her property at No. 8A Alexander Road is worth approximately $2.9 million. As Ms Tutor said, each of these four houses were built at similar times, on similar sized lots, and are of similar (high) quality.
We accept Ms Tutor's evidence that she has no plans to demolish her house and, indeed, that it 'would be irrational to do so'.[58] We also accept Ms Tutor's evidence in relation to each of the eight new houses in the immediate locality of the site that '[b]ased on the value of those properties and my experience with real estate in the Dalkeith area, there is no realistic possibility of the houses on those properties being demolished in the foreseeable future and [those properties] being redeveloped'.[59] Similarly, we accept the evidence of Mr Philip Oates, who lives with his wife and children at No. 2 Alexander Road, and was also called by the City and not crossexamined, that '[o]ur capital investment in improvements are substantial like our neighbours, and these substantial investments mean the current [two] storey built form will take a long time before it is economically possible to change'.[60]
[58] Witness statement of Maria Del Carmen Tutor dated 3 August 2020 (Exhibit 10) [16].
[59] Exhibit 10 [17].
[60] Witness statement of Philip Oates dated 30 July 2020 (Exhibit 7) [9].
During their concurrent evidence, the planning expert witnesses also agreed that the eight new substantial two storey single houses in the immediate locality of the site are unlikely to change 'in the foreseeable future'.[61] In particular, as Mr Lohman acknowledged, the 'value of the building[s]' and their 'quality at the moment wouldn't warrant demolition'.[62] Similarly, as Ms Butterworth explained:[63]
Now, I consider that to be a substantial outlay for a dwelling. We're not talking modest houses in the context of this area, we are talking substantial dwellings of a high quality. And in my viewpoint with a value or with a construction cost of $1.5 million, it is highly unlikely that they're likely to demolish those houses in the foreseeable future.
[61] ts 89 (Mr Lohman) and 90 (Ms Butterworth), 14 August 2020.
[62] ts 89, 14 August 2020.
[63] ts 90, 14 August 2020.
We also accept Mr Butterworth's evidence that the fact that 'these eight dwellings are unlikely to change … [is] an important consideration in regard to the character of the street'[64] and that the proposed development is 'out of character with the existing streetscape, which is single and two storeys with all of the two storey buildings being recently constructed and therefore unlikely to change'.[65] Putting aside the existing one storey single houses on six properties (including the site) in the immediate locality that are likely to be replaced with new developments over time, the four storey presentation of the proposed development to the street is discordant and incompatible with the two storey building height of the eight new single houses, including, most significantly, the three buildings immediately to the north and the two buildings immediately to the south of the site, which are unlikely to change in the foreseeable future. Furthermore, because they comprise half the residential properties in the immediate locality of the site and adjoin and are adjacent to the site on both sides, the new single houses form an important part of and, as the City submits, 'fee[d] into',[66] 'the desired future scale and character of the street', for the purposes of Element Objective O 2.2.1 of the RCodes Volume 2.
[64] Exhibit 12 page 21.
[65] Exhibit 12 page 22.
[66] Respondent's closing submissions [54].
The discordance and incompatibility of the height of the proposed development within the streetscape of Alexander Road and, hence, the extent to which '[t]he height of [the proposed] development [does not] respon[d] to the desired future scale and character of the street and local area, including existing buildings that are unlikely to change',[67] for the purposes of Element Objective O 2.2.1 of the R-Codes Volume 2, is apparent from the streetscape elevation[68] and streetscape perspectives[69] prepared by the designing architect, which we reproduce immediately below.
[67] Original emphasis.
[68] Exhibit 3 Tab 7.
[69] Exhibit 3 Tab 8.
Mr Lohman gave evidence that, '[i]n terms of existing character where a lower density area has been re-coded to a higher density[,] there is likely to be some disparity in the form of development (including building height) as redevelopment transitions the area to a higher density code', and 'especially so where there is a substantial increase in development density', and so the 'initial disparity between existing development, and development under the higher density code, transitions over time as redevelopment of the locality occurs'.[70] In particular, Mr Lohman refers to 'seven sites (including the Review Site) in the immediate vicinity of the Review Site with development potential'.[71]
[70] Exhibit 14 [113].
[71] Exhibit 14 [115].
However, because of the up-coding of 10 residential properties in the immediate locality of the site in 2005 and the subsequent subdivision of seven of those properties into two lots each and the construction of substantial two storey single houses on half of the residential properties fronting Alexander Road in this section, the planning (subdivision and development) characteristics of the immediate locality of the site are unusual and it is consequently not a typical area in transition following up-coding. Indeed, the immediate locality of the site can be contrasted in its planning (subdivision and development) characteristics with an area which, although just around the corner in Waratah Avenue between Alexander Road to the east and Robert Street to the west, is a more typical area in transition following up-coding. That area, which was the subject of consideration in the recent Tribunal[72] decision in Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149, was up-coded by LPS 3 from R10 to R40 and, in the case of the properties at the north-western and south-western corners of the intersection of Waratah Avenue and Alexander Road, to R60. As the Tribunal observed at [14], 'significantly, the immediate locality of the site on Waratah Avenue between Robert Street and Alexander Road is undergoing transition in built form and character in consequence of the up-coding of this area (other than the retail and commercial and church properties)'. In significant contrast to the immediate locality of the site, the locality of the development site considered in Sapphire Developments Alliance Pty Ltd and City of Nedlands had not been up-coded under TPS 2 (and then substantially subdivided and developed in accordance with the new coding) and remained coded R10 under that instrument when TPS 2 was replaced by LPS 3, under which the area was up-coded to enable low- and medium-rise medium density residential development in place of the original very low density residential development on traditional quarter acre lots.
[72] Judge Parry DP.
Furthermore, most (five or six, depending on whether Nos. 5A and 5B Alexander Road are developed together, out of seven or eight) potential development sites in the immediate locality of the site are on the opposite, western side of Alexander Road from the site, where the residential density coding is R60. Giving no weight to the Height LPP, the Acceptable Outcome building height limit for those properties under cl A 2.2.1 and Table 2.1 of the R-Codes Volume 2 is three storeys. Although any development at the properties on the western side of Alexander Road in the immediate locality of the site would have to achieve Element Objectives O 2.2.1 - O 2.2.4 of the R-Codes Volume 2, it is likely that, informed by the Acceptable Outcome building height limit, the building height of development on the five or six potential development sites on the western side of Alexander Road will be no greater than three storeys. Thus, over time, it is likely that the predominant building height in the immediate locality of the site will increase from one to two storeys, to two to three storeys. Although (giving no weight to the Height LPP), the Acceptable Outcome building height limit under cl A 2.2.1 and Table 2.1 of the RCodes Volume 2 at No. 10 Alexander Road (which is coded R80) is four storeys and at the R-AC3 coded property is six storeys, like the proposed development, any development proposal on those properties would have to achieve the Element Objectives, including O 2.2.1, and thus respond to the desired future scale and character of the street and local area, including existing buildings that are unlikely to change. Consequently, the four storey presentation of the proposed development is not only discordant and incompatible with the current predominant building height in the immediate locality of the site (one to two storeys) and the two storey building height of the eight new single houses, including the adjoining and adjacent buildings to the site, but also with the likely future predominant building height in the immediate locality of the site (two to three storeys).
Furthermore, the discordance and incompatibility of the height of the proposed development in its presentation to Alexander Road is exacerbated by the elevation of the ground floor above both the existing finished floor level of the one storey single house on the site and the existing ground level within the footprint of the proposed development. Whereas the finished floor level of the existing single house at the site is 20.13 metres AHD, the finished floor level of the ground floor in the proposed development is 20.561 metres AHD, that is an increase by 0.431 metre. Furthermore, as Mr Lohman recognised during his oral evidence,[73] the level of the ground floor of the proposed development ranges from about 0.7 metre 1.2 metres above the existing ground level within the footprint of the development. Based on the floor to ceiling heights of 3 metres within the proposed development, the proposed ground floor level protrudes by about a quarter of a floor above the existing ground level. We recognise that Acceptable Outcome A 3.9.10 in design element 3.9 Car and bicycle parking in the R-Codes Volume 2 contemplates that basement parking may protrude up to '1 [metre] above ground'[74] and it is common ground that the proposed development achieves the Element Objectives of that design element. However, given that Alexander Road continues to fall from north to south, to the south of the site, from Ms Tutor's adjoining property at No. 8A Alexander Road and when viewed within the Alexander Road streetscape from the south and south-west, the proposed development would present as up to four-and-a-half storeys in height.
[73] ts 231, 5 October 2020.
[74] R-Codes Volume 2 page 55.
Referring to the statement in cl 2.1.1 of the R-Codes Volume 2 that '[c]haracter is … created through the combined effect of … the height, scale, setback, style and condition of existing buildings[,] land uses and street based activity[,] the physical form of the street including width and function, verges and footpaths [and] landscaping of the public and private realms',[75] the applicant submits, correctly, that '[c]learly, "character" for the purposes of the R-Codes [Volume 2] involves much more than merely height'.[76] However, achieving Element Objective O 2.2.1 of the R-Codes Volume 2 requires that '[t]he height of development responds to the desired future scale and character of the street …',[77] rather than any other matter creating character. In this case, for the reasons given earlier, the height of the proposed development does not respond to the desired future scale and character of the street, including existing buildings that are unlikely to change, and therefore does not achieve Element Objective O 2.2.1.
[75] Original emphasis.
[76] Applicant's closing submissions [63].
[77] Bolded emphasis original and italicised emphasis added.
The applicant also submits that the height of the proposed development achieves Element Objective O 2.2.1 of the R-Codes Volume 2, because 'the area in question operates as part of the transition between the R-AC3 [c]oding of the adjoining Waratah Village Centre and the surrounding, lower density residential area'.[78] As indicated earlier, the site diagonally abuts the R-AC3 coded area at its south-eastern corner and the Acceptable Outcome building height limit on that land is six storeys under cl A 2.2.1 and Table 2.1 of the RCodes Volume 2. We recognise that the eastern half of the site provides an opportunity for transition in height between potentially six storey development in the R-AC3 coded area and likely future predominant two to three storey development fronting Alexander Road. However, achieving Element Objective O 2.2.1 in the circumstances of the site and the desired future scale and character of the street, including existing buildings that are unlikely to change, requires that development on the site present in the streetscape of Alexander Road with an apparent height of three storeys (with the ground floor finished floor level set lower than in the proposed development and in particular as low as is practicable while still at or above existing ground level within the footprint of the building and incorporating basement parking[79]). Such development would appropriately respond to the desired future scale and character of the street created by existing buildings that are unlikely to change (two storeys in height, including on the properties that adjoin and are adjacent to the site to the north and south) and by future development on the existing properties that are vacant or contain original one storey single houses (generally up to three storeys). A building height of four storeys (with the finished floor level of the ground floor set as low as is practicable while still at or above existing ground level within the footprint of the building and incorporating basement parking) in the eastern half of the site would not compromise three storey presentation to the street. Further, provided that the building on the site maintains a three storey presentation within the streetscape of Alexander Road, part of the roof of the third level in the western half of the site could form the terrace of a dwelling located at a fourth floor in the eastern half of the site.
[78] Applicant's closing submissions [79].
[79] The evidence before the Tribunal does not indicate what is the minimum practicable ground floor finished floor level still at or above existing ground level within the building footprint and permitting vehicles to access the basement garage at an appropriate grade.
Finally in relation to Element Objective O 2.2.1 of the R-Codes Volume 2, the applicant relies in its closing submissions on positive assessments of the proposed development by an independent architectural review (when the proposal was for a five storey, rather than a four storey, development)[80] and by the Council's assessing planning officers.[81] Notwithstanding these positive assessments of the proposed development, for the forgoing reasons, the height of the development does not appropriately respond to the desired future scale and character of the street. For it to do so, in the present unusual planning context of an area that has already been relatively recently substantially subdivided and redeveloped with substantial two storey single houses that are unlikely to change in the foreseeable future on half of the residential properties in the immediate locality and with most potential development sites coded R60, on which building height is likely to be no higher than three storeys, in order to appropriately respond to the desired future scale and character of the street, a building on the site should present to the street with an apparent height of three storeys (with the finished floor level of the ground floor set below the ground floor finished floor level in the proposed development and in particular as low as is practicable while still set at or above existing ground level within the footprint of the building and incorporating basement parking), although, where the site transitions to the R-AC3 coded area in its eastern half, a fourth storey could reasonably be accommodated in accordance with the Element Objectives.
[80] Applicant's closing submissions [81] and Exhibit 3 tab 8.
[81] Applicant's closing submissions [82] and Exhibit 3 tab 8.
We also find, on the evidence, that the proposed development does not achieve Element Objective O 2.2.4 of the R-Codes Volume 2, which provides that '[t]he height of development recognises the need for daylight and solar access to adjoining and nearby residential development …'.[82] In particular, for the reasons which follow, we find that the proposed development does not appropriately recognise the need for solar access to the adjoining property at No. 8A Alexander Road.
[82] Original emphasis.
No. 8A Alexander Road currently enjoys very high solar access amenity during mid-winter and throughout the year. As Ms Tutor explained in her evidence, her house was 'designed to take advantage of northern sunlight', with 'extensive glazing on the northern side of both the ground floor and first floor levels'.[83] Photographs taken by Ms Tutor at approximately 10am on 24 July 2020 (about a month after the winter solstice) show her northern courtyard and internal living areas off the courtyard as bathed in sunlight. The photographs also show that the entrance area, staircase, upstairs gallery and upstairs front living area of Ms Tutor's house also currently enjoy considerable direct sunlight on the floors and elsewhere through six large picture windows arranged in three rows on the northern wall in the front and middle part of the house. No. 8A Alexander Road also has 24 electric solar panels on the roof which are currently not overshadowed by any development. Ms Tutor's current excellent solar access is a product of the good design of her house, orienting its internal and external living areas and large picture windows towards its northern side boundary with the site, and the fact that the site has historically comprised a one storey single house on a quarter acre lot.
[83] Exhibit 10 [20].
The overshadowing diagrams produced by the designing architect show that the proposed development would have a very significant adverse impact on solar access at No. 8A Alexander Road. In particular, from mid-morning and then throughout the whole day in mid-winter, the proposed development would entirely overshadow Ms Tutor's north facing courtyard and the ground floor internal living areas. In mid-winter, the proposed development would also completely overshadow the six large picture windows until sometime in the afternoon when the upper picture windows closest to the street (and the front window of the upstairs front living area) would receive direct sunlight uninterrupted by the proposed development. Furthermore, in midwinter, the solar panels at No. 8A Alexander Road would be completely overshadowed between 9 am and 1 pm, and all but 9% of the area of the solar panels would continue to be overshadowed at 3 pm.
To some extent, unfortunately, very significant adverse amenity impact by reason of overshadowing, particularly in mid-winter, at No. 8A Alexander Road is unavoidable in consequence of any reasonable development at the site consistent with its R80 coding. This is because the house at No. 8A Alexander Road is (understandably) designed to obtain northern winter sun by orienting its internal and external living areas and large picture windows towards its northern side boundary with the site and the property is a narrow eastwest running lot, topographically lower and located immediately to the south of the site. Furthermore, as the applicant correctly submits, had the site been subdivided in the same narrow eastwest orientation as No. 8A Alexander Road and developed in a similar way, a substantial two storey single house (which could, in part, have been built along the common boundary) on the site would also have had a significant adverse impact on solar access at Ms Tutor's property.
Nonetheless, the evidence shows that the height of the proposed development does not appropriately recognise the need for solar access to the adjoining property at No. 8A Alexander Road. The designing architect provided comparative 3D shadow diagrams in plan and elevation showing the shadow cast by the proposed development at three storeys (that is, with one storey removed), four storeys (as proposed) and five storeys (that is, with one storey added) on No. 8A Alexander Road in mid-winter (21 June), at the equinox (21 March) and in midsummer (21 December). These shadow diagrams show that reducing the height of the proposed development by one storey would not make any material difference in terms of overshadowing of the internal and external living areas of No. 8A Alexander Road in midwinter. However, although the City's planning assessing officers said in their assessment of the proposed development that 'even a threestorey development with generous 3.5 [metre] setbacks has the same impact on the solar panels [at No. 8A Alexander Road at 12pm on 21 June] as the subject proposal',[84] and although the planning expert witnesses did not refer to it, the comparative 3D shadow diagrams show that if the height of the proposed development were reduced to three storeys, then at midday in mid-winter the development on the site would overshadow substantially less of the roof of No. 8A Alexander Road and that some of the solar collectors in the central and western part would still receive some direct sunlight, whereas, at four storeys, the proposed development would completely overshadow all of the solar collectors at that time.[85] Furthermore, because the solar collectors are located on the western and central part of the northern side of the roof of No. 8A Alexander Road and given the direction of the shadow shown on the shadow diagrams, it is likely that if the proposed development were reduced to three storeys in the western half of the site (only), then at midday in mid-winter the same parts of the solar collectors that would still receive direct sunlight with the whole of the proposed building reduced to three storeys would also still receive direct sunlight. Further, it is likely that if the finished floor level of the ground floor and consequently the overall height of the proposed development were reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, then even more of the area of the solar collectors on the roof of No. 8A Alexander Road would continue to receive direct sunlight at midday in mid-winter. Reducing the height of the proposed development by one storey in the western half of the site and reducing the finished floor level of the ground floor and consequently the overall height of the proposed development by as much as is practicable while setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking would still enable reasonable development of the site consistent with its R80 coding.
[84] Exhibit 3 tab 8 page 59.
[85] 3D model plan shadow diagrams (12:00 pm midday) (Exhibit 3 tab 3).
The comparative 3D shadow diagrams also show that reducing the height of the proposed development by one storey would make a material difference in terms of solar access through the upper level picture windows of Ms Tutor's house at the equinox. Whereas the 3D model elevations show that the proposed development would completely overshadow all of the picture windows on the northern façade of No. 8A Alexander Road at midday on 21 March, reducing the height of the development by one storey would mean that the whole of the upper level front two and part of the upper level third picture window would receive direct sunlight at midday on 21 March (and these windows would also receive some direct sunlight at midday for some period between the equinox and mid-winter).[86] Furthermore, because of the location of the picture windows on the northern façade of No. 8A Alexander Road and given the direction of the shadow shown on the shadow diagrams and what appears to be the shadow cast by the lift overrun in the three storey scenario on the shadow diagrams showing the impact on the northern wall of No. 8A Alexander Road on 21 March, it is likely that if the height of the proposed development were reduced to three storeys in the western half of the site (only), then the front two picture windows on the second storey northern wall would be fully in sun at midday on 21 March (and would also receive some direct sunlight at midday for some period between the equinox and mid-winter). Further, it is likely that if the ground floor level and consequently the overall height of the proposed development were also reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, then there would additionally be some direct sunlight through the top of the front two ground floor picture windows at midday at the equinox (and at midday for some period between the equinox and midwinter).
[86] 3D model elevations (12:00 pm midday) (Exhibit 3 tab 3).
We conclude in relation to this issue that the proposed development does not achieve Element Objectives O 2.2.1 and O 2.2.4 of the R-Codes Volume 2.
Does the proposed development achieve the R-Codes Volume 2 Element Objectives for design element 2.5 Plot ratio?
The stated 'intent' of design element 2.5 Plot ratio of the R-Codes Volume 2 includes the following:[87]
Plot ratio is the method of establishing an allowable volume of development within the 'container' of the building envelope. It is the ratio of the floor area of a building expressed relative to the site area and sets the building massing for a development site. This allowable volume of built form can be deployed with flexibility within the building envelope to respond to contextual and orientation factors.
The plot ratio area includes the gross floor area of all dwellings and commercial spaces but excludes the floor area of some circulation and service areas (see definitions for full explanation). Refer to Table 2.1 for default plot ratio provisions.
…
[87] R-Codes Volume 2 page 22 (original emphasis).
The Element Objectives and the Acceptable Outcomes for design element 2.5 Plot ratio of the R-Codes Volume 2 are as follows:[88]
[88] R-Codes Volume 2 page 23 (original emphasis).
ELEMENT OBJECTIVES
Development is to achieve the following Element Objective:
O 2.5.1The overall bulk and scale of development is appropriate for the existing or planned character of the area.
ACCEPTABLE OUTCOMES
In Part 2 only, Acceptable Outcomes are default provisions to assist in satisfying the objectives. In order to achieve the Element Objectives, proposals may require additional and/or alternative design solutions in response to the site conditions, streetscape and design approach where specified in the local planning framework (clause 1.2).
A 2.5.1Development complies with the plot ratio requirements set out in Table 2.1, except where modified by the local planning framework, in which case development complies with the plot ratio set out in the applicable local planning instrument.
Is the proposed development compatible with its setting?
Under cl 67(2)(m) of the deemed provisions, the Tribunal is required to give 'due regard' to:[118]
the compatibility of the development with its setting, including —
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
[118] Subparagraph (i) of what is now cl 67(2)(m) of the deemed provisions was added on 15 February 2021.
Mr Lohman considers that the proposed development is compatible with its setting, particularly when 'considered in the context of the greater locality'.[119] In contrast, Ms Butterworth considers that the proposed development is not compatible with its setting 'in that the height, bulk and scale of the development is out of character'[120] with both existing and likely future development in the immediate locality of the site on Alexander Road between Philip Road and Waratah Avenue, which she referred to for the purposes of this issue as 'the primary setting'.[121] Mr Lohman gave the following evidence in relation to this issue:[122]
Having regard to the compatibility of the proposal with its setting, I find that:
•There will be a disparity between the heights of existing development and that which can be facilitated under the R80 density code as the locality transitions to higher density development.
•It is appropriate to have a transition between the greater building heights permissible under the R[-]AC3 density coding and surrounding lower density residential area. The proposal assist[s] in facilitating this transition.
•The consideration of the setting for the land cannot be qualified by a selection of five dwellings on the eastern side of Alexander Road. This is a too narrow consideration of the context to [in] which the proposal sits. Building height should be considered in [the] context of the greater locality.
•Regard is required to be given to the future setting of the locality which is guided by the R80 density code and associated built form provisions. I consider the proposed development form is consistent with the R80 density code.
•It is appropriate [to] balance amenity considerations for existing dwellings with the development potential under the R80 density code. In that regard, it is considered that the proposed development achieves a reasonable balance between higher density development and amenity for existing development.
[119] Exhibit 14 [163].
[120] Exhibit 12 [105].
[121] ts 109, 14 August 2020.
[122] Exhibit 14 [163].
For the following reasons, we prefer Ms Butterworth's evidence over Mr Lohman's evidence on this issue.
As we said earlier, we prefer Ms Butterworth's evidence in relation to the demarcation of the immediate locality of the site for the purposes of assessment in terms of streetscape setting. Although Mr Lohman referred, in support of his opinion that the proposed development is compatible with its setting, to a development approval granted by the Metro InnerNorth Joint Development Assessment Panel on 7 May 2020 for a five storey development at No. 95A Waratah Avenue, as Ms Butterworth said, that property is 'located within the Dalkeith Neighbourhood Centre (Mixed Use zoning) and therefore … not relevant to this section of Alexander Road'.[123] The character of the existing and likely future streetscape of the Dalkeith Neighbourhood Centre on Waratah Avenue is quite different to the character of the existing and likely future streetscape of Alexander Road between Philip Road and Waratah Avenue, although these two streetscapes form part of the same street block.
[123] Exhibit 12 [101].
We accept Mr Lohman's evidence that '[t]he consideration of the setting for the [site] cannot be qualified by a selection of five dwellings on the eastern side of Alexander Road'. However, the immediate built form context of the site formed by the three new two storey single houses to the north and the two new two storey single houses to the south is of significance in the assessment of whether the proposed development is compatible with its setting in the circumstances of this case. As indicated earlier, because of their relatively recent construction, quality and value, the planning expert witnesses agree that the five new single houses adjoining and adjacent to the site (and the three new single houses diagonally opposite the site on the western side of Alexander Road) are unlikely to be demolished in the foreseeable future. For the reasons given at [47][57] and [70][75] above, the proposed development is discordant and incompatible in its height in terms of its immediate streetscape setting and presents to the street with excessive bulk and scale when viewed in its immediate streetscape context.
Moreover, as we said earlier, the planning (subdivision and development) characteristics of the immediate locality of the site are unusual, because of the up-coding about 15 years ago and the subsequent subdivision and development in accordance with the upcoding. In contrast to Waratah Avenue between Robert Street and Alexander Road, which was the subject of consideration in Sapphire Developments Alliance Pty Ltd and City of Nedlands, the immediate locality of the site on Alexander Road between Philip Road and Waratah Avenue is generally not undergoing transition from very low density R10 single house development. Rather, the immediate locality of the site has already substantially transitioned from very low density R10 single house development to higher low density residential subdivision on seven of the original eleven residential lots and construction of substantial two storey single houses on half (eight) of the existing residential lots. The 'disparity between the heights of existing development and that which can be facilitated under the R80 density code as the locality transitions to higher density development', referred to by Mr Lohman in his evidence set out at [87] above, is of materially greater significance in the present circumstances than would otherwise typically be the case, because the 'disparity' in height in the immediate locality of the site will not be a relatively short term planning phenomenon, as is typically the case when the increased development potential of land that has been significantly up-coded results in transition and transformation of an area generally to the built form contemplated by the increased coding. Rather, in the circumstances of this case, the discordance and incompatibility between the built form of the proposed development and the built form on half of the residential properties in the immediate locality will continue for the foreseeable future. The unusual planning (subdivision and development) characteristics of the immediate locality of the site require greater sensitivity from new development - and greater sensitivity than is displayed in the proposed development - in terms of height, bulk and scale fronting the street than would otherwise be the case in an area up-coded to R80.
Furthermore, although we accept Mr Lohman's evidence that '[r]egard is required to be given to the future setting of the locality', particularly given the recent addition of subparagraph (i) to what is now cl 67(2)(m) of the deemed provisions on 15 February 2021, contrary to Mr Lohman's evidence, the future setting of the locality is not 'guided [merely] by the R80 density code and associated built form provisions'. Rather, most (five or six, depending on whether Nos. 5A and 5B Alexander Road are developed together, out of seven or eight) of the potential development sites in the immediate locality of the site are located on the western side of Alexander Road, where the residential density coding is R60. The Acceptable Outcome for building height under cl A 2.2.1 and Table 2.1 of the R-Codes Volume 2 contemplates no higher than three storey development on land coded R60. Thus, whereas the predominant building height in the immediate locality of the site is now one to two storeys, the future predominant building height for the foreseeable future in the immediate locality is likely to be two to three storeys, as the existing substantial two storey single houses on half (eight) of the residential properties remain and up to three storey development is constructed on the five or six potential development sites on the western side of Alexander Road.
We accept Mr Lohman's evidence that '[i]t is appropriate to have a transition between the greater building heights permissible under the R[-]AC3 density coding and surrounding lower density residential area'. However, this can be more appropriately achieved by locating four storey development on the eastern half of the site and three storey development on the western half of the site (with the ground floor level and consequently the overall height of the development reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking). This form of development would appropriately transition from up to six storeys in the R-AC3 coded area, contemplated by Acceptable Outcome A 2.2.1 and Table 2.1 of the R-Codes Volume 2, and the predominantly two to three storey building height that is likely to exist for the foreseeable future in Alexander Road between Philip Road and Waratah Avenue.
Finally, although we also accept Mr Lohman's evidence that '[i]t is appropriate [to] balance amenity considerations for existing dwellings with the development potential under the R80 density code', for the reasons given in relation to the next issue discussed below, we do not accept his evidence that 'the proposed development achieves a reasonable balance between higher density development and amenity for existing development'.
We conclude that the proposed development is not compatible with its setting.
Will the proposed development have an unacceptable adverse impact on the amenity of No. 8A Alexander Road?
Under cl 67(2)(n) of the deemed provisions, the Tribunal is required to give 'due regard' to:
the amenity of the locality including the following —
(i)environmental impacts of the development;
(ii)the character of the locality; [and]
(iii)social impacts of the development[.]
In Sapphire Developments Alliance Pty Ltd and City of Nedlands the Tribunal said the following at [38]:[124]
The term 'amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. Planning law in relation to the assessment of amenity impact is well settled. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116, President Justice Barker held at [21] that '[t]he general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed'. In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Town Planning Appeal Tribunal observed at 304 that '[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. However, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker accepted at [20] a submission that this observation in Tempora Pty Ltd v Shire of Kalamunda as to the approach to the assessment of amenity impact was formulated in a case 'which did not raise the issue of future amenity' and held at [22] that it 'does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity'. Furthermore, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker held at [21] that 'the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents'. His Honour endorsed the Tribunal's recognition in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] that 'in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity,] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents [of the locality] … [who] are often well-placed to identify the particular qualities and characteristics which contribute to their residential amenity'. Finally, Justice Barker also determined in Sunbay Developments Pty Ltd and Shire of Kalamunda at [28] that it is open in a planning assessment to focus on, and indeed to ultimately refuse to grant development approval for a particular development in the exercise of planning discretion because of, the extent of the amenity impact 'on a part of the locality or on a single property'. His Honour reasoned and held as follows:
Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
[124] Footnotes omitted.
Mr Lohman considers that the overshadowing impact of the proposed development on the adjoining property to the south at No. 8A Alexander Road is acceptable, because the 'proposal complies with Acceptable Outcome [A] 3.2.3 and achieves the Element Objectives of Part [design element] 3.2 [Orientation] of the R-Codes Volume 2',[125] particularly given that with 'a narrow lot development, … you would be aware of the possibility that you're going to have lesser access to solar just because of the nature of your development'.[126] Mr Lohman considers that the proposed development is acceptable in relation to the visual impact of its bulk and scale on the adjoining property to the south, because 'I am of the view that the plot ratio of the proposal meets the Element Objectives [in design element 2.5 Plot ratio of the R-Codes Volume 2]'.[127] However, for the reasons given earlier, the proposed development does not achieve the Element Objectives for design elements 2.2 Building height, 2.5 Plot ratio or 3.2 Orientation. Furthermore, for the following reasons, we accept Ms Butterworth's evidence that the proposed development 'will have an unacceptable adverse impact upon [No.] 8[A] Alexander Road due to its bulk and scale … [and] extent of overshadowing … ',[128] although we do not accept her evidence in relation to the bulk and scale of the southern façade of the building if it is lowered by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking.
[125] Exhibit 14 [169].
[126] ts 113, 14 August 2020.
[127] Exhibit 14 [168].
[128] Exhibit 12 [110].
As we said earlier, any reasonable development consistent with the R80 coding of the site is likely to have a significant and detrimental impact on the residential amenity of No. 8A Alexander Road by reason of overshadowing, particularly in mid-winter, because that property is a narrow east-west running lot, topographically lower and located immediately to the south of the site. However, as we also said earlier, the degree of adverse amenity impact in terms of solar access caused by the proposed development on its southern neighbour is not inevitable for reasonable development of the site consistent with its R80 coding. As indicated earlier, although the City's planning assessing officers said that 'even a three-storey development with generous 3.5 [metre] setbacks has the same impact on the solar panels [at No. 8A Alexander Road at 12 pm on 21 June] as the subject proposal',[129] the comparative 3D shadow diagrams in evidence show that, whereas the proposed development would overshadow the whole of the solar panels (and the whole of the roof) at No. 8A Alexander Road at midday on 21 June, if the proposed development were reduced by one storey, some solar panels in the central and western part would receive some direct sunlight at that time. Furthermore, as we said earlier, because the solar collectors are located on the western and central part of the roof of No. 8A Alexander Road and given the direction of the shadow shown on the shadow diagrams at midday in mid-winter, it is likely that, if the height of the proposed development were reduced to three storeys in the western half of the site (only), then at midday in mid-winter the same parts of the solar collectors on the roof of No. 8A Alexander Road that would receive some direct sunlight with the whole of the proposed building reduced to three storeys would also receive the same direct sunlight. As we also said earlier, if the level of the ground floor and hence the overall height of the proposed development were also reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, it is likely that even more of the area of the solar panels on the roof of No. 8A Alexander Road would continue to receive direct sunlight at midday on 21 June.
[129] Exhibit 3 tab 8 page 59.
Furthermore, as the City submits, not only does the proposed development have a significant detrimental impact on solar access at the adjoining property to the south during winter (which unfortunately, subject to the discussion in the preceding paragraph, is largely unavoidable for any reasonable development on the site consistent with its R80 coding, given the topography, narrow lot width and location of the adjoining property immediately to the south), there would also be 'a significant reduction in access to northern sun in autumn and spring'.[130] In particular, as we discussed earlier, the comparative 3D shadow diagrams in evidence show a significant difference between the overshadowing impact of the proposed four storey development and the same development with one storey removed on access to direct sun on the northern wall, including the second storey picture windows that enable direct sunlight and daylight not only to the second storey gallery, which adjoins the entrance area and the staircase, and the upstairs front living area, but also into the entrance area of the house and through the staircase and the entrance area into the front and central part of the ground floor, at the equinox on 21 March (and for some period between the equinox and mid-winter). Whereas the 3D model elevations show that the proposed development would completely overshadow all of the picture windows on the northern façade of No. 8A Alexander Road at midday on 21 March, reducing the height of the development by one storey would mean that the whole of the upper level front two and part of the upper level third picture window would receive direct sunlight at midday on 21 March (and these windows would also receive some direct sunlight at midday for some period between the equinox and mid-winter).[131] Furthermore, because of the location of the picture windows on the northern façade of No. 8A Alexander Road and given the direction of the shadow shown on the shadow diagrams and what appears to be the shadow cast by the lift overrun in the three storey scenario on the shadow diagrams showing the impact on the northern wall of No. 8A Alexander Road on 21 March, it is likely that if the height of the proposed development were reduced to three storeys in the western half of the site (only), then the upper front two picture windows would be fully in sun at midday on 21 March (and would also receive some direct sunlight at midday for some period between the equinox and mid-winter). Further, it is likely that if the ground floor level and consequently the overall height of the proposed development were also reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, then there would additionally be some direct sunlight through the top of the front two ground floor picture windows at midday at the equinox (and at midday for some period between the equinox and mid-winter). Thus, whereas the proposed development would have a significant adverse impact on solar access at No. 8A Alexander Road for over six months of the year, if the proposed development were reduced by one storey in the western half of the site and if the ground floor finished floor level and consequently the overall height of the building were also reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, the period of significant adverse impact on No. 8A Alexander Road would materially reduce.
[130] Respondent's closing submissions [91(b)].
[131] 3D model elevations (12 pm midday) (Exhibit 3 tab 3).
As indicated earlier, Mr Price gave evidence, which we accept, that the proposed development will result (only) in an estimated 21.2% decrease in annual power generation and $270.93 reduction in annual savings on electricity costs at No. 8A Alexander Road. Nevertheless, the impact on the amenity of that property in terms of solar access is unacceptable, in part, because the development will entirely overshadow the solar panels at midday in mid-winter, whereas that level of impact is not inevitable as a result of reasonable development on the site consistent with its R80 coding. As discussed earlier the proposed development does not achieve the R-Codes Volume 2 Element Objectives for design elements 2.2 Building height and 2.5 Plot ratio, essentially because of the fourth storey in the western half of the site and the elevation of the ground floor above the existing ground level and consequently the overall building height. Reasonable development of the site consistent with the R80 coding, therefore, involves one less storey in the western half of the site and a further reduction in the overall height of the building by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking. If these changes were made to the proposal, then the overshadowing impact of the development on its southern neighbour would be less, even in mid-winter (in terms of the solar panels) and at the equinox (in terms of the front two upper and also likely the top of the front two lower picture windows).
Because the extent of significant adverse impact by reason of overshadowing at No. 8A Alexander Road is not inevitable for reasonable development of the site consistent with its R80 coding, we find that the overshadowing impact on the adjoining property to the south is unacceptable.
The visual impact of the bulk and scale of the proposed development is also unacceptable on the adjoining property to the south, because, again, it is not inevitable for reasonable development of the site consistent with its R80 coding. As indicated earlier, because the finished floor level of the ground floor of the proposed development is 0.7 metre to 1.2 metres above the existing ground level, and because the topography continues to fall to the south of the site, the proposed development will present with a height of about four-and-a-half storeys from Ms Tutor's property. Moreover, as emerged during the concurrent evidence of the town planning expert witnesses, the fact that the ground floor of the proposed development is raised above the existing ground level means that, for privacy reasons, there would have to be a structure or structures with a total height of 2.9 metres above the level of Ms Tutor's property directly on or near her northern boundary. At the Tribunal's request, the expert witnesses drew the height of the screen that would be required on the southern elevation of the proposed development to indicate the total height of structures on or near the southern boundary of the site.[132] Although, as Mr Lohman said in an exchange with the Tribunal during his evidence, the upper part of the 2.9 metre high structure or structures along the boundary could be 'an opaque or perforated type screen to meet the visual privacy requirements of the R-Codes [Volume 2],'[133] as the City submits, the total effect of structures on or near the boundary 'will remove any perceived benefit of the 3.5 [metres] side setback'.[134] Because the pedestrian entry into the proposed development abuts the common boundary with Ms Tutor's property and would be reached via a ramp ascending to the finished floor level of the proposed development, the 2.9 metre high structure or structures at or near the common boundary would be required along most of the boundary, although it would not extend as far east as Ms Tutor's courtyard where, it appears, the existing boundary wall would be sufficient without a screen on top.
[132] Exhibit 17.
[133] ts 137, 14 August 2020.
[134] Respondent's closing submissions [91(e)].
The adverse visual impact of the bulk and scale of the required structure or structures at or near the common boundary with No. 8A Alexander Road is unacceptable, because it would be reduced and may be avoided by reasonable development of the site consistent with its R80 coding. In particular, if the finished floor level of the ground floor were reduced by as much as is practicable while still set at or above existing ground level within the footprint of the building and incorporating basement parking, and with better design of the entry to the building, screening above the existing masonry boundary wall would be minimised and may be avoided. Furthermore, although the bulk and scale of the proposed building itself is mitigated by articulation and the use of varied materials and textures, including on its southern façade, and although the setbacks of the proposed building to the southern boundary of the site are appropriate, it is higher than it needs to be for reasonable development to occur. In addition to this manifesting in the unacceptably high screening structure or structures at or near the common boundary, the town planning expert witnesses gave evidence that the height of the finished floor level of the ground floor may require a screen along the southern elevation of the (elevated) terrace at the rear or eastern side of the ground floor dwelling. Although the southern wall of the ground floor dwelling and the screen is set back an appropriate distance of 5 metres from the common boundary, a screen along the southern edge of the terrace would, to some extent, continue the mass of the building to the east. Reducing the finished level of the ground floor by as much as is practicable while still set at or above existing ground level within the footprint of the building and incorporating basement parking would minimise and may avoid the need for a screen along the southern edge of the terrace of the ground floor dwelling.
If the ground floor level and consequently the overall height of the proposed development were reduced by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking, thereby minimising and potentially avoiding the need for the elevated screens and reducing the apparent height of the building, we would find that the proposed development would have an acceptable impact on the residential amenity of No. 8A Alexander Road in terms of bulk and scale. This is because the relatively substantial 5 metre setback of the proposed building (about a quarter of the width of the site) where it is most proximate to the courtyard and adjoining and adjacent internal living areas at No. 8A Alexander Road and the articulation and differential use of materials and textures on the southern façade of the building appropriately mitigate the height, bulk and scale of the development when viewed from the adjoining property to the south. The visual impact of the proposed development is also mitigated to an extent by the translucent roof structure above the courtyard at No. 8A Alexander Road. While reducing the height of the proposed development in the western half of the site from four to three storeys (and also reducing the height of the ground floor finished floor level and consequently the overall height of the development by as much as is practicable while still setting the ground floor finished floor level at or above existing ground level within the footprint of the building and incorporating basement parking) is necessary to ensure that the building is compatible with its setting, and although this would incidentally reduce the bulk and scale of the proposal when viewed from the ground floor entrance area and upstairs gallery and front living area at No. 8A Alexander Road, the visual impact of the bulk and scale of the proposed development on that property would not, in itself, require a reduction in height from four to three storeys.
Finally, although in its statement of issues, facts and contentions the respondent said that the proposed development 'will have a material and unacceptable impact on the amenity of [No.] 8A Alexander Road as a result of … reduction of privacy', in addition to 'as a result … of height [and] bulk and scale',[135] it did not ultimately pursue a submission that the proposed development would have an unacceptable adverse impact by reason of loss of privacy. Ms Butterworth did not give evidence to the effect that the proposed development would have an unacceptable impact on the privacy of the adjoining property to the south. We are satisfied that the proposed development would have an acceptable impact in terms of privacy if conditioned in terms proposed by the City in its without prejudice conditions.[136]
[135] Respondent's statement of issues, facts and contentions dated 3 July 2020 (Exhibit 1) [40].
[136] Respondent's draft 'without prejudice' conditions dated 3 August 2020 (Exhibit 15) condition 15.
We conclude that the proposed development will have an unacceptable adverse impact on the amenity of No. 8A Alexander Road.
Is the proposed development consistent with orderly and proper planning?
As, for the reasons set out above, the proposed development does not achieve the R-Codes Volume 2 Element Objectives for design elements 2.2 Building height, 2.5 Plot ratio and 3.2 Orientation, is not compatible with its streetscape setting and will have an unacceptable adverse impact on the amenity of No. 8A Alexander Road, it is clearly not consistent with orderly and proper planning.
The City submits that the proposed development is also not consistent with orderly and proper planning, because the locality of the site requires detailed planning given:[137]
(a)the very substantial recent change in residential density coding from R20 to R80 under LPS3;
(b)the prevalence of narrow east/west facing lots recently developed under a previous detailed area plan and design guidelines incorporated into the former [T]PS2, with dwellings designed to take advantage of solar access to the north; and
(c)the fact [that] Alexander Road is adjacent to an activity centre which is also the subject of a change in coding.
[137] Respondent's closing submissions [14].
We accept that, for the reasons advanced in the Council's submission set out immediately above, detailed planning of the area is desirable and, as the planning expert witnesses said in their concurrent evidence, 'good planning practice'.[138] However, LPS 3 was gazetted on 16 April 2019, close to two years ago, and although the City has commenced a precinct planning process as contemplated by the then draft and now operative State Planning Policy 7.2 Precinct Design,[139] as the applicant submits, 'this should not result in a moratorium on approval of development pending the completion of that process'.[140]
[138] ts 68, 13 August 2020.
[139] Gazetted on 19 February 2021.
[140] Applicant's closing submissions [67].
Finally, as indicated earlier, at its meeting on 31 March 2020, the City resolved to initiate an amendment to LPS 3 'to reduce the zoning of all recently up[-]coded properties on Alexander Road from R60 and R80 to R35'.[141] The City subsequently prepared and publicly advertised this draft amendment to LPS 3, which is known as 'Amendment No. 8' (Amendment 8). The period of advertising of Amendment 8 for public submissions ended on 28 August 2020 and, on 19 November 2020, the Council resolved to support Amendment 8 and forward it to the Commission.[142]
[141] Exhibit 14 Annexure 4.
[142] Applicant's closing submissions [8].
The City 'does not assert [that] Amendment 8 should itself be given substantial weight at this time'.[143] As Amendment 8 has been advertised, it is now a relevant matter for consideration under cl 67(2)(a) of the deemed provisions. Applying the 'Nicholls principles',[144] in our view, little if any weight should be given to Amendment 8 in the circumstances of this case, because although the draft addresses the specific application, we are not satisfied that it is based on sound town planning principles and it is neither relatively certain nor imminent that it will be made.
[143] Respondent's closing submissions [26(d)].
[144] See Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 [40]-[59] (Mr DR Parry SM) and Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 [198]-[206] (Judge Parry DP and Ms M Connor M).
Ms Butterworth gave evidence that Amendment 8 'is based on sound town planning principles in that it retains the Residential zoning and reduces the density coding based upon community aspirations/vision for the area (one of the aims of the Scheme) and is considered to be consistent with the [LP] [S]trategy'.[145] However, in their report to the meeting of the Council on 31 March 2020, the City's planning officers recommended against what became Amendment 8, because the City is currently formulating the Waratah Precinct Plan, which includes the area the subject of Amendment 8, and because introducing a lower coding 'will increase the interface issue of 6 storey to 2 storey which is not acceptable in terms of density transition' between the R-AC3 coded area and residential development in Alexander Road.[146] Furthermore, in their report to Council on 19 November 2020, the City's planning officers recommended that Amendment 8 not be supported, including because it 'will create additional land use conflict potential due to the interface between R35 and R80 and R-AC3 density areas' and because 'it seeks to reduce the residential density of properties without strategic justification through built form modelling'.[147]
[145] Exhibit 12 [129].
[146] Exhibit 14 Annexure 4.
[147] Applicant's closing submissions [8].
Given that the up-coding of the immediate locality of the site from R20 and R25 to R80 and R60, respectively, under LPS 3 occurred as a result of the intervention of the Commission and that the Minister endorsed the Commission's position two years ago, the making of Amendment 8 is neither relatively certain nor imminent.
Exercise of planning discretion
It is common ground that the proposed development achieves all of the Element Objectives of the many design elements of the R-Codes Volume 2, including design elements 2.3 Street setbacks and 2.4 Side and rear setbacks, other than the design elements in dispute in these proceedings. We also acknowledge that the applicant went through a process of discussion and amendment with the City's planning assessing officers who recommended approval for the proposed development.
However, in our view, the proposed development warrants refusal in the exercise of planning discretion, because it does not achieve the R-Codes Volume 2 Element Objectives for elements 2.2 Building height, 2.5 Plot ratio and 3.2 Orientation, is not compatible with its streetscape setting and will have an unacceptable adverse impact on the amenity of the adjoining property to the south by reason of overshadowing and bulk and scale. Ultimately, this is the case because the proposed development is one storey too high in the western half of the site and the ground floor finished floor level is (at least) 0.7 metre above existing ground level within the footprint of the development with the consequence that the overall height of the building is also too high. The ground floor finished floor level should be as low as is practicable while still at or above existing ground level within the footprint of the building and incorporating basement parking.
It follows that the correct and preferable decision at the time of the decision upon the review, under s 27(2) of the SAT Act, is to refuse development approval for the proposed development.
Orders
For these reasons, we make the following orders:
1.The application for review is dismissed.
2.The decision made by the respondent on 28 April 2020 to refuse to grant development approval for a four storey (above basement garage) building comprising four multiple dwellings at No. 6 Alexander Road, Dalkeith is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
17 MARCH 2021
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