BRADSHAW and CITY OF JOONDALUP
[2020] WASAT 156
•11 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRADSHAW and CITY OF JOONDALUP [2020] WASAT 156
MEMBER: DR S WILLEY, SENIOR MEMBER
MS M CONNOR, MEMBER
HEARD: 18 AUGUST 2020, FURTHER SUBMISSIONS ON 8 SEPTEMBER 2020
DELIVERED : 11 DECEMBER 2020
FILE NO/S: DR 274 of 2019
BETWEEN: DUNCAN BRADSHAW
First Applicant
SHARON BRADSHAW
Second Applicant
BRODIE BRADSHAW
Third Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Residential Design Codes - Multiple dwellings - Landscaping - Deep soil area - Plot ratio - Development site - Amenity - Internal Amenity - Traffic
Legislation:
City of Joondalup Local Planning Scheme No 3, cl 25, cl 26(5)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, cl 37(1), Sch 2, cl 1, cl 64, cl 67, cl 67(m), cl 67(n), Pt 10A, cl 78A
Planning and Development Act 2005 (WA), s 77(1)(b)
State Administrative Tribunal Act 2004 (WA), s 27
State Planning Policy 7.3 - Residential Design Codes Volume 2 – Apartments, cl 1.4, table 2, table 2.1, table 3.3a, table 3.3b
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | D Mrdja (as agent) |
| Second Applicant | : | D Mrdja (as agent) |
| Third Applicant | : | D Mrdja (as agent) |
| Respondent | : | N Teo (as agent) |
Solicitors:
| First Applicant | : | Urbanista Town Planning |
| Second Applicant | : | Urbanista Town Planning |
| Third Applicant | : | Urbanista Town Planning |
| Respondent | : | Dynamic Planning |
Case(s) referred to in decision(s):
Barana (St Kilda) Investments Pty Ltd v Port Phillip CC [2016] VCAT 1510
Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252
Edge Holdings No 6 Pty Ltd and Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35; (2020) 99 SR (WA) 222
Kemstone Investments Pty Ltd and City of Joondalup [2020] WASAT 115
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Taranto v Glen Eira CC [2015] VCAT 1904.
WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application for a two storey multiple dwelling development on Lot 945 (HN 12) Northwood Way, Kallaroo (Land). Seven multiple dwellings are proposed: two on the ground floor with five on the first floor (Proposed Development).
The City of Joondalup (City or respondent) refused the Proposed Development on 10 December 2019 on the basis that it exceeded the plot ratio requirements for the Land.
Duncan, Sharon and Brodie Bradshaw (together the applicants) sought review of the City's decision. The matter was heard on 18 August 2020 with further submissions received on 8 September 2020.
For the following reasons, the Tribunal has determined that the correct and preferable decision is to refuse the Proposed Development.
The Land
The Land:
(a)currently contains a single house on a battle axe lot accessed via a 4.01 metre wide access leg;
(b)has an area of 1,108m2;
(c)sits within a largely suburban locality comprising single and two storey dwellings but is within an area undergoing some transition with the introduction of multiple dwellings;
(d)backs onto Whitfords Avenue which is a regional arterial route; and
(e)is in close proximity to the Whitfords City Shopping Centre.
Applicable planning framework
Planning schemes
The Land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential' in the City of Joondalup Local Planning Scheme No 3 (LPS 3) with a density code of 'R20/40'. 'Multiple dwellings' are a 'D' use under LPS 3. A 'D' use may be approved in the exercise of discretion.
It is, of course, the case that LPS 3 includes the 'deemed provisions' found in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the deemed provisions).
The Planning and Development Act 2005 (WA) (PD Act) provides that a local planning scheme may include a provision that a State planning policy may be read as part of the scheme: s 77(1)(b). In this instance, the Residential Design Codes are to be read as part of LPS 3: cl 25 of LPS 3. Given that the density in question is 'R 40', the applicable volume of the R Codes is Volume 2 being State Planning Policy 7.3 – Residential Design Codes – Apartments. Unless otherwise stated, in these reasons a reference to the 'R Codes' is a reference to the State Planning Policy 7.3 - Residential Design Codes Volume 2 Apartments.
Clause 26(5) of LPS 3 provides:
Clause 5.1.1 of the R-Codes is modified by inserting the additional 'deemed-to-comply' criteria:
C1.5In areas where dual coding applies, site areas under the higher coding may be applied subject to the following:
(i)Development which complies with a minimum frontage of 10 metres at the setback line, with the exception of multiple dwelling sites; or
(ii)Development of multiple dwelling sites which complies with a minimum site width of 20 metres at the street boundary.
State planning policies
State Planning Policy 7.0 - Design of the Built Environment (SPP 7.0) establishes a broad framework for the design of the built environment in Western Australia. SPP 7.0 is to be read in conjunction with other aspects of the State Planning Framework, including the R Codes: cl 4.
Schedule 1 to SPP 7.0 includes a number of design principles including inter alia landscape quality, built form and scale and amenity: cl 6. These design principles are then adopted in cl 1.4 of the R Codes.
Local planning policies
The City has also prepared the Residential Development Local Planning Policy (Residential Development LPP). It is not in contest that the Land is identified in an 'Additional Housing Opportunity Area' under the Residential Development LPP.
The Proposed Development
As stated, the Proposed Development is for seven multiple dwellings.[1] Two of the dwellings are located on the ground floor. The ground floor area also includes the provision of car parking for 12 motor vehicles. There are three tandem car parking bays (providing for six car parking bays) for units 3, 4 and 5. Units 1, 2, 6 and 7 have one car parking bay each. Two visitor car parking bays are also proposed.
[1] Applicants' Bundle of Materials (Exhibit 3) Item 3.
The ground level also provides storage and bin collection areas.
In terms of landscaping, only the existing Plumeria tree in the south-west corner of the Land is to be retained (seven trees are proposed to be removed). Plantings of shrubs are also proposed along the western, eastern and southern boundaries. The most significant landscaping is proposed at the northern elevation of the Proposed Development. At this elevation, two 'medium' trees and three 'small' trees are proposed together with other plantings.
At the first floor level are five units which are accessed by stairs. The private balconies for four of these units face south onto Whitfords Avenue.
City's assessment of the Proposed Development
The Proposed Development was lodged in May 2019 and advertised by the City pursuant to cl 64 of the deemed provisions.
A total of 48 submissions were received, 47 of which opposed the Proposed Development. Concerns that were raised included inter alia plot ratio, height, scale, parking, loss of light and privacy and that limited deep soil areas were proposed.
As stated, at its meeting on 10 December 2019, the City refused the Proposed Development on the basis of plot ratio concerns.
Nature of the Tribunal's review
This proceeding arises in the Tribunal's review jurisdiction. Our task is to hear the matter de novo and to make the correct and preferable decision: s 27 State Administrative Tribunal Act 2004 (WA) (SATAct).
Issues for determination
The parties filed an agreed Statement of Issues. Five of these issues relate to whether the Proposed Development satisfies various elements of the R Codes. The issues that arise from the R Codes are:
•Element O2.4.3 - side and rear setbacks
O2.4.3The setback of development from side and rear boundaries enables retention of existing trees and provision of deep soil areas that reinforce the landscape character of the area, support tree canopy and assist with stormwater management.
•Element O2.5.1 plot ratio
O2.5.1The overall bulk and scale of development is appropriate for the existing or planned character of the area.
•Element O3.2.1 orientation
O3.2.1Building layouts respond to the streetscape, topography and site attributes while optimising solar and daylight access within the development.
•Element O3.3.3 tree canopy and deep soil areas
O3.3.3Development includes deep soil areas, or other infrastructure to support planting on structures, with sufficient area and volume to sustain healthy plant and tree growth.
•Element O4.4.1 and O4.1.2 – solar and daylight access
O4.4.1In climate zones, 4, 5 and 6: the development is sited and designed to optimise the number of dwellings receiving winter sunlight to private open space and via windows to habitable rooms.
O4.4.2Windows are designed and positioned to optimise daylight access for habitable rooms.
(emphasis in original)
The final issue is whether the Proposed Development should be approved having regard to the following matters set out in cl 67 of the deemed provisions:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(y)any submissions received on the application[.]
The evidence
In this proceeding, we heard from five witnesses. The respondent called Mr Reegan Cake (a town planner) and Mr Trevor Needham who resides adjacent to the Land at 14 Northwood Way, Kallaroo.
The applicants called three witnesses: Ms Bianca Sandri (a town planner), Mr Malcolm Mackay (an architect/urban designer) and Mr Robin Burnage (a landscape architect).
Summary of the evidence
The case is largely about the built form impacts of the Proposed Development. Ultimately, we have decided that the Proposed Development should be refused in the exercise of discretion because we find that the landscaping arrangements proposed are not appropriate and do not achieve element objective O3.3.3 of the R Codes.
In broad summary, the evidence is as follows.
Mr Needham is concerned about the impacts of the Proposed Development on his residential amenity, including his privacy. Mr Needham is concerned, in particular, about overlooking from the second storey units into his patio and indoor living areas. Mr Needham has a range of other concerns including that the Proposed Development is an overdevelopment of the Land.
Mr Cake considers that the Proposed Development does not demonstrate the design objectives of a number of the elements of the R Codes. Mr Cake has further concerns about the Proposed Development in relation to amenity impacts.
In the context of the R Codes, Mr Cake's 'primary' concern is the Proposed Development's 'compliance [with the cl 67 factors] on [the] amenity of existing residents abutting the development and proposed residents who will occupy the [Proposed Development]'.[2] Mr Cake also considers that there is a 'lack of meaningful landscaping throughout the Proposed Development'.[3]
[2] Witness statement of Reegan Cake (Exhibit 9) at para 68.
[3] Witness statement of Reegan Cake (Exhibit 9) at para 69.
Mr Burnage gave landscape evidence on behalf of the applicants.[4] Mr Burnage outlines the proposed landscaping in the context of the R Codes. We will return to discuss Mr Burnage's evidence in some detail later in these reasons.
[4] Witness statement of Robin Burnage (Exhibit 10).
Mr Mackay reviewed the Proposed Development on behalf of the applicants. He expresses a range of opinions on design and built form elements of the Proposed Development in the context of the locality.
Mr Mackay's evidence is that, from a built form perspective, there are no issues with the Proposed Development although he notes that the question of 'landscape detail' is beyond his area of expertise.
Mr Mackay challenges the 'presumption' that developing northfacing apartments is 'paramount and takes precedence over all other aspects of building design'. Mr Mackay's view is that 'the architectural response to the streetscape and context is paramount'.[5]
[5] Witness statement of Malcolm Mackay (Exhibit 12) at paras 7.1-7.2.
Ms Sandri's evidence is that the Proposed Development is a 'high quality design and an appropriate built form which improves the adjacent streetscape'.[6]
[6] Witness statement of Bianca Sandri (Exhibit 11) at para 146.
In terms of landscaping. Mr Sandri outlines[7] that:
While the proposed landscaping does not strictly comply with the requirement for 1 large tree, it can be easily argued that the proposed medium and small trees will result in greater canopy coverage than what would ordinarily come from 1 large tree.
Consideration of the Proposed Development
[7] Witness statement of Bianca Sandri (Exhibit 11) at para 111.
We regard the built form of the Proposed Development as generally appropriate. We will now address the issues raised by the parties.
Issue 1(a): side and rear setbacks (O2.4.3)
The respondent contends that the Proposed Development does not achieve O2.4.3 on the basis that the northern, western and southern setbacks 'limit the ability to provide meaningful deep soil areas [DSAs] across the development'.[8]
[8] Witness statement of Reegan Cake (Exhibit 9) at para 37.
Save for our comments below about DSAs, we regard the setbacks for the Proposed Development as acceptable. However, for reasons which we will come to, we have concerns about the landscaping proposed for the Proposed Development, including, in particular, the proposed DSAs. That is, we do not consider that the setbacks of the Proposed Development 'enables the retention of existing trees and provision of [DSAs] that reinforce the landscape character of the area' and 'which support tree canopy'.
By reason of our concerns over landscaping, we therefore do not consider that the design of the Proposed Development demonstrates that all aspects of element objective O2.4.3 of the R Codes have been achieved.
Issue 1(b): plot ratio (O2.5.1)
There is a contest as to whether the Proposed Development meets or exceeds the plot ratio of 0.6 provided for in Table 2 of the R Codes. The issue between the parties is whether the 4 metre wide access leg (which has an area of 113.51m2) is included in calculating plot ratio.
If the access leg is included, which is contended for by the applicants, then the Proposed Development has a plot ratio of 0.6 and therefore meets the requirement of Table 2 of the R Codes. If the access leg is not included, as contended by the respondent, the overall built form (of 587.2m2) equates to a plot ratio of 0.649, which is an exceedance of 44.5m2.
Mr Teo's submissions on the quality of the landscaping response relate to the plot ratio question in that, he submits, the plot ratio exceedance means that insufficient land has been made available for landscaping.
In fairness to the parties, the question of how one calculates plot ratio for the purposes of the R Codes is far from clear. That is made more difficult in this instance because, pursuant to cl 25 of LPS 3, the R Codes are to be read as part of LPS 3.
What is plot ratio and how is it calculated
The R Codes define 'plot ratio area' as follows:
… the total area of all floors of buildings on a development site[.]
Under Element 2.5, the R Codes state that:
'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'[.]
(emphasis in original).
The R Codes include the following (relevant definitions):
1.Building envelope
as defined under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) indicates 'the intended maximum extent of development for a site, defined by a combination of building height limits and setbacks from street, side and rear boundaries'. Clause 37(1) of Sch 1 of the LPS Regulations (the model provisions) defines building envelope to mean 'the area of land within which all buildings and effluent disposal facilities on a lot must be contained'.
2.Site area
the area of land required for the construction of a dwelling to satisfy the requirements of the R Codes.
3.Building massing
the overall shape, form and size of a building.
4.Development site
as defined under the LPS Regulations. The term 'development site' is referred to in Pt 10A (cl 78A) of the deemed provisions (which relate to bushfire risk management) and is defined to mean 'that part of a lot on which a building that is the subject of development stands or is to be constructed'.
Clause 37(1) of LPS 3 defines 'plot ratio' to mean:
[T]he ratio of the floor area of a building to an area of land within the boundaries of the lot or lots on which the building is located[.]
Drawing all these threads together to assess whether an access leg is included for the purposes of calculating plot ratio is no easy task.
Furthermore, although not presently relevant, we note that Volume 1 of the R Codes (State Planning Policy 7.3: Residential Design Codes Volume 1) (R Codes – Volume 1) defines 'plot ratio' differently to the definition contained in the R Codes Volume 2. The R Codes Volume 1 includes the following definition of 'plot ratio':
[T]he ratio of the gross plot ratio area of buildings on a development site to the area of land in the site boundaries.
The term 'development site' is defined in R Codes - Volume 1 as follows:
A 'parent lot' in which development is proposed.
In our view, as a matter of consistency and clarity, it would be beneficial for planners and designers to be able to work from standard definitions of 'plot ratio' and 'development site' for the purposes of residential design in Western Australia.
In terms of addressing the question before us, because the R Codes are read as part of LPS 3, we do not consider that the more general definition of 'plot ratio' contained in cl 37(1) of LPS 3 applies to developments regulated by the R Codes.
This is on the basis that the R Codes are a specific planning instrument that regulates (only) the development of residential development, whereas cl 37(1) of LPS 3 applies to all forms of development. For this reason, we consider the definitions contained in the R Codes (as the more specific planning instrument) apply to the Proposed Development.
As is apparent from the definition in the R Codes, 'plot ratio' is an expression of the total area of all floors of buildings relative to the 'development site'.
In understanding the meaning of the term 'plot ratio' in the context of the R Codes, the reference to 'development site' is key. It is not a reference to a broader parcel of land such as 'the site' or 'the lot'. This is because the 'development site' is something other than 'the site' or 'the lot' for the purposes of the R Codes.[9]
[9] The term 'site' is defined in the R Codes to mean, in the context of multiple dwellings, the 'parent lot'. The term 'lot', for multiple dwellings, means the 'parent lot'. The 'parent lot' means, in the context of multiple dwellings, 'the lot inclusive of common areas to which the strata scheme relates'.
The R Codes adopt the definition of 'development site' contained in the LPS Regulations. The only definition of 'development site' in the LPS Regulations refers not to a 'lot' or 'site' in its entirety, but only 'that part of a lot on which a building that is the subject of development stands or is to be constructed'.
However, in our view, there is room for greater clarity in what is meant by 'development site' for the purposes of the R Codes. This is because the ordinary meaning of the phrase 'development site' in the LPS Regulations means only that part of a lot where a building is located or constructed. The definition of 'development site' in the LPS Regulations does not really inform the question of plot ratio in any meaningful way. This may be because the relevant definition of 'development site' in the LPS Regulations is included within the deemed provisions dealing with development in bushfire prone areas.
We also consider that the definition of 'building envelope' in the R Codes does not assist in calculating plot ratio for present purposes. This is because a 'building envelope' may well be different to a 'development site'. A building envelope is often used to outline where development must be located for planning reasons (such as, for example, to manage effluent disposal, to minimise the risk of bushfire attack or to retain natural vegetation). Building envelopes are often more confined than the potential area of land that could be a 'development site'.
In addition to the above analysis, we would also add that the question of calculating plot ratio for the purposes of the R Codes must be approached in a sensible and practical manner, having regard to the town planning purpose of the R Codes.[10]
[10] Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252 at [45][48].
We therefore do not agree with Ms Sandri that the plot ratio calculations should include the access leg. In our view, for plot ratio purposes under the R Codes, the 'development site' must be read as meaning the site where built form can reasonably be located or contemplated. That is, the plot ratio of a site is the ratio of the floor area of a building relevant to the developable area of the site. Any other reading or interpretation of plot ratio, in the context of the R Codes - Volume 2, will lead to artificial distortions in terms of the volume of building relevant to the developable area of a site.
A 4 metre wide access leg is not an area where any substantive built form can reasonably be located or contemplated. That is, it is not part of the 'development site' in any practical sense. Indeed, in our view, it makes little planning sense to include such an access leg and would lead to distorted and misleading plot ratio calculations in the context of the R Codes - Volume 2.
The consequence of this is the effective plot ratio of the built form (of 587.2m2) equates to a plot ratio of 0.649. The result is that there is a 44.5m2 exceedance of the 0.6 requirement set out in Table 2.1 of the R Codes.
However, while it may be the case that there is a plot ratio exceedance, this is not, of itself, an issue in our view. We do not have an issue with the overall bulk, massing and scale of the Proposed Development.
Aside from the plot ratio exceedance, we generally accept Ms Sandri's opinion and find that the Proposed Development meets element objective O2.5.1 of the R Codes in that overall bulk and scale of the development is appropriate.[11]
Issue 1(c): orientation (O3.2.1)
[11] Witness statement of Bianca Sandri (Exhibit 11) at paras 65-77.
The respondent contends that the design and layout of the proposed apartments do not achieve O3.2.1 of the R Codes because not all of the proposed multiple dwellings will have an effective frontage to Northwood Way.[12]
[12] Witness statement of Reegan Cake (Exhbit 9) at paras 47-48.
For the follow reasons, we have no concerns in relation to building layout, including questions of optimising solar and daylight access.
We accept the design philosophy to set back development from the north boundary (which is a sensitive boundary in terms of the potential to overlook) and to have rear-facing balconies. The context and orientation of the Land (including the fact it is a rear battleaxe leg) means that there are site constraints that the design of the Proposed Development will need to respond to and resolve.
We are satisfied that the Proposed Development responds appropriately to the Land's context. We agree with Mr Mackay that, in a practical sense, the majority of the proposed apartments will 'front' Whitfords Avenue. As a matter of streetscape, we consider it an appropriate design response to provide rear-facing balconies to Whitfords Avenue. We also find that each proposed unit will have sufficient access to daylight.
We therefore accept Mr Mackay's opinion that the Proposed Development demonstrates element objective O3.2.1 of the R Codes.
Issue 1(d): tree canopy and DSAs (O3.3.3)
There is a contest as to whether the Proposed Development achieves element objective O3.3.3 of the R Codes in relation to the provision of DSAs which, in turn, provide sufficient areas for tree canopy.
In our view, the Proposed Development does not achieve element objective O3.3.3 of the R Codes. The proposed landscaping arrangements are, in our view, not acceptable. We do not consider that landscaping has been adequately addressed in the Proposed Development. We say that for a number of reasons.
In terms of acceptable outcomes for Element 3.3 of the R Codes, the Proposed Development:
(a)does not meet A3.3.2 in that it does not propose the removal of existing trees (that meet the criteria set out in A3.3.1) on the basis of an arboriculture report;
(b)does not meet A3.3.4 in that it does not include DSAs in accordance with Table 3.3a of the R Codes in that no 'large tree' is proposed; and
(c)does not, in our view, meet A3.3.5 in that the landscaping will not deliver trees with shape producing canopies or will result in trees with diminished capacity to deliver shade producing canopies.
However, before we proceed to explain our finding on this issue, we note that Design Guidance 3.3.2 of the R Codes provides that:
The location of deep soil areas should be determined early in the design process and arboricultural advice obtained to ensure the deep soil areas can sustain trees. … Where new trees are proposed, the deep soil area should be sited to maximise their contribution to local amenity, such as providing shade, contributing to the tree canopy, the quality of the streetscape and improving the outlook of residents.
The R Codes define a 'DSA' as a:
[S]oft landscaped area on lot with no impeding building structure or feature above or below, which supports growth of medium to large canopy trees and meets stated minimum dimension. Used primarily for landscaping and open to the sky, DSAs exclude basement car parks, services, swimming pools, tennis courts and impervious surfaces including car parks, driveways and roof areas.
We also note that (although neither party addressed us on this element of the R Codes) element objective 4.12 of the R Codes (Landscape Design) O4.12.1 provides that:
Landscape design enhances streetscape and pedestrian amenity; improves the visual appeal and comfort of open space areas; and provides an attractive outlook for habitable rooms.
For a combination of four reasons, we are not satisfied that the applicants have adequately considered landscaping in the design process for the Proposed Development and that, as a result, O3.3.3 has not been achieved.
Firstly, the applicants produced no aboriculturalist report which justifies why the existing trees on the Land are proposed to be removed. This is reflected in A3.3.2 of the R Codes. While Ms Sandri considered that the existing trees did not meet the criteria set out in A3.3.1[13], in crossexamination, Mr Burnage agreed that based on the criteria set out at A3.3.1, the existing Cypress tree (in the north-east corner of the Land) should be retained.[14]
[13] Witness statement of Bianca Sandri (Exhibit 11) at para 101.
[14] ts 33, 18 August 2020.
We accept Mr Teo's submission[15] that the concept of tree retention has 'been ignored' by the applicants. In his closing submissions, Mr Teo made the following submission:[16]
Mr Teo: There's no reason why this tree needs to be removed. There's no evidence been provided to the tribunal based on an arborist's report, which is required. The applicant has simply chosen not to provide this information, which is clearly advocated for in the acceptable development provisions. Now, it's contended that the one large tree hasn't been provided. We contend that should the plot ratio have been compliant, it could have opened up opportunities from a robust design to actually provide a large tree.
In respect to a large tree, we're talking about a large tree which has a deep soil area of 64 square metres, compared to a medium tree which has deep soil area of 36 square metres. Also, a large tree has a normal height of maturity of greater than 12 metres, whereas a medium tree, we're talking about normal heights between eight and 12 metres.
When we're talking about bringing in multiple dwellings into an area which arguably is surrounded by, in this vicinity, single housing and group dwellings, we contend that there is a necessity to appreciate the expectations of the acceptable development outcomes, which in this case requires one large tree. Now, the proponent hasn't provided any evidence today as to why it hasn't attempted to provide a large tree. One can only conclude that there isn't sufficient area on the site to accommodate the required deep soil area. And, again, we reiterate this as a connection with the plot ratio.
[15] ts 88, 18 August 2020.
[16] ts 90, 18 August 2020.
An aboriculturalist report would have been useful in determining whether any of the existing trees on the Land should have been retained for the purposes of O3.3.1 of the R Codes.
Secondly, the Proposed Development does not include a 'large tree' as required by Table 3.3a of the R Codes. The Land area exceeds 1,000m2 and therefore (Table 3.3a) of the R Codes 'require' one large tree to be provided along with one medium tree for every 400m2 in excess of 1,000m2.
Mr Burnage suggested that the area of communal space north of the built form could 'potentially' accommodate a large tree but that 'the first floor roof zone may impede how that would result'.[17] While we agree that there may be circumstances where DSAs do not need to meet the requirements of Table 3.3a in the context of an overall landscape response, in this instance the absence of a large tree is wholly unexplained by the applicants.
[17] ts 31, 18 August 2020.
As a starting point (and noting our comments at [106]), we can see no reason why a DSA for a large tree should not be provided as part of the redevelopment of the Land. While Ms Sandri acknowledges that the Proposed Development does not meet the requirements of Table 3.3a, she considers that 'it can easily be argued that the proposed medium and small trees will result in greater canopy coverage that what would ordinarily come from one large tree'.[18]
[18] Witness statement of Bianca Sandri (Exhibit 11) at para 111.
Mr Cake considers that the dimensions of the DSAs are deficient and may restrict the ability of trees to reach full maturity.[19]
[19] Witness statement of Reegan Cake (Exhibit 9) at paras 55 to 59.
Diagram 3 of Mr Burnage's witness statement shows the DSAs generally and in particular for each of the proposed small and medium trees.[20] No dimensions are shown. However, the DSAs for both medium trees overlap and the DSA for the medium tree in the northeast corner of the land is shared with the DSAs for two small trees. The integrity and efficiency of overlapping DSAs for trees is not addressed in the R Codes.
[20] Witness statement of Robin Burnage (Exhibit 10).
However, Mr Burnage suggests that this is 'common' and that he does not 'foresee an issue'.[21] He does, however, suggest that a 'proposed maintenance regime' will need to reflect the 'increased competition for resources where this occurs'.[22]
[21] Witness statement of Robin Burnage (Exhibit 10) at para 48.
[22] Witness statement of Robin Burnage (Exhibit 10) at para 48.
Mr Burnage's view is that the proposed tree root zones 'do abide by the wording of the policy objective, whilst in this proposal their adherence to the policy intent is somewhat more loosely interpreted'.[23]
[23] Witness statement of Robin Burnage (Exhibit 10) at para 49.
In his closing submissions, Mr Teo outlined that:[24]
Mr Teo: … We contend that should the plot ratio have been compliant, it could have opened up opportunities from a robust design to actually provide a large tree.
In respect to a large tree, we're talking about a large tree which has a deep soil area of 64 square metres, compared to a medium tree which has deep soil area of 36 square metres. Also, a large tree has a normal height of maturity of greater than 12 metres, whereas a medium tree, we're talking about normal heights between eight and 12 metres.
When we're talking about bringing in multiple dwellings into an area which arguably is surrounded by, in this vicinity, single housing and group dwellings, we contend that there is a necessity to appreciate the expectations of the acceptable development outcomes, which in this case requires one large tree. Now, the proponent hasn't provided any evidence today as to why it hasn't attempted to provide a large tree. One can only conclude that there isn't sufficient area on the site to accommodate the required deep soil area. And, again, we reiterate this as a connection with the plot ratio.
[24] ts 90, 18 August 2020.
We do not accept Ms Sandri's opinion that the proposed landscaping makes good the absence of a large tree. This is particularly having regard to the fact that two of the medium trees will not have access to open sky but will instead be located under the first floor overhang. As Mr Burnage properly acknowledges, the growth of the trees under the balcony will 'partially affect the canopy growth of the proposed trees'. While he does suggest there is sufficient space for tree growth, he considers the arrangements are 'not ideal'.[25]
[25] Witness statement of Robin Burnage (Exhibit 10) at para 50.
Ultimately, we accept Mr Teo's argument that the landscaping arrangements of two medium trees and the associated DSAs are not adequate to achieve O3.3.3 of the R Codes.
Thirdly, as discussed above, the first floor overhangs the ground level such that the proposed medium tree adjacent to the stairs will have inhibited growth. The other medium tree in this communal area will also have impeded growth due to the first floor overhang. While Mr Burnage considers the upper floor overhang will inhibit the tree's growth, it 'certainly will not prevent its growth'. Mr Burnage was asked the following question by Mr Teo: [26]
Mr Teo:[T]he proponent's team is starting from scratch in designing a development on the site considering that where the proposal was adding a lot more population into the site and there's opportunities to design a landscaping outcome which isn't doesn't have its growth inhibited, now I put to you that's not an outcome which should be embraced. Do you agree with that?
Mr Burnage: Well, I mean, I wasn't involved in the actual design so I don't know what the constraints are for this site. I mean, obviously there's always going to be an optimal outcome agreed. Yes. You know, on any, is you know, what I what I would like to get when I'm doing a landscape design is often, you know, compromised by a number of different things and permitted, you know, floor space and parking and everything else. Yes, look, the objectives and outcomes are being achieved here. Whether it's the optimal outcome, that's I wasn't I didn't do the design so I can't really comment on whether that's the best configuration for the site.
[26] ts 35, 18 August 2020.
While we accept that Mr Burnage is of the opinion that 'the objectives and outcomes are being achieved' we consider Mr Teo's question was fair and was not adequately answered (which is not a criticism of Mr Burnage as it is plain that he is not the primary designer of the Proposed Development).
In his closing submissions, Mr Teo outlined that: [27]
Mr Teo: In respect to a large tree, we're talking about a large tree which has a deep soil area of 64 square metres, compared to a medium tree which has deep soil area of 36 square metres. Also, a large tree has a normal height of maturity of greater than 12 metres, whereas a medium tree, we're talking about normal heights between eight and 12 metres.
When we're talking about bringing in multiple dwellings into an area which arguably is surrounded by, in this vicinity, single housing and group dwellings, we contend that there is a necessity to appreciate the expectations of the acceptable development outcomes, which in this case requires one large tree. Now, the proponent hasn't provided any evidence today as to why it hasn't attempted to provide a large tree. One can only conclude that there isn't sufficient area on the site to accommodate the required deep soil area. And, again, we reiterate this as a connection with the plot ratio.
[27] ts 90, 18 August 2020.
We accept these submissions from Mr Teo. It is remarkable in our view that, in the context of a site which all but for one tree in the southwest corner, will be cleared that in establishing the design for the Proposed Development, this element objective has not been achieved.
It is plain to us that the design philosophy for the Proposed Development did not involve adequate consideration of landscaping requirements. The absence of a large tree and the proposal to have two trees sitting under the canopy of the first floor is, in our view, does not demonstrate that O3.3.3 has been met. While it may be so that the trees which are to be placed under the first floor overhang will still grow and orientate themselves towards the northern sun, with respect to the applicants, that is not to the point. We do not consider the proposed landscaping arrangements to be a good design response and they do not achieve element objective O3.3.3 of the R Codes.
Fourthly, the R Codes include minimum dimensions and areas for DSAs.
Table 3.3b of the R Codes provides that for medium trees, the required area is 36m2 and with recommended minimum width of 3 metres. For large trees, the required DSA is 64m2 with a recommended minimum width of 6 metres. DSAs may include permeable paving or decking provided it does not exceed 20% of the area and does not inhibit the planting and growth of trees. There is a contest as to whether the proposed DSAs meet the requirements of the R Codes. Mr Cake does not consider the required minimum DSAs are demonstrated for the purpose of the R Codes.[28]
[28] Witness statement of Reegan Cake (Exhibit 9) at paras 5559.
Mr Burnage's opinion is that the DSA requirements for the proposed medium trees are met.[29] He outlines that the DSAs are 41.2m2 and 38.85m2 respectively. By reference to Diagram 3 of Mr Burnage's witness statement, it is not easy to discern the basis on which he has identified the DSA for each medium tree. This is especially so given that one medium tree adjacent to the proposed stairs is located at the edge of the DSA.
[29] Witness statement of Robin Burnage (Exhibit 10) at para 44.
Mr Burnage 'recommends' that this tree be relocated within the DSA.[30] The two DSAs for the medium trees also overlap to a certain extent, although we note that Mr Burnage does not consider that to be an issue.[31] Because it is not a scaled plan, it is not clear from Diagram 3 of Mr Burnage's witness statement whether the DSAs satisfy the recommended minimum dimensions set out in Table 3.3b of the R Codes.
[30] Witness statement of Reegan Cake (Exhibit 9) at para 43.
[31] Witness statement of Reegan Cake (Exhibit 9) at para 48.
Ultimately, while we accept Mr Burnage's evidence that A3.3.5 of the R Codes requirements may, in a strict sense, be 'met', we are left in some doubt about the utility and effectiveness of these DSAs. As the Tribunal recently observed in Kemstone Investments Pty Ltd and City of Joondalup[32], while it might be the case that the requirements for DSAs may technically be 'met', DSAs may still be far from ideal. We reiterate the comments of the Tribunal in Kemstone that:
… While it is no doubt the case that the size and shape of [deep soil areas] needs to be approached flexibly, the [deep soil areas] in this instance appear to be something of a design afterthought.
[32] Kemstone Investments Pty Ltd and City of Joondalup [2020]WASAT115 (Kemstone) at [56].
SPP 7.0 is a policy that sets out general design and planning principles that inform the question of development control. SPP 7.0 identifies 'landscaping and buildings operate as an integrated and sustainable system': Sch 1, item 2 of SPP 7.0. For the reasons we have explained, in this instance, the proposed landscaping arrangements appear to us to be something of a design afterthought. It seems to us that the landscaping arrangements have not been properly, nor appropriately, integrated during the design concept phase.
In assessing landscaping Element 3.3 of the R Codes, it seems to us that the question is ultimately whether the proposed landscape arrangements achieves the relevant element objectives. These objectives may be achieved either through the preservation of existing trees or via the introduction of new trees (or a combination thereof).
The fundamental problem with the Proposed Development is the landscaping arrangements cannot be regarded as achieving the element objectives.
While we accept that landscaping is but one element that arises for consideration, the positive inference that derives from the R Codes is that each design element needs to be achieved in order for approval to be granted. This is because R Codes provides that:[33]
Applications for development approval need to demonstrate that the design achieves the objectives of each design element[.]
[33] Page IV of the R Codes
In Kemstone[34] the Tribunal commented that the time had come for designers to 'do better' on the question of landscaping. As the Tribunal observed:[35]
… In order to deliver the strategic planning objectives of increased densities and greater housing diversity mandated by the planning framework, trees and landscaping play a key role. This is because trees (and landscaping generally) provide visual amenity and aesthetic relief in urban areas. It is also the case that trees and vegetation deliver a range of environmental benefits and, importantly, provide habitat for fauna.
[34] Kemstone at [125].
[35] Kemstone at [120].
In an overall sense, the conclusion we have reached is that the proposed landscaping arrangements are inadequate to the extent that the application for review should be dismissed on the basis that the design element O3.3.3 has not been achieved.
In reaching this conclusion, we wish to make it clear that the failure to provide a large tree is not, of itself, fatal to the Proposed Development. There may well be reasons to depart from the landscaping 'requirements' set out in the R Codes. The failure to provide a large tree can be 'made good' by an overall landscaping proposal that is otherwise meritorious and achieves the element objective of the R Codes. Each case must be assessed in its own context and on its own merits.
However, what we do regard as fatal in this instance, is the proposal to not include a large tree but instead include medium trees, two of which are to be located underneath the canopy of the first floor such that their growth will be inhibited. Such a landscaping outcome is unacceptable and does not demonstrate element objective O3.3.3.
The impacts of these landscaping arrangements will be a development that provides a diminished level of landscaping and therefore amenity to both the future residents of the Proposed Development and the locality generally.
That locality also includes neighbours, in particular, Mr Needham (at 14 Northwood Way). The amenity impacts of no large tree and medium trees growing under the first floor overhang may well result in a reduction in tree canopy such that Mr Needham's concerns about overlooking become more manifest.
Issue 1(e): daylight access (O4.4.1 and O4.4.2)
The respondent contends that element objectives O4.4.1 and O4.4.2 have not been achieved on the basis that Mr Cake considers that a number of the proposed dwellings will receive inadequate direct sunlight.[36]
[36] Witness statement of Reegan Cake (Exhibit 9) at paras 62-63.
We do not accept Mr Cake's opinion that element objectives O4.1.1 and O4.1.2 have not been shown. Having regard to this particular context, we consider that the Proposed Development has:
(a)been sited and designed to optimise the number of dwellings receiving winter sunlight to private open space; and
(b)designed and positioned to optimise daylight access for habitable rooms.
None of the various element objectives in the R Codes are to be regarded as the primary design consideration or factor in all instances. Each element objective, to the extent that it arises for consideration, must be considered and evaluated in the context of the overall development applied for and must, at times, be weighed and balanced (but nothing that each design element must be achieved).
In the context of these two element objectives, we are satisfied that, having regard to the orientation and context of the Proposed Development, that each of the proposed units will have sufficient access to winter sun and daylight in the context of other design issues. We therefore find that these element objectives have been achieved.
Issue 2: the Proposed Development in the context of the deemed provisions
Having regard to the various considerations arising under cl 67 of the deemed provisions, the respondent outlines that its primary concern is the impact of the Proposed Development on the amenity of surrounding residents as well as the amenity of the future owners/occupiers of the proposed units.
The relevant locality
Mr Cake included an aerial photo (Figure 1) outlining the planning context of the land.[37] That locality comprises the entirety of Northwood Way, Wingala Grove and Cromer Grove. Ms Sandri included an analysis of what she considered to be the relevant locality.[38] Ms Sandri's locality also includes the entirety of the Whitford City Shopping Centre.
[37] Witness statement of Reegan Cake (Exhibit 9) at para 13.
[38] Witness statement of Bianca Sandri (Exhibit 11) at para 14 together with Annexure BS 2.
The concept of the relevant 'locality', in planning terms, generally relates to the town planning impacts arising from a proposal.[39] The planning context of the Land is almost purely residential. The question of whether the Proposed Development warrants approval is to be determined by reference to its immediate residential planning context (while noting that the Land is indeed proximate to Whitford City Shopping Centre).
[39] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [42]; Kemstone at [93].
We consider the relevant locality for the purposes of assessing the question of amenity is Northwood Way from Milson Court around to Wingala Grove. That is, we find the relevant locality to be the portions of Northwood Way traversed during the site view (including Belrose Park and Whitfords Avenue to the extent that it is proximate to the Land). The relevant locality does not include the Whitford City Shopping Centre.
Amenity considerations
Mr Cake outlines his concern that the Proposed Development creates amenity issues by reason of reduced separation between built form, increased traffic and building bulk.[40]
[40] Witness statement of Reegan Cake (Exhibit 9) at para 69.
With respect to Mr Cake, we do not agree that these are substantive issues. This locality has been identified as including some lots that can make a contribution towards urban infill and providing a broader range of housing options. It follows that the reasonable amenity expectations of residents is that they should expect to see changes in the built form as well as the prospect of some additional traffic.
Of course, any new development must be sensitive to, and respective of, the largely suburban context of this locality. However, to simply suggest, as Mr Cake does, that the introduction of a two storey development and associated vehicles has adverse planning impacts doesn't really assist us. This is because Mr Cake does not explain the nature of those impacts and, more importantly, why they are adverse and, even more importantly, why they are unreasonable in this planning context.
We say this because on the site view we observed many two storey dwellings (and at least one three storey dwelling) within very close proximity to the Land. It follows that we can see no basis to infer, from a built form perspective, that the Proposed Development is anything but compatible with this planning context.
On the question of traffic, Mr Cake's suggestion that the likely increases in traffic arising from the Proposed Development are 'beyond what may be considered acceptable' does not provide much assistance to the Tribunal.
This is a locality where the planning framework has evinced an intention for the introduction of infill housing in the form of grouped and multiple dwellings. One of the necessary, and may we say planned, consequences of that is that there will be additional traffic in the locality. Viewed in that way, based on the material that has been presented by the parties, we have no basis to conclude that the traffic increases that will arise from approval of the Proposed Development will be beyond what may be considered acceptable.
Internal amenity (cl 67(n) of the deemed provisions)
Mr Cake also raises concerns in relation to the quality of internal amenity for the purposes of cl 67(n) of the deemed provisions. While questions going to issues of 'internal amenity' of the building such as inter alia setbacks, privacy, natural ventilation, access to sunlight and natural light are questions that arise directly in the context of the R Codes, Mr Cake considers that they also arise in the context of considerations of amenity pursuant to cl 67(n) of the deemed provisions.
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.' Clause 67(n) of the deemed provisions requires due regard to be had to 'the amenity of the locality including the following
(a)environmental impacts of the development;
(b)the character of the locality;
(c)social impacts of the development[.]
Internal amenity is not specifically addressed or referred to in cl 67 of the deemed provisions. However, the term 'amenity' is plainly one of broad import. It is defined to be an expansive term and thus is not to be read narrowly. The internal amenity provided within dwellings is 'part of the character of an area'. Furthermore, the internal amenity of dwellings does raise issues in relation to the 'environmental impacts' of a development as well as 'social impacts'. We consider that the reference to 'amenity' in cl 67 of the deemed provisions includes questions of internal amenity.
Mr Cake notes that three of the seven units will have no direct sunlight between 9 am and 3 pm on 21 June (at the winter solstice). He also raises concerns that the landscaping proposed is not 'meaningful'.
We agree that internal amenity is an important planning consideration that arises, in this instance, under the R Codes. We also agree that concerns over internal amenity may be a basis on which a proposed development is refused.[41] The internal amenity offered to future residents is 'an important consideration' in a planning assessment.[42]
[41] See for example WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414 (WP Ivanhoe) at [130][149]; Barana (St Kilda) Investments Pty Ltd v Port Phillip CC [2016] VCAT 1510 at [59][70].
[42] WP Ivanhoe at [130]; see also generally Edge Holdings No 6 Pty Ltd and Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35; (2020) 99 SR (WA) 222.
Indeed, where the internal amenity is poor, planning courts and tribunals have not minced their words. For example, in Taranto v Glen Eira[43] the Victorian Civil and Administrative Tribunal commented that living in the proposed apartments, which would have a heavy reliance on privacy screening, 'would be akin to living in a plastic milk bottle'.[44] The point being that internal amenity does matter.
[43] Taranto v Glen Eira CC [2015] VCAT 1904.(Taranto).
[44] Taranto at [21].
However, in this instance, viewed in an overall sense, we do not consider that the internal amenity is such that the Proposed Development should be refused. The Tribunal accepts that a range of design and site considerations inform the proposed built form response. In this instance, we are satisfied that the Proposed Development achieves an appropriate internal amenity for each of the proposed dwellings.
Compatibility (cl 67(m) of the deemed provisions)
On the question of compatibility for the purposes of cl 67(m) of the deemed provisions, Mr Cake is concerns with respect to the bulk, orientation and scale of the Proposed Development.
We do not agree with Mr Cake that the Proposed Development is not compatible with its context for the purposes of cl 67(m) of the deemed provisions. For the reasons we explained at [118][121], we consider that the Proposed Development sits comfortably in, and is compatible with, its relevant planning context.
Consideration and decision
The ultimate question is whether the Proposed Development warrants approval in the exercise of planning discretion. Aside from the failure to achieve element objective O3.3.3, we otherwise consider the Proposed Development to be acceptable.
At a strategic level, the Land that has been identified is in an area where, subject to certain criteria being met, infill development in the form of group or multiple dwellings are encouraged. The Proposed Development is consistent with the strategic intent of the planning framework.
As a matter of built form, we find there is no basis on which the Proposed Development should not be approved. The size, scale and massing of the built form is generally appropriate and broadly reflective of the existing amenity but, importantly, is also consistent with the planned future amenity of the locality.
In this proceeding, the applicants' case is that the Proposed Development warrants approval on the basis that it complies with the element objectives of the R Codes. No argument was put that the Proposed Development warranted approval notwithstanding any finding we made in relation to the R Codes.
For the reasons we explained at [70][109], the Proposed Development does not achieve element objective O3.3.3 of the R Codes. The landscaping arrangements proposed are not appropriate. We consider this to be a fundamental failing and for this reason, in the exercise of planning discretion, we consider the correct and preferable decision is to affirm the respondent's decision to dismiss the application for review refuse the application for review.
Orders
The Tribunal orders:
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
11 DECEMBER 2020
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