CORP and TOWN OF CAMBRIDGE - [2019] WASAT 65

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   CORP and TOWN OF CAMBRIDGE [2019] WASAT 65
MEMBER:   MR S WILLEY, MEMBER
MR B HUNT, SENIOR SESSIONAL MEMBER

HEARD:   2 AND 3 JULY 2019
DELIVERED          :   23 AUGUST 2019
FILE NO/S:   DR 12 of 2019
BETWEEN:   STUART ADRIAN CORP
Applicant
AND
TOWN OF CAMBRIDGE
Respondent

Catchwords:

Town planning - Development application - State Planning Policy 7.3 Residential Design Codes - Volume 1 - R-Codes definitions: single house; grouped dwelling; multiple dwelling; dwelling; lot and parent lot - Land use classification - Principles of interpretation for planning instruments - Whether proposed development is a single house - Evaluative judgment

Legislation:

Interpretation Act 1984 (WA), s 5, s 56(2)
Planning and Development Act 2005 (WA), s 4, s 68(1), s 241(1), Pt 3
State Administrative Tribunal Act 2004 (WA), s 27
State Planning Policy 7.3 Residential Design Codes - Volume 1, cl 1.2, cl 2.2.1, cl 8.1
Strata Titles Act 1985 (WA)
Town of Cambridge Local Planning Scheme No 1, cl 8(3), cl 11(2), cl 12, cl 19(3), cl 74

Result:

Application for review dismissed

Summary of Tribunal's decision:

Stuart Adrian Corp applied for development approval for what he described as a 'two storey single dwelling'.   Mr Corp explained in his application that he and his partner (Ms Katavatis) wished to live together in a dwelling that allowed them to continue to 'permit their independent lifestyles'. The design involved two identical ground floor wings with some shared elements. The second storey component was designed to allow guests to stay or a future carer if and when required.
The Town of Cambridge refused the application on the basis that it considered that the proposed development was not a single house and was therefore prohibited on land coded R12.5 in the Town of Cambridge Local Planning Scheme No 1.
The question for the Tribunal in these proceedings was whether the proposed development was a single house and therefore permissible in the residential zone. It was common ground that if the proposed development was classified as a grouped or multiple dwelling, it was not capable of approval.
The applicant put forward two arguments as to why the proposed development was a single house.   The first was that, having regard to the various definitions contained in State Planning Policy 7.3 Residential Design Codes - Volume 1 (RCodes), the absence of a strata scheme meant, in effect, that the proposed development could not be a grouped or multiple dwelling under the RCodes. The Tribunal did not agree that the presence of, or current intention to create, a strata scheme under the Strata Titles Act 1985 (WA) had the effect of controlling the classification of land uses in a planning sense. The Tribunal considered that this argument conflated land use with land tenure.
The second argument was that the proposed development, properly assessed, was a single house and therefore permissible. The Tribunal considered that the question of whether the proposed development was a single house (or not) was an evaluative judgment.
In making that judgment, the Tribunal considered that the proposed dwelling was, in fact, two ground floor dwellings. This was because the two residential wings were separate and identical and no one wing could reasonably be interpreted to be the focus of family living. After careful consideration of the plans and other supporting information, the duplication of the residential wings compelled the Tribunal to find that what was proposed was not a single house.   The Tribunal did not accept the applicant's contention that one of the residential wings would function as a 'retreat'.
The application for review was dismissed.

Category: B

Representation:

Counsel:

Applicant	:	Mr M Flint
Respondent	:	Mr CA Slarke

Solicitors:

Applicant	:	Flint Legal
Respondent	:	McLeods

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

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Cabell v Markham 148 F (2d) 737 (1945)
Casey City Council v Kelly [2004] VCAT 1838
Ellis and City of Stirling [2014] WASAT 172
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR(WA) 1
Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350; (2018) 233 LGERA 276
Jensen v Nationwide News Pty Limited [No 12] [2019] WASC 250
Johnson v Minister for Planning [2018] WASC 334
Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115; (2003) 127 LGERA 36
Manningham City Council v Jurkic [2005] VCAT 324
Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319
Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; 232 LGERA 395
Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings relate to a proposed dwelling at No. 17 (Lot 1407) Ulster Road, Floreat (Land) within the Town of Cambridge (Town or respondent).
The proposed dwelling was refused by the Town for a number of reasons. By the time of the final hearing there was only one issue left in dispute. That issue is whether the proposed development is a single house and, if it is not, whether the proposed development is permissible.

Facts

Mr Stuart Adrian Corp (the applicant) is a co-owner (as a joint tenant) of the Land.
The Land:
(a)is located on the corner of Chandler Avenue and Ulster Road in Floreat;
(b)has an area of 923 square metres and is currently vacant; and
(c)is zoned residential R12.5 under Town of Cambridge Local Planning Scheme No 1 (LPS 1) and is located in Precinct 3 Floreat.
There is an existing Camphor Laurel (Cinnamomum camphora) adjacent to the Land on the Chandler Avenue verge. This street tree has caused damage to the existing crossover. There was some dispute as to what conditions ought to be imposed in the context of this street tree. By reason of the decision the Tribunal has come to, it is not necessary to deal with that dispute.
On 13 August 2018 the Town received an application for development approval for what was described as a 'two storey single dwelling'.
Submitted with the application for approval was a letter from Chindarsi Architects dated 10 August 2018 which stated that:
…
The clients are a male 68 and a female 59 who have been a couple for 14 years albeit living independently. Currently they live in two apartments, one above the other. This allows them to enjoy their individual preferred lifestyles mainly regarding exercise, food and television without disadvantaging the other and still spend time together. They now wish to live in the same house and to create within that house two separate living areas. This will allow them to be closer, continue to live as a couple and to enjoy their independence. They have bought 17 Ulster Road jointly and intend to live in the proposed house for as long as possible.
The clients believe people should be proactive regarding suitable housing as they age. The house has been designed to provide all the required accommodation on the ground floor level with easy access to the outside gardens and courtyards. To achieve this, the footprint of the house may be considered large however this avoids negotiating stairs as they age. Wider doorways, halls and bathroom access are included to allow for the use of mobility aids. The upstairs living area is designed as a guest area for occasional use by family and to accommodate a nurse or carer in the future when the clients need assistance to remain in their home as they age.
Also lodged with the application was a letter from Veris (a town planning consultancy) dated 10 August 2018 which set out the following:
…
The landowners are a long term couple, close to retirement age, who up until now have lived in separate apartments in the same complex, permitting their independence while continuing their relationship. The design of this proposed residential dwelling is such that each individual will have their own living areas on the ground floor giving them the opportunity to stay together and age in place, while still permitting their independent lifestyle.
The large footprint of the proposed dwelling permits ease of access through the limitation on stairs and permitting wider rooms, windows, doorways and halls, all of which will be beneficial, if and when, the landowners will require mobility aids to move around in later retirement years.
A further feature of the residential design is the upstairs guest room. This is intended for occasional use by either a family member or carer, further facilitating the ability for the landowners to live in the residential dwelling for as long as possible.
The plans submitted for the development show two separate 'mirror image' wings - each containing a living room, kitchen, dining, bedroom, bathroom and study area. A common laundry area and toilet shown centrally on the ground floor, adjacent to the stairway to the upper floor. There is also a centrally located single two-car garage.
The upper floor plan shows a third living area described as a guest lounge as well as a kitchenette, a bedroom with an ensuite, and a gym.
The Town refused the proposed development on 18 December 2018. The refusal reasons were as follows:
1.The proposal does not satisfy the requirements of Clause 39 of [LPS 1] as the development proposes a primary street setback which will negatively impact on the streetscape and locality and which is incompatible with existing and desired future primary street setback of the locality and does not meet the objectives of the low density area;
2.The proposal does not meet the design principles of the RCodes in relation to Clause 5.1.3 Lot Boundary Setback, as the proposed rear setback of the development creates an adverse impact on amenity of the locality as it does not meet the objectives of the low density area;
3.The proposal does not meet the design principles of the RCodes Clause 5.3.5 Vehicular Access as the proposed location of the driveway and crossover proposes the removal of a mature street tree, and the proposed width of the driveway at 7.1 metres in lieu of 6 meters will result in more hardstand area at the expense of landscaping and an established street tree and this will have a negative impact on the streetscape;
4.The proposal does not meet the design principles of the RCodes Clause 5.5.1 Ancillary Dwellings or Clause 67 of the Planning and Development Regulation (Local Planning Schemes) Regulations 2015 Clauses (a), (m) and (n) as the proposed design of the ancillary dwellings and plot ratio area will compromise the amenity of the area in relation to the impact on the character of the locality and relationship of the building to the streetscape and surrounding properties;
5.The cumulative impact of the proposed reduced setbacks, street tree removal and larger crossover, will create undue impacts in relation to building bulk, building presentation and loss of mature vegetation which is inconsistent with orderly and proper planning[;]
6.The proposal should be classified as a group dwelling under [TPS 1]. A Grouped Dwelling is an 'X' (prohibited) use, which is a use that is not permitted by the Scheme.
Following mediation the proposed plans were revised (and then revised further prior to the final hearing). Instead of proposing two identical residential wings, the plans included different labels for rooms in each wing although the built form of the proposed development is unaltered.
For example, what was originally shown as a 'walk-in-robe' on one of the wings is now shown as a 'storeroom' in the revised plans. Likewise two rooms that were originally shown as 'study 1' and 'study 2' have been relabelled to be a 'computer room' and a 'study' in the revised plans.
The original labels for the two identical kitchens of 'kitchen 1' and 'kitchen 2' are now shown as a 'kitchen' and 'formal kitchen/dining room'. The dual 'living areas' were amended in the revised plans to be a 'living area' and a 'formal lounge' despite there being no changes to the physical built form.
Of some initial significance was the fact that the two wings were able to be closed-off by the inclusion of doors at the entrance to each wing. However the plans were revised such that there was no ability to exclude access from any part of the proposed dwelling. The revised plans also proposed access arrangements that allowed the existing street tree to be retained. These latest plans which are the subject of the hearing - will be referred to in these reasons as the 'proposed development'.
As stated, the only issue that was left for determination is whether the proposed development was a 'single house' for the purposes of planning assessment. If the Tribunal finds that the proposed development is a single house then the Town concedes that it should be approved subject to conditions. Likewise, if we find it is not a single house then it was not in contest that the proposed development is prohibited by LPS 1.
The Tribunal had the benefit of evidence from three witnesses. The applicant gave evidence. The Town called two experts: Mr Ben Doyle a consultant town planner and Mr Rod Mollett a registered architect who reviewed the proposed plans.
Whilst the classification of the proposed dwelling is a question of law, both parties considered, and the Tribunal agreed, that expert evidence (in particular) may be of assistance in evaluating whether the dwelling as presented for consideration in the context of the applicant's proposal is a single house.

The issue

The following issue falls for determination:
Whether the proposed development is a single house and if it is not, whether it is permissible.
The Tribunal is to hear the matter de novo and to produce the correct and preferable decision: s 27 of the State Administrative Tribunal Act 2004 (WA).

Planning framework

In this instance the applicable planning framework, in relation to the issue that arises in this proceeding, comprises LPS 1 and the State Planning Policy 7.3 Residential Design Codes Volume 1 (RCodes). By reason of the decision we have reached on the classification of the proposed development, it is unnecessary to set out the respondent's polices in relation to street trees.

LPS 1

LPS 1 is a local planning scheme gazetted on 31 March 1998 which continues in force and to have effect as if enacted by the Planning and Development Act 2005 (WA) (PD Act): s 68(1) of the PD Act. LPS 1 is therefore a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act).
Clause 12 of LPS 1 includes a zoning table. Clause 11(2) explains how the zoning table is to be interpreted. The following land uses are recognised in LPS 1. Dwelling (Single), Dwelling (Grouped) and Dwelling (Multiple). It is immediately apparent that these forms of residential dwellings do not precisely mirror the definitions of such dwellings in the RCodes. Clause 8(3) of LPS 1 is in the following terms:
Where a word or term is defined in the Residential Design Codes then, notwithstanding anything else in this Scheme, that word or term when used in respect of residential development has the meaning given to it in the Residential Design Codes.
It is not in contest that if the Tribunal finds that the proposed development is a 'dwelling single' (being a 'single house') then it is permissible in the residential zone on land coded R12.5. Likewise the parties agree that if the Tribunal finds the dwelling is either a 'grouped' or 'multiple' dwelling then the proposed development is not capable of approval on land in the residential zone which is coded R12.5 in LPS 1.
Clause 19(3) of LPS 1 provides that:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provision of those Codes.
The use of the word 'shall' in cl 19(3) of LPS 1 means that development of land for residential purposes must comply with the R-Codes: s 56(2) of the Interpretation Act. The provisions of a local planning scheme, which have the force of law, can operate such that their effect is to require development to comply with the requirements of a planning policy: Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; 232 LGERA 395 at [125] (Buss P, Murphy JA, Allanson J). Clause 19(3) of LPS 1 has the effect that residential development is to comply with the R-Codes.
This proceeding is therefore essentially a land-use classification exercise having regard primarily, but not exclusively, to the RCodes.

The RCodes

The RCodes is a State planning policy prepared pursuant to Pt 3 of the PD Act. The purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia: cl 1.2 of the R-Codes. Appendix 1 of the RCodes includes the following definitions:
Dwelling: A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family.
Grouped dwelling: A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partially vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
Lot: For single houses, a lot as defined under the Planning and Development Act 2005, as amended. For multiple or grouped dwellings, the parent lot.
Multiple dwelling: A dwelling in a group of more than one dwelling on a lot where any part of the plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other but:
•does not include a grouped dwelling; and
•includes any dwellings above the ground floor in a mixed use development.
Parent lot: Relating to multiple or grouped dwellings, the lot inclusive of common areas to which the strata scheme, as defined under the Strata Titles Act 1985, as amended, relates.
Single house: A dwelling standing wholly on its own green title or survey strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property.

The Evidence

Mr Stuart Corp

As stated, Mr Stuart Adrian Corp gave evidence as the applicant. He explained the intentions behind the making of the application as well as the revisions that have been made to the plans as a result of discussions with the Town (including in the context of mediation).
As stated, these revisions were primarily changes to the labels attached to rooms in the proposed development.

Mr Ben Doyle

The respondent called two experts. Mr Ben Doyle gave detailed evidence on the operation of the RCodes having regard to his planning experience.
His evidence went to the question of whether the proposed development was a single house.

Mr Rod Mollett

The respondent also called Mr Rod Mollett who, as stated, is an architect. Mr Mollett reviewed the plans on behalf of the respondent again on the question of whether the proposed development was a single house.

Submissions

Applicant's submissions

The applicant's submissions on the question of whether the proposed development is a single house centres on two propositions.
The first being that the proposed development does not propose any multiple dwellings. This submission proceeds on the basis that the definition of multiple dwelling in the RCodes starts with '[a] dwelling in a group of more than one dwelling on a lot …'. The definitions of 'lot' and 'parent lot' are set out at [28] above.

The applicant therefore submits that the definition of 'multiple dwelling' in the RCodes requires the existence of a related strata scheme under the Strata Titles Act 1985 (WA) (ST Act). As the proposed development does not involve a strata scheme it cannot, by definition, be a multiple dwelling.
The second proposition advanced by the applicant is that the proposed development involves only one (single) dwelling as that term is defined in the RCodes.
The applicant notes that the internal arrangement of buildings is not something which the RCodes (and therefore the definitions of dwelling, single house, grouped dwelling and multiple dwelling) is concerned: cl 2.1.2 of the Explanatory Guidelines for the RCodes.
The applicant submits that the entirety of the proposed development is 'adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family'. The applicant submits that no portion of the dwelling is to be put to any other use. It follows that, on the applicant's case, the proposed development is properly classified as a 'single house'.

Respondent's submissions

The respondent contends that the two 'mirror-image' living areas on the ground floor are each properly described as a portion of a building designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, single family or no more than six persons who do not comprise a single family. Therefore, the respondent submits, the ground floor contains two dwellings.
As a consequence of the ground floor containing two dwellings, the proposed development cannot be a single house (or 'dwelling single' for the purposes of LPS 1), as neither dwelling stands on its own green title or survey strata lot. The upper floor is either itself a third dwelling or, alternatively, is a component of one or more of both of the ground floor dwellings. If the upper floor is a separate dwelling, the respondent contends that the proposed development is properly classified as three multiple dwellings.
The respondent further submits that if the upper floor is a component of one or both of the ground floor dwellings, the proposed development is properly classified as two multiple dwellings. As multiple dwellings are prohibited on land coded R12.5, the proposed development cannot be approved.

Principles of interpretation

The closing submissions of both counsel included detailed analysis of the definitions of 'dwelling', 'multiple dwelling', 'grouped dwelling', 'single house', 'lot' and 'parent lot' which are all drawn from the RCodes.
The RCodes is a planning policy that we are required to give 'due regard' to: s 241(1) of the PD Act. However, as stated above, in this instance the effect of cl 19(3) of LPS 1 is that development for residential purposes shall conform to the provisions of the R-Codes.
Both counsel submitted that in construing the various definitions contained in the RCodes, the Tribunal should apply the orthodox canons of construction including those applicable to planning schemes. This includes the principle that the RCodes should be read and applied in a sensible and practical manner: Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy JA and Mitchell JA) (Australian Unity); Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v Minister for Planning [2018] WASC 334 at [125] (Smith J).
At [82] of Australian Unity, the Court of Appeal noted that:
[T]he terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counterintuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
The Tribunal is also mindful of the recent comments of Chief Justice Quinlan in Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350; (2018) 233 LGERA 276 where, at [61] he referred, inter alia, to the seminal decision of the United States Court of Appeals for the Second Circuit in Cabell v Markham 148 F (2d) 737 (1945) at 739 (Hand L):
[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
The Tribunal agrees with counsels' submissions on the correct approach to construction but, consistent with their observations, the Tribunal is mindful that the RCodes is not a statutory instrument per se, rather it is a policy.

Analysis and disposition

The term 'development' is a planning concept that encompasses two separate (but often related) limbs. The definition of 'development' in s 4 of the PD Act includes both (physical) 'development' as well as the 'use of any land'. The seminal decision of Burt CJ in University of Western Australia v City of Subiaco (1980) 52 LGRA 360 discusses the two limbs of development in the context of town planning: at 363-364.
Very often an application for development approval seeks approval to both erect and use a structure for a particular activity. In this instance, the application is to erect and use a structure for residential purposes.
What provides a level of complication in this instance is the respondent does not consider that what has been put forward by the applicant is a single house. It appears to be accepted by the respondent that the applicant seeks to use the Land for residential purposes. The contest is that the Town considers the applicant is seeking approval for something other than a single house. The respondent says that what is put forward is actually either two or three multiple dwellings within the shell of a single structure. Having regard to the definitions set out in the R-Codes, the respondent says that the dwellings are multiple dwellings on the basis that the plot ratio of the upper floor is vertically above the plot ratio of the ground floor dwellings. The respondent submits that because the proposed development is not a single house it cannot not be approved.
We will now address each of the applicant's primary submissions as to why the proposed development is a single house.

Does the absence of a strata scheme control the classification of the proposed development?

Whilst the applicant's written submissions only addressed the question as to whether multiple dwellings could be located on a single 'lot', in his closing submissions, Mr Flint, counsel for the applicant, outlined 'that the same reasoning applies [to] grouped dwellings': ts 75, 3 July 2019.
The applicant's submissions on this issue are to the effect that the touchstone for identifying (or classifying) the proposed development as anything other than a single house is the presence of, or intention to subsequently create, a strata scheme under the ST Act. The absence of any intention by the applicant to subdivide the proposed development under the ST Act leads to the conclusion, it is submitted, that the proposed development cannot be either a grouped or a multiple dwelling and therefore, by a process of deduction, must be a single house.
The Tribunal cannot accept that submission for three overlapping reasons. The first is that the submission tends to elide land use with land tenure. As a matter of development control, there is actually no basis or requirement for the strata titling of developments. At the point that development approval for grouped or multiple dwellings is given there is the entitlement (subject to compliance with any conditions) to use the land for multiple or grouped dwellings. For example, the definition of grouped dwelling is 'a dwelling that is one of a group of two or more dwellings on the same lot …'. There is nothing in that definition that requires, evinces or otherwise implies a planning need for a strata scheme.
The establishment of a strata scheme (to create strata lots) is not so much about facilitating the residential land use per se but is more focused on establishing the appropriate tenure for the dwellings and for on-going governance and management arrangements between the proprietors. To suggest that the absence of an intention to create a strata scheme controls the classification of a proposed development in a planning sense is to conflate land use classification with land tenure. We do not accept that.
The second reason is that it is very often the case that a strata scheme is proposed at a point well after a development has been completed. A strata scheme may be imposed on an existing structure that was being put to another use. An example may be a development that was constructed as a hotel which is to subsequently be converted for use as residential apartments. No new external physical structures would be required to effect that change. The only planning requirement would be the need for an application to change the use to allow for permanent residential occupation.
The point being that the question as to whether a development is a single house or otherwise cannot be resolved merely by reference to the presence of, or a current intention to create, a strata scheme. Put shortly, there is more to the question of land use classification than merely checking as to whether a strata scheme is present or intended.
The third and final reason is that the RCodes, considered as a whole and applied in a practical and common sense manner, do not support the applicant's suggested construction. The definition of 'multiple' or 'grouped' dwellings do not, on their terms, require a strata scheme. However, we accept that the definitions of 'lot' and 'parent lot' do indicate that a single house is on a lot and that multiple and grouped dwellings are located on a parent lot. The definition of parent lot indicates the presence of a strata scheme.
However, the Tribunal does not accept that just because the proposed development is to be located on its own 'lot' that it must therefore be a single house. For the Tribunal to accept that would be to allow form to triumph over substance. By that the Tribunal means that if that submission is correct, no matter what design was proposed, no matter how many 'self-contained' dwellings appeared to be present, no matter how many bedrooms or kitchens or car bays were included and so long as the number of persons living permanently on the lot was less than seven (at which point the classification of 'residential building' may apply) - any residential development on that lot (where there is no strata scheme) must be classified as a single house. We do not agree. To construe the definitions as the applicant submits would not be to read and apply R-Codes in a sensible and practical manner.
Rather, properly construed and taking account of their evident planning purpose, it is clear that the R-Codes provide for a range of dwelling types for the purposes of planning assessment. The R-Codes focus on the development of land for residential purposes; they are not an instrument that establishes and regulates land tenure and land titles.
The first dwelling type recognised under the R-Codes is a single house which is a dwelling that stands wholly on its own lot (or surveystrata lot). The second is grouped dwellings which involve at least two dwellings co-located on a lot (which may be a parent lot if a strata scheme is present). The third is multiple dwellings which are dwellings which may be located in a vertical arrangement on a lot (which may be a 'parent lot' if a strata scheme is present).
The above analysis is broadly consistent with previous Tribunal decisions which have addressed the question of what is a grouped or multiple dwelling such as: Ellis and City of Stirling [2014] WASAT 172 at [26]; and Filton Pty Ltd and Town of Vincent [2006] WASAT 70 at [64].
Contrary to Mr Flint's submissions, the answer to the construction question before the Tribunal is not whether the Land is a 'lot' or a 'parent lot' for the purposes of the RCodes. The question we must address is whether the proposed development comprises a 'single house' for the purpose of land use classification. That is the issue to which we will now turn.

Is the proposed development a single house?

Consistent with the parties' submissions, we consider that this case turns on whether the proposed development for the purposes of the RCodes and LPS 1 is a single house.

Victorian authorities

It is not surprising that the question of how many dwellings are being proposed (or have been built) on a single lot has been considered elsewhere. The Victorian Civil and Administrative Tribunal (VCAT) has considered the question on more than one occasion.
In Casey City Council v Kelly [2004] VCAT 1838 (DP Gibson) (Kelly) the local government was applying for an enforcement order against the landowners on the basis that a second dwelling was being constructed on their land in the absence of an approval. The question for the VCAT was whether the construction related to a second dwelling or whether it was an extension to the existing dwelling. The Council contended that because the proposed construction would entail an additional kitchen, bathroom and toilet that it constituted a second dwelling.
In Kelly, DP Gibson set out, at [4], that cl 74 of LPS 1 defined a 'dwelling' to mean:
A building used as a self-contained residence which must include:
a)a kitchen sink;
b)food preparation facilities;
c)a bath or shower; and
d)a closet pan and wash basin.
It includes out-buildings and works normal to a dwelling.
Deputy President Gibson in Kelly stated:
[9]The Council referred to a number of decisions where the Tribunal has grappled with how to characterise developments with multiple kitchen, bathroom and other facilities. The view expressed by the Tribunal in Biasin v Mornington Peninsula Shire Council[2000] VCAT 1149 and other Tribunal decisions is that the number of kitchens, bathrooms and other elements of dwelling design are not determinative that the land is used for more than one dwelling. I agree. It is not just the physical characteristics of development that will determine the purpose for which land is used but rather the way in which that development functions or is used that will determine its purpose. As Barry J stated in Bakes v Huckle [1948] Vlr 29; [1948] VLR 159 at 160:
Whether the particular premises are a dwelling is a question to be decided on the facts of each case.
[10]Thus I agree with Council that the presence or absence of a laundry in the house building is not relevant. But similarly, the issue of separate entrances, separation between buildings etc, which are matters that previous Tribunals have found useful in determining how to characterise development, are not necessarily determinative in the present instance either. This case must be decided on its own facts.
In Kelly, DP Gibson ultimately found that the development was for the intent and purpose of a single dwelling. The Deputy President also found that the Council had formed its view on the nature of the development on what was a half completed project (at [14]) and that it was not reasonable to 'disaggregate the development in the way the Council has done and to look at each building from a different time perspective': at [15]. The determinative question was whether the 'building (or buildings) is (are) used or intended for use as a self-contained residence': at [16].
Manningham City Council v Jurkic [2005] VCAT 324 (Manningham) also involved enforcement proceedings brought by the local government on the basis that the landowners were constructing two dwellings on their land without approval. The landowners contended that they were constructing a single dwelling and were therefore not in breach of LPS 1.
The term 'dwelling' was defined in LPS 1 to mean: 'a building used as a self-contained residence which must include: a) a kitchen sink; b) food preparation facilities; c) a bath or shower; and d) a closet pan and wash basin. It includes out-buildings and works normal to a dwelling': Manningham at [4].
In Manningham an inspection of the building (the construction of which was well underway) indicated that two almost mirror or identical dwellings were being constructed which were separated by a central dividing wall. The dimensions of each of the respective rooms (although different descriptors were used) were identical: Manningham at [6] to [10]. Dual services and dual rainwater tanks were also provided: Manningham at [11].
In her reasons Member Rickards outlined the considerable planning history that attached to the land. That history indicated a number of efforts by the landowners to seek approval for and otherwise seek to erect (or to adapt a single dwelling to create) two dwellings on the property: Manningham at [15] to [23].
Member Rickards then addressed the question of the intention of the landowners:
[26][I]s it their intention to construct two dwellings on the land? In reaching a conclusion to the answers to these questions it is necessary to consider the form the plans take, the physical characteristics of the development, the planning history and the expressed or inferred intentions of the Respondents drawn from their statements and actions.
Member Rickards also gave weight to earlier plans and commented that:
[28]Whilst Deputy President Gibson and Member Taranto in the recent decision of GM & DK Cotsonis v ME & ML Pekin & Darebin City Council[2005] VCAT 232 (15 February 2005) gave no weight to earlier plans, having in their view been considered earlier and then discarded, the plans, in this matter, relied upon at the same time for a building permit for a single dwelling and a planning permit for two dwellings before Tribunal are almost identical. It is not considered that the plans for two dwellings were considered earlier and later discarded making it clear there was no intention to proceed with them.
Member Rickards then commented:
[30]As stated by Senior Member Byard in C & V Beckwith and J & P Donges v Shire of Mornington and Arnold Reginald Wallace and Gail Eleanor Wallace (1992/12953) an inference can be drawn that having two of everything results in a use as two separate units. Mr Jurkic submitted that the dual services provided would allow for flexibility, this may be so, but to go to the extent of dual services for everything, including separate rainwater tanks leads to an inference that the land will be used for two dwellings not one.
[31]The conclusion reached by Senior Member Byard in Beckwith is I consider an apt conclusion that could be reached in this matter, that 'a person inspecting the plans of the building who had no further information would be likely to come to the conclusion that this is in fact a building, containing two residences. It would be a simple matter, with or without some minor alterations, to use the building that way'. In this instance the mirror imaging of the development and the result of merely closing a ground level and upper level doorway.
Member Rickards then made the point that each case turns on its own facts with reliance placed on plans, physical characteristics, history and intent: Manningham at [33]. Member Rickards found that the two dwellings were being constructed which were to be used as two selfcontained residences.
The Tribunal considers that these VCAT authorities are of some assistance. However, we note the very different statutory context in which those decisions were made. It is also the case that Victorian planning schemes define 'dwelling' much more prescriptively than is the case in Western Australia.

Consideration of the evidence

The applicant and Ms Katavatis have been a couple for 14 years and currently live in the same apartment complex. They now wish to colocate into the same building. The proposed plans, in the applicant's words, seek to preserve their current independent lifestyles.
In cross-examination Mr Corp was asked about the revisions to the plans undertaken to address the respondent's concerns with the proposed development. As discussed, these amendments were primarily changes to the labels attached to the rooms in each of the residential wings. The following exchange took place:
SLARKE, MR: What's the purpose of changing that label?
CORP, MR: Irony
SLARKE, MR: Right. Can you explain that?
CORP, MR: Yes. We changed the room names to show the irony of this whole exercise that they are just rooms. The fact that you call them bedroom 1, bedroom 2, en suite 1, en suite 2, you could call them whatever you like. They're just rooms.
…
SLARKE, MR: Okay. It's not for the purpose of improving the design?
CORP, MR: No, not at all. It's purely ironic.
(ts 25, 2 July 2019)
Not too much can be read into this aspect of Mr Corp's evidence. We consider his response that the revisions to the plans were undertaken out of a sense of 'irony' was probably, in truth, an expression of his frustration with the planning process. We agree it is unusual for a planning assessment to involve itself in too much detail as to how people seek to live. As Mr Corp quite reasonably observed, he was being asked questions about his 'lifestyle': ts 24, 2 July 2019. However, that said, Mr Corp has put forward this design and an explanation of how it is proposed to be utilised. The planning assessment of the dwelling in the context of its proposed use is therefore appropriate.
While we understand Mr Corp's responses as to the revisions to the plans, we should also say that his evidence that these amendments to the plans were undertaken out of 'irony' did not really advance his cause. His evidence confirmed that the relabelling of some of the rooms in each wing and the removal of the internal doors did not reflect any change in intention on behalf of the applicant.
Mr Corp was also asked in cross-examination which of the 'wings' of the residence was to be his. He answered that that was a matter that was 'yet to be decided': ts 24, 2 July 2019. When asked whether he and Ms Katavatis would each lay claim to one 'wing' he answered that '[t]hat may well be the result': ts 25, 2 July 2019.
On the issue of whether there was intent to occupy one wing each (and who would occupy each wing), the Tribunal considered that Mr Corp was being less than candid. For example, we do not accept his evidence the proposed living arrangements were 'yet to be decided' (which was expressed in a manner which suggested that it was a subject that he had not yet been discussed with Ms Katavatis).
It may well be the case that the proposed living arrangements are not yet fully resolved. However, to imply, in the manner that Mr Corp did, that it was an issue that they were yet to get to is, in our view, unrealistic given the point that they have reached in the design and planning assessment process. While we do not accept this aspect of his evidence, we do note and appreciate that Mr Corp was being asked questions about how he and Ms Katavatis choose to live and there may have been some natural defensiveness around that.
Mr Doyle gave evidence about how the proposed development ought to be characterised for the purposes of planning assessment under the RCodes. The following exchange took place in cross-examination:
FLINT, MR: Well, at the moment this structure, if you enter it, you are able to go to all areas. The applicant considers it a single house. You're saying that the way it's designed means it's two multiple dwellings. So this approach of yours has consequences for the way people have to design what they think is single houses?
DOYLE, MR: Yes
FLINT, MR: Is it about the second kitchen, having a second kitchen?
DOYLE, MR: That is a part of it.
FLINT, MR: If there was no second kitchen would the issue go away?
DOYLE, MR: I would say it largely would.
FLINT, MR: Largely would or would?
DOYLE, MR: Well, you're asking me to consider a hypothetical, which I haven't turned my mind to.
FLINT, MR: All right. Do many houses, single houses, these days have two kitchens?
DOYLE, MR: Some do, yes.
FLINT, MR: It's not rare?
DOYLE, MR: Well, I would say it's uncommon.
FLINT, MR: Is it about the location of this kitchen?
DOYLE, MR: It is about the ability to occupy each wing of the building and perform the functions associated with living without reliance on any aspect of the other wing.
(ts 4748, 2 July 2019)
The Tribunal asked Mr Doyle if there was any particular element that was inconsistent with a dwelling being classified as a single house. Mr Doyle responded that: 'There's there's not I would suggest that there's not any one component that you can say "with the inclusion of that, it is no longer a single house"': ts 60, 2 July 2019.
The Tribunal then queried whether the question of whether or not the proposed development was a single house was essentially an 'evaluative judgement'. Mr Doyle agreed that it was an evaluative judgment: ts 61, 2 July 2019.
Whilst the classification of the proposed development is a question of law, Mr Doyle's planning evidence was of great assistance to the Tribunal in illuminating the various planning concepts that fall to be considered.
Mr Doyle was candid but firm. He was an impressive witness.
Mr Mollett's opinion was that the proposed development comprised two separate dwellings on the ground floor and that the first floor was readily able to be used as a dwelling as that term is defined in the RCodes. He was also of the view that the applicant's revisions to the plans did not alter the functionality of the proposed development in any substantive way. His evidence on functionality was of assistance to the Tribunal.
However, Mr Mollett also expressed a concern that the proposed development was able to be utilised for Airbnb. The use of the proposed development for short-stay accommodation would require approval under LPS 1. The applicant is not proposing that kind of use and therefore his concerns in that regard are speculative and irrelevant.

An evaluative judgment: the proposed development is not a single house

As stated above, during the hearing the Tribunal queried whether the question of whether the proposed development was a single house was, in effect, an evaluative judgment. In their closing submissions, both parties' counsel agreed that that was the correct approach: ts 79, 3 July 2019; ts 97, 3 July 2019.
Having now considered the question at some length and in the light of both the planning framework (in particular the RCodes) and the VCAT authorities which deal with this issue, the Tribunal considers that the question as to the proper characterisation of the proposed development is an evaluative judgment in the sense explained by the Court of Appeal in Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319 at [90] (Buss P, Murphy JA, Beech JA). It is plainly an evaluative judgment that involves questions of fact and degree.
The applicant's closing submissions emphasised the following 'objective' considerations which point to a conclusion that the proposed development was a single house. These included: (i) there being no physical exclusion within the structure; as well as (ii) the shared aspects of the design such as the hallway, the garage, laundry and services: ts 79, 3 July 2019.
To borrow the recent observations of Chief Justice Quinlan in Jensen v Nationwide News Pty Limited [No 12] [2019]WASC250 'this application raises, in our view, a finely balanced matter of discretion' at [26].
In our view, planning authorities should be slow to probe too far into the internal living arrangements proposed by an applicant. However, in this instance there is a legitimate planning question as to whether the proposed development is, as a matter of law, a single house. As part of that assessment, the applicant's intentions as to the manner in which proposed development is to be used (based on materials put forward by the applicant) arises for consideration.
However, we are also mindful that a planning approval generally operates as a right in rem and therefore the identity and intentions of the particular user is not the only focus of the inquiry: Low & Anor v Swan Cove Holdings Pty Ltd & Anor[2003] WASCA 115; (2003) 127 LGERA 36 at [182] per Roberts-Smith J; Shogunn Investments PtyLtd v Public Transport Authorityof Western Australia [2016] WASC 42 at [250].
In GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006]WASAT353; (2006)48SR(WA)1 the Tribunal at[67] commented that:
Planning law is 'concerned with the use of land – not with the identity of the user' ... Development approval is not personal to an applicant for approval, but rather runs with the land[.]
The classification of a dwelling that is presented as a 'single house' that is to be used by a 'single family' should not be approached in a narrow, formulaic way. Western Australia enjoys a culturally and demographically diverse population. Planning authorities need to approach the question of what is a 'single house' in a flexible, sensible and pragmatic manner.
However, in the end, the Tribunal has reached the conclusion that the proposed development is not a single house but is instead two separate ground floor dwellings. The Tribunal does not need to make a definitive finding as to whether the first floor is, in fact, a third (multiple) dwelling. However, the first floor is plainly set up to operate with a level of independence from the ground floor. We do not need to take that analysis any further.
The first point to note is that there are no set criteria that are to be worked through in making an assessment of this type. There can be no fixed or rigid principles. In each instance, it will be an evaluative judgment and each application will turn on its own facts: Manningham at [33].
As stated, it is not in contest that the intentions of the applicant and Ms Katavatis are to co-locate to the proposed development. However, the question before the Tribunal is not whether Mr Corp and Ms Katavatis are a single family. Rather, the question before us is whether the proposed development is a single house.
Mr Corp's evidence about the intended use of the proposed development does not satisfy us that what is proposed is a single house. It is not that his evidence is not accepted. In large part it is. But in evaluating the proposed development and its intended use by Mr Corp and Ms Katavatis, we are not satisfied that it is a single house for the purposes of the R-Codes.
The main problem the Tribunal has is that when we read and interpret the plans we do not see a single house. We see (at least) two separate dwellings that have some shared elements; namely the garage, the laundry/communal bathroom and the front lobby. The two residential wings are plainly two separate and identical dwellings in functional terms. The problem is not that there are two kitchens. A second kitchen is not, of itself, proof of anything. For example, as was discussed in oral submissions, a Jewish family may have a separate kitchen for Passover. That does not mean that a Jewish family cannot live in a single house.
However, what is proposed here are two separate and identical kitchens in the context of two separate and identical residential wings. It is the proposed duplicated wings with each wing identical to the other in terms of size, shape and function that - in the end, compels the Tribunal to find that the proposed development is not a single house.
The Tribunal does not accept, as Mr Corp suggested, that one of the wings would function as a 'retreat': ts 20, 2 July 2019. The proposed plans do not in any way establish that one of the wings will be the primary residence and the focus on family living with the other wing operating as a private retreat. The two wings are identical in form and function; neither is subservient to the other.
The Tribunal finds that the proposed development is not a dwelling standing wholly on its own green title. The proposed development comprises more than one dwelling and is therefore not a single house for the purposes of the R-Codes.
There will plainly be designs where two people who wish to co-locate can do so in the context of a single house. However, this is not such a design.
The joint facilities are a relevant consideration that do lend weight to the applicant's arguments. However, they do not persuade us to the view that this is a single house. A separate laundry is not a mandatory element of an independent 'self-contained' dwelling. For example, there is no requirement for a separate laundry in ancillary accommodation: cl 8.1 of the RCodes Explanatory Guidelines. The joint garage is of limited relevance. Many grouped or multiple housing developments have shared parking facilities.
The front lobby and hallway are again of limited relevance. If the applicant and Ms Katavatis are driving home, they will likely enter through the garage which will place them between the two separate residential wings. The fact that there are no longer doors separating each wing (and therefore there are no excluded areas) is again relevant but does not persuade the Tribunal that the proposed development is a single house. The question for the Tribunal is not answered only by whether the plans show any internal restrictions or exclusions on access. The question as to whether the proposed development is a single house is ultimately one of functionality.
The fact that there is only one service point to the proposed dwelling is relevant but not highly persuasive. The presence of a single service point says nothing about whether the proposed development will function as one or more dwellings.
Mr Flint made submissions that in order for there to be two separate dwellings each dwelling must be able to be clearly identified on the plans. He submitted that a failure to be able to clearly demarcate the two dwellings is an indicator that it is but one dwelling. The Tribunal agrees with that to a point but we do not regard it as conclusive. We are making an evaluative judgment in an overall sense. There will be things that point each way in that assessment.
The Tribunal considers that it does not need to be able to mark out with a pen the exact limits of each 'separate' dwelling. What the Tribunal must do is evaluate whether there is, in fact, a single house or more than one dwelling proposed. In our view, there is more than one dwelling but some elements are shared.

Conclusion

The applicant has put forward a dwelling design that is not a single house. The proposed development comprises at least two multiple dwellings. Pursuant to LPS 1, multiple dwellings are prohibited in areas that are coded R12.5.
The Tribunal therefore affirms the Town's decision to refuse the development.

Order

1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
23 AUGUST 2019