COUGHLAN and SHIRE OF AUGUSTA-MARGARET RIVER
[2022] WASAT 110
•16 DECEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: COUGHLAN and SHIRE OF AUGUSTA-MARGARET RIVER [2022] WASAT 110
MEMBER: MS M CONNOR, MEMBER
HEARD: 19 SEPTEMBER 2022
DELIVERED : 16 DECEMBER 2022
FILE NO/S: DR 14 of 2022
BETWEEN: DECLAN JOHN COUGHLAN
MONICA JANE CREEK
Applicants
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Town planning - Development application - Refusal - Holiday House - Retrospective approval - Locational requirements of planning framework - Whether location of Holiday House is within close proximity to major tourist attractions - Whether any cogent reason or sound basis to depart from local planning policy - Character of locality - High residential amenity - Impact on the affordability of dwellings within Margaret River township - Adverse planning precedent - Orderly and proper planning
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3, cl 4, cl 64, cl 67, cl 67(2), cl 67(2)(b)
Planning and Development Act 2005 (WA), s 164, s 252(1), s 257B(3)
Shire of Augusta-Margaret River Local Planning Scheme No 1, cl 1.4.2, cl 1.6, cl 2.1.1, cl 4, cl 4.2.4, cl 4.2.4.1, cl 4.3, cl 5.26, cl 5.26.4, Sch 1, Sch 8
State Administrative Tribunal Act 2004 (WA), s 27(2)
Result:
Application for review dismissed
Decision of the respondent affirmed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | Mr Logan (Acting as agent) |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | Shire of Augusta-Margaret River |
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Declan John Coughlan and Monica Jane Creek (applicants) seek review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the Shire of Augusta-Margaret River (Council or respondent) on 23 December 2021 to refuse to grant development approval for a Holiday House at No 1 (Lot 508) Bankside Retreat, Margaret River (subject land or site).
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to refuse to grant development approval for the proposed development.
Subject land
The subject land is 1,112 m2 in area and is located on the southwestern corner of the TJunction of Bankside Retreat and Riverslea Drive, with Bankside Retreat providing the primary street frontage to the subject land.
A 'Reserve for Recreation', which abuts the Margaret River, is located on the northern side of Bankside Retreat and the continuation of Riverslea Drive. The Riverslea Run Trail and the Bunitj Biddi Trails are located in the reserve. Approximately 650 metres east of the subject land is the Rendall Close Bridge which crosses the Margaret River, and the Riverview Tourist Park is approximately 800 metres east of the subject land.[1]
[1] The Riverview Tourist Park is identified as Key Tourism Site Number 5 in the Shire of Augusta Margaret River Local Tourism Planning Strategy.
There is an existing dwelling constructed on the subject land that fronts on to Bankside Retreat and has vehicular access off Riverslea Drive.
The dwelling, to the south of the subject land at No 11 Riverslea Drive, Margaret River (No 11), is approved and used exclusively as a 'Holiday House (Large)' and the dwelling, located on the south-eastern corner of the T-Junction of Bankside Retreat and Riverslea Drive at No 16 Riverslea Drive, Margaret River (No 16) is approved and used exclusively as a 'Holiday House'.
The proposed development
The applicants seek approval to use the existing three bedroom 'Single House' as a 'Holiday House' for a maximum of six persons at any one time. Mr Coughlan in his witness statement indicated that the dwelling would be used primarily as the applicants' home in Margaret River for approximately 60% of the year and for the remaining portion of the year as short-term accommodation. However, Mr Coughlan gave oral evidence that the applicants' use of the dwelling varied according to his work commitments and estimated that in the next two to three years it is likely that he would be residing in Perth for 60 to 70% of the year and 30 to 40% in Margaret River.[2] Based on this evidence, the dwelling would be available for short term accommodation for 60 to 70% of the year.
[2] ts, Recording 3 at 5:16, 19 September 2022.
Booking of the Holiday House will be via Airbnb and managed by a locally based manager. Potential guests are vetted, and House Rules have been prepared addressing parking, pets and noise. There is specific mention in the House Rules informing guests that they will be 'asked to vacate the property immediately' in the event of disruption to the neighbours.
Planning framework
Local planning scheme
The Shire of Augusta-Margaret River Local Planning Scheme No 1 (LPS 1 or Scheme) applies to the municipal district of the Shire of AugustaMargaret River (Shire). LPS 1 is comprised of the Scheme Text, Scheme Maps, and the deemed provisions set out in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Sch 2) (deemed provisions). To the extent of any inconsistency between a deemed provision with another provision of LPS 1, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[3] Further, pursuant to cl 1.4.2 of LPS 1, the Scheme is to be read in conjunction with the Shire of Augusta-Margaret River Local Planning Strategy 2036 (LP Strategy) and cl 2.1.1 of LPS 1 provides that '[e]xcept to the extent that the Local Planning Strategy is inconsistent with the Scheme, determinations of the local government under the Scheme are to be consistent with the Local Planning Strategy'.
[3] Section 257B(3) of the PD Act.
The subject land is zoned 'Residential' with a density coding of R10 under LPS 1.
Clause 1.6 of LPS 1 set out the aims of the Scheme. The relevant aims relating to this matter include:
…
1.6.3Lifestyle and Community Identity
To provide for the expansion of established settlements, the development and consolidation of tourism, and … all within a broad objective of promoting a strong senses of community identity and sense of place.
…
1.6.6Tourism
To provide for, and foster a diverse tourist industry (which builds on the global market demand for nature based, wilderness, environmentally friendly and indigenous based learning experiences) with particular support for unique local niche products and services, which complements the natural, cultural, social and man made environment, strengthens the local sense of place and promotes sustainable economic support for the Shire.
1.6.7Shire Economy
To provide for an overall pattern of land use and development which will diversify and improve the Shire's economic base with an emphasis on value-adding to the Shire's agricultural production; and
To promote and facilitate the development of the region as a centre for education, agriculture, tourism and small innovative business.
Clause 4.2.4 of the Scheme sets out the purpose and objectives of the Residential Zone, which states:
Purpose of the Residential Zone:
To provide for a range of urban residential environments within established settlements in the Scheme area and to conserve and enhance the amenity and sense of place of those residential areas.
Objectives of the Residential Zone:
(a)To designate land within the Scheme area suitable for residential purposes; and
(b)To apply to land included within the Residential Zone differing Residential Design Codes densities providing for:
i)the preservation of established residential areas where limited redevelopment is envisaged and densities are to be maintained; and
ii)sustainable redevelopment at higher densities for localities where such development is considered to assist in the provision of a wider range of residential accommodation options.
(c)To preserve the local amenity against uses detrimental to the predominant residential use of the land.
There is no dispute that the land use being applied for is a "Holiday House", which is defined in Sch 1 - Dictionary of defined words and expressions - '2. Land use definitions in the Scheme' as follows:
"holiday house" means a dwelling, grouped dwelling or multiple dwelling used to provide short-term accommodation for no more than six (6) people but does not include a bed and breakfast[.]
"[S]hort stay" is defined in Sch 1 - Dictionary of defined words and expressions - '1. General definitions in the Scheme' as follows:
"short stay"means tourist accommodation facilities (including motels, caravans and camping facilities, chalets, guest houses, holiday houses or any other form of tourist accommodation) set aside either continuously or from time to time for temporary living purposes but which are not occupies by the same person or group of persons for a period in excess of 3 months in any on 12 month period.
Clause 4.3 of the Scheme provides for a Zoning Table which indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones. Holiday House is designated an 'A' use in the Residential Zone in the Zoning Table of the Scheme. A class 'A' use is not permitted in the Residential Zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with cl 64 of the deemed provisions. The application was advertised to landowners of adjoining properties and no submissions were received.[4]
[4] Respondent's s 24 bundle of documents dated 8 July 2022 (Exhibit 3, Tab 4).
Clause 5.26 of LPS 1 provides as following in respect to the development of holiday houses:
5.26.1Applications for development approval for holiday houses will be required to demonstrate to the satisfaction of the local government that a holiday house activity will be so managed as to ensure that it will not cause nuisance or annoyance to the owners of adjoining or nearby properties.
5.26.2The local government may require the provision of additional parking areas to be provided onsite over and above those required for residential use under the Residential Design Codes.
5.26.3Unless the local government determines otherwise, any approval granted for such a development will be granted for a limited period of one year renewable by way of further application towards the expiration of that period. If the local government has received complaints regarding the holiday house activity, a further approval may not be granted.
5.26.4Holiday houses are generally considered appropriate within coastal communities of the local government area or within close proximity to major tourist attractions but are not considered to be appropriate within the residential districts of inland settlements.
Schedule 8 - Car Parking and Related Requirements specifies the parking requirements for a Holiday House as '1 space per room used for accommodation. Grouped Dwellings - Minimum 2 Bays'.
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government (and the Tribunal on review) is to have due regard to a range of specified matters to the extent that, in the opinion of the decision-maker, those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of LPS 1 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any local planning strategy for this Scheme endorsed by the Western Australian Planning Commission (Commission) (subclause (fa));
•any local planning policy for the Scheme area (subclause (g));
•the compatibility of the proposed development with its setting, including desired future character and its relationship with adjoining land or on other land in the locality (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•the adequacy of parking of vehicles (subclause (s));
•the history of the site (subclause (w)); and
•the impact of the proposed development on the community as a whole withstanding the impact of the proposed development on particular individuals.
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme area. The respondent has adopted 'Local Planning Policy 7 - Short Stay Accommodation' (LPP 7), the purpose of which is to provide guidance on the appropriate location, scale, use and management of short stay accommodation in the Shire.
Local planning strategy
The LP Strategy was endorsed by the Commission on 18 January 2022. The LP Strategy 'sets a direction for future planning to manage population growth and establishes policy position that flow through to day-to-day decision making'.[5]
[5] Respondent's s 24 bundle of documents dated 8 July 2022 (Exhibit 3, Tab 6).
The relevant passages of the LP Strategy relied on by the parties are as follows:
Tourism
… A detailed analysis of the local tourism sector was undertaken through the preparation of the Shire's Local Tourism Planning Strategy (LTPS), endorsed in 2015. The observations and policy direction found within the LTPS remains valid at the time of preparing this strategy and will continue to be used to guide planning decision making in regard to tourism proposals[.]
…
In respect to holiday homes (unhosted accommodation) and fit-for-purpose hosted accommodation (guesthouses) the Shire has clearly defined areas where this use is regarded as appropriate subject to planning approval[.]
…
Objective: A vibrant and healthy commercial environment that provides local employment and opportunities to benefit all.
Development Assessment Policies
…
· The requirements of the Local Tourism Planning Strategy will be applied through the development assessment process where relevant.
Code
Policy Response
Response in planning framework
Response Area: Facilitating Tourism Benefits
CT10
Provide clear and simple planning pathways for lowintensity forms of shortstay tourist accommodation, where appropriately located.
i. Maintain locational criteria for holiday homes (unhosted accommodation) and fit-for-purpose, hosted accommodation (guesthouses) such that they are limited to coastal, rural residential areas or in close proximity to town or village centres.
ii. Permit 'Bed and Breakfast' use class in all areas where a single house is permitted.
Local tourism planning strategy
The Shire of Augusta-Margaret River Local Tourism Planning Strategy (2015) (LTPS) sought to review the provisions of LPS 1 and the Shire of Augusta-Margaret River Local Planning Strategy (2010) relating to tourism development to provide appropriate strategies and direction for the consideration of future planning decisions in relation to tourism issues and to inform the use of Council's resources.[6]
[6] Respondent's s 24 bundle of documents dated 8 July 2022 (Exhibit 3, Tab 7).
Section 4.1 Accommodation types and tourist amenities of LTPS in relation to the accommodation type 'holiday houses' provides as follows:
Development of holiday houses are to be consistent with Council's Local Planning Policy 20. The policy supports holiday houses in coastal settlements and other areas in close proximity to attractions and amenities of tourism value. Holiday houses can be used for either permanent or short stay purposes and are an important component of tourism accommodation supply accounting for around 10% of all accommodation capacity. The Shire's position on holiday houses as described in Council Policy will need to be incorporated within future modifications to the Local Planning Strategy and Local Planning Scheme No. 1.
Section 4.2 Location of tourism development of LTPS provides guidance to future tourism development and in Table 4.1 Location Criteria Holiday houses are to be located in accordance with Council's local planning policy for this use.
Local Planning Policy 7 - Short Stay Accommodation
The current iteration of LPP 7 was adopted by the Council on 12 September 2018. The purpose of LPP 7 is to provide guidance on the appropriate location, scale, use and management of short stay accommodation in the Shire. It is noted that preparation of a local planning policy to manage size, location and potential amenity impacts of holiday houses is consistent with the Commission's Planning Bulletin 99 Holiday Homes Guidelines, and Draft Position Statement: Planning for Tourism.[7]
[7] Respondent's s 24 bundle of documents dated 8 July 2022 (Exhibit 3, Tab 10).
The relevant objectives of LPP 7 are:
1.Short stay accommodation is located and managed so as to prevent inappropriate impacts upon the amenity of surrounding areas.
2.Short stay accommodation is sited, sized and designed to be consistent with the character of the surrounding area.
3.The primacy, affordability and use of the residential areas of the Shire for residential purposes is maintained.
4.Short stay activity is appropriately managed so as not to cause nuisance or annoyance to the owners of adjoining or nearby properties.
Clause 5 of LPP 7 provides the following guidance on the location of Holiday Houses in the Shire:
Holiday Homes
HH1.Holiday Houses and Holiday Houses (Large) are to be:
•Located in coastal settlements;[8]
[8] 'Coastal Settlements' is defined in cl 4 of LPP 7 as meaning: 'Gracetown, Prevelly, Gnarabup, Augusta townsites and Molloy Island as well as land zoned "Leeuwin Naturaliste Ridge Landscape Amenity" "Leeuwin Naturaliste Ridge Conservation" and "Southern Ocean Foreshore Protection" in the Scheme'.
Or
•located in urban areas where:
•The property is located in whole or in part within the permitted area as shown on Policy Plan 1; or
•Within 50m of a Village Centre zone in other inland settlements;
Or
•Located in areas of the Shire which are outside of the permitted area shown on Policy Plan 1 where the property comprises an area of not less than 1ha.
HH2.Holiday Houses within grouped dwellings may be permitted on properties developed at a density of R30/40 or lower.
HH3.The 24 hour contact details of the manager of the Holiday House/Holiday House (Large) are to be visible on the property from the nearest street frontage and maintained to the satisfaction of the Shire.
It is agreed that the subject land is located in an urban area outside the 'Permissible Area' as shown on the Margaret River Holiday House Policy Map (MRHH Policy Map).
Further, cl GD.1 of LPP 7 provides that '[o]ne parking bay per bedroom is to be provided together with bays for the use of permanent residents and (where applicable) staff'[.]
Clause 6 of LPP 7 provides:
Development approvals issued for Holiday Houses and Holiday Houses (Large) granted under this policy shall initially be for a one year period unless the Local Government determines otherwise[.]
History of the site
Mr Coughlan admits that he began to let the dwelling for holiday accommodation shortly after purchasing it in 2004.[9]
[9] Witness Statement of Declan Coughlan dated 9 September 2022 (Exhibit 10).
The respondent asserts that '[b]y way of letter dated 4 July 2013, the Shire made the landowner [Mr Coughlan] aware that the suspected use of the property as a holiday house was unauthorised and that approval was required prior to recommencing use for short stay purpose'.[10] Mr Coughlan has no recollection of this notification.
[10] A copy of the letter was attached to the Witness Statement of Mr Matthew John Cuthbert dated 9 September 2022 (Exhibit 5, Annexure 1).
The following facts in relation to the history of the site are agreed by the parties:[11]
[11] Respondent's Statement of Issues, Facts and Contentions (SIFC) dated 8 July 2022 (Exhibit 2, paras 5-13).
[.]A warning notice was sent to the landowner for unapproved short stay accommodation at the Subject Lot on 8 February 2021.
[.]After evidence was obtained from a site inspection by the Shire's compliance officer on 16 April 2021, a planning infringement notice was issued by the Shire to the landowner.
[.]After evidence was obtained from a site inspection the by the Shire's compliance officer on 21 June 2021, a planning infringement notice was issued by the Shire to the landowner.
[.]The application for development approval for a holiday house was lodged with the Shire on 6 September 2021.
[.]The Shire's decision to refuse the application was made under delegated authority and the applicant[s] notified of the Shire's decision on 23 December 2021.
[.]On 19 January 2022, the SAT received an application … for a review of the abovementioned decision.
[.]The present application for review was commenced in this Tribunal on 19 January 2022.
[.] The Subject Lot was noted as being advertised for short stay accommodation on Airbnb as at 11 April 2022.
[.]The Subject Lot was again noted as being advertised for short stay accommodation on Airbnb as at 23 April 2022.
[.] On 27 April 2022, the matter was reconsider by Council in accordance with a SAT order under Section 31 of the SAT Act.
[.]On 22 May 2022, it was again evident that the Subject Lot was listed on Airbnb for short stay accommodation.
Although the development application[12] submitted to the Council by the applicants did not specify that the development approval being sought was 'retrospective', given the agreed facts regarding the historical use of the site, clearly, retrospective approval was being sought.
[12] Respondent's SIFC dated 8 July 2022 (Exhibit 2, Tab 1).
The power to grant approval to 'development already commenced or carried out' lies with cl 64 of the deemed provisions and s 164 of the PD Act. The principles governing retrospective approval have previously been considered by the Tribunal in Burnett and Town of Cambridge [2006] WASAT 29 at [20] - [22]. It is with these principles in mind that the Tribunal approaches this review.
Issues
The key issues in this matter, as generally identified by the parties are as follows:
1)Whether the location of the subject land is such as to enable the proposed development to be consistent with the locational requirements of LPS 1 and LPP 7.
2)Whether the use of the dwelling for Holiday House purposes will have a negative impact on the affordability of dwellings within the Margaret River township or contribute to the loss of long-term housing stock.
3)Whether there is anything unique about the dwelling which would prevent the approval from setting an undesirable precedent for future application of a similar type.
4)Whether the use of the dwelling as a Holiday House would impact the local residential amenity.
5)Whether approval of the application would represent orderly and proper planning having regard to the established planning framework.
The Tribunal will address each issue in turn.
Whether the location of the subject land is such as to enable the proposed development to be consistent with the locational requirements of LPS 1 and LPP 7
Clause 5.26.4 of LPS 1 provides clear direction on the location of holiday houses in the Shire, that is, holiday houses are generally considered appropriate within the coastal communities of the municipality or within close proximity to major tourist attractions but are not considered appropriate within the residential districts of inland settlements.
There is no dispute that the townsite of Margaret River is an inland settlement within the local government district of the Shire and that the subject land is located within the residential area of Margaret River. However, the applicants assert that the subject land is located close to major tourist attractions, being the Margaret River and the Riverslea Run and Bunitj Biddi Trails located within the adjacent river reserve (identified attractions) and therefore, meets the requirements of cl 5.26.4 of LPS 1.
The respondent contends that the identified attractions are not major tourist attractions in the context of the Shire. Ms Sharna Lee Kearney, who is the Chief Executive Officer at the Margaret River Busselton Tourism Association (MRBTA) and holds a Bachelor of Commerce - Tourism Management and Public Relations (Major) and (Honours) Marketing was called by the respondent to give evidence on tourist attractions and short-term accommodation in the Margaret River Region (Region).
Ms Kearney submits that 'major tourist' attractions would attract the highest number of visitors in a region and that the other places are just tourist attractions. The following locations in the region were identified by Ms Kearney as 'major' tourist locations:
•the Leeuwin Naturaliste National Park (approximately 4 million visitors annually);
•the Busselton Jetty (approximately 500,000 visitors annually);
•Cape Leeuwin Lighthouse (approximately 100,000 visitors annually);
•Mammoth Cave and Ngilgi Cave (approximately 70,000 visitors each annually);
•Margaret River Chocolate Factory (100,000 plus visitors annually);
•Busselton Foreshore; and
•Surfers Point.
Notwithstanding there is no official data on visitor numbers for the identified attractions, Ms Kearney did not consider the 'Margaret River' itself or the trails to be major tourist attractions in the Region. She acknowledged that the attractions were 'drawcards' for visitors to the Region and accepted that the Bunitj Biddi Trail is categorised in the Shire's Walk and Off-Road Cycle Trails Strategy (Trails Strategy) as a 'Primary' trail[13] but maintained that the trails do not have the infrastructure (toilet facilities, rubbish disposal and other visitor amenities) attached to them to be promoted for higher level visitation, such as the 'Cape to Cape' track.[14] Ms Kearney says that any promotion of the identified attractions would be focused on key nodes, such as the mouth of the Margaret River and Rotary Park, rather than access from the residential areas so as to ensure that access was appropriately managed to safeguard the environmental and cultural values of the Margaret River and residential amenity.
[13] The primary category 'represents high use trails used by tourists and community members alike'.
[14] ts, Recording 2 at 19:29, 19 September 2022.
The applicants say that the identified attractions form a major tourist attraction for the following reasons:[15]
•The area is of high tourist value and amenity due to the range of popular activities available in and around the Margaret River and natural bush location. These activities include mountain biking, running, hiking, swimming, canoeing and paddle boarding.
•The Margaret River and associated foreshore areas meet the usual definition of tourist attraction as they are appealing to holiday-makers due to their natural features and provide a range of outdoor recreational activities.
•The subject site is within 800 metres of a Key Tourism Site (the Riverview Tourist Park) identified in the LTPS, which is located opposite the Margaret River and immediately adjacent to lots zoned Residential R15. The applicants assert that the designation of this site as a Key Tourism Site demonstrates the tourist attraction of a riverside location.
•The tourism significance of the Margaret River and Riverslea Run and Bunitj Biddi Trails is supported by the Trails Strategy. The applicants rely on the reference in the Trails Strategy that 'Margaret River was identified as a trails hub of national significance' in the South West Mountain Bike Masterplan and that the Bunitj Biddi Trail is categorised as being of primary significance as 'it is a high use trail used by tourist and community member alike'.
[15] Applicants' SIFC dated 12 August 2022 (Exhibit 8).
The term 'major tourist attraction' is not defined in LPS 1 or LPP 7 and as such it is appropriate to consider the normal and common meaning of the words. The relevant apposite meaning of the word 'major' is 'one of superior rank in a specified area' or 'very important or significant'.[16] 'Tourist attraction' is defined as 'a place that people visit for pleasure and interest, usually while they are on holiday'.[17]
[16] Macquarie Dictionary Online.
[17] Cambridge Dictionary Online.
Plainly, the identified attractions are 'tourist attractions' as they are places that people visit for pleasure, and interest, while on holiday and contribute to the overall tourist experience, but the Tribunal is not convinced that these attractions are 'major tourist attractions' within the Shire. The Tribunal accepts the expert evidence of Ms Kearney that a major tourist attraction would attract the highest number of visitors to a region and based on a ranking of tourist attractions within the Region, the identified attractions are not major tourist attractions as they do not attract amongst the highest visitor numbers in this Region.
However, this finding does not extinguish the discretion available under cl 5.26.4 of LPS 1 to consider the substantive merits of a particular application. Clause 5.26.4 is expressed in generalities and does not expressly prohibit holiday houses in the residential districts of inland settlements. Accordingly, the respondent has adopted LPP 7[18] to, amongst other things, guide the location of Holiday Houses within the Shire. In relation to the Margaret River townsite, LPP 7 identifies, on the MRHH Policy Map, a 'Permissible Area' where Holiday Houses are to be located. There is no dispute that the subject land falls outside of the Permissible Area as shown on the MRHH Policy Map.
[18] LPP 7 has been adopted pursuant to cl 4 of the deemed provisions.
As articulated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at 24, Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.
His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]
In addition, as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [182]:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
(Footnotes omitted)
So too, in this case, having regard to the principles in relation to the application of planning policy, the question that the Tribunal must determine in the exercise of planning discretion is whether there is any cogent reason or sound basis to depart from the application of the planning principles that find expression in LPP 7.
The applicants contend that notwithstanding the Holiday House is outside of the Permissible Area as identified by LPP 7 the exercise of discretion to approve the proposed development is warranted in the circumstances of this case because the proposed development is consistent the objectives of the Residential Zone and, except for the locational requirements, meets all the applicable objectives of LPP 7.
The applicants submit that the dwelling will be used primarily as their residence with the Holiday House being a secondary use and taken together with the locational features of the site, existing amenity of the immediate area which includes two approved Holiday Houses and the history of good management of the Holiday House component, the proposed development meets the objectives of the planning framework.
It is a mainstay of statutory interpretation that the fundamental objective is to ascertain the legislative intention by reference to the language of the instrument read as a whole.[19] Accordingly in order to determine whether a Holiday House is consistent with the purpose and objectives of the Residential Zone, cl 4.2.4.1 of LPS 1, and more specifically objective (c), must be construed in a manner that is cognizant of the provisions of LPS 1 and relevantly the direction provide for in cl 5.26.4 of LPS 1, that is Holiday Houses are not considered appropriate within the residential districts of inland settlements.
[19] City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [48] (Murphy JA, Mazza JA and Edelman J) (Lamont); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (Brennan CJ, McHugh J, Gummow J, Kirby J and Hayne J) (Project Blue Sky).
Objective (c) of cl 4.2.4.1 of LPS 1 seeks to 'preserve the local amenity against uses detrimental to the predominant residential use of the land. 'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. Further, the amenity of the locality, including the character of the locality, is one of the matters specified in cl 67 of the deemed provisions to which due regard is to be given in the consideration of an application for development approval. The principles that inform the manner in which amenity is evaluated are settled[20] and it is with these principles in mind that the Tribunal approaches this review.
[20] Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 at [38].
The respondent called Ms Matthew John Cuthbert, Manager Planning and Regulatory Services at the Shire, to give evidence on its behalf. Mr Cuthbert describes the character of the area[21] as 'residential', which was not challenged. He identified the following four contributing factors that informed his opinion:
•The existence of single dwelling residential development on lots of between 1000m2 and 2000m2;
•The quiet bushland setting;
•The predominant use of dwelling for permanent residential habitation; and
•The quiet residential streets with minimal traffic.
[21] Exhibit 4, Annexure 4.
He also considers that it is unlikely that the character of the area will change in the future given that there are no foreseeable changes to the applicable planning framework. The applicants did not adduce any evidence to the contrary.
Mr Cuthbert describes the area as having a high level of residential amenity and did not consider the subject land to be unique because there are many properties in the Margaret River townsite that are located in a similar context in that they are in wooded areas with good proximity to the Margaret River and trails, all with the same level of amenity.[22] Similarly, Mr Shane Greive, a lecturer at the School of Design and Built Environment, Curtin University, holds the view that it is an area of high amenity but 'unremarkable' in that there are many properties in the surrounding locality that are exactly the same.[23]
[22] ts, Recording 2 at 1:14:46, 19 September 2022.
[23] ts, Recording 3 at 47:37, 19 September 2022.
Mr Cuthbert is of the opinion that notwithstanding there are already two approved Holiday Houses adjacent to the subject land, given the residential context of the broader locality, the commercial nature of the proposed development will not be in keeping with the character of the surrounding area. Mr Greive is concerned that approval of a further Holiday House will consolidate the short-term accommodation use to form 'a tourist precinct in a residential corner' and the cumulative impacts of properties that are primarily operating as commercial land uses will detract from the residential amenity of the area.
The applicants maintain that the proposed development will not limit the ability of the dwelling to be used for residential purposes and the use of the land for short stay accommodation is compatible with the existing amenity of the immediate area. The applicants say that the subject land is not located within the more suburban areas of Margaret River where dwellings are being used exclusively on a permanent basis but is located opposite bushland and the Margaret River, has approved Holiday Houses directly opposite at No 16 and immediately to the south at No 11, and the other surrounding residential lots are larger lots coded R5 and R10 and are well vegetated. Further, the applicants say that the historical use of the subject land as a Holiday House has not resulted in any adverse impacts on the surrounding properties.
The Tribunal is not persuaded that there is a cogent reason to depart from the planning principles embodied in LPP 7 in the circumstances of this case. The intent of the locational criteria in LPP 7 is to inform discretion to ensure the '[preservation] of the local amenity against uses detrimental to the predominant residential use of land'.
The Tribunal accepts the evidence of Mr Cuthbert and Mr Greive regarding the characterisation of the broader locality as being residential, although acknowledging that there are two Holiday Houses in the immediate locality which have impacts on the surrounding properties in the immediate vicinity. In this context it is important to note that in Table 1 - Zoning Table of LPS 1 the 'Holiday House' use class is listed as a 'Tourism Use' and not a 'Residential Use'. The nature of the proposed use, that being temporary residency by visitors and the pattern of habitation that follows from such occupancy, increases the potential for conflict between the residential and tourism uses.
The Tribunal accepts that the proposed development is compatible with No 11 and No 16 but viewed in the wider context, a conglomeration of tourism uses could not be said to be in keeping with the residential character of the locality. Mr Cuthbert explained that No 16 and No 11 are a legacy of the past and approved under a previous iteration of LPP 7, which was 'prior to the deliberate inclusion of greater restrictions being applied to limit holiday house in residential areas.'[24] Mr Greive's, in oral evidence, went as far as to say the approval of the two Holiday Houses at No 16 and No 11 'could be considered as a regret now'[25] and should not be considered as a reason to depart from the locational requirements of LPP 7.
[24] Witness Statement of Matthew John Cuthbert dated 9 September 2022 (Exhibit 5).
[25] ts, Recording 2 at 46:27, 19 September 2022.
Although the existing Holiday Houses are, for now, a part of the character of the locality, the Tribunal is of the view that the proposed development represents further encroachment, and a consolidation of tourism uses into an area of high residential amenity. The Tribunal considers that the cumulative impacts of short stay accommodation use in this locality would undermine the purpose and objectives of the Residential Zone because it would not 'conserve and enhance the amenity and sense of place of [this] residential area' and would be 'detrimental to the predominant residential use of the land'. Further, approval of the proposed development would increase pressure for further similar developments to locate in the locality.
Whether the use of the dwelling for Holiday House purposes will have a negative impact on the affordability of dwellings within the Margaret River township or contribute to the loss of long-term housing stock
The respondent submits that LPP 7 has been formulated with the objective of enabling the use of dwellings as Holiday Houses in a way which does not contribute negatively to the affordability of accommodation for permanent occupations. The respondent asserts that the inland residential districts, including the location of the subject land, are typically more affordable than, for example, coastal settlements and therefore ought to be limited in their use to permanent residential occupation, which is reflected in the locational guidance provided in LPP 7.
The respondent contends that the cumulative impact of approval of Holiday Houses outside of the specific areas identified in LPP 7 will be to inflate the value of housing above its value as permanent residential accommodation and thereby worsening housing affordability and reducing the availability of permanent rental accommodation.
Ms Kearney told the Tribunal that Holiday Houses are an important part of the tourism product and experience mix but there are sufficient offerings for this type of accommodation in the Region. However, Ms Kearney was aware that the shortage of affordable accommodation in the Region was a key issue for businesses which were constraining their ability to secure staff to maintain and grow their operations and referred to the findings in the report prepared by ACIL Allen entitled Margaret River Region Short Term Worker Accommodation Study (March 2022) (ACIL Report)[26]. Finding 5 of the ACIL Report states as follows:
The so-called 'Airbnb effect' has helped to boost the range of accommodation options for tourists vising the Margaret River Region. However, this has impacted on the availability of affordable short term accommodation in the Region, particularly for people seeking work in the hospitality sector.
[26] Exhibit 12.
Mr Greive also pointed out that the capacity for short-term rentals to generate significantly higher rental incomes than long-term rentals can negatively impact housing supply and housing affordability, as well as, the supply and affordability of homes for sale. According to Mr Greive his research for a presentation on Short Term Rental Accommodation at the Planning Institute of Australia (PIA) Regional Conference 2020 showed that short-term rentals can readily generate two to three times more income for the owner, which provides a financial incentive in favour of short-term accommodation.
The applicants contend that the approval for the use of the dwelling as a Holiday House will not, in this instance, change the current supply of housing within the Region because the predominant use of the site will continue to be the applicants' home and the secondary use of the dwelling as a Holiday House will have a neutral effect on the affordability or use of residential areas within the Shire as the dwelling would not be available to place on the rental market due to the nature of Mr Coughlan's work commitments. Further, Mr Coughlan submits that one of the advantages of using the dwelling for holiday accommodation is that the dwelling is not left empty during the periods when he is required to be in Perth.
The Tribunal accepts the applicants' argument that under the proposed scenario approval of the proposed development would not affect the availability of housing for long-term rental in Margaret River given Mr Coughlan's flexible work arrangements. However, the Tribunal accepts Mr Greive's point that the higher rental returns for short-term rentals will reflect a higher sale price which may have a negative effect on the supply and affordability of houses for sale, which is contrary to objective 3 of LPP 7.
Whether there is anything unique about the dwelling which would prevent the approval from setting an undesirable precedent for future applications of a similar type
The respondent contends that approval of the proposed development, which is at odds with LPS 1 and LPP 7, will set an adverse planning precedent within the locality for future applications where properties do not meet the locational criteria.
The applicants submit that approval of the proposed development would not set a precedent as there are very limited numbers of properties in the area that are located immediately opposite the Margaret River and adjacent to more than one other property used for short-term accommodation.
The circumstances in which precedent is a relevant consideration in a planning assessment has been articulated in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74], where the Tribunal found that in order for adverse planning precedent to be a relevant consideration in a planning assessment, the following two criteria must be established:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
Each of these criteria is satisfied in this case. The proposed development, for the reasons expressed throughout this decision, is not, in itself, unobjectionable.
In considering the second criteria, it is necessary to consider whether there are any sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics. Plainly, there are lots in the immediate vicinity of the subject land and the existing approved Holiday Houses that are comparable, such as the adjoining lots, where a similar type of application to that which is now before the Tribunal could be proposed and therefore, there is more than a mere chance or possibility that there may be later undistinguished applications.
While each planning application must be assessed on its own merits, approval of the proposed development in this case is likely to set a precedent for the approval of similar applications. The cumulative impact of further encroachment, and a consolidation of, tourism uses into an area of high residential amenity would undermine the purpose and objectives of the Residential Zone and objectives of the LPP 7. In the circumstances of this case, therefore, the consideration of adverse planning precedent also warrants refusal of the application.
Whether the use of the dwelling as a Holiday House would impact the local residential amenity
The respondent contends that approval of the proposed development will contribute to the cumulative impacts of short stay accommodation which will adversely affect the residential amenity of the locality. The respondent submits that short stay accommodation can have a significant impact on the amenity of the surrounding area and referred to the 'general theme' of complaints the respondent has received relating to short stay accommodation in inland residential areas to illustrate some of the impacts that Holiday Houses can have on the amenity of the surrounding area, which included, increased vehicle movements; increased noise, increased use of outdoor spaces, and irregular and unpredictable hours for vehicle trips and entertaining.
Mr Greive correctly acknowledged that many of the adverse impacts that arise from Holiday Houses can be avoided through the implementation of sound management plans. However, he pointed out that the success of mitigating the impacts is dependent upon the level of compliance with the measures embodied in the management plan.
The applicants say that the Holiday House is capable of being managed to prevent inappropriate impacts on the amenity of owners of adjoining properties and the surrounding area. In support of this assertion, the applicants point to the historical use of the dwelling for a Holiday House. Mr Coughlan told the Tribunal that historically the use of the property for a Holiday House has been well managed and has not caused any nuisance or annoyance to owners of adjoining or nearby properties, as evidenced by no complaints being received by the Shire and no objections submitted during the advertising period. Further, the applicants say that screening of guests, together with the 'Management Arrangements' and House Rules[27] to be administered as part of the management regime will ensure that the Holiday House use will not impact on the amenity of the locality.
[27] Respondent's s 24 bundle of documents dated 8 July 2022 (Exhibit 3, Tab 1).
The Tribunal acknowledges that the applicants' past history of managing the Holiday House activities demonstrates to some extent that the proposed development can be managed to mitigate the adverse amenity impact of short stay accommodation on the immediate locality, that being No 11, No 16 and No 3 Bankside Retreat, which is probably reflective of the fact that two of the three properties are approved Holiday Houses. However, as the Tribunal has expressed earlier, the further encroachment and consolidation of tourism uses in an area of high residential amenity is an unacceptable impact on the amenity of the locality.
Whether approval of the application would represent orderly and proper planning having regard to the established planning framework
The question of orderly and proper planning arises under cl 67(2)(b) of the deemed provisions. In Marshall at [179]-[182], Pritchard J considered the meaning of the expression 'orderly and proper planning' and emphasised that an assessment as to whether a proposed development is consistent with orderly and proper planning requires an objective, disciplined, methodical, logical and systematic approach.
The evidence in this matter has not established that the proposed development constitutes 'a legitimate aspiration of the planning framework'.[28] Further, the Tribunal in considering the substantive merits of the application finds, for the reasons expressed above, that there is no sound basis to depart from the planning principles embodied in the planning framework and therefore concludes that the proposed development is not consistent with orderly and proper planning.
Conclusion
[28] Marshall at [180].
Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval to the proposed development.
In considering the substantial merits of this particular case in light of cl 5.26.4 of LPS 1, the objectives of the planning framework and having due regard to the relevant matters specified in cl 67(2) of the deemed provisions, the Tribunal considers the proposed development warrants refusal in the exercise of discretion and as such, the application for review is dismissed and the decision of the respondent dated 23 December 2021 is affirmed.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
16 DECEMBER 2022
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