Ellis and City of Stirling

[2014] WASAT 172

ELLIS and CITY OF STIRLING [2014] WASAT 172

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 172
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:184/2014	Heard:	30 SEPTEMBER 2014
Coram:	MS L EDDY (MEMBER)	Delivered:	22/12/14
No of pages:	26	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	JOHN WINSON ELLIS CITY OF STIRLING
Catchwords:	Town planning ­ Development application ­ Residential Design Codes ­ Whether one unit within a group of dwellings is a multiple dwelling ­ Meaning of multiple dwellings ­ Compliance with design principles of Residential Design Codes ­ Sightlines ­ Landscaping ­ Vehicular access ­ Impact on amenity of the locality
Legislation:	City of Stirling Local Planning Scheme No 3, cl 1.6 Sch 1, cl 2, cl 5.1, cl 5.2, cl 10.2, cl 10.9.1, Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes (2002), cl 2.2, Pt 2 State Administrative Tribunal Act 2004 (WA), s 31 State Planning Policy 3.1 ­ Residential Design Codes of Western Australia (2013), cl 4.3.1, cl 5.1.1, cl 5.3.1, cl 6.2.2, cl 6.2.3, cl 6.3, cl 6.3.5, cl 6.5
Case References:	36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198 Filton Pty Ltd and Town of Vincent [2006] WASAT 70 Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 Metropolitan Management Pty Ltd v Town of Vincent [2008] WASAT 261 Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345
Orders	On the application heard before Member Lisa Eddy it is on 22 December 2014, ordered that:,1. The respondent's decision, made on 22 July 2014, following reconsideration of its decision, pursuant to s 31 of the State Administrative Act 2004 (WA), to refuse planning approval of the proposed development as depicted in the plans at pages 61 - 68 of Exhibit 2 is affirmed.,2. The application is dismissed.
Summary	The applicant sought planning approval for the construction of seven units on a site in Balga.  The respondent City refused approval because it said one of the units was not a multiple dwelling within the meaning of State Planning Policy 3.1 ­ Residential Design Codes of Western Australia (2013).  The respondent also submitted that the proposal did not comply with three of the design principles in State Planning Policy 3.1 ­ Residential Design Codes. ,The Tribunal considered the proper interpretation of the term 'multiple dwellings' and determined that the unit in question was a multiple dwelling.  However, the Tribunal determined that the proposal did not meet three important design principles and would have a detrimental effect on amenity.  The Tribunal confirmed the decision of the respondent.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ELLIS and CITY OF STIRLING [2014] WASAT 172 MEMBER : MS L EDDY (MEMBER) HEARD : 30 SEPTEMBER 2014 DELIVERED : 22 DECEMBER 2014 FILE NO/S : DR 184 of 2014 BETWEEN : JOHN WINSON ELLIS

Applicant

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning ­ Development application ­ Residential Design Codes ­ Whether one unit within a group of dwellings is a multiple dwelling ­ Meaning of multiple dwellings ­ Compliance with design principles of Residential Design Codes ­ Sightlines ­ Landscaping ­ Vehicular access ­ Impact on amenity of the locality

Legislation:

City of Stirling Local Planning Scheme No 3, cl 1.6 Sch 1, cl 2, cl 5.1, cl 5.2, cl 10.2, cl 10.9.1,

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes (2002), cl 2.2, Pt 2
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 ­ Residential Design Codes of Western Australia (2013), cl 4.3.1, cl 5.1.1, cl 5.3.1, cl 6.2.2, cl 6.2.3, cl 6.3, cl 6.3.5, cl 6.5

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant sought planning approval for the construction of seven units on a site in Balga. The respondent City refused approval because it said one of the units was not a multiple dwelling within the meaning of State Planning Policy 3.1 ­ Residential Design Codes of Western Australia (2013). The respondent also submitted that the proposal did not comply with three of the design principles in State Planning Policy 3.1 ­ Residential Design Codes.

The Tribunal considered the proper interpretation of the term 'multiple dwellings' and determined that the unit in question was a multiple dwelling. However, the Tribunal determined that the proposal did not meet three important design principles and would have a detrimental effect on amenity. The Tribunal confirmed the decision of the respondent.

Category: B

Representation:

Counsel:

Applicant : Mr N Teo (Acting as Agent)
Respondent : Mr G Nicholson

Solicitors:

Applicant : Dynamic Planning and Developments
Respondent : McLeods Barristers & Solicitors

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

36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253
Metropolitan Management Pty Ltd v Town of Vincent [2008] WASAT 261
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On 14 April 2014, Mr John Ellis (applicant) requested planning approval from the City of Stirling (respondent) for a proposed development of eight dwellings on No 6 (Lot 72) Coniston Way, Balga (site). As the respondent provided no determination of that request to the applicant within 60 days, pursuant to cl 10.9.1 of the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme), the respondent was deemed to have refused the applicant's request for planning approval. On 11 June 2014, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the deemed refusal to approve his proposed development on the site.

2 On 22 July 2014, following reconsideration of its decision pursuant to s 31 of the State Administrative Act 2004 (WA) (SAT Act), the respondent refused planning approval of the proposed development. The reasons given by the respondent for the refusal included that one of the proposed dwellings was not a multiple dwelling within the meaning of State Planning Policy 3.1 ­ Residential Design Codesof Western Australia (2013) (Codes). In addition, the respondent considered that the proposed fencing along the northern boundary of the site, the proposed landscaping within the front setback area, and the vehicular access proposed, did not comply with the relevant design principles specified in the Codes.

Site and locality

3 The site has an area of 752m², and is located within a medium density residential area consisting of single houses and grouped dwellings. The site is bounded by residential properties to the south, and west and by Coniston Way to the north and east.

Applicant's development proposal

4 Pursuant to s 31 of the SAT Act, it is the respondent's decision in relation to the development proposal as reflected in the plans presented to it for reconsideration in July 2014 that is now the subject of review by the Tribunal. The plans depicting that development proposal are at pages 61 to 68 of Exhibit 2. The layout of the development proposal is that Units 1, 2 and 3 are located on the ground level and Units 5 to 8 are located on the first floor level.

5 Units 1 and 2 are positioned on the south side of the site starting just over 1 metre in from the western boundary and extending eastwards to a point approximately two-thirds of the way to the eastern boundary of the site. Unit 3 is located on the northern side of the site, and is within the eastern half of the site. There are two undercover parking bays extending in a northerly direction adjacent to Unit 1. Next to that is a common stairwell, and on the other side of the stairwell are another two covered parking bays. A further three covered parking bays are adjacent to the eastern end of Unit 2. A single undercover parking bay is located adjacent to the eastern end of Unit 3. The area between Units 3 and 2 (and the parking bays adjacent to each of those units) is a paved driveway/access area. To the north of the parking bays adjacent to Unit 1, and to the west of Unit 3, is another paved driveway/access area. Each of these driveway/access areas is connected to Coniston Way (which extends past both the northern and eastern sides of the site) by a proposed crossover. Units 1, 2 and 3 each have a small private courtyard.

6 On the first floor level, Units 4 and 5 are located at the western end of the site, above Unit 1, part of Unit 2 and the parking bays adjacent to Unit 1. Unit 6 is located above part of Unit 2 and extends over an open area below and then over part of Unit 3. Unit 8 is located over the remainder of Unit 3, plus the parking bay adjacent to Unit 3. Unit 7 is located above the parking bays adjacent to Unit 2 and extends over the driveway/access area between Units 2 and 3 to abut Unit 8. A small part of Unit 7 extends over part of Unit 2 below. It is this unit that the respondent says is not a multiple dwelling. Units 6, 7 and 8 are accessed via a common stairwell that abuts Unit 2 below and opens to a common lobby area on the first floor. Units 4 and 5 are accessed via the stairwell located near Unit 1 below. Each of the first floor units has its own private balcony area.

Planning framework

Local Planning Scheme

7 The site is zoned Residential with an identified density of R40 under LPS 3. The use class 'grouped dwelling' is permitted under the Scheme in a residential zone according to the zoning table in LPS 3. 'Multiple dwelling' is also a permitted use, although the notes to the zoning table clarify that the use class 'multiple dwelling' is not permitted in areas coded R35 or below. A note such as this is part of the controlling text of the Scheme: see 36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198. The terms 'multiple dwelling' and 'grouped dwelling' are defined in cl 2 of Sch 1 of LPS 3. Each of those terms is expressed to have 'the same meaning as in the Residential Design Codes'. This is, of course, a reference to the Codes.

8 Other relevant provisions of LPS 3 are as follows:

1.6 The Aims of the Scheme

The aims of the Scheme are ­

a) To provide for a range of housing choice in neighbourhoods with a strong community identity and high levels of amenity[.]

4.2.12 Residential Zone


a) To provide for residential development at a range of densities with a variety of housing type and size, to meet the current and future needs of the community.

…


5.1 Compliance with Development Standards and Requirements

5.1.1 Any development of land is to comply with the provisions of the Scheme and have due regard for any relevant Local Planning Policies effective under the Scheme.

…


5.2 Residential Design Codes

5.2.1 A copy of the Residential Design Codes is to be kept and made available for public inspection at the offices of the City.

5.2.2 Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.

…

10.2 Matters to be Considered by the Council

The Council in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the Council relevant to the use or development the subject of the application -


a) the aims and provisions of the Scheme and the objectives of the relevant zone and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);

b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which ,has been granted consent for public submissions to be sought;

c) any approved statement of planning policy of the Commission;

…

i) the compatibility of a use or development with its setting;

…

n) the preservation of the amenity of the locality;

o) the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;

p) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;

…

v) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved[.]

9 The Tribunal was advised at the hearing of this matter that the respondent had resolved to amend LPS 3 (proposed Amendment 32 to LPS 3) so as to prohibit multiple dwellings on land zoned with a density of R40 or less. The Tribunal was advised that proposed Amendment 32 had been through the advertising and submission process, had been adopted by the respondent and was now 'with the Minister' for approval.

10 Clause 10.2(b) of LPS 3 requires that regard must be had to the proposed amendment in considering a planning application. However, the Tribunal was informed that the respondent had resolved that the proposed amendment to LPS 3 would not be given significant weight in determining any development application until the amendment of the Scheme actually occurred so that the change to the Scheme had become law. Arguably, this resolution of the respondent could equate to a 'guideline' of the respondent in relation to relevant planning applications, which is another matter to be regarded in determining a development application pursuant to cl 10.2(f) of LPS 3. In any event, it is not inconsistent with LPS 3 to not give significant weight to the proposed amendment to LPS 3, so long as regard is had to it as required by cl 10.2(b) of LPS 3. I am satisfied it is appropriate, unless there are reasons why it should be treated differently, that the applicant's development proposal should be considered in light of the same policy position as is applied by the respondent in similar matters. Therefore, I do not give any significant weight to proposed Amendment 32 of LPS 3 in determining this matter.

State Planning Policy 3.1 ­ Residential Design Codes

11 Of central importance to the determination of this matter are the definitions of the terms 'multiple dwelling' and 'grouped dwelling' in Appendix 1 of the Codes.

12 'Multiple dwelling' is defined as:

[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.

13 'Grouped dwelling' is defined as:

[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 partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.

14 Other relevant provisions of the Codes as referred to by the parties are as follows:

…

6.2.3 Sight lines

P3 Unobstructed sight lines provided at vehicle access points to ensure safety and visibility along vehicle access ways, streets, rights-of-way, communal streets, crossovers, and footpaths.

…

C3 Walls, fences and other structures truncated or reduced to no higher than 0.75m within 1.5m of where walls, fences, other structures adjoin vehicle access points where a driveway meets a public street and where two streets intersect (refer to Figure Series 9).

…

6.3.2 Landscaping

P2 The space around the building is designed to allow for planting. Landscaping of the site is to be undertaken with appropriate planting, paving and other landscaping that:


• meets the projected needs of the residents;

• enhances security and safety for residents; and

• contributes to the streetscape.


C2 Landscaping of open spaces in accordance with the following:

i. the street setback areas developed without car parking, except for visitors' bays, and with a maximum of 50 per cent hard surface;

ii. separate pedestrian paths providing wheelchair accessibility connecting all entries to buildings with the public footpath and car parking areas;

iii. landscaping between each six consecutive external car parking spaces to include shade trees;

iv. lighting provided to pathways, and communal open space and car parking areas; and

v. [c]lear sight lines at pedestrian and vehicle crossings.

…


6.3.5 Vehicular access

P5 Vehicular access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape.

C5.1 Vehicle access is limited to one opening per 20m street frontage that is visible from the street.

C5.2 Access to on-site car parking spaces to be provided:


• where available from a right-of-way available for the lawful use to access the relevant lot and which is adequately paved and drained from the property boundary to a constructed street;

• from a secondary street where a right-of-way does not exist[;] or

• from the primary street frontage where no secondary street or right-of-way exists.


C5.3 Driveways designed for two way access to allow for vehicles to enter the street in forward gear where:

• the driveway serves five or more dwellings;

• the distance from a car space to street alignment is 15m or more; or

• the public street to which it connects is designated as a primary distributor, district distributor or integrated arterial road.


C5.4 Driveways to be adequately paved and drained.

15 At the hearing, evidence was given that a number of proposed amendments to the Codes had been approved by the Western Australian Planning Commission for advertising for the purpose of public comment. This has been done and public submissions were sought by 14 November 2014 (a copy of the proposed amendments is at pages 83 to 94 of Exhibit 2). Both Mr Teo and Ms Lumbaca, [experts for the applicant and respondent respectively stated that, in their opinion, based on their experience of similar processes, it was likely to be early to mid-2015 before the proposed amendments might be expected to be finalised and potentially become law.

16 I am satisfied that the proposed amendments to the Codes have been sufficiently formulated and are being seriously entertained: Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117. As such, they are relevant to the determination of this matter.

17 One of the proposed amendments is to alter the definition of multiple dwellings contained in the Codes. The reason given for this proposed amendment is that the definition 'does not define substantiality in terms of the amount of plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other'. The proposed amendment is to insert the word 'majority' into the definition of multiple dwelling so that it would read:

A dwelling in a group of more than one dwelling on a lot where any majority part of the plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other[.]

18 Turning to consideration of the weight that should be given to the proposed amendment, it is a proposal that is specifically relevant to one of the issues to be determined in this matter. However, at this stage, on the evidence before the Tribunal, it cannot be said that there is any great certainty in the proposed amendments being adopted in their current form. In addition, at this stage in the process, it cannot be said that the ultimate adoption of the proposed amendments is imminent. Therefore, while they are relevant and should have some weight, it is not appropriate to give substantial weight to the proposed amendments in determining this matter.

Issues

19 The parties agree that the principal issue for determination by the Tribunal is whether one of the upper storey dwellings, Unit 7, is a 'multiple dwelling' as defined by the Codes. It is not in dispute that if the dwelling in question (Unit 7) is a 'grouped dwelling', it does not comply with the minimum lot size requirements for grouped dwellings under cl 5.1.1 of the Codes. The parties also identified that the Tribunal had to determine whether the proposed fencing on the northern boundary of the site, the landscaping in the front setback area and the provision of two crossovers for vehicular access are consistent with the relevant design principles of the Codes. It is not in dispute that those aspects of the development proposal do not meet the relevant deemed-to-comply provisions of the Codes. Compliance with the Codes is relevant to determining whether to approve the development proposal pursuant to cl 10.2(b) and cl 10(2)(e) of LPS 3.

20 The respondent also submitted that the Tribunal had to determine whether the proposed development would have an unacceptable impact on the amenity of the locality by reason of its bulk and scale. While the applicant, in its statement of issues, facts and contentions, did not initially agree that this was an issue for determination by the Tribunal, at the hearing, his representative accepted that this was a relevant issue. Clause 10.2(n) of LPS 3 does specify that preservation of the amenity of the locality is a relevant matter to have regard to in considering a development proposal. In addition, cl 10.2(o) of LPS 3 expressly requires consideration of the relationship of the development proposal on other land in the locality, including the likely effect of the height, bulk, scale, orientation and appearance of the proposal. I am satisfied, therefore, that this is an issue that requires determination in this matter.

Is Unit 7 a multiple dwelling?

21 The respondent asserts that Unit 7 is not a multiple dwelling because the part of the plot ratio area of Unit 7 vertically above the plot ratio of another dwelling is not substantial. In making this submission, the respondent relies on the explanation of the meaning of the term 'multiple dwelling' given by the Tribunal in its reasons for decision in the matters of Filton Pty Ltd and Town of Vincent [2006] WASAT 70 (Filton) and Metropolitan Management Pty Ltd v Town of Vincent [2008] WASAT 261.

22 Both parties agreed, appropriately in my view, that there was no issue as to whether any of the other units in the applicant's development proposal came within the definition of 'multiple dwellings'. Each of Units 4, 5, 6 and 8 has, without doubt, a substantial part of their plot ratio area vertically above the plot ratio area of another dwelling. Units 1 to 3 do not have any part of their plot ratio area vertically above that of any other dwelling (being on ground level), but there was no argument made that those units were not multiple dwellings.

23 The parties agreed that the only part of Unit 7 which is vertically above the plot ratio area of that of another dwelling is part of one of the unit's bedrooms. It is agreed that this is an area of approximately 7m², which, given that the total plot ratio area is approximately 59m², reflects just under 12% of the total plot ratio area of Unit 7.

24 The respondent's expert, Ms Giovanna Lumbaca, stated in her witness statement that in her opinion, the 'minor projection' of Unit 7 vertically above the plot ratio of another dwelling, being 11.86% of Unit 7's entire plot ratio area, was not a substantial part of Unit 7 (Exhibit 8, paragraph 24). Ms Lumbaca's view is that it is more accurate to describe Unit 7 as substantially occupying a separate and distinct part of the site, rather than being substantially vertically above the plot ratio area of another dwelling, and therefore, in her opinion, Unit 7 is more properly characterised as a grouped dwelling and not a multiple dwelling (Exhibit 8, paragraph 26).

25 The applicant's expert, Mr Neil Teo, accepted under cross-examination that the percentage of the plot ratio area of Unit 7 that was vertically above that of another dwelling was not substantial. However, in his witness statement (Exhibit 9), Mr Teo stated that the combined plot ratio area of all of the parts of the upper level dwellings vertically above the plot ratio area of another dwelling is 139m². The total plot ratio area of all of the dwellings incorporated in the development application is 449m². Therefore, on Mr Teo's calculations, 30.95% of the plot ratio areas of the dwellings were vertically above the plot ratio area of other dwellings. Mr Teo submitted that this meant that, overall, the development proposal involved a substantial amount of the plot ratio area of upper level dwellings that were vertically above the plot ratio area of another dwelling. Mr Teo also opined that the development proposal 'encompasses a dwelling over dwelling design with communal resident and visitor parking, access and pedestrian areas' making it 'unmistakably' a multiple dwelling proposal (Exhibit 9, paragraph 27(f)).

26 I have come to the view that the definition of the term 'multiple dwelling' does not require that every dwelling must have a substantial part of its plot ratio area above another dwelling. The definition specifies that 'a dwelling' is a multiple dwelling when it is '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' (my emphasis). It is not stated in the definition that it is required that part of the plot ratio area of 'the' dwelling (that is, the dwelling under consideration) has to be vertically above that of another.

27 I am mindful that regard must be had to the fact that instruments such as the Codes are not drafted by Parliamentary Counsel when considering questions of interpretation (as explained in Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253, at [41]). However, as the definition here expressly refers to a single dwelling that is one of a group of dwellings on a single lot, the lack of a link, grammatically, between the dwelling that is to meet the definition of 'multiple dwelling' and the dwelling that must have part of its plot ratio area vertically above another is significant. That this interpretation was intended by the drafters of the Codes is, I think, evident from the fact that it was not considered necessary to expressly include reference to the ground floor dwellings within the definition of 'multiple dwellings'. Further support can be found in the definition of 'grouped dwelling' in the Codes. A 'grouped dwelling' is '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 partly vertically above another …' (my emphasis). Consistent with the above interpretation of the definition of 'multiple dwelling', a dwelling will be not be a grouped dwelling if even one dwelling in the group of dwellings is wholly or partly vertically above another dwelling.

28 In coming to the above conclusion, I considered whether the second reference to 'a dwelling' in the definition should be read as a reference to the same dwelling that is to be the 'multiple dwelling'; in other words, whether the definition of 'multiple dwelling' in the Codes should be read as 'a dwelling in a group of more than one dwelling on a lot where any part of the plot ratio area of the dwelling is vertically above any part of the plot ratio area of any other' (alternative interpretation).

29 The alternative interpretation would be consistent with the understanding that there is a strict requirement for multiple dwellings to be of a 'dwelling over dwelling' nature expressed by Ms Lumbaca in her evidence. However, this interpretation has the effect that ground floor dwellings can never be 'multiple dwellings'. The alternative interpretation renders ground floor dwellings in a multi­storey dwelling development as a type of dwelling unrecognised by the Codes. What, then, would be the design principles relevant to such a dwelling? An interpretation that causes an ordinary and expected type of residential dwelling to fall outside the provisions of the Codes is not consistent with the intent and purpose of the Codes.

30 The only way to remedy the problem relating to the ground floor dwellings, if one were to accept the alternative interpretation, would be to read, or imply, additional words into the definition of 'multiple dwelling' to address the issue. I cannot see any basis on which it would be possible in this case to imply any such additional words into the text of the Codes. As explained by his Honour, Edelman J in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345, at [144] and [145]:

… there have been cases where courts have read a legislative provision as if it contained additional words where the omission of those words could not be said to be a mere grammatical or drafting error, but that those occasions are not common. They are approached with caution. The High Court [has] referred to the three conditions identified by Lord Diplock in Wentworth Securities Ltd v Jones [[1980] AC 74, 105 – 106]:

(i) the court must be able to identify the precise purpose of the provision(s) in question;

(ii) the court must be satisfied that the drafter and Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and

(iii) the court must be abundantly sure of the substance of the words that Parliament would have used had the deficiency been detected before enactment.192

Even these three conditions might not be sufficient. The conditions are not firm criteria. As Beech J explained in The Commissioner for Corrective Services v RAJ [[2014] WASC 338 [45]], 193 'in the end, the three conditions may be in the nature of guidelines to be considered in the process of statutory construction in accordance with conventional construction techniques'.

31 In this case, it is not possible to be satisfied that the drafter necessarily inadvertently overlooked an eventuality because there is an interpretation that gives effect to the actual words used and the normal rules of grammar that does not produce that result. In addition, based on the actual text of the Codes, it is not possible to identify the substance of the words that would have been used had the deficiency been detected. For these reasons, the alternative interpretation cannot be preferred.

32 The only interpretation consistent with the intent and purpose of the Codes is one that applies the ordinary meaning of the words used in the definition of 'multiple dwelling' and the ordinary rules of grammar. Applying that interpretation, a dwelling is a multiple dwelling if it is one of a group on a lot where one of the dwellings in the group has part of its plot ratio area vertically above the plot ratio area of another dwelling.

33 However, this is not the end of the matter. It is necessary to consider the Tribunal's reasoning in Filton and determine whether, and how, that applies to the issues to be determined in this case.

34 Filton was a matter where the Tribunal had to determine, amongst other things, whether the proposed development comprised grouped dwellings or multiple dwellings. The development proposal in that matter consisted of two rows of six dwellings that had the appearance of townhouses. However, each dwelling had a small section of the second level bathroom projecting over the garage area of the adjacent dwelling. The area of each dwelling projecting over the adjacent dwelling was between approximately 0.4 metres and 2.2 metres. The total floor space of units which projected above the garage areas of other units was approximately 12.7m², or 0.8%, of the total floor space of the development: see Filton at [14].

35 In Filton, the Tribunal had to have regard to the Codes as published in October 2002 (Codes 2002). The Tribunal determined that a literal interpretation of the words used to defined the term 'multiple dwelling' could not be accepted, as it did not conform with the intent or purpose of the Codes 2002 (at [59] - [67]). In the Codes 2002, the term 'multiple dwelling' was defined in similar terms to those used in the Codes, except that there was no reference to the plot ratio area of a dwelling. Thus, a 'multiple dwelling' was defined in the Codes 2002 to mean 'a dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above any part of any other' (cl 2.2 of Pt 2 of the Codes 2002). The Tribunal determined that the words 'any part of a dwelling' must be understood to mean 'any substantial part of a dwelling' (at [67]). At [69] and [70], the Tribunal concluded in the Filton case that the dwellings in the proposed development were grouped dwellings because:

First, no dwelling is placed wholly or in substantial part vertically above another.

Second, the areas below and above each of the minor projections do not constitute a part of a 'dwelling'.

36 This second aspect of the Tribunal's reasoning is not an issue that has relevance to this matter because the current definition of 'multiple dwelling' as contained in the Codes takes into account only the 'plot ratio area' of a dwelling, and that term excludes vehicle parking areas at, or below, ground level.

37 There are significant differences between the Codes and the Codes 2002, and many of the specific provisions of the Codes 2002 relied upon by the Tribunal in coming to its reasons for decision in Filton are not exactly replicated in the Codes. Under the Codes 2002, development of multiple dwellings at an R40 density was based on a minimum site area of 250m² per dwelling. A single house or a grouped dwelling of the same density required a minimum site area of 200m² and an average site area of 220m². Amendments made in 2010 replaced the minimum site area calculation for multiple dwellings with a maximum plot ratio provision that limited the plot ratio area of the site rather than the number of dwellings per site. The current Codes have the same relevant provisions which, at a density of R40, allow multiple dwellings with a maximum plot ratio area of 0.6 of the total site area. A single house or a grouped dwelling requires, at R40 density, a minimum of 180m² and an average of 220m² site area per dwelling. Similarly to the Codes 2002, the Explanatory Guidelines to the Codes explain, at cl 4.3.1, that private open space is synonymous with open space in the case of single houses and grouped dwellings. It is also contemplated that there may be communal open space provided for grouped dwellings. Although the open space required for multiple dwellings is largely contemplated to be communal rather than private, the Codes impose a requirement that every multiple dwelling must have an area of private open space (often a balcony) with a minimum area of 10m² and a minimum dimension of 2.4 metres (C1 of cl 6.3 of the Codes).

38 I am satisfied that, overall, the Codes continue to evince a clear distinction between 'grouped dwelling' and 'multiple dwelling' as fundamentally different dwelling types. The important point from Filton, which remains a persuasive one, was effectively summarised in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [36]:

… As the Tribunal determined in Filton and Town of Vincent [2006] WASAT 70, single dwellings and grouped dwellings, on the one hand, and multiple dwellings, on the other, are significantly different forms of development, in that whereas single and grouped dwellings generally occupy a separate and distinct portion of a site, multiple dwellings generally occupy a site communally.

39 In my view, I should continue to apply the interpretation of what is meant by a 'part' in the definition of 'multiple dwelling' as explained in Filton. Therefore, it is necessary that at least one dwelling in the group of dwellings under consideration has a substantial part of its plot ratio area vertically above the plot ratio area of another dwelling. Whether there is any difference between the concept of a 'substantial part' and a 'majority part' (which would be required under the proposed amendments to the Codes) is not a matter that I need to resolve in this matter. It is apparent from the plans of the development proposal that Units 4, 5, 6 and 8 have a 'majority part' of their plot ratio area vertically above that of another dwelling. Therefore, if Unit 7 is part of the same group as Units 4, 5, 6 and 8, it is a multiple dwelling within the meaning of the Codes.

40 The concept of a 'group' of dwellings is not defined in the Codes. The ordinary meaning of that word, as defined by the Macquarie Online Dictionary (2014) is:

1. any assemblage of persons or things; cluster; aggregation.

2. a number of persons or things ranged or considered together as being related in some way.

…

4. a number of businesses, companies, etc., administratively and financially connected[.]

Having regard to the context within which the word is here used, and to the clear intent seen in the Codes to distinguish between different dwelling types, I consider that the second of the above ordinary meanings is what is intended when referring to a 'group' in the definition of 'multiple dwellings'. That is, the word 'group' as used in the definition of 'multiple dwellings' must be read as requiring a relationship between the dwellings, and not as a mere 'assemblage' or 'cluster' of dwellings.

41 In many cases, it is readily clear whether a development proposal contemplates one or more groups of dwellings. However, it seems to me that there may be cases where the nature and appearance of what, at first glance, appears to be a single group of dwellings may be such that, in fact, there is more than one group of dwellings that are adjacent to, or adjoining each other because one or more of the dwellings are not related to the others in any meaningful way. It will be a question of fact and degree in every case as to whether there is more than one group of dwellings and, if there is more than one group, what is the nature of each of those groups of dwellings.

42 In this case, Mr Teo was of the opinion that, as a whole, the group of dwellings proposed in the application was of the nature of multiple dwellings. Implicitly, he saw it as a single group of dwellings. He asserted that the overall design was of 'dwelling over dwelling' with communal resident and visitor parking, access and pedestrian areas. In addition, access to Unit 7 is provided via a common stairwell and landing area shared with Units 6 and 8: see Exhibit 9, at paragraph 27(f). Ms Lumbaca was of the view that Units 1 ­ 6 and Unit 8 were, in effect, a 'dwelling over dwelling' multiple dwelling design, but this was not the case for Unit 7. Her reasoning seemed to be that Unit 7 did not have sufficient plot ratio area above another dwelling and that the development proposal as a whole did not meet all of the design requirements of the Codes. I did not find her reasoning persuasive on this issue.

43 I prefer the evidence of Mr Teo on this point. I consider that there is a relationship between all of the dwellings in the development proposal. Unit 7 does have some of its plot ratio area over that of another dwelling. On its own, this would not be sufficient in this case to evince a relationship between Unit 7 and the other units in the development proposal. However, Unit 7 has a very similar design to the other upper level dwellings in the proposed development. In addition, similarly to the other upper level units, it shares stairwell and lobby access areas, as well as driveway and parking facilities. Furthermore, Unit 7 does not occupy 'a separate and distinct part of [the] site', but rather, is part of a group of dwellings that 'occupy [the] site communally' (adopting the language in Ridgecity at [36]).

44 I am satisfied that Unit 7 is a dwelling in a single (related) group of dwellings. I am therefore satisfied that Unit 7 is a multiple dwelling within the meaning of the Codes.

Does the development conform to the design principles of the Codes?

45 There are three aspects of the development proposal that the respondent submits do not meet the objectives of the design principles of the Codes. They are: the fencing on the northern boundary; the proposed landscaping in the front setback area; and the number of crossovers for vehicular access.

Fencing

46 The parties agree that the proposed 1.8m high solid fencing along the northern boundary does not comply with the deemed-to-comply requirements in relation to sight lines contained in cl 6.2.3 C3 of the Codes. This is because the proposed fencing is not truncated or reduced to no higher than 0.75 metres within 1.5 metres of where the fence adjoins the driveway at the boundary of the site. The parties disagree about whether the proposed fencing meets the relevant design principle. That principle is at cl 6.3.2 P3 of the Codes, and provides:

Unobstructed sight lines provided at vehicle access points to ensure safety and visibility along vehicle access ways, streets, rights of way, communal streets, crossovers, and footpaths.

47 Mr Teo expressed the opinion that, as there was no pedestrian footpath within the verge area located adjacent to the northern boundary of the site, there was no need for unobstructed sight lines at the point where a vehicle is about to pass over the site boundary (Exhibit 9, paragraph 29). In evidence at the hearing, he also said that, because there would be a gate at that point, any vehicular traffic exiting the site would be travelling slowly and this would ensure safety for any pedestrians. Mr Teo considered that there was no issue in relation to sight lines at the point before a vehicle enters onto the street because the verge adjacent to the northern boundary of the site is sufficiently wide that a vehicle would fully emerge from the site and be contained on the verge before entering the street. Ms Lumbaca did not dispute this second point. However, Ms Lumbaca disagreed with Mr Teo in relation to the need for unobstructed sight lines at the point where a vehicle exits the site.

48 Ms Lumbaca's opinion was that the design principle required unobstructed sight lines at the point that a vehicle leaves the boundary of the site. She relied on cl 5.3.1 of the Explanatory Guideline to the Codes and the accompanying Figure 41 in support of her opinion. Clause 5.3.1 of the Explanatory Guidelines to the Codes relevantly states:

… truncate walls and fences where the crossover meets the property boundary to ensure that vehicles can see on-coming pedestrians, cyclists and vehicles at the conflict point.

49 Ms Lumbaca considered that, just because there was no footpath within the verge adjacent to the northern boundary of the site, one could not assume that there would be no pedestrians using the verge. She considered that the lack of a footpath simply rendered the movements of any pedestrians on the verge unpredictable. It was also her evidence that the locality surrounding the site was such that it should be expected that there would be pedestrian traffic around the site.

50 I prefer the evidence of Ms Lumbaca on this point. I am satisfied that the design principle expressed in cl 6.2.3 P3 of the Codes requires unobstructed sight lines at the vehicle access point, and that, in the context of this development proposal, the relevant access point is at the point where a vehicle exits the site boundary. I accept Ms Lumbaca's view that the sight lines at that point are somewhat obstructed by the 1.8 metre high boundary fence, and the fact that the driveway is 4.5 metres wide rather than the minimum 3 metres does not adequately ameliorate that obstruction of view. I am not persuaded by Mr Teo's assertion that the lack of a footpath within the verge makes any difference to consideration of the objectives of the design principles. I am also not persuaded that the presence of a gate at the access point in this case achieves the objective of the design principle.

51 The proposed development does not meet the objectives of the design principle expressed in cl 6.2.3 P3 of the Codes with respect to the fencing on the northern boundary. However, I am satisfied that it would be possible to remedy this issue by the imposition of an appropriate condition on any approval of the development proposal.

Landscaping

52 The parties agree that the landscaping of the front setback area on the eastern boundary does not meet the deemed-to-comply provision at cl 6.3.2 C2 of the Codes. This is because more than 50% of that area is hard surface. There is a vehicular crossover in approximately the middle of the front setback area, and then to either side is further hard surface so as to provide two visitor parking bays: see Exhibit 2, page 82. Ms Lumbaca asserted, and Mr Teo did not dispute, that 84.7% of the front setback area on the eastern boundary is hard surface.

53 The design principle that must be considered here is at cl 6.3.2 P2 of the Codes, which provides:

The space around the building is designed to allow for planting. Landscaping of the site is to be undertaken with appropriate planting paving and other landscaping that:

Meets the projected needs of the residents;

Enhances security and safety for residents; and

Contributes to the streetscape.

54 In Ms Lumbaca's opinion, the landscaping proposed in the front setback area does not contribute to the streetscape. In her view, as the proposal involves a substantial overall building bulk, matters such as the landscaping are particularly important in order to ameliorate the effect of the building on the streetscape. Ms Lumbaca stated in her witness statement that 'the landscaping proposed around the building is considered to be insufficient in extent and tokenistic in nature' (Exhibit 8, paragraph 47). Because of that, Ms Lumbaca was of the view that the landscaping proposed did not meet the projected needs of the residents.

55 Mr Teo asserted that the 0.7 metre and 0.9 metre wide landscape areas in front of the two visitor parking bays would have a direct influence on the streetscape. In contrast, he says that any landscaping behind the visitor parking bays would be of lesser significance and visibility. Ms Lumbaca disagreed with this assertion. She said, self-evidently I think, that the significance of any landscaping behind the visitor parking bays would depend on the nature and height of the proposed landscaping, and on whether or not the visitor parking bays were occupied. In any event, I do not consider that it is to the point whether landscaping behind the proposed visitor parking bays would or would not be of significance to the streetscape. The objective of the design principle is, relevantly, that the landscaping of the site meets the projected needs of the residents and contributes to the streetscape.

56 In Mr Teo's opinion, the proposed landscaping, which includes high quality pavers for the driveway and parking bays, would provide a better contribution to the streetscape than the existing condition of the site. I do not accept that the design principle calls into consideration whether the landscaping proposed is better than what is existing on the site.

57 Mr Teo also submitted that the applicant also proposed to plant lawn on the verges surrounding the site, and this should be taken into account when considering whether the proposed landscaping meets the objectives of the relevant design principle. Ms Lumbaca disagreed with that submission and pointed to the words of the design principle which she said require consideration of the site and not the verge areas surrounding it. Mr Teo accepts that the design principle does refer to the site, but asserts that from a planning perspective, regard should be had to any proposed landscaping of the verge.

58 I am satisfied that the design principle in cl 6.3.2 P2 of the Codes refers to the site of the proposed development and not to any verge areas that may surround a site. This does not mean that proposed landscaping of verge areas cannot be relevant to the overall determination of the planning merits of a development proposal, just that it is not relevant for the purposes of determining whether the objectives of this particular design principle of the Codes has been met.

59 In considering the proposed landscaping of the site, it is relevant that the context of the proposal is that of a group of multiple dwellings. As such, there is likely to be more of a need for communal open space (as multiple dwellings do not necessarily have any significant private open space component) than there may be if grouped dwellings were proposed. It is also necessary to consider the projected needs of the residents, taking into account the number of proposed residents who are likely to occupy the proposed dwellings. Similarly, it is necessary, in my view, when considering whether proposed landscaping contributes to a streetscape, to have regard to that landscaping in the context of the proposed development as a whole.

60 I am satisfied that the extent of hardscaping for the purposes of vehicular travel and parking in the front setback area, as well as the overall minimal extent of proposed planting within the site, are such that the proposed landscaping does not contribute to the streetscape and does not meet any reasonable contemplation of the projected needs of the residents of the proposed development. Therefore, I am not satisfied that the development proposal meets the objectives of the design principle expressed in cl 6.3.2 P2 of the Codes.

Vehicle access

61 Again, the parties agree that the provision of a vehicular crossover on both the primary street and the secondary street in the development proposal does not meet the deemed-to-comply provisions contained in cl 6.3.5 C5.2 of the Codes. They disagree about whether the proposal meets the objectives of the design principle at cl 6.3.5 P5 of the Codes. That principle is:

vehicular access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape.

62 In the Explanatory Guidelines to the Codes, at cl 6.5, it is explained that:

[c]ar parking spaces, manoeuvring areas and access ways are potentially intrusive, physically, visually and acoustically. This is particularly evident for grouped and multiple dwelling developments where multiple parking spaces and access is required. Car parking consumes space and does not generally make a positive contribution to the streetscape. Consequently, location is a major factor in amenity as well as security and safety.

It is further explained that the advantages of not having vehicle access directly from the primary street include:

the streetscape will be less dominated by carports, garages and parked vehicles;

there will be fewer driveways and so more useable space for street trees and kerbside parking for visitors; and

there will be fewer conflicting movements of vehicles, pedestrians and cyclists.

63 Mr Teo gave evidence to the effect that the provision of crossovers to both the primary street and the secondary street was consistent with the design principle in this case. His reasoning was that, firstly, the proposal would result in less crossovers than would occur if the site was subdivided into three green title blocks. Secondly, in Mr Teo's view, the provision of two crossovers would result in dispersed traffic flows along Coniston Way and a safer environment for other vehicle users and pedestrians. Thirdly, Mr Teo stated that the proposed crossovers would lead to an enhanced appearance of the streetscape in comparison to the existing boundary treatment, being an unbroken line of boundary fencing on the northern boundary.

64 Ms Lumbaca considered that the proposal did not minimise the number of vehicle access points and had a negative effect on the streetscape. In Ms Lumbaca's view, the provision of the vehicle access point to the primary street frontage resulted in excessive hard surface area and significantly reduced the ability to provide sufficient landscaping within the front setback area. I find that Ms Lumbaca's view should be preferred on this point, as it is more consistent with the provisions of the Codes. I am not persuaded that the fact that more crossovers may be provided if the site was subdivided and developed with grouped dwellings or single houses is relevant to the determination of whether this proposed development meets the objectives of the design principle. Such a comparison does not compare like with like.

65 I am not satisfied that the development proposal satisfies the objectives of the design principle expressed at cl 6.3.5 P5 of the Codes. The proposal for two vehicle access points, in the context of this particular development proposal, does not minimise the number of crossovers, and consequently does not minimise the impact on the streetscape.

Impact on amenity

66 The respondent submits that the development proposal does not preserve the amenity of the locality and that there would be a detrimental effect on adjoining land or on other land in the locality because of the likely effect of the height, bulk, scale and appearance of the development proposal. In making this submission, the respondent relies on cl 10.2(n) and cl 10(2)(o) of LPS 3, which require the decision­maker to have regard to these factors in determining whether to approve a development proposal. The term 'amenity' is defined in LPS 3 to mean 'all of those factors which combine to form the character of an area and include the present and likely future amenity'.

67 Ms Lumbaca's evidence was that the locality was made up of predominately single storey houses and single storey grouped dwellings with large open front setback areas. She said that very few of the front setback areas are fenced, and a number of dwellings have a significant area of landscaping in front of the dwelling. In Ms Lumbaca's opinion, these are defining characteristics of the locality.

68 Ms Lumbaca said that, in the proposed development, the combination of multiple access points and minimal landscaping, together with the visual impact of Unit 7 being suspended over an open garage, had the effect of creating an overall scale and appearance that negatively impacts on the amenity of the locality.

69 Mr Teo's evidence was that the area surrounding the site is dominated by existing residential development, ranging from single storey to double storey dwellings. Mr Teo asserted that the proposed development would not have an unacceptable impact on the streetscape and amenity of the locality by reason of its bulk and scale. He said that elements commonly associated with building bulk and scale are plot ratio, building height, boundary setbacks, open space and overshadowing. In Mr Teo's opinion, as the proposed development complies with either the deemed-to-comply provisions or the relevant design principles in relation to these factors, it is not of unacceptable bulk and scale and does not have a negative impact on amenity. Mr Teo said that the impact of the building bulk on the western boundary was ameliorated by the articulation of the wall ­ the wall being solid for approximately 8 metres, and then open style for the remainder because of the provision for parking bays.

70 I am satisfied that the multiple access points and minimal landscaping, in the context of the development proposal as a whole, would have a negative impact on the amenity of the locality. I found Ms Lumbaca's explanation, that the bulk of a group of multiple dwellings in this location (where there are no other existing multiple dwellings) means there is an increased importance on the ameliorating effect of adequate landscaping and minimised vehicle access points to reduce the overall impact of the dwellings, to be logical and persuasive. The effect of those factors on the amenity of the streetscape is, indeed, the reasoning behind the requirements in the design principles that relate to these factors in the Codes.

71 I am not satisfied that the fact that Unit 7 is, visually, suspended above an open parking area, would have any negative impact on the amenity of the locality. I preferred Mr Teo's evidence on this point. I consider his view on this point is more consistent with the principles articulated in the Codes with respect to the amelioration of the visual impact of larger buildings.

Conclusion

72 All of the units in the development proposal are part of a single group of dwellings, and within that group there are three dwellings that have a substantial part of their plot ratio area vertically above the plot ratio area of another dwelling. Therefore, all of the dwellings, including Unit 7, are 'multiple dwellings' within the meaning of the Codes.

73 However, there are three aspects of the development proposal that do not meet the objectives of the relevant design principles of the Codes. One of those, the boundary fence on the northern boundary, could be remedied by way of condition imposed on any approval of the development proposal. The other two aspects, the landscaping and the number of crossovers, are not matters that can be remedied by way of condition, as redesign of the proposal would be required. These two aspects are aspects of the development proposal that have a negative impact on the streetscape and consequently on the amenity of the locality. If not for these two aspects, I would not otherwise have been persuaded that there was a detrimental effect on adjoining land or on other land in the locality because of the likely effect of the height, bulk, scale and appearance of the development proposal.

74 The failure to meet what are, in the context of this proposed development, two particularly important design principles of the Codes is significant. The detrimental impact on the amenity of the locality that I am satisfied would be caused by these failures is also significant. The correct and preferable decision in this matter is that the development proposal should be refused.

Orders

75 The final orders of the Tribunal are:

1. The respondent's decision, made on 22 July 2014, following reconsideration of its decision, pursuant to s 31 of the State Administrative Act 2004 (WA), to refuse planning approval of the proposed development as depicted in the plans at pages 61 - 68 of Exhibit 2 is affirmed.

2. The application is dismissed.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS L EDDY, MEMBER