Forrest and Town Of Cottesloe

[2005] WASAT 311

FORREST and TOWN OF COTTESLOE [2005] WASAT 311

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 311
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:524/2005	Heard:	11 OCTOBER 2005 - SITE VIEW 21 OCTOBER 2005 - WRITTEN SUBMISSIONS RECEIVED 28 OCTOBER 2005, 7 NOVEMBER 2005 AND 11 NOVEMBER 2005
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	6/12/05
No of pages:	22	Judgment Part:	1 of 1
Result:	1. Application for review dismissed.  2. Development approval for two aged persons' dwellings at Lot 310 (No 140) Broome Street, Cottesloe refused.
Category:	B
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Parties:	DONALD AND MARIE FORREST TOWN OF COTTESLOE
Catchwords:	Town planning ­ Development application ­ Aged persons' housing ­ Two aged persons' dwellings with plot ratio areas of 150 square metres and 181 square metres on 828 square metre site ­ Housing density ­ Whether there is discretion under Residential Design Codes cl 3.1.3 par A3 to allow reduction of average site area as well as minimum site area prescribed by Table 1 ­ Whether discretion to permit up to one­third reduction of minimum site area should be exercised ­ Whether "special needs" of elderly persons and allowing for "ageing in place" involve generally smaller dwellings than conventional dwellings and community of such dwellings ­ Whether performance criteria not satisfied because of size of dwellings or number of dwellings proposed ­ Whether shared visitor parking required ­ Whether setback and visual impact of streetfront stone wall and garage acceptable ­ Whether earthworks on street verge acceptable ­ Words and phrases: "secondary street", "site", "special needs of the elderly"
Legislation:	Residential Design Codes of Western Australia, cl 3.1.1, cl 3.1.3, cl 3.2.3, cl 3.2.5, cl 4.1.2, Table 1 State Administrative Tribunal Act 2004 (WA), s 29(1) Town Planning and Development Act 1928 (WA), s 8A(1)
Case References:	D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342 Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 Nil
Orders	1.  The application for review is dismissed.,2. Development approval for two aged persons' dwellings at Lot 78 (No 140) Broome Street, Cottesloe is refused.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : FORREST and TOWN OF COTTESLOE [2005] WASAT 311 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 11 OCTOBER 2005 - SITE VIEW 21 OCTOBER 2005 - WRITTEN SUBMISSIONS RECEIVED 28 OCTOBER 2005, 7 NOVEMBER 2005 AND 11 NOVEMBER 2005 DELIVERED : 6 DECEMBER 2005 FILE NO/S : DR 524 of 2005 BETWEEN : DONALD AND MARIE FORREST

Applicants

AND

TOWN OF COTTESLOE
Respondent

Catchwords:

Town planning ­ Development application ­ Aged persons' housing ­ Two aged persons' dwellings with plot ratio areas of 150 square metres and 181 square metres on 828 square metre site ­ Housing density ­ Whether there is discretion under Residential Design Codes cl 3.1.3 par A3 to allow reduction of average site area as well as minimum site area prescribed by Table 1 ­ Whether discretion to permit up to one­third reduction of minimum site area should be exercised ­ Whether "special needs" of elderly persons and allowing for "ageing

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in place" involve generally smaller dwellings than conventional dwellings and community of such dwellings ­ Whether performance criteria not satisfied because of size of dwellings or number of dwellings proposed ­ Whether shared visitor parking required ­ Whether setback and visual impact of streetfront stone wall and garage acceptable ­ Whether earthworks on street verge acceptable ­ Words and phrases: "secondary street", "site", "special needs of the elderly"

Legislation:

Residential Design Codes of Western Australia, cl 3.1.1, cl 3.1.3, cl 3.2.3, cl 3.2.5, cl 4.1.2, Table 1

State Administrative Tribunal Act 2004 (WA), s 29(1)
Town Planning and Development Act 1928 (WA), s 8A(1)

Result:

1. Application for review dismissed.

2. Development approval for two aged persons' dwellings at Lot 310 (No 140) Broome Street, Cottesloe refused.

Category: B

Representation:

Counsel:

Applicants : Mr DJ Caddy (agent)
Respondent : Mr A Jackson (agent)

Solicitors:

Applicants : N/A
Respondent : N/A

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

D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191


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West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65

Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr and Mrs Forrest sought development approval for an aged persons' housing development comprising two dwellings on land in Cottesloe. The application proposed the retention of the existing dwelling and the erection of a new dwelling in the rear garden area.

2 The Tribunal determined that the application should be refused. The site area of the new dwelling and the average area of the dwellings were below the minimum required. It was either not open or not appropriate to permit a reduction of the minimum site area, because a development of only two aged persons' dwellings which substantially exceeded the size of conventional dwellings did not accommodate the special needs of the elderly or allow for ageing in place.

3 The Tribunal found that the special needs of the elderly and ageing in place required the co­location of a number of specialised aged persons' dwellings so as to provide aged persons with a sense of community, peer support and companionship. These criteria also required that aged persons' dwellings be generally smaller than conventional dwellings so as to minimise maintenance problems as aged persons become less independent through the process of ageing.

Introduction

4 These proceedings concern an application for review under s 8A(1) of the Town Planning and Development Act 1928 (WA) of the Town of Cottesloe's refusal to grant development approval for an aged persons' housing development comprising two dwellings at Lot 310 (No 140) Broome Street, Cottesloe (site). The site has frontages to both Broome Street and Clarendon Street.

5 The site has a regular, rectangular shape, a frontage of 20.12 metres to Broome Street, a frontage of 41.14 metres to Clarendon Street, and an area of approximately 828 square metres. The site rises 2.9 metres from 22.99 metres AHD at its north­western corner (adjacent to the intersection of Broome Street and Clarendon Street) to 25.89 metres AHD near its south-eastern corner. The frontage of the site to Clarendon Street rises from west to east by 2.14 metres from 22.99 metres AHD to 25.13 metres AHD. The frontage to Broome Street rises from north to south by 1.81 metres from 22.99 metres AHD to 24.80 metres AHD.

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Both Clarendon Street and Broome Street continue to rise beyond the site to the east and south, respectively.

6 The site comprises an original, single storey, weatherboard dwelling house which is approximately 90 years old. The house is described by Mr David Caddy, a consultant town planner who represented and gave evidence on behalf of Mr and Mrs Forrest, as "a character cottage". However, the house is not identified as an historic building which should be conserved and preserved under cl 6.1 and Sch 1 of the applicable town planning scheme, Town of Cottesloe Town Planning Scheme No 2 (TPS 2). The dwelling principally addressed Broome Street from which it is set back approximately 6.0 metres to 8.0 metres. To the rear or east of the house is a garden area having dimensions of approximately 13.0 metres by 20.0 metres.

7 Mr and Mrs Forrest are both aged in their seventies. They have lived in the existing house together for the past 16 years. Mrs Forrest has lived in the house for over 40 years. According to the evidence of Mr Philip Vivian, the designing architect, the house has become "too large" for the Forrest's needs and the garden requires ongoing maintenance. Both the house and the garden "have become a cost and management issue" for them. Mr and Mrs Forrest wish to remain at their present address and to age in place. They commissioned Mr Vivian to design a house "that was smaller and required less maintenance both in the garden as well as the house".

8 The proposed development involves:

(i) demolition of an existing carport, garden steps, retaining walls and garden shed;

(ii) erection of a new carport, ramp and stairs to serve the existing dwelling which would be retained:

(iii) erection of a new one to two level dwelling in the rear garden area; and

(iv) excavation and other earthworks on the Clarendon Street verge to permit vehicular access to the new dwelling at a level approximately 0.6 metre below the street level.

9 The development would necessitate the removal of two street trees. The application is put forward on the basis that the two dwellings which

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would result constitute "aged persons' dwellings" within the meaning of the Residential Design Codes of Western Australia (Codes).

10 The new dwelling is described by Mr Ken Adam, an architect and consultant town planner who gave evidence on behalf of the Town, as "a modernist building in almost minimalist style, with a flat roof and simple panes of glass facing north to the street". In Mr Adam's opinion, "the design represents … a generally restrained and elegant solution to the architectural issues". The building would be set back 6.0 metres from the Clarendon Street frontage and 1.5 metres from the property boundaries to No 1 Clarendon Street to the east, No 138 Broome Street to the south and the area proposed to be allocated to the existing dwelling on the site to the west.

11 The new dwelling would comprise, on the main level, open plan living/dining/kitchen area, master bedroom with walk in robe and en suite bathroom, second bedroom, study of the same size as the second bedroom, bathroom, laundry, lift and internal courtyard between the second bedroom and study. An outdoor courtyard is proposed in the street setback area to the north of the main level behind a dry stacked limestone rubble boundary/retaining wall on the Clarendon Street boundary and a part masonry/part timber front fence above the stone wall set back 0.65 metre (masonry section) and 0.8 metre (timber section). The finished floor level would be at 25.20 metres AHD which is 0.07 metre higher than the highest point along the Clarendon Street frontage at the north­eastern corner of the site. Pedestrian access to the dwelling would be at essentially natural grade in this location. In order to maintain this level, filling below the northern courtyard of up to 0.5 metre and excavation within most of the building footprint of up to approximately 1.0 metre is proposed.

12 Excavation of between approximately 0.7 metre and 1.5 metres is also proposed in the north­western part of the building footprint at the lowest part of the site area of the new dwelling in order to accommodate a lower ground level below part of the main level. The lower ground level would comprise double garage, cellar, store, lift and stairs to the main level.

13 Because of the natural fall of the site from east to west along the Clarendon Street frontage and excavation in the street verge adjacent to the lowest part of the site area of the new dwelling to enable access to the garage, the proposed streetfront limestone wall would range in height from approximately 0.5 metre on its eastern end to approximately

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2.7 metres on its western end along a total length of approximately 14.0 metres. The garage door, with a width of approximately 5.2 metres, is proposed to be set back 1.5 metres from the front boundary, framed by the streetfront limestone wall on each side and in the form of a parapet above the opening for the garage. A garbage bin enclosure and electrical meter cupboard are proposed within the 1.5 metre setback behind the limestone wall on either side of the garage door. The part masonry/part timber fence above the limestone wall and set back 0.65 metre to 0.80 metre from it would have a height of 1.15 metres. Landscaping is proposed between the limestone wall and the front fence. The total height of the limestone wall and front fence would rise from approximately 1.65 metres to approximately 3.85 metres at the lowest (excavated) point of the frontage.

14 The existing dwelling, which is proposed to be retained as part of the development, has a plot ratio area of approximately 181 square metres. The area of the site proposed to be allocated to this dwelling is 470 square metres. The main level of the new dwelling would have a plot ratio area of approximately 150 square metres. It is common ground between the parties that the whole of the lower ground level is excluded from the definition of "plot ratio" under the Codes. Although it appears that the cellar, which is not wholly below natural ground level, and the passageways, stairs and lift, which are not common to two or more dwellings, are not excluded from the definition of "plot ratio" and should, therefore, be included within the calculation of plot ratio area, the Tribunal proceeds in these reasons on the parties' joint assumption that the plot ratio area of the new dwelling excludes the whole of the lower ground level and is approximately 150 square metres. The area of the site proposed to be allocated to the new dwelling is 358 square metres.

15 The development application was advertised and a letter of objection was received by the Town from the residents of No 1 Clarendon Street and No 138 Broome Street. Among the objections made by the adjoining residents was that, because of the size of the proposed dwellings, the development does not satisfy cl 4.1.2 of the Codes in relation to aged persons' dwellings. They considered that the development "would result in two substantial dwellings occupying relatively small lots". The objectors considered that "such a redevelopment would be significantly out of proportion with the surrounding residences and lot sizes". In this regard, the evidence indicates that lot sizes in the locality generally range from approximately 500 square metres to above 1200 square metres, although there is a two storey dwelling house on a 330 square metre allotment on the opposite side of Clarendon Street from the site.

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It appears that this allotment resulted from a two lot subdivision of a property having an area of 1,009 square metres.

16 The Town considered the development application at its meeting on 27 June 2005 and resolved to refuse consent for seven reasons, including inconsistency with Codes' provisions relating to aged persons' dwellings, the impact of and lack of information in relation to the verge works and that the proposal would constitute an overdevelopment of the site.

The issues

17 The following four key issues emerged in the proceedings:

(1) Whether the Tribunal should allow the minimum site area required by the Codes to be reduced by up to one­third in light of the number and size of the dwellings proposed.

(2) Whether shared visitor parking is required.

(3) Whether the setback and visual impact of the proposed limestone streetfront wall and garage is acceptable.

(4) Whether the proposed verge works are acceptable.

18 The Tribunal will consider each issue in turn.

Should the discretion to permit a reduction of minimum site area be exercised?

19 The site is zoned "Residential" with a density coding of "R20" under TPS 2. Clause 5.2.1(c) of TPS 2 provides that "the development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes".

20 Clause 3.1.1 par A1.1 and par A1.2 of the Codes provide that development which complies with the minimum site area set out in column 3 of Table 1 complies with the specified performance criteria. The performance criteria state that "development of dwellings of the type and density indicated by the R­Code designated in the Scheme". Column 3 of Table 1 is entitled "Minimum Site Area per dwelling". In relation to both single house and grouped dwelling development on land coded "R20", column 3 of Table 1 states "Min. 440 Av. 500". The numerals refer to square metres. The two dwellings which would result from the proposed development each constitute a "grouped dwelling" under the Codes, that is, "a dwelling that is one of a group of two or more

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dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another": Codes cl 2.2.

21 As noted earlier, the area of the site is approximately 828 square metres. Therefore, the average site area within the proposed development is approximately 414 square metres. As also noted, the site areas which would be allocated to the proposed dwellings are 470 square metres and 358 square metres. Contrary to cl 3.1.1 of the Codes, the minimum site area of the proposed development does not comply with the minimum site area requirements specified in column 3 of Table 1 in relation to the minimum site area of one dwelling or the average site area.

22 However, cl 3.1.3 par A3 of the Codes relevantly provides as follows:

"[T]he following variations to the minimum site areas set out in Column 3 of Table 1 may be made:

i. for the purposes of an Aged or Dependent Persons' dwelling … the minimum site area may be reduced by up to one­third, in accordance with Section 4.1.2 … ;"

23 The term "aged or dependent person" is defined in cl 2.2 of the Codes to mean "a person who is aged 55 years or over or is a person with a recognised form of disability requiring special accommodation provisions for independent living or special care".

24 Section 4.1 of the Codes is entitled "Special Purpose Dwellings". It identifies three kinds of special purpose dwellings, including "aged or dependent persons' dwellings". The stated "objective" of the special purpose dwellings' requirements is "to ensure that dwellings for special needs can be provided within normal residential areas". The special purpose dwellings requirements for aged or dependent persons' dwellings are set out in cl 4.1.2.

25 Paragraph A2 of cl 4.1.2 provides as follows:

"Development that complies with the following is deemed to meet the relevant Performance Criteria:

…

Dwellings for the purposes of aged and dependent persons that comply with the following:

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i. a maximum plot ratio of:

• in the case of single houses or grouped dwellings ­ 100 sqm; …

ii. a minimum number of five dwellings within any single development;

iii. all dwellings to incorporate the standards set out in AS 4299 (Adaptable Housing) to the Adaptable House class B standard;

iv. at least one wheelchair-accessible parking space for the exclusive use of each wheelchair-accessible dwelling provided;

v. visitors' car spaces at the rate of one per four dwellings, with a minimum of one space; and

vi. at least one occupant is a disabled or physically dependent person or aged over 55, or is the surviving spouse of such a person, and the owner of the land agrees to enter into a legal agreement, binding the owner, his heirs and successors in title requiring that this provision be maintained."

26 The corresponding performance criteria in par P2 of cl 4.1.2 are as follows:

"Dwellings that accommodate the special needs of the elderly or physically dependent persons and are designed to allow for 'ageing in place' taking into account:

• the proportion of dwellings designed to meet Australian Standards for Dependent Persons Dwellings;

• the location of the site in relation to public transport and convenience shopping;

• the topography of the locality in which the site is located; and

• the demand for aged and dependent persons' accommodation."

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27 Mr and Mrs Forrest contend that the Town, and the Tribunal on review, has a discretion under cl 3.1.3 par A3 of the Codes to vary the minimum site area requirements specified in Table 1 by up to one­third and that the discretion should be exercised in the circumstances of this case to permit the proposed minimum and average site areas.

28 The Town raised a threshold issue as to whether there is a discretion under cl 3.1.3 par A3 to vary the average site area specified in column 3 of Table 1, as distinct from the minimum area specified. The Town emphasised that cl 3.1.3 par A3 uses the expression "the minimum site areas set out in Column 3 of Table 1" and does not expressly refer to the average site area. The Tribunal considers that this expression refers to both the minimum and average areas specified. As noted earlier, column 3 is headed "Minimum Site Area per dwelling" and specifies both "Min." and "Av." minimum site areas. Plainly, therefore, "the minimum site areas set out in Column 3 of Table 1" include both absolute minimum site area, which is designated by "Min", and average minimum site area, which is designated by "Av.". Moreover, the planning purpose of permitting, at discretion, a reduction of site area by up to one­third so as to facilitate the development of special purpose dwellings, including aged or dependent persons' dwellings, would be undermined if cl 3.1.3 par A3 did not permit variation of the minimum average area specified in column 3 of Table 1.

29 It is common ground that the proposed development satisfies part, but not all, of the acceptable development provision in cl 4.1.2. The new dwelling satisfies the requirement in subpar iii that it incorporate the standards set out in the Australian Standard in relation to Adaptable Housing with the exception of the location of the kitchen "island" bench and the height of the benches generally. Although an internal plan of the existing dwelling was not produced, Mr Vivian gave evidence that "it would not be difficult" to incorporate the requirements of the Australian Standard in that dwelling. Ultimately, Mr Caddy indicated that his clients would accept a condition of approval which required compliance with the Australian Standard in accordance with subpar iii. Mr Vivian gave evidence that the proposed garage could be widened to create a wheelchair-accessible parking space in compliance with subpar iv. Mr Caddy indicated that his clients would accept a condition requiring an agreement to be entered into restricting occupation to aged or dependent persons in accordance with subpar vi.

30 However, the proposed development does not comply with subpars i, ii and v of the acceptable development provision. The proposed

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dwellings' plot ratio areas of approximately 150 square metres and 181 square metres exceed the maximum plot ratio area of 100 square metres for grouped dwellings specified in subpar i. The two dwellings proposed in the development do not satisfy the minimum number of five dwellings specified in subpar ii. A visitors' car space is not proposed in accordance with subpar v.

31 It is Mr and Mrs Forrest's case that although the development does not fully satisfy the acceptable development provision in cl 4.1.2, the discretion to permit a reduction in minimum site area should be exercised in this case, because the development satisfies the performance criteria in that clause. The Town disagrees.

32 The Tribunal considers that the four express considerations set out in the bullet points in cl 4.1.2 par P2 point to satisfaction of the performance criteria in this case.

33 In relation to the first consideration, as noted earlier, Mr and Mrs Forrest would accept a condition that the dwellings be designed to meet the Australian Standard.

34 In relation to the second consideration, the site is located approximately 150 metres from the Eric Street Shopping Centre which provides convenience shopping in the form of a supermarket, chemist and video shop. A bus stop is also located within approximately 150 metres of the site.

35 In relation to the third consideration, although parts of the locality have moderate to steep grades, including Clarendon Street to the east of the site and Broome Street adjacent to the site and to the south, a resident of an aged persons' dwelling at the site would be able to walk on constructed footpaths with a relatively gentle slope from the north­eastern corner of Clarendon Street and Broome Street to the Eric Street Shopping Centre, Cottesloe Beach and adjacent parks, and a point adjacent to the bus stop, although the resident would then need to traverse a grass verge to get to the bus stop. The route to the shops, beach and bus stop would require crossing Eric Street. However, there is a pedestrian island in Eric Street along the path of travel and traffic in this location would slow because of a roundabout at the Eric Street and Broome Street intersection. The steep area to the east of the site does not contain any shopping facilities, parks or other amenities.

36 In relation to the fourth consideration, Mr Caddy presented evidence, which was not seriously challenged, that there is a paucity of aged

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persons' dwellings in the Cottesloe locality, although about a quarter of the population in that area is aged over 55 years. Ms Lilia Palermo, a town planner employed by the Town, agreed that there is demand for aged or dependent persons' accommodation.

37 However, the four express considerations set out in the bullet points are not determinative of whether the performance criteria are satisfied. The performance criteria are "dwellings that accommodate the special needs of the elderly or physically dependent persons and are designed to allow for 'ageing in place'", taking into account the four express considerations. The Tribunal considers that the development does not satisfy the performance criteria as, in light of the limited number and size of the dwellings proposed, they do not relevantly "accommodate the special needs of the elderly" and are not "designed to allow for 'ageing in place'".

38 Although these terms are not defined, guidance as to their meaning and effect is provided by the acceptable development provision in par A2 and by the explanatory text. In this regard, cl 1.1.3 of the Codes states that "[i]n preparing and assessing applications where Performance Criteria are invoked, the explanatory text and the Acceptable Development provisions will together provide useful guidance" (page 4). Similarly, cl 1.5.2 states that the acceptable development provisions in the Codes "perform a dual role, firstly by providing a straightforward pathway to assessment and approval, and secondly by providing guidance as to the level of response to a Performance Criterion that might be acceptable" (page 13).

39 The explanatory text states that the intention of the aged or dependent persons' housing provisions in cl 4.1.2 is "to encourage the development of small­scale specialised housing within local communities, as an alternative to larger scale, relatively segregated complexes". Mr Caddy contends that "a development of two Aged or Dependent Persons' dwellings satisfies the intent of the Clause in that it is a small-scale development". The logical extension of Mr Caddy's submission would be that a single aged persons' dwelling in an established area would satisfy the performance criteria because it is "small­scale".

40 However, it is apparent that the Codes use the term "small­scale" in a relative, rather than in an absolute, sense. The intention of cl 4.1.2 is to encourage specialised aged or disabled persons' housing developments which are smaller in scale than the "larger scale, relatively segregated complexes" and located within established areas. It is apparent from

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subpar ii of the acceptable development provision that the Codes contemplate that such developments should generally comprise a number of dwellings, although less than the number traditionally found in retirement villages.

41 The Tribunal accepts Ms Palermo's evidence that the specification of a minimum number of dwellings in subpar ii of the acceptable development provision reflects important planning and social planning objectives of the aged persons' housing provisions of the Codes, namely "a supply of this type of accommodation, a sense of community and an opportunity for special services to be provided". Similarly, Mr Adam gave evidence, which the Tribunal accepts, that "there are synergies and social and financial advantages in co­location with other people sharing similar circumstances, with the potential for shared facilities as well" including "peer or group support [and] companionship". Small­scale aged housing developments generally in the order of at least five dwellings and located in established areas permit aged persons, in Mr Adam's words, "to have it both ways: both close neighbours with similar characteristics but still part of a diverse residential population".

42 Ms Palermo's and Mr Adam's evidence in relation to planning and social planning objectives of the aged persons' housing provisions of the Codes is consistent with a recognition by courts and tribunals in local government rating cases of the special needs of the elderly. In West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65, the full Court of the Supreme Court of Western Australia held at [72] that "[t]he disabilities of old age are too well­known to require proof; as Hutley JA stated in Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [(1975) 1 NSWLR 521 at 533]: "The burdens of the aged, including the well-to-to and wealthy aged are many; loneliness, inability to usefully employ their superannuated leisure, being but a few"; see also Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191. In D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342, Hammond J observed at 349 that "the needs of the aged for fraternity, belonging, respect, mutual activities, interaction, and security are surely a matter of the greatest moment for both the aged, and for society".

43 An aged persons' development comprising only two dwellings and in an immediate locality which does not contain any other aged persons' dwellings does not relevantly "accommodate the special needs of the elderly" or "allow for 'ageing in place'" as contemplated by the Codes. Although the performance criteria would arguably permit approval of an

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aged persons' development comprising less than five dwellings, the proposed development does not satisfy important elements of the planning and social planning objectives of cl 4.1.2 as identified by Ms Palermo and Mr Adam. In particular, a two dwelling development on the site does not sufficiently provide "a supply of this type of accommodation [or] a sense of community" or "advantages in co­location with other people sharing similar circumstances" and in particular "peer or group support [and] companionship".

44 The Tribunal accepts Mr Adam's evidence that "there are relatively few circumstances where an aged persons' development comprising only two dwellings would be acceptable". Mr Adam contemplates that "these would include close proximity to other such developments, thus providing at least some of the social benefits of the larger complex" and that "another might be extremely close proximity to a neighbourhood shopping centre or community centre, thus reducing potential isolation and enhancing ease of access to shopping or other facilities for older persons". The Tribunal accepts that close proximity to other aged persons' developments might result in a two dwelling development satisfying the planning and social planning objectives discussed earlier, but proximity to a neighbourhood shopping centre or community centre would not. Although these latter considerations are certainly relevant in relation to satisfaction of the performance criteria generally, as reflected in the second express matter for consideration ("location of the site in relation to public transport and convenience shopping"), they do not create a supply of aged persons' housing or a sense of community in that housing.

45 The explanatory text states that cl 3.1.3 allows for the reduction of site area by up to one-third "because Aged or Dependent Persons' Dwellings are generally smaller than conventional dwellings, and the occupants do not usually have a high car ownership ratio" (page 93). The text also states that "to prevent these concessions from being abused - for example as a backdoor way of increasing density for standard housing without re­coding an area ­ the concessions are subject to three constraints" which include that "there is a limit on the size of such dwellings" (page 93).

46 In light of the guidance afforded by the explanatory text, it is apparent that the Codes contemplate that "the special needs of the elderly" and "ageing in place" require dwellings which are "generally smaller than conventional dwellings". This makes sense as "ageing in place" involves continuing to reside in the same dwelling as an elderly person becomes less independent through the process of ageing. While, at age 55, a

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person is likely to be able to maintain a conventionally­sized dwelling, at age 85 he or she is unlikely to be able to do so. Moreover, the meaning of "special needs" and allowing for "ageing in place" is particularly informed by the maximum plot ratio area specified in the acceptable development criterion. Although the performance criteria would arguable permit a dwelling greater than 100 square metres plot ratio area in appropriate circumstances, it is clear that the Codes contemplate that dwellings which are larger than 100 square metres are not "generally smaller than conventional dwellings".

47 Mr Adam gave evidence that 100 square metres "allows for a relatively generous two bedroom dwelling, catering for the needs of most aged persons, including couples". Ms Palermo considered that the proposed dwellings "are virtually family­sized dwellings" and "should fairly be considered by way of a normal scheme amendment for re­coding to allow infill housing, rather than as a concession for essentially luxury aged person' [sic] housing". Mr Vivian took issue with Mr Adam's evidence that 100 square metres allows for a relatively generous two bedroom dwelling. Mr Vivian considered that 100 square metres "is an average sized two bedroom dwelling" which might be appropriate for a single aged person, but would not be sufficient "for a couple relocating from a house".

48 A consideration of whether a proposed development is "essentially luxury aged [persons'] housing" is irrelevant. There is no evident planning purpose in cl 4.1.2 of discouraging "luxury". A consideration of what area is sufficient for a couple relocating from a house is also irrelevant. The aged housing provisions do not have as an objective providing sufficient area for relocation. Rather, a clear purpose of the clause is to facilitate the development of purpose­built dwellings which are smaller in area than conventional dwellings so as to accommodate the special needs of the elderly and permit them to "age in place".

49 The size of the proposed dwellings are not smaller than conventional dwellings. They significantly exceed, on Mr Vivian's evidence, an average two bedroom dwelling or, on Mr Adam's evidence, a relatively generous two bedroom dwelling. Indeed, as noted earlier, Mr Vivian gave evidence that the existing dwelling, which is proposed to be retained, is "too large" for Mr and Mrs Forrest's needs, and has become a "cost and management issue" for them. Plainly, on this evidence, a 181 square metre dwelling does not "accommodate the special needs of the elderly" or allow for "ageing in place" as it is too large. The same conclusion is to be drawn in relation to a 150 square metre dwelling. Both are

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considerably larger than conventional dwellings as envisaged by the Codes and would give rise to maintenance problems as aged persons become less independent through the process of ageing.

50 The Tribunal accepts Mr Adam's evidence that "in some circumstances ­ notably the retention of an existing dwelling that is marginally larger than the maximum, but desirable not to demolish ­ it may be reasonable to relax the maximum size, but such exceptions will be … rare". An obvious example is where an aged persons' dwelling is proposed within a building which is a heritage item or which contributes significantly to the character of a locality.

51 Mr Caddy contends that, notwithstanding the size of the dwellings, the proposed development satisfies the performance criteria and is acceptable for two reasons. First, Mr Caddy relies on a document published by the Western Australian Planning Commission entitled "Frequently Asked Questions" (issue 6, June 2003), and in particular frequently asked question 97. In answer to the question "Can [the maximum plot ratio area specified in par A2i] be exceeded through the application of the Performance Criteria Provisions?", the Commission's publication answers: "Yes provided the occupation of the dwellings complies with the requirements for the respective classes of dwelling". It is to be noted that the Commission's publication has no statutory status. If the answer to question 97 simply means that non­compliance with the maximum plot ratio of 100 square metres in the acceptable development provision is not fatal to an application, because of the availability of the performance criteria, it is plainly correct. However, if it means that the maximum plot ratio area specified can always be exceeded if the development is restricted to persons aged 55 years or over, it is incorrect. The restriction of the development to qualified persons is a separate and necessary condition.

52 Mr Caddy also notes that the proposed dwellings would exceed the open space requirements under the Codes and contends that the application can, therefore, be justified under the performance criteria. The Tribunal does not agree. Compliance with open space requirements does not alter the size of the dwellings which are inconsistent with the "special needs of the elderly" and providing for "ageing in place" as contemplated under the Codes.

53 It follows that the proposed development does not satisfy either the acceptable development provision or the performance criteria in cl 4.1.2 of the Codes. The discretion to reduce the minimum site area by up to

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one­third under cl 3.1.3 par A3 does not, therefore, arise or, if it arises, cannot be appropriately exercised in order to permit the reduction. As the proposed development does not satisfy the minimum site area set out in column 3 of Table 1 of the Codes in relation to the minimum area of one of the proposed dwellings and the average area proposed, the development does not conform to the Codes and is required to be refused by cl 5.2.1(c) of TPS 2. The development application must, therefore, be refused consent.

54 It is unnecessary to decide the other issues raised. However, as a great deal of evidence and argument was directed to these issues, the Tribunal will briefly address them.

Is shared visitor parking required?

55 Ms Palermo considers that a shared visitor car parking space is required in addition to the private car parking proposed for each of the dwellings. She relied in particular on acceptable development criterion v in cl 4.1.2 par A2 which requires a minimum of one visitor space for all aged persons' developments.

56 The Tribunal considers that, if the proposal were otherwise acceptable, a dedicated visitor space would not be required. The acceptable development criterion in cl 3.5.1 of the Codes for grouped dwellings is that one dedicated visitor space is required for each four dwellings or part in excess of four dwellings served by a common accessway. The development would not require a dedicated visitor space when considered under this criterion. Moreover, as Mr Adam noted, "Clarendon Street is not so busy as to preclude kerbside parking adequate to provide for visitors" and visitors could park on the driveway of each of the proposed dwellings.

57 However, it is to be noted that the acceptable development provision in cl 3.5.1 is not inconsistent with the acceptable development provision in cl 4.1.2. As discussed earlier, cl 4.1.2 contemplates that appropriate aged or dependent persons' dwellings will generally accommodate a number of dwellings and the acceptable development provision nominates a minimum of five; the specified minimum of one space in cl 4.1.2 par A2v is, therefore, readily explicable and is consistent with cl 3.5.1.

Is the setback and visual impact of the street wall and garage acceptable?

58 As noted earlier, the proposed development includes a streetfront limestone wall with zero setback which would range in height from

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approximately 0.5 metre to 2.7 metres. However, approximately 0.8 metre of the highest section of the wall would result from excavation to accommodate the garage. The maximum height of the wall would be only approximately 1.9 metres above the level of Clarendon Street. As also noted earlier, the garage is proposed to be set back 1.5 metres, framed by the streetfront wall on both sides and as a parapet above the garage opening.

59 The acceptable development provision in cl 3.2.3 of the Codes concerning setback of garages states that garages are to be set back 1.5 metres from a secondary street and 4.5 metres from the primary street. The term "secondary street" is defined in cl 2.2 as "in the case of a site that has access from more than one public road, a road that is not the primary street but which intersects with or adjoins that road". The term "primary street" is defined as "the sole or principal public road that provides access to a site". The term "site" is defined, in the case of a grouped dwelling, as "the area occupied by the dwelling together with any area allocated … for the exclusive use or benefit of that dwelling". It follows from these definitions that, under the Codes, the two proposed dwellings would each occupy a separate "site". In consequence, Clarendon Street is the "primary street", not a "secondary street", in relation to the proposed new dwelling. The proposed development does not, therefore, satisfy the acceptable development provision in relation to the setback of the garage.

60 The development also does not satisfy the acceptable development provision in cl 3.2.5 of the Codes in relation to street walls and fences. That provision states that "front walls and fences within the primary street setback area that are visually permeable 1.2 metres above natural ground level".

61 However, the Tribunal considers that the wall and garage satisfies the performance criteria in cl 3.2.3 and cl 3.2.5 of the Codes. The performance criteria for setback of garages states that setback "so as not to detract from the streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa". The performance criteria for setback of front walls and fences is "to promote surveillance and enhance streetscape …".

62 The Tribunal accepts the evidence of Mr Vivian that the wall and garage structure is a "correct contextual response to the streetscape" in the particular circumstances of this case. No 1 Clarendon Street, the property immediately to the east of the proposed new dwelling, presents to the

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street with a stone wall with zero setback approximately 2.0 metres in height. The proposed limestone wall at the site, which would be viewed as part of the streetscape in the visual context of the stone wall on the adjoining property, would have a relative level approximately 1.6 metres lower than the top of the wall at No 1 Clarendon Street. There are also other properties further to the east along Clarendon Street which present with stone streetfront walls. These walls are an established, and because of their stone form, attractive, characteristic of the streetscape. There are also a number of masonry streetfront walls in Clarendon Street, including a wall on the site which is proposed to be retained as part of the existing dwelling. The relative level of this wall is marginally higher than the relative level of the proposed limestone wall.

63 In this context, the proposed front wall would "enhance streetscape". Surveillance would be available from the proposed dwelling in any case.

64 Furthermore, in the particular circumstances of this case, the setback of the garage does not detract from the streetscape or appearance of the dwelling or obstruct views of the dwelling from the street. It would present within, but set back from, a characteristic and attractive limestone wall. There would be little overall visual difference if the garage door were set back further from the street.

65 However, the Tribunal accepts Mr Adam's evidence that the combined visual impact of the stone wall and the part masonry/part timber fence above would be unacceptable on the streetscape and character of the street. Had the application been otherwise acceptable, the Tribunal would have required by way of condition that the fence above the limestone wall be set back 1.5 metres from the wall, be no higher than 1.1 metres above the finished floor level and be of an open appearance, and that the 1.5 metre setback area be landscaped in the form of a planter including cascading plants.

66 Finally, a question was raised as to the extent of fill proposed between the front building alignment of the main level and the limestone wall. The Town contends that the fill exceeds the acceptable development provision in cl 3.6.1, namely that excavation or fill in the street setback area not exceed 0.5 metre, except where necessary to provide access for pedestrians or vehicles or natural light for a dwelling.

67 However, a careful examination of the proposed plans indicates that the excavation or fill proposed between the street alignment and the building to the east of the garage is no greater than 0.5 metre. The natural

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ground level in this area ranges from 24.65 metres AHD to 25.21 metres AHD. The level of the proposed dwelling and courtyard is 25.13 metres AHD, which is within 0.5 metre of natural ground level. Although the garage is proposed to be excavated by up to 1.2 metres within 3.0 metres of the street frontage, that excavation is necessary to provide vehicular access at a level below the proposed principal level. The proposed development, therefore, satisfies the acceptable development provision in relation to excavation and fill.

Are the proposed verge works acceptable?

68 At the commencement of the hearing, Mr Jackson raised a jurisdictional issue as to whether the Tribunal had power to determine the application insofar as it proposed earthworks on the street verge, as the Town had not given owner's consent to the lodgement of a development application in relation to the verge. The Tribunal has comprehensively addressed this issue in Springmist Pty Ltd and Shire of Augusta-Margaret River[2005] WASAT 143 at [17] ­ [21]. Unlike the former Town Planning Appeal Tribunal, SAT has power to grant owner's consent under s 29(1) of the State Administrative Tribunal Act 2004 (WA) on the part of the Town to enable planning assessment of the proposed verge works to take place. As I indicated at the hearing, the Tribunal grants owner's consent on behalf of the Town to enable this assessment.

69 As noted earlier, excavation and other earthworks would be required to provide access to the proposed garage which would be set approximately 0.6 metre below street level. As Mr Caddy pointed out, the verge along Clarendon Street has been substantially altered in a number of locations in order to facilitate vehicular access on sloping land. It is a sensible response to the topographical characteristics of the site to partially excavate where it falls and thereby provide car parking below the principal level. In the circumstances of this case, although the proposed earthworks would be substantial, they are not unacceptable.

70 However, if the proposed development were otherwise acceptable, the Tribunal would have required detailed cross­sectional drawings to demonstrate that the verge adjacent to the site could be graded to ensure that it is safe and convenient for pedestrians as well as for vehicles accessing and egressing the site. In this regard, an objective of the Town's Residential Verges Policy is "to ensure that verge developments are not hazardous to pedestrians, cyclists or motorists".

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Conclusion

71 The proposed aged persons' housing development must be refused consent, because it does not satisfy the minimum site area requirements in Table 1 of the Codes. In particular, the site area of 358 square metres for the new dwelling is below the minimum 440 square metres specified in relation to land coded "R20", and the 414 square metres average area is below the minimum average area of 500 square metres required.

72 Moreover, the proposed development does not satisfy either the acceptable development provision or the performance criteria for aged persons' housing in cl 4.1.2 of the Codes. In particular, in the circumstances of this case, a development comprising only two dwellings each of which substantially exceeds the size of conventional dwellings as envisaged by the Codes does not satisfy the performance criteria that dwellings "accommodate the special needs of the elderly" and "allow for 'ageing in place'".

73 In consequence, the discretion to permit the minimum site area to be reduced by up to one­third under cl 3.1.3 par A3i does not arise or, if it does arise, cannot be appropriately exercised in favour of the application. As the proposed development does not conform to cl 3.1.2 of the Codes, it must be refused under cl 5.2.1(c) of TPS 2.

Orders

74 The Tribunal makes the following orders:

1. The application for review is dismissed.

2. Development approval for two aged persons' dwellings at Lot 78 (No 140) Broome Street, Cottesloe is refused.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER