Goyder and Walsh - [2009] WASAT 108

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOYDER and WALSH [2009] WASAT 108

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 14 MAY 2009

DELIVERED : 2 JUNE 2009

FILE NO/S: DR 140 of 2009

BETWEEN: RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
Applicants
AND
TERENCE WILLIAM JOSEPH WALSH
CHELSEA REBELLE WALSH
First Respondents
SHIRE OF PEPPERMINT GROVE
Second Respondent

Catchwords:

Town planning - Review by President of decision by nonlegally qualified member - Proposal to construct residence - Recently subdivided lot - Proposed house adjacent to house of heritage significance - Impact on heritage value - Relevance and weight to be attached to earlier subdivision of land - Whether Tribunal erred in taking account of consequences of subdivision - Whether permissible to have regard to relative impact of any other reasonable development of the land - Whether denial of procedural fairness

Legislation:

Planning and Development Act 2005 (WA), s 135, s 138(2), s 244
Residential Design Codes of Western Australia (2008), cl 6.3.2
Shire of Peppermint Grove Town Planning Scheme No 3, cl 5.1.1, cl 5.1.2, cl 5.1.3, cl 5.1.4, cl 6.3.2
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27(2), s 36(1), s 37(3)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicants:     Mr P McQueen and Ms M J Palmer
First Respondents         :     Self-represented
Second Respondent      :     Dr SJ Willey and Mr RJ Mascarenhas

Solicitors:

Applicants:     Lavan Legal
First Respondents         :     Self-represented
Second Respondent      :     Minter Ellison

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

Boulter and City of Subiaco [2007] WASAT 71
Freeman and City of Subiaco [2009] WASAT 89
SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138
Walsh and Shire of Peppermint Grove [2009] WASAT 46

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Goyder and Mr and Mrs Thomas applied, under s 244 of the Planning and Development Act 2005 (WA), for a review by a judicial member of a decision by the Tribunal constituted by two non‑legally qualified members. The decision in question granted an approval of a residential development proposed by Mr and Mrs Walsh of land on the corner of Irvine Street and Venn Street, Peppermint Grove.
The applicants contended that the Tribunal had erred in law by having regard to, or giving too much weight to, the earlier subdivision of the land. The land on which the development was proposed was formally the area of the front garden of a house which was on the Shire of Peppermint Grove's heritage list. The effect of the proposed development would be to obscure the view of the heritage house from Irvine Street.
The applicants had been given leave to intervene in the original proceedings for a limited purpose. Mr and Mrs Walsh contended that they had no standing to seek a review under s 244. That contention was rejected.
The President of the Tribunal examined the approach that had been taken by the Tribunal to the significance of the subdivision of the land and concluded that the approach did not involve any error by the Tribunal. A submission by the Shire of Peppermint Grove that it had been denied procedural fairness was also rejected. The application for review was dismissed.

The application for review

The applicants in these proceedings, Mr and Mrs Goyder and Mr and Mrs Thomas (applicants or intervenors), were intervenors in proceedings (the original proceedings) brought by the first respondents in these proceedings, Mr and Mrs Walsh (first respondents) against the Shire of Peppermint Grove (second respondent). The original proceedings were the subject of a decision in Mr and Mrs Walsh's favour after a hearing before Member J Jordan and Senior Sessional Member, Mr P De Villiers - see Walsh and Shire of Peppermint Grove [2009] WASAT 46 (Walsh). Mr Jordan and Mr De Villiers are not legally qualified members as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The applicants bring these proceedings under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review of Walsh by a judicial member.

The original proceedings

In the original proceedings, the first respondents sought a review of a decision by the second respondent to refuse an application to develop a two storey house on property situated at No 18 Irvine Street, which is situated on the corner of Venn Street and Irvine Street in Peppermint Grove. It was proposed that the house be constructed on a lot which had been created as a result of an approval in 2007 by the Western Australian Planning Commission (Commission) of the subdivision of the property formerly known as 18 Irvine Street. The approval permitted the subdivision of the original lot into two lots.
The original lot had on it a house built in 1896 (the heritage house) which was listed on the Shire of Peppermint Grove Municipal Heritage Inventory. That house was located on one of the lots created by the subdivision, which became known as 1B Venn Street, which had a frontage to Venn Street, but, by reason of the subdivision, lost its frontage to Irvine Street.
The first respondents purchased the new vacant lot of 669 square metres which had a boundary on Irvine Street and Venn Street. The lot was, in effect, the front yard of the heritage listed house prior to the subdivision.
In its summary in Walsh, the Tribunal recited:
3In 2008, the Shire of Peppermint Grove refused an application by Mr and Mrs Walsh for approval to develop a two-storey house on No 18 Irvine Street. It considered that the proposed house would be too close to the boundaries, would be of bulk and scale not in keeping with the area, and would overshadow and adversely impact on the heritage qualities of the house at No 1B Venn Street.
4The owners of two nearby houses in Irvine Street applied to the Tribunal and were granted leave to intervene in the hearing to present evidence on the effect the proposed house would have on the heritage value of the house now at No 1B Venn Street.
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member.

The grounds for review

The applicants submit that the Tribunal erred in law in five respects. They are:
9.1In its application of Boulter and City of Subiaco [2007] WASAT 71 in that it focussed almost entirely on the subdivision and subsequent size of the site, rather than having sufficient regard to other matters relating to the impact and form of the proposal, including the impact of the proposal on the heritage house.
9.2In not making an assessment of the proposal against the Acceptable Development Standards for clause 6.3.2 of the Residential Design Codes when the proposal failed to meet the relevant Performance Criteria.
9.3In making reference to theoretical forms of development on the site in terms of determining whether the impact of the proposal was appropriate.
9.4In granting approval to the proposal, having regard to sound town planning principles, when the weight of the evidence and findings of the tribunal were against such an approval.
9.5In failing to produce the correct and preferable decision at the time of the decision upon the review, in accordance with Section 27(2) of the State Administrative Tribunal Act 2004 (SAT Act).

The role of the second respondent

When the application for review was lodged by the applicants, there was some delay in the second respondent making a decision as to what, if any, part it wished to play in the application for review. Eventually, the second respondent supported the applicants' contention on the first ground set out above.
The first respondents objected to the submission by the second respondent on the basis that the submissions effectively constituted an appeal in their own right. They argued that, as the submissions were not lodged within the 28‑day period prescribed for applications for review under s 244 of the PD Act, they should be struck out.
I do not accept that it is correct to classify the second respondent's submission as a fresh application for review. The submissions clearly relate to the first ground of review, and simply seek to support that ground.
As a party to the original proceedings, the second respondent has an entitlement to be heard in these review proceedings. That, of course, presupposes that these proceedings were validly commenced by the intervenors. The first respondents contend that they were not because the intervenors did not have standing to seek the review. I turn to that issue.

Standing of the applicants to seek review

The first respondents contend that the applicants have no standing to seek this review because the condition of the grant of leave to intervene in the original proceedings limited the role which the applicants were entitled to take.
The applicants were given leave to intervene in the original proceedings by order dated 9 September 2008. Leave to intervene had previously been refused by the Tribunal on 22 August 2008 on the basis that, at that point in time, it appeared that the proposed intervenors sought to do no more than present the same case as the second respondent proposed to argue. As events transpired, however, it became apparent that the second respondent did not intend to adduce any expert evidence in relation to an issue which it had raised in its documents, that issue being the likely impact of the proposed development on the neighbouring heritage house. The intervenors had engaged a heritage expert who had prepared a report on the matter, and the Tribunal took the view that it would be assisted by having that evidence. Accordingly, an order was made that '(the intervenors) have leave to intervene for the limited purpose of adducing evidence from Mr Ronald Bodycoat and making submissions'.
I note that in Walsh, the Tribunal referred to that order, but added the words 'on the heritage issue' at the end of the wording of the published order. That was said to be the terms of the order 'when complete'.
The words added by the Tribunal in Walsh accurately reflect what was in contemplation at the time the order for intervention was made. That is, the intervenors were not given general leave to intervene in relation to all issues, but rather to play a role limited to adducing evidence and making submissions about the heritage issue.
The heritage issue was identified in the second respondent's statement of issues, facts and contentions in the original proceedings. That document identified seven issues. The fifth was:
Would the proposal adversely impact on the heritage qualities of the residence at 1B Venn Street?
Consideration of the impact on the heritage qualities of the heritage house undoubtedly involves a consideration of questions of bulk and scale, setbacks and overshadowing. They were all separately identified as issues in the original proceedings, and it is difficult to divorce those issues from the issue in respect of which leave to intervene was granted. As the Tribunal said in Walsh at [39] '… the issues identified by the parties overlap. The positions reached on one issue inform and are informed by the conclusions reached on others'.
Mr Walsh submitted that there was actually no 'heritage issue' which fell for determination in the proceedings. This was an argument which had not been put to the Tribunal in the original proceedings. The submission is based upon a proposition that the question of whether development will have an adverse impact on the heritage qualities of the house at No 1B Venn Street, as a matter of law, is not relevant in the sense that it is not a matter which the Council is empowered to take into account.
In support of that argument, the first respondents contend that the inclusion of a property on the Council's Heritage List has no effect because the second respondent has taken no steps to adopt any heritage policies which might be applied in the consideration of applications for development approval. The first respondents note that cl 5.1.1 of the Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3) sets out the purpose and intent of the heritage provisions of TPS 3. That clause reads:
The purpose and intent of the heritage provisions are:
(a) to facilitate the conservation of places of heritage value;
(b)to ensure as far as possible that development occurs with due regard to heritage values and in harmony with it.
Clause 5.1.2 of TPS 3 requires the second respondent to establish and maintain a heritage list, and keep copies of it with the scheme documents for public inspection.
Clause 5.1.3 of TPS 3 enables Council to designate heritage precincts. It is common ground that the property, the subject of these proceedings, does not fall within a heritage precinct.
Clause 5.1.4 of TPS 3 deals with applications for planning approval. Clause 5.1.4 provides:
5.1.4.1In dealing with any matters which may affect a heritage precinct or individual entry on the Heritage list, including any application for planning approval, Council shall have regard to any heritage policy of the Council.
5.1.4.2The Council may, in considering any application that may affect a heritage precinct or individual entry on the Heritage List, solicit the views of the Heritage Council of WA, the National Trust of Australia (WA) and those of any other relevant bodies, and take those views into account when determining the application.
5.1.4.3Notwithstanding any existing assessment on record, Council may require a heritage assessment to be carried out prior to the approval for any development proposed in a heritage precinct or individual entry listed on the Heritage List.
5.1.4.4For the purposes of the Scheme the term 'development' shall have the meaning as set out in the Town Planning and Development Act (as amended) but shall also include, in relation to any building, object, structure or place entered in the Heritage List or contained within a heritage precinct, any act or thing that is likely to significantly change the external character of the building, object, structure or place.
It is common ground that the second respondent has not adopted any heritage policy applicable to the subject site.
The second respondents contend, therefore, that, in the absence of any policy, or any designated heritage precinct, inclusion of a property on the Heritage List is of no consequence. They point out that the new Lot 18 Irvine Street is not itself listed on the Municipal Heritage Inventory.
I do not accept that submission. Clause 6.3.2 of TPS 3 deals with the manner in which Council should determine applications for planning consent. That clause directs the Council to have regard to matters which it is required by the scheme to consider, 'and to the orderly and proper planning of the locality and the preservation of the amenities of the locality'. The presence of buildings warranting heritage listing is quite clearly an amenity of a locality. Undoubtedly, the preparation of heritage policies in relation to properties entered on the Heritage List is desirable in order to create clarity and consistency in relation to planning decisions which impact upon heritage places. The failure by the second respondent to adopt such policies does not, however, lead to the proposition that the preservation of places of heritage significance is not a relevant consideration as to the preservation of the amenities of the locality, or of orderly and proper planning.
The Tribunal was correct in treating the impact on the heritage house as a relevant consideration in its determination under cl 6.3.2 of TPS 3.
An intervenor is a party to proceedings in the Tribunal - see SAT Act, s 36(1). Where a person is given leave to intervene on a limited basis, as is contemplated in SAT Act, s 37(3), that limitation may have the result of limiting the rights that might otherwise be enjoyed by a party, including limiting the scope of any review that the intervenor may seek under s 244 of the PD Act. In my view, however, the matters raised in this review all have a potential impact on the outcome of the heritage issue, given its overlap with the other issues raised. I consider that the terms of the condition of intervention do not preclude the applicants from bringing this application.
It is therefore necessary to turn to the individual grounds relied upon by the applicants. In considering the grounds, the limitation to reviews under s 244 of the PD Act needs to be borne in mind. That limitation is that the right of review relates to 'a direction, determination or order upon a matter involving a question of law'. In reviewing a determination by the Tribunal, it is necessary to determine the question of law involved in order to ascertain whether a power of review exists.

Ground 1

It was this ground which occupied much of the focus of the oral submission by the applicants and the second respondent at the hearing of this application for review. The ground, as drafted, is couched in terms that the Tribunal gave undue weight to the fact and consequences of subdivision, rather than other relevant matters. In their written submissions, the applicants describe the alleged error as a 'misapplication of the Boulter case'. That is a reference to the decision of the Tribunal in Boulter and City of Subiaco [2007] WASAT 71 (Boulter).
The second respondent supports this ground by arguing that the Tribunal treated as relevant an irrelevant consideration, namely a reasonable expectation arising as a result of subdivision approval. An alternative complaint is made that, if the fact of subdivision was a relevant consideration, then the second respondent was denied procedural fairness because it was not provided with an opportunity to make submissions in relation to the weight to be given to that issue. The second respondent accepts that, if subdivision approval was a relevant consideration, then the weight to be given to that consideration is a matter to be decided by the Tribunal and the decision under review cannot be invalidated on that basis.
To consider these contentions, it is necessary to have regard to Walsh.
The Tribunal made observations about the significance of subdivision approval, and what had been said in Boulter at [39] - [45]. Those paragraphs read as follows:
39The Tribunal has found that the issues identified by the parties overlap. The positions reached on one issue inform and are informed by conclusions reached on others. It is important to state that the Tribunal found that in weighing the evidence, a significant consideration was the fact of the subdivision approval issued by the Commission in 2007 that created the site.
40Counsel for the intervenors argued that the approval of the subdivision did not create a right to develop. Reference was made to the advice in the Commission's subdivision approval that said that subdivision approval was not to be construed as an approval to commence development of any of the lots proposed, with development approval required to be issued by local government.
41The Tribunal adopts, with respect, the findings of the Tribunal in the matter of Boulter and City of Subiaco [2007] WASAT 71 (Boulter). At [60], Senior Member Parry stated:
This case highlights the difficulty which can result from the split planning system in Western Australia under which subdivision control and assessment is undertaken by the Commission at State level, whereas development control and assessment is generally undertaken by local governments are applying local planning schemes and policies at local level ...
42The Tribunal also stated at [63] - [66]:
It is not open to the Tribunal, in these proceedings, to review the decision to grant the conditional subdivision approval. The subdivision approval subsists and is operative: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197. It must be assumed to be valid unless it is declared invalid by a court of competent jurisdiction: Antonas and Town of Vincent [2006] WASAT 303 at [55].
The subdivision approval contemplates development of a site at a density of R50. As Mr Smith explained, the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single dwellings of the nature proposed in the development application. The proposed southern house is a reasonable response to the size, and orientation of the site and the applicable local zoning and planning controls. On the other hand, as Mr O'Neill pointed out, the southern house would have very poor solar access.
The imposition of a standard condition on the subdivision approval requiring the subdivider to obtain development approval for a house on each lot is not an adequate response to a planning application to create a constrained site. The subdivision approval, in itself, creates reasonable expectations for development of the site. The condition is redundant, because development approval for a house would be required in any case. Furthermore, the condition can be satisfied by the approval of a house which the subdivider does not intend to build. When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
This creates a difficulty in the planning system and may result in a less than optimal net planning outcome. It raises the issue of whether, in some contexts, such as subdivision to enable urban infill in established areas, a single system of development/subdivision control and assessment, possibly by delegation to the relevant local government, may be preferable to the split system.
43The Council, at its meeting of 21 May 2007, resolved unanimously to recommend to the Commission that the subdivision to create the site be approved. The Tribunal considers that the approval of the subdivision that created the site has given rise to the presumption of subsequent development 'for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls'. Such a house will have an impact on both the cultural heritage value of the house at No 1B Venn Street and on the streetscape of Irvine Street.
44As stated by Counsel for the intervener, consistent with the findings in Boulter, subdivision of itself does not create an entitlement to a particular type of house. There is a statutory regime that allows houses to be approved on lots in Peppermint Grove as a right when there is strict compliance with TPS 3 and the Codes. Where there is not, an applicant has to seek the exercise of discretion. As Counsel said '(t)hat is when the myriad planning factors, including the preservation of heritage values, become enlivened'.
45In the discussion on the issues that follows, an assessment is made of the proposed house and concessions required as against the provisions of TPS 3 and the Codes.

The Tribunal made reference to 'the presumption of subsequent development for a reasonably sized house being created by the approval of the subdivision'. If that expression were construed as suggesting a presumption of an enforceable entitlement to construct a house of the nature described, then that would be an error, and would be a misunderstanding of what Senior Member Parry said in Boulter. I do not consider, however, in the context of the whole of the passage set out above, it can be said that the expression as used by the Tribunal carried that construction. It must be borne in mind that the members of the Tribunal in Walsh were not legally qualified. Careful analysis is required before construing the use of the word 'presumption' in the technical way lawyers might use that word rather than in accordance with a more general common usage.
The Tribunal specifically adopted what had been said by Senior Member Parry in Boulter. What the Senior Member said was that a subdivision approval 'contemplated development of a site at' the relevant density for the locality. He accepted that 'the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of the nature proposed' in the application before him. That is not, and I do not consider it was intended to be, a statement of legal principle. It is a statement of planning logic. Subdivision of land involves a process of close assessment by, and consultation with, relevant authorities. Approval to subdivide land is given under s 135 of the PD Act by the Commission. Section 138(2) of the PD Act requires the Commission to have due regard to any local planning scheme that applies to the land, and not to give an approval that conflicts with a scheme. A grant of subdivision is made in contemplation that the subdivided land will be used for a purpose consistent with the local planning scheme. If a lot of land falls within a particular zone under a local planning scheme, then there is a reasonable expectation that the land is capable of development in accordance with the planning controls applicable to the particular zone. How discretionary departures from prescribed controls may to be determined will often be influenced by consideration of the size, shape and orientation of the site. That is not to say that those factors override the proper consideration of the planning issues involved in the exercise of any particular discretionary judgment, but rather it is to say that they are relevant considerations.
Mr Jordan and Mr De Villiers expressly accepted at [44] the submission by the intervenors, the applicants in these proceedings, that subdivision of itself does not create an entitlement to a particular type of house. The Tribunal accepted that, where an application called for the exercise of discretion, the development proposal needed to be considered against the applicable planning documents and the 'myriad planning factors' which required consideration. That approach was undoubtedly correct.
The applicants and the second respondent contend, however, that in proceeding to consider the individual planning issues which were in dispute, the Tribunal gave excessive weight to the expectation of development flowing from subdivision, and thereby fell into error.
In considering the planning issues in the context of the provisions of TPS 3 and the Residential Design Codes of Western Australia (2008) (2008 Codes), the Tribunal first considered whether the bulk and scale of the development would be inconsistent with the streetscape of the locality. At [46] ‑ [55] of Walsh, the Tribunal dealt with that issue. The discussion clearly addressed the appropriate elements of bulk and scale and its impact on streetscape and the adjoining heritage property. The earlier subdivision 'which created the site with a long east‑west axis and a short north‑south axis' was referred to, and described as substantively circumscribing the assessment of streetscape. Precisely what was meant by that expression is not clear, but the Tribunal proceeded to conclude that inconsistency with the streetscape would not of itself be sufficient to be determinative of the matter. The basis upon which that conclusion was reached is clear from the Tribunal's discussion.
The second issue considered by the Tribunal was whether Irvine Street or Venn Street should be considered the primary street for development. This issue was determined against Mr and Mrs Walsh, and no exception is taken to the Tribunal's approach to it by the applicants and the second respondent in these proceedings.
The third issue considered was whether proposed incursions into the northern, eastern and southern setback areas were acceptable. In relation to the wall on the eastern boundary, the Tribunal concluded that the wall met the performance criteria in the 2008 Codes. Similarly, the Tribunal found that the acceptable development provisions of the 2008 Codes in relation to the southern boundary setback were met (at [65] of Walsh). In relation to the setback from Irvine Street, the Tribunal considered that certain elements of the setback were not acceptable, and should be rectified as a condition of approval, which it subsequently imposed.
At [69] of Walsh, the Tribunal repeated a reference to 'the presumption of subsequent development of a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site'. The Tribunal accepted reduced front setbacks from Irvine Street 'because they enable that objective to be achieved'. In my view, when read in context, that observation is doing no more than indicating that the Tribunal was having regard to the practical realities of the size and orientation of the site in determining the extent to which setback concessions might be granted. It is clear, however, that the Tribunal considered the setbacks to each boundary having regard to the requirements of the 2008 Codes and the individual merits of each concession sought. In my view, it did not give undue weight to the fact of the approval of the subdivision in that regard.
The fourth issue considered by the Tribunal was whether the nil setback to the southern boundary would result in overshadowing of the heritage house. The Tribunal referred to evidence from a planner, Mr Rowe, that a single storey house at a standard setback would have the same impact on the verandah of the heritage house.
The applicants and the second respondent take exception to the reliance by the Tribunal on the proposition that any development on the site would have the same impact on the adjoining house. In my view, the Tribunal did not err in its approach to this issue. It can be noted that the Tribunal found that direct sunlight to rooms in the heritage house was, in any event, restricted by the deep verandahs on the heritage house.
In my view, it was open and sensible for the Tribunal to take into account that, effectively, any development which might reasonably be anticipated in this locality would have precisely the same effect as the proposed development. There may be cases where a particular adverse impact might be unacceptable in any circumstances. In relation to the question of overshadowing of the heritage house, this is certainly not such a case. The provisions of the 2008 Codes are directed to the preservation of direct sun to major openings to habitable rooms. Because of the presence of the verandahs, the Tribunal found that the proposed development would not affect direct sun to major openings. It was quite entitled to conclude, as it did, that the overshadowing of the proposal was, in the circumstances, reasonable and acceptable under the 2008 Codes, and to reach that conclusion having regard to the inevitable consequences of any reasonable development of the property.
The fifth issue considered by the Tribunal was whether the development would adversely impact on the heritage qualities of the residence at No 1B Venn Street. The Tribunal referred to the fact that approval for alterations to the heritage house had been granted by the Council, and that work was under way pursuant to that approval. The Tribunal referred to the submission of counsel for the intervenors that what was being preserved of the heritage house was essentially the northern elevation, the significance of which is to Irvine Street.
At [78] - [79] of Walsh, the Tribunal discussed the evidence of the two heritage architects who gave evidence. The Tribunal said:
78Mr Bodycoat, said even a single-storey house on the site would spoil the view of the heritage house. A small house to the east of the site might be a compromise but there did not appear to be 'any reasonable economic development at all' possible for the site. Mr Bodycoat was also of the opinion that, because of the style of the proposed house and its location on the southern boundary, there would not be in the view from Venn Street an acceptable transition to the part of the heritage house that was to be retained.
79Ms Nerida Moredoundt, a heritage architect called by the applicants, was of the opinion that the subdivision to create the site across the former frontage of the house has had a great impact on the heritage value of No 1B Venn Street. The local landmark quality and the front garden setting of the building have been destroyed. The heritage house now only faced Venn Street. She was also of the opinion that the approved building alterations for No 1B Venn Street will have a negative impact on the heritage value because of loss of original fabric.
The Tribunal agreed with the views of both heritage experts that, in effect, any house appropriate to the locality constructed on the new 18 Irvine Street would adversely affect the heritage value of the heritage house. The Tribunal continued:
81… The Tribunal has formed the view, however, that, as submitted by counsel for the applicants, the time when a decision was to be made on whether there was to be development between the Irvine Street frontage and the heritage house was at the time of subdivision. The creation of the site does mean that there will be a house between the heritage house and Irvine Street, and that house has to be sufficient to provide a level of accommodation consistent with contemporary houses in the locality.
82The intervenors and their neighbours have enjoyed a streetscape that has included a view of the heritage house. …
At [84], the Tribunal concluded:
The proposed house will impact on the heritage qualities of the house at No 1B Venn Street. The proposed house will have a similar degree of harmony with the heritage house, as will the many other houses the Council has approved in both Irvine Street and Venn Street. It might be that a different house design on the site would have less impact, but the Tribunal considers that any house of reasonable accommodation will have a substantial impact. In the circumstances of the site having been created, the Tribunal has concluded that the impact of the proposed house on the heritage qualities of the house at No 1B Venn Street is not, of itself, a reason for the proposed development to be refused.
As already observed, the impact of the proposed development on the adjoining house was a relevant planning consideration under cl 6.3.2 of TPS 3. A conclusion that the proposed development had an adverse effect on the adjoining heritage house was not, however, fatal to the application. It was open to the Tribunal to grant approval for the development, notwithstanding a conclusion that the development would have an adverse impact on the heritage qualities of the adjoining residence. It was open, and in my view appropriate, for the Tribunal to consider the relative impact of the proposed development as against any other development which might reasonably be expected to occur on the site.
Having regard to the evidence of the heritage experts accepted by the Tribunal, the consequence of the applicants' argument in these proceedings is, in effect, that no 'reasonable economic development at all' should be allowed on this site. That argument elevates the value of a clear view of the heritage house as determinative of any development application. There is no justification for that contention having regard to the provisions of TPS 3 which I have referred to above.
The sixth issue considered by the Tribunal was whether the development would constitute an overdevelopment of the site. It concluded that it would not. No issue of the earlier subdivision approval arises in relation to that issue.
The final issue considered by the Tribunal is whether the proposal would be contrary to orderly and proper planning. That issue raised no separate matters beyond those considered in relation to the first six issues.
In its conclusion, the Tribunal summarised its findings in relation to the seven issues. In the context of doing so, it repeated some observations about the consequence of the earlier subdivision. Those observations do not, in my view, alter the analysis which I have made of the detailed reasoning in relation to the relevant issues.
It follows that, in my view, the Tribunal did not err in respect to the relevance of, or weight to be attached to, the original subdivision approval.

Denial of procedural fairness

I do not accept the second respondent's contention that it was denied an opportunity to make submissions on the weight to be attached to the subdivision approval. The reasons in Walsh reveal that the consequences of subdivision was clearly a matter of submissions by the parties. At [40], the Tribunal refers to the intervenors' argument that the approval of the subdivision did not create a right to develop. The heritage experts' evidence obviously made much of the consequences of the subdivision. It was open to all parties to make submissions as to the weight, if any, to be given to the earlier subdivision of the land.

Application of acceptable development standards

The applicants' second ground criticises the conclusions reached in relation to the nil setback under cl 6.3.2 of the 2008 Codes on the southern boundary. It is submitted that the Tribunal should have found that the performance criteria were not met.
I have dealt with the Tribunal's approach to that issue earlier in these reasons. The findings made by the Tribunal, namely that direct sunlight to major openings was not in fact affected by the proposal, left open the Tribunal's conclusion as to compliance with cl 6.3.2 of the 2008 Codes.
It is also asserted that the performance criteria require a finding that there be no significant adverse effect on the amenity of the adjoining property. The adverse effect which the Tribunal found in relation to the heritage property did not result from the setback to the southern boundary. The adverse effect comprised the impact upon the view of the heritage house from Irvine Street. That impact was completely unrelated to the setback.

Theoretical forms of development

The third ground contends that the Tribunal erred in making reference to theoretical forms of development on site.
This ground relates to the references in the Tribunal's reasons to the effect that might be expected with the construction of any other house of reasonable proportions on the site. For reasons which I have already explained, the Tribunal was justified in considering the relative impact of the proposal having regard to any other development which might reasonably be expected to occur on the site, to the extent that it did.
It is asserted that the Tribunal's consideration of what might be developed on the site was analogous to the position in SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138. In that case, the former Town Planning Appeal Tribunal held that the fact that a better proposal might be made than the one being considered by the Tribunal was irrelevant. Rather, the Tribunal was required to assess the proposal before it having regard to the applicable planning considerations. I do not agree that that case is analogous. It is a different thing to say that a proposal should be rejected because a better design might be available, from saying that it is open to consider whether any adverse impact of a proposed development is an inevitable consequence of any reasonable development of the particular site.

Finding against the weight of evidence

The fourth ground was abandoned by the applicants at the hearing on the basis of my observations in Freeman and City of Subiaco [2009] WASAT 89 that that ground does not involve any question of law. It needs no further consideration.

The correct and preferable decision

The fifth ground of appeal is that the Tribunal failed to produce the correct and preferable decision at the time of the decision under review, in accordance with s 27(2) of the SAT Act. This is not a valid ground of review. It suggests that the President, on a review under s 244 of the PD Act, is entitled to review all of the evidence and form, on the basis of that evidence, a different view as to what might be the correct and preferable decision. If that were open, the requirement that there be a finding on a matter involving a question of law would become meaningless.

Conclusion

In my view, no error on a matter involving a question of law has been made out in this case, and the application for review should be dismissed.

Order

The application for review is dismissed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT