Gregory Developments and City Of Belmont
[2018] WASAT 12
•19 FEBRUARY 2018
GREGORY DEVELOPMENTS and CITY OF BELMONT [2018] WASAT 12
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 12 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:355/2017 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 19/02/18 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Clause 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development Application for review dismissed and decision of respondent to refuse development approval for proposed development affirmed | ||
| B | |||
| PDF Version |
| Parties: | GREGORY DEVELOPMENTS CITY OF BELMONT |
Catchwords: | Town planning Development application Aged or dependent persons' dwellings Preliminary issue Housing density 'Flexible coded area' with residential density coding of 'R20/40' Whether cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development Whether cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes average site area per dwelling being reduced by up to onethird under cl 5.1.1 C1.4i of State Planning Policy No. 3.1 Residential Design Codes Whether reduction of average site area per dwelling for aged or dependent persons' dwellings is 'density bonus' for purposes of cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 Whether increase to a higher code in exercise of discretion under cl 5.7.3 of the City of Belmont Local Planning Scheme No. 15 is 'density bonus' for purposes of cl 5.7.5 Words & phrases: 'density bonus' |
Legislation: | City of Belmont Local Planning Scheme No. 15, cl 1.7.1(b)(ii), cl 5.2.2, cl 5.2.3, cl 5.3, cl 5.3.1, cl 5.7, cl 5.7.3, cl 5.7.4, cl 5.7.5, cl 5.7.6, Sch 1 Planning and Development Act 2005 (WA), s 87(4), s 252(1) State Administrative Tribunal Act 2004 (WA), s 60(2) State Planning Policy 3.1 Residential Design Codes, cl 5.1.1, cl 5.1.1 P1.1, cl 5.1.1 C1.1, cl 5.1.1 C1.4i, cl 5.5.2 P2, cl 5.5.3 P3, Table 1 ('aged person', 'dependent person', 'single bedroom dwelling') |
Case References: | City of Kwinana v Lamont [2014] WASCA 112 Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320 Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 |
Orders | For these reasons I make the following orders:,1. The preliminary issue is answered as follows:,Clause 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development.,2. The application for review is dismissed.,3. The decision of the respondent to refuse development approval for five aged or dependent persons' dwellings at No 19 Gregory Street, Belmont is affirmed. |
Summary | Gregory Developments sought review of the refusal by the City of Belmont of a development application proposing the construction of five aged or dependent persons' dwellings on land located within a 'flexible coded area' coded 'R20/40' under the City of Belmont Local Planning Scheme No. 15. The Scheme provides that in a flexible coded area 'the base R20 code shall apply to any dwelling but may, at the discretion of the City, be increased to a higher code up to the maximum specified [i.e., in this case, R40]', provided that the proposed development satisfies certain stated matters.,For the purposes of an aged or dependent persons' dwelling, unless otherwise provided in the applicable local planning scheme, the deemedtocomply provision in cl 5.1.1 C1.4i of State Planning Policy 3.1 Residential Design Codes enables variations to the minimum site area per dwelling and the average site area per dwelling set out in Table 1 of the RCodes by reducing these site area requirements by up to onethird. However, cl 5.7.5 of the Scheme states as follows:,No density bonus for Aged or Dependent Persons’ Dwellings or Single Bedroom Dwellings, which is in addition to the increased density from the minimum site area being reduced by up to one-third, shall be granted on any land within any of the flexible coded areas depicted on the Scheme Map with the exception of the Town Centre Precinct. Any such additional bonus within the Town Centre Precinct shall be subject to compliance with the performancebased criteria contained in the relevant local planning policy.,The site the subject of the development application is not located in the Town Centre Precinct. If discretion were exercised to increase the base R20 code to R40 in relation to the proposed development, then the site areas of each dwelling proposed in the development application (125.1m² 153.2m²) and the average site area per dwelling proposed in the development application (172m²) would be less than the minimum site area per dwelling (180m²) and the average site area per dwelling (220m²) set out in Table 1 of the RCodes in relation to the R40 code. However, if discretion were exercised to increase the base R20 code to R40 in relation to the proposed development and if, under cl 5.1.1 C1.4i of the RCodes, the minimum site area per dwelling and the average site area per dwelling can be reduced by onethird in relation to the development application, then the site are of each dwelling and average site area per dwelling would conform with the provisions of the RCodes.,At the first directions hearing, the Tribunal identified a preliminary issue as to whether cl 5.7.5 of the Scheme precludes the approval of the proposed development and ordered that the preliminary issue is to be determined entirely on the documents.,The Tribunal determined that, on its proper interpretation, cl 5.7.5 of the Scheme precludes approval of the proposed development. This is because that provision varies cl 5.1.1 C1.4i of the RCodes in the relevant area of the Scheme by precluding the granting of a 'density bonus' by variation of the average site area under cl 5.1.1 C1.4i of the RCodes in relation to aged or dependent persons' dwellings (or single bedroom dwellings) in any flexible coded area under the Scheme (other than the Town Centre Precinct).,Consequently, the Tribunal dismissed the application for review and affirmed the City's refusal of the proposed development. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GREGORY DEVELOPMENTS and CITY OF BELMONT [2018] WASAT 12 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 FEBRUARY 2018 FILE NO/S : DR 355 of 2017 BETWEEN : GREGORY DEVELOPMENTS
- Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
Town planning Development application Aged or dependent persons' dwellings Preliminary issue Housing density 'Flexible coded area' with residential density coding of 'R20/40' Whether cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development Whether cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes average site area per dwelling being reduced by up to onethird under cl 5.1.1 C1.4i of State Planning Policy No. 3.1 Residential Design Codes Whether reduction of average site area per dwelling for aged or dependent persons' dwellings is 'density bonus' for purposes of cl 5.7.5 of the City of Belmont Local Planning Scheme No. 15 Whether increase to a higher code in exercise of discretion under cl 5.7.3 of the City of Belmont Local Planning Scheme No. 15 is 'density bonus' for purposes of cl 5.7.5 Words & phrases: 'density bonus'
Legislation:
City of Belmont Local Planning Scheme No. 15, cl 1.7.1(b)(ii), cl 5.2.2, cl 5.2.3, cl 5.3, cl 5.3.1, cl 5.7, cl 5.7.3, cl 5.7.4, cl 5.7.5, cl 5.7.6, Sch 1
Planning and Development Act 2005 (WA), s 87(4), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Planning Policy 3.1 Residential Design Codes, cl 5.1.1, cl 5.1.1 P1.1, cl 5.1.1 C1.1, cl 5.1.1 C1.4i, cl 5.5.2 P2, cl 5.5.3 P3, Table 1 ('aged person', 'dependent person', 'single bedroom dwelling')
Result:
Clause 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development
Application for review dismissed and decision of respondent to refuse development approval for proposed development affirmed
Summary of Tribunal's decision:
Gregory Developments sought review of the refusal by the City of Belmont of a development application proposing the construction of five aged or dependent persons' dwellings on land located within a 'flexible coded area' coded 'R20/40' under the City of Belmont Local Planning Scheme No. 15. The Scheme provides that in a flexible coded area 'the base R20 code shall apply to any dwelling but may, at the discretion of the City, be increased to a higher code up to the maximum specified [i.e., in this case, R40]', provided that the proposed development satisfies certain stated matters.
For the purposes of an aged or dependent persons' dwelling, unless otherwise provided in the applicable local planning scheme, the deemedtocomply provision in cl 5.1.1 C1.4i of State Planning Policy3.1 Residential Design Codes enables variations to the minimum site area per dwelling and the average site area per dwelling set out in Table 1 of the RCodes by reducing these site area requirements by up to onethird. However, cl 5.7.5 of the Scheme states as follows:
- No density bonus for Aged or Dependent Persons’ Dwellings or Single Bedroom Dwellings, which is in addition to the increased density from the minimum site area being reduced by up to one-third, shall be granted on any land within any of the flexible coded areas depicted on the Scheme Map with the exception of the Town Centre Precinct. Any such additional bonus within the Town Centre Precinct shall be subject to compliance with the performancebased criteria contained in the relevant local planning policy.
The site the subject of the development application is not located in the Town Centre Precinct. If discretion were exercised to increase the base R20 code to R40 in relation to the proposed development, then the site areas of each dwelling proposed in the development application (125.1m² 153.2m²) and the average site area per dwelling proposed in the development application (172m²) would be less than the minimum site area per dwelling (180m²) and the average site area per dwelling (220m²) set out in Table 1 of the RCodes in relation to the R40 code. However, if discretion were exercised to increase the base R20 code to R40 in relation to the proposed development and if, under cl 5.1.1 C1.4i of the RCodes, the minimum site area per dwelling and the average site area per dwelling can be reduced by onethird in relation to the development application, then the site are of each dwelling and average site area per dwelling would conform with the provisions of the RCodes.
At the first directions hearing, the Tribunal identified a preliminary issue as to whether cl 5.7.5 of the Scheme precludes the approval of the proposed development and ordered that the preliminary issue is to be determined entirely on the documents.
The Tribunal determined that, on its proper interpretation, cl 5.7.5 of the Scheme precludes approval of the proposed development. This is because that provision varies cl 5.1.1 C1.4i of the RCodes in the relevant area of the Scheme by precluding the granting of a 'density bonus' by variation of the average site area under cl 5.1.1 C1.4i of the RCodes in relation to aged or dependent persons' dwellings (or single bedroom dwellings) in any flexible coded area under the Scheme (other than the Town Centre Precinct).
Consequently, the Tribunal dismissed the application for review and affirmed the City's refusal of the proposed development.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : Mr CA Slarke
Solicitors:
Applicant : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
City of Kwinana v Lamont [2014] WASCA 112
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Introduction
1 Gregory Developments has sought review by the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Belmont (City or Council) to refuse a development application proposing the construction of five aged or dependent persons' dwellings in the form of single storey grouped dwellings and common property at No 19 Gregory Street, Belmont (site).
2 The site is zoned 'Residential' under the City of Belmont Local Planning Scheme No. 15 (LPS 15 or Scheme) and is located within a 'flexible coded area' coded 'R20/40' on the Scheme Map. This means, under cl 5.7.3 of LPS 15, that 'the base R20 code shall apply to any dwelling but may, at the discretion of the City, be increased to a higher code up to the maximum specified [i.e. R40]', provided that 13 matters set out in that clause are satisfied.
3 The site has an area of 860m². The proposed dwellings have site areas ranging from 125.1m² to 153.2m², with a common property area of 194.1m². The average site area per dwelling proposed in the development application is 172m².
4 Under cl 5.1.1 and Table 1 of State Planning Policy 3.1 Residential Design Codes (RCodes), for grouped dwelling development on land coded R20, the minimum site area per dwelling is 350m² and the average site area per dwelling is 450m². Under cl 5.1.1 and Table 1 of the RCodes, for grouped dwelling development on land coded R40, the minimum site area per dwelling is 180m² and the average site area per dwelling is 220m².
5 However, for the purposes of an aged or dependent persons' dwelling (or a single bedroom dwelling), unless otherwise provided in the applicable local planning scheme, the deemedtocomply provision in cl 5.1.1 C1.4i of the RCodes enables variations to the minimum and average site areas set out in Table 1 of the RCodes as follows:
Subject to clause 5.1.1 C1.3 only, the following variations to the minimum and average site area set out in Table 1 may be made:
i. for the purposes of an aged or dependent persons’ dwelling or a single bedroom dwelling, the site area may be reduced by up to one third, in accordance with clauses 5.5.2 and 5.5.3 which shall only be applied where development is proposed;
…
6 The effect of cl 5.1.1 C1.4i of the RCodes is to enable the planning authority to reduce the minimum site area per dwelling for the purposes of an aged or dependent persons' dwelling (or a single bedroom dwelling) on land to which the R40 code applies to 120m² and to reduce the average site area per dwelling for the purposes of an aged or dependent persons' dwelling (or a single bedroom dwelling) on land to which the R40 code applies to 146.5m².
7 Therefore, if the City (or the Tribunal on review) exercises discretion under cl 5.7.3 of LPS 15 to increase the base R20 code to R40 in relation to the proposed development, and if the City (and the Tribunal on review) may vary the minimum site area and the average site area set out in Table 1 of the RCodes in this case by reducing it by onethird under cl 5.1.1 C1.4i of the RCodes, then the site area of each dwelling (125.1m² 153.2m²) and the average site area per dwelling (172m²) proposed in the development application would conform with the site area requirements in cl 5.1.1 of the RCodes.
8 However, even if discretion were exercised under cl 5.7.3 of LPS 15 to increase the base R20 code to R40, the proposed development would not conform with cl 5.1.1 of the RCodes (and the development application must therefore be refused under cl 5.2.2 of LPS 15 set out below) if either the minimum site area per dwelling or the average site area per dwelling is not able to be, or is not, reduced by onethird under cl 5.1.1 C1.4i of the RCodes. This is because the site area of each dwelling (125.1m² 153.2m²) is less than the minimum site area set out in Table 1 of the RCodes for grouped dwellings on land coded R40 (180m²) and the average site area per dwelling proposed in the development application (172m²) is less than the average site area set out in Table 1 of the RCodes for grouped dwellings on land coded R40 (220m²).
9 The City refused the development application for six reasons. The City's first reason for refusal is as follows:
The development cannot be approved as it proposes a density bonus for aged or dependent persons['] dwellings which is in addition to the minimum site area being reduced by one third, and is therefore contrary to Clause 5.7.5 of City of Belmont Local Planning Scheme No. 15, in that:
a) The site is [located in] a flexible coded area (R20/R40), and approval is sought to develop above the base R20 code up to the maximum density of R40, pursuant to Clause 5.7.3 of City of Belmont Local Planning Scheme No. 15;
b) Approval is additionally sought to develop 5 aged or dependent persons['] dwellings applying an R40 density code, but with a one third reduction in both the minimum site area and average site area per dwelling; and
c) Consequently the effective density of the proposed development is equivalent to R60.
10 Clause 5.7.5 of LPS 15, which is referred to in the City's first reason for refusal, states as follows:
No density bonus for Aged or Dependent Persons’ Dwellings or Single Bedroom Dwellings, which is in addition to the increased density from the minimum site area being reduced by up to one-third, shall be granted on any land within any of the flexible coded areas depicted on the Scheme Map with the exception of the Town Centre Precinct. Any such additional bonus within the Town Centre Precinct shall be subject to compliance with the performance-based criteria contained in the relevant local planning policy.
11 The site is not located within the Town Centre Precinct referred to in cl 5.7.5 of the Scheme.
12 At the first directions hearing, I ordered that the following issue is to be determined by the Tribunal as a preliminary issue:
Does cl 5.7.5 of [LPS 15] preclude the approval of the proposed development?
13 I required the parties to file an agreed statement of facts and an agreed bundle of documents in relation to the preliminary issue, which they did. I also directed the parties to file and exchange written submissions and written submissions in reply, which each party did. Both parties considered that the preliminary issue can and should be determined entirely on the documents without an oral hearing. I therefore made an order, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), that, 'subject to any further order the preliminary issue is to be determined entirely on the documents'.
Relevant Scheme and RCodes provisions
14 The preliminary issue involves the proper interpretation of cl 5.7.5 of the Scheme and turns, in particular, on the meaning of the words 'density bonus' in that provision. Although 'the starting point and ending point for the task of statutory construction is the statutory text' (City of Kwinana v Lamont [2014] WASCA 112 [47]), statutory context is relevant. The statutory context in this case comprises provisions of the Scheme concerning the application of and variations to the RCodes (cl 5.2 and cl 5.3.1 of LPS 15, respectively), the site area requirements in cl 5.1.1 and Table 1 of the RCodes and the suite of provisions in the Scheme concerning development of land in the 'flexible coded areas' (cl 5.7.3 cl 5.7.6), of which cl 5.7.5 forms part.
15 Clause 5.2 of LPS 15 states as follows:
5.2.1. A copy of the Residential Design Codes is to be kept and made available for public inspection at the offices of the local government.
5.2.2. Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
5.2.3. The Residential Design Codes density applicable to land within the Scheme area is to be determined by reference to the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map or where such an area abuts another area having a Residential Design Code density, as being contained within the area defined by the centre line of those borders.
16 Clause 5.3 of LPS 15 concerns special application of the RCodes under the Scheme. Clause 5.3.1 of LPS 15 states as follows:
The Residential Design Codes (R Codes) are hereby varied as set out hereunder.
17 Clause 5.3 of LPS 15 does not contain a provision varying cl 5.1.1 C1.4i of the RCodes.
18 Clause 5.7 of the Scheme concerns development in the Residential zone and cl 5.7.3 cl 5.7.6 of LPS 15 specifically concern development in the 'flexible coded areas' of that zone, which includes the site. These provisions state as follows:
5.7.3. In dealing with development applications involving or contemplating development of land within any of the flexible coded area[s] up to a maximum density of R50 depicted on the Scheme Map, the base R20 code shall apply to any dwelling but may, at the discretion of City, be increased to a higher code up to the maximum specified provided -
(a) The frontage of the parent lot is not less than 16 metres.
(b) Any existing building or development which, in the opinion of the City, is of low quality and incapable of being upgraded to a standard commensurate with new development is demolished; and
(c) Development comprising of two or more dwellings in a front to rear arrangement achieves a minimum side setback of 6 metres between the side wall of the first dwelling fronting the public street and the side boundary of the parent lot.
(d) Rear dwellings are designed so that significant sections of the front elevations have an outlook to, and are visible from, the public street.
(e) A minimum of 50% of the total number of dwellings in the development are two storey where the density exceeds R30.
(f) Solid external or internal fencing is not permitted where, in the opinion of the City, views from dwellings to the public street will be limited.
(g) Dwellings located on the front portion of a lot, or where there is more than one street frontage, are oriented and designed to address all public street(s).
(h) Dwellings located adjacent to public open space, right of ways, pedestrian access ways and other public spaces are oriented and designed to provide views and surveillance of those public areas; and
(i) Solar design principles are incorporated in the design and orientation of each dwelling.
(j) Carports and garages visible from the street are incorporated into the dwelling design so that they are not the dominant feature of the appearance of the dwelling and the streetscape.
(k) Development on corner lots, or lots with more than one street frontage, have vehicle access provided from the street with lesser traffic.
(l) The number of crossovers for any development is minimised, having regard to the relevant local planning policy.
(m) Dwellings that are orientated in a side by side configuration comply with the vehicle access requirements contained within the relevant local planning policy.
5.7.4. The City may vary the requirement that single storey dwellings are permitted only up to an R30 density where not less than one-third of the dwellings are to be used by aged or dependent persons.
5.7.5. No density bonus for Aged or Dependent Persons’ Dwellings or Single Bedroom Dwellings, which is in addition to the increased density from the minimum site area being reduced by up to onethird, shall be granted on any land within any of the flexible coded areas depicted on the Scheme Map with the exception of the Town Centre Precinct. Any such additional bonus within the Town Centre Precinct shall be subject to compliance with the performance-based criteria contained in the relevant local planning policy.
5.7.6. In dealing with development applications involving or contemplating development of land within any of the flexible coded areas other than those with a maximum density of R50 depicted on the Scheme Map, the base R20 code shall apply to any dwelling but may, at the discretion of the City, be increased to a higher code up to the maximum specified provided -
(a) compliance with the requirements of clause 5.7.3 above.
(b) in the opinion of the City there is a high degree of compliance with the performancebased criteria contained in the relevant local planning policy.
20 However, cl 5.7.4 of LPS 15 is still contextually relevant to the proper interpretation of cl 5.7.5 of LPS 15, because cl 5.7.4 contemplates aged or dependent persons' dwellings in the flexible coded areas at a higher density number or code than the base R20 code (up to at least R30). Clause 5.7.4 is also contextually relevant, because it uses the terminology 'up to an R30 density' (emphasis added). As discussed below, this expression, together with other expressions including the word 'density' in cl 5.2.3, cl 5.7.3 and cl 5.7.6 of the Scheme and in cl 5.1.1 P1.1 of the RCodes, and the terms of cl 5.1.1 C1.1 of the RCodes, indicates the meaning of the word 'density' in the expression 'density bonus' in cl 5.7.5.
21 The terms '[a]ged or [d]ependent [p]ersons' [d]welling' and '[s]ingle [b]edroom [d]welling' are not defined in the PD Act or in the Dictionary of defined words and expressions in Sch 1 of the Scheme. Under cl 1.7.1(b)(ii) of the Scheme, these terms therefore have the same meanings in LPS 15 as they have in the RCodes. Those meanings are referred to below.
22 Clause 5.1.1 of the RCodes concerns site area. The design principle in cl 5.1.1 P1.1 of the RCodes states as follows:
Development of the type and density indicated by the density code designated in the scheme.
23 The corresponding deemedtocomply provision in cl 5.1.1 of the RCodes includes the following in cl 5.1.1 C1.1 and C1.4i:
Development which complies with the dwelling type and site area requirements set out in Table 1 and the following provisions.
…
Subject to clause 5.1.1 C1.3 only, the following variations to the minimum and average site area set out in Table 1 may be made:
i. for the purposes of an aged or dependent persons’ dwelling or a single bedroom dwelling, the site area may be reduced by up to one third, in accordance with clauses 5.5.2 and 5.5.3 which shall only be applied where development is proposed;
…
24 The term 'site area' is defined in App 1 to the RCodes as follows:
The area of land required for the construction of a dwelling to satisfy the requirements of the RCodes.
25 The term 'aged or dependent persons' dwelling' is not defined in the RCodes. However, App 1 to the RCodes contains definitions of the terms 'aged person' ('[a] person who is aged 55 years or over') and 'dependent person' ('[a] person with a recognised form of disability requiring special accommodation for independent living or special care'). The contemplated nature of an 'aged or dependent persons' dwelling' is also apparent from the design principle in cl 5.5.2 P2 of the RCodes, which states as follows:
Aged or dependent persons' dwellings for the housing of aged or dependent persons designed to meet the needs of aged or dependent persons; and
• reduces car dependence, i.e. is located in close proximity to public transport and services;
• has due regard to the topography of the locality in which the site is located in respect to access and mobility;
• has due regard to the availability of community facilities including parks and open space;
• does not impinge upon neighbour amenity; and
• responds to a demand for aged or dependent persons' accommodation in the locality which is recognised in the local planning framework.
26 The term 'single bedroom dwelling' is defined in App 1 of the RCodes as follows:
A dwelling that contains a living room and no more than one other habitable room that is capable of use as a bedroom.
27 The contemplated nature of a 'single bedroom dwelling' is also apparent from the design principle in cl 5.5.3 P3 of the RCodes, which states as follows:
Alternative and affordable housing options for singles or couples where it can be demonstrated that the development:
• reduces car dependence, i.e. is located in close proximity to public transport and convenience shopping;
• does not impinge upon neighbour amenity; and
• responds to a demand for single bedroom accommodation in the locality which is recognised in the local planning framework.
Does cl 5.7.5 of the Scheme preclude approval of the proposed development?
28 Gregory Developments submits that, on its proper interpretation, cl 5.7.5 of LPS 15 does not preclude approval of the proposed development, because cl 5.7.3 and cl 5.7.5 of the Scheme involve 'separate' or 'independent assessment mechanisms', one using the terminology of 'discretion' (cl 5.7.3) and the other using the terminology of 'density bonus' (cl 5.7.5). Gregory Developments submits that the development application for five aged or dependent persons' dwellings on the site can be considered and determined under the 'mechanism' in cl 5.7.3. It submits that the 'RCode density concession [conferred by cl 5.1.1 C1.4i of the RCodes] is implicitly adopted once aged units are approved by "discretion" to [cl] 5.7.3 and is not a "density bonus" to [cl] 5.7.5'. Therefore, Gregory Developments submits that '"density bonus" to clause 5.7.5 is not relevant to and does not prevent assessment by "discretion" to [cl] 5.7.3'.
29 Gregory Developments also submits that cl 5.7.5 only operates in the Town Centre Precinct, whereas the site is located outside the Town Centre Precinct. Furthermore, Gregory Developments submits that the wording of cl 5.7.5 'only makes sense for multiunit design … and it doesn’t make sense when applied to grouped dwellings such as this application', because 'it deals with minimum site area, not average site area', and that '[t]his demonstrates that clause 5.7.5 … is not intended to and should not be applied to grouped dwellings under clause 5.7.3 discretionary assessment'. At various points in its submissions, Gregory Developments also seeks to interpret the meaning of cl 5.7.5 of the Scheme by reference to provisions of the City's Housing Strategy and local planning policies adopted by the Council.
30 In contrast, the City submits that, on its proper interpretation, cl 5.7.5 of the LPS 15 precludes approval of the proposed development 'as it does not allow the average site area to be reduced by up to one third in any flexible coded areas (with the exception of the Town Centre Precinct) for aged or dependent persons['] development proposed above the base R20 code'. The City submits that this interpretation is supported by the text, syntax and context of cl 5.7.5.
31 The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 as follows [20] [21]:
Under s 87(4) of the PD Act, [a local planning scheme] 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson [DC]J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
32 Applying these principles, in my view, on its proper interpretation, cl 5.7.5 of LPS 15 precludes the approval of the proposed development. This is because, for the reasons which follow, the term 'density bonus' in cl 5.7.5 of the Scheme includes both variation to the minimum site area and variation to the average site area for aged or dependent persons' dwellings (and single bedroom dwellings) under cl 5.1.1 C1.4i of the RCodes and cl 5.7.5 precludes the granting of a 'density bonus' by variation of the average site area under cl 5.1.1 C1.4i of the RCodes in relation to aged or dependent persons' dwellings (and single bedroom dwellings) in any flexible coded area under the Scheme (other than the Town Centre Precinct).
33 The term 'density bonus' is not defined in the Scheme, the PD Act or the RCodes.
34 However, the use of expressions which include the word 'density' in cl 5.2.3, cl 5.7.3, cl 5.7.4 and cl 5.7.6 of LPS 15 and in cl 5.1.1 P1.1 of the RCodes, and the terms of cl 5.1.1 C1.1 of the RCodes, indicate the meaning of the word 'density' in cl 5.7.5 of the Scheme.
35 Clause 5.2.3 of LPS 15 states that '[t]he Residential Design Codes density applicable to land within the Scheme area is to be determined by reference to the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map … ' (emphasis added). Clause 5.7.3 of LPS 15 refers to 'a maximum density of R50 depicted on the Scheme Map' (emphasis added). Clause 5.7.4 of LPS 15 refers to 'up to an R30 density' (emphasis added). Clause 5.7.6 of LPS 15 refers to 'a maximum density of R50 depicted on the Scheme Map' (emphasis added). Clause 5.1.1 P1.1 of the RCodes prescribes the design principle in relation to 'site area' as '[d]evelopment of the type and density indicated by the density code designated by the scheme' (emphasis in italics added) and the corresponding deemedtocomply provision in cl 5.1.1 C1.1 states '[d]evelopment which complies with the dwelling type and site area requirements set out in Table 1 and the following provisions'.
36 These provisions, read together, clearly indicate that the word 'density' in cl 5.7.5 of the Scheme refers to the maximum number of dwellings on land contemplated by the Residential Design Codes density number or code that applies to the land, determined by application of the site area requirements of minimum site area per dwelling and average site area per dwelling under cl 5.1.1 and Table 1 of the RCodes in relation to that density number or code.
37 The word 'bonus' relevantly means 'something given … over and above what is due' (The Macquarie Dictionary (6th ed, 2015) page 160).
38 The expression 'density bonus' in cl 5.7.5 of LPS 15 therefore means allowing aged or dependent persons' or single bedroom dwellings over and above the maximum number of dwellings contemplated by the density number or code that applies to the land by application of the minimum site area per dwelling and the average site area per dwelling in relation to that density number or code.
39 Variation to the minimum site area and variation to the average site area set out in Table 1 of the RCodes for the purposes of an aged or dependent persons' dwelling or a single bedroom dwelling, by reducing the minimum site area and the average site area by up to onethird under cl 5.1.1 C1.4i of the RCodes, each falls within the meaning of the expression 'density bonus' in cl 5.7.5 of LPS 15. This is because variation to the minimum site area and variation to the average site area under cl 5.1.1 C1.4i of the RCodes each involves allowing aged or dependent persons' or single bedroom dwellings over and above the maximum number of dwellings contemplated by the density number or code that applies to the land.
40 Furthermore, the expression and syntax used in cl 5.7.5 of LPS 15 clearly indicates that the term 'density bonus' includes both variation to the minimum site area by up to onethird and variation to the average site area by up to onethird, for the purposes of an aged or dependent persons' dwelling or single bedroom dwelling under cl 5.1.1 C1.4i of the RCodes. Clause 5.7.5 of the Scheme states '[n]o density bonus for Aged or Dependent Persons' Dwellingsor Single Bedroom Dwellings, which is in addition to the increased density from the minimum site area being reduced by up to onethird,shall be granted …' (emphasis added). This text is obviously, and can only be, a reference to the discretion to vary the site area (that is, minimum site area and average site area) for the purposes of an aged or dependent persons' dwelling or a single bedroom dwelling under cl 5.1.1 C1.4i of the RCodes, because both provisions only apply to 'aged or depended persons' dwellings' and 'single bedroom dwellings' (which terms have the same meanings in the Scheme and in the RCodes) and the expression in both provisions is strikingly similar ('… the minimum site area being reduced by up to onethird …' (cl 5.7.5 of the Scheme) and '… the site area may be reduced by up to one third …' (cl 5.1.1 C1.4i of the RCodes)). Furthermore, the words '[n]o density bonus … in addition to the increased density from the minimum site area being reduced by up to onethird …' (emphasis added) in cl 5.7.5 of the Scheme clearly indicate that the expression 'density bonus' includes variation to the average site area as well as variation to the minimum site area under cl 5.1.1 C1.4i of the RCodes. This is because increased density from the average site area being reduced by up to onethird is 'in addition to' increased density from the minimum site area being reduced by up to onethird.
41 There is, of course, a significant difference between cl 5.7.5 of LPS 15 and cl 5.1.1 C1.4i of the RCodes, namely that whereas cl 5.7.5 only allows the granting of a 'density bonus' in terms of 'the minimum site area being reduced by up to onethird' (emphasis added) (other than in the Town Centre Precinct), cl 5.1.1 C1.4i of the RCodes states that 'the site area may be reduced by up to one third' (emphasis added). When read in the context of the introductory words of cl 5.1.1 C1.4 of the RCodes, the expression 'the site area' in cl 5.1.1 C1.4i refers to both 'the minimum [site area] and average site area set out in Table1', whereas cl 5.7.5 states that '[n]o density bonus … which is in addition to the increased density from the minimum site area being reduced by up to onethird, shall be granted …' and thereby excludes the possibility of a 'density bonus' being granted in relation to the 'average site area' set out in Table 1 of the RCodes on land in any of the flexible coded areas under the Scheme (other than the Town Centre Precinct). Clause 5.7.5 of the Scheme therefore varies the application of cl 5.1.1 C1.4i of the RCodes in the flexible coded areas under the Scheme (other than the Town Centre Precinct) by, in effect, precluding reducing the average site area for the purposes of an aged or dependent persons' dwelling or a single bedroom dwelling under that provision in those areas.
42 The City's submissions canvas the possibility that an exercise of discretion under cl 5.7.3 of the Scheme to increase the base R20 code that applies to a proposed dwelling to a higher code up to the maximum specified involves a 'density bonus' for the purposes of cl 5.7.5 of the Scheme.
43 In my view, although an exercise of discretion under cl 5.7.3 of the Scheme allows dwellings over and above the maximum number of dwellings contemplated by the base R20 code, it is not a 'density bonus for Aged or Dependent Persons' Dwellings or Single Bedroom Dwellings', which is the wider expression used in cl 5.7.5. An exercise of discretion to increase the base R20 code to a higher code under cl 5.7.3 of LPS 15 involves conferring a 'density bonus' not because, or in consequence of, the development being for aged or dependent persons' dwellings or single bedroom dwellings, but rather because, or in consequence of, the development demonstrating compliance with the requirements of cl 5.7.3 and the City being of the opinion that there is a high degree of compliance with the performancebased criteria contained in the relevant local planning policy: cl 5.7.6.
44 A contextual supporting consideration for this interpretation is found in cl 5.7.4 of the Scheme. Although, as indicated earlier, that clause is (now) without apparent purpose, because there is no (longer) a 'requirement that single storey dwellings are permitted only up to an R30 density', these words contemplate aged or dependent persons' dwellings in the flexible coded areas at a higher density number or code than the base R20 code (up to at least R30). This contemplation is inconsistent with an interpretation under which an exercise of discretion under cl 5.7.3 of LPS 15 falls within the meaning of the expression 'density bonus for Aged or Dependent Persons' Dwellings or Single Bedroom Dwellings' in cl 5.7.5, because such an interpretation would preclude exercising discretion to increase the base R20 code to a higher code under cl 5.7.3 for aged or dependent persons' dwellings or single bedroom dwellings.
45 Furthermore, it could not have been the intention of cl 5.7.5 of the Scheme to include an exercise of discretion under cl 5.7.3 within the meaning of the expression 'density bonus for Aged or Dependent Persons' Dwellings or Single Bedroom Dwellings', as (other than in the Town Centre Precinct) that would defeat the planning purpose of enabling an increase in residential density above the contemplation of the base R20 code where a development demonstrates compliance with the requirements of cl 5.7.3 and a high degree of compliance with performancebased criteria in relevant local planning policies. It could also not have been the intention of cl 5.7.5 to include an exercise of discretion under cl 5.7.3, as that would provide a significant disincentive for the development of aged or dependent persons' dwellings and single bedroom dwellings in the flexible coded areas (other than the Town Centre Precinct).
46 As indicated earlier, cl 5.3 of LPS 15 concerns special application of the RCodes under the Scheme and cl 5.3.1 states that the RCodes 'are hereby varied as set out hereunder', but cl 5.3 does not contain a provision varying cl 5.1.1 C1.4i of the RCodes. This omission from cl 5.3 is contextually relevant to the proper interpretation of cl 5.7.5 of the Scheme.
47 However, as indicated earlier, cl 5.2.2 of the Scheme states as follows:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
(Emphasis added)
48 As I said in relation to very similar words in the opening phrase of an equivalent provision of a local planning scheme in Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320 [21], 'the words … allow the Scheme to, in effect, vary the minimum and average site area requirements set out in Table 1 of the [R]Codes in their application to residential development under the Scheme …'. Equally, the words '[u]nless otherwise provided for in the Scheme' in cl 5.2.2 of LPS 15 allow the Scheme to, in effect, preclude reducing the average site area under cl 5.1.1 C1.4i of the RCodes for aged or dependent persons' dwellings or single bedroom dwellings under the Scheme or in particular areas under the Scheme.
49 Clause 5.2.2 of LPS 15 does not commence with the words 'Unless otherwise provided for in cl 5.3 of this Scheme …'. A variation to the RCodes may therefore be prescribed elsewhere in the Scheme than cl 5.3. For the reasons set out earlier, cl 5.7.5 varies the application of cl 5.1.1 C1.4i of the RCodes in the flexible coded areas under the Scheme (other than the Town Centre Precinct) by, in effect, precluding reducing the average site area under that provision in those areas. Furthermore, the location of cl 5.7.5 in the suite of provisions of LPS 15 concerning development in the 'flexible coded areas' of the Scheme is understandable, given that the variation of the RCodes under the first sentence of that clause applies only in relation to development within the flexible coded areas of the Scheme (other than the Town Centre Precinct).
50 Contrary to Gregory Developments' submission, cl 5.7.3 and cl 5.7.5 of LPS 15 do not involve 'separate' or 'independent assessment mechanisms'. Rather, where development comprising aged or dependent persons' dwellings or single bedroom dwellings is proposed in a flexible coded area, cl 5.7.3 and 5.7.5 each have (separate) work to do.
51 Clause 5.7.3 enables an exercise of discretion to increase the base R20 code to a higher code up to the maximum specified on the Scheme Map, provided that there is compliance with the requirements of cl 5.7.3 and the City (or the Tribunal on review) is of the opinion that there is a high degree of compliance with the performancebased criteria contained in the relevant local planning policies.
52 Once the City (or the Tribunal on review) has determined whether and, if so, to what extent, to exercise discretion under cl 5.7.3 in relation to a development comprising aged or dependent persons' dwellings or single bedroom dwellings in a flexible coded area, then (other than in the Town Centre Precinct) cl 5.7.5 serves to limit the 'density bonus for Aged or Dependent Persons' Dwellings or Single Bedroom Dwellings' that could otherwise be granted under cl 5.1.1 C1.4i of the RCodes to 'increas[ing] density from the minimum site area being reduced by up to onethird' under cl 5.1.1 C1.4i of the RCodes, and therefore precludes any reduction in the average site area per dwelling under cl 5.1.1 C1.4i of the RCodes.
53 Although Gregory Developments is correct in its submission that what it terms the 'RCode density concession' conferred by cl 5.1.1 C1.4i of the RCodes 'is implicitly adopted once aged units are approved by "discretion" to [cl] 5.7.3', the effect of cl 5.7.5 of the Scheme (other than in the Town Centre Precinct) is to limit the application of the 'implicitly adopted' 'RCode density concession' under cl 5.1.1 C1.4i of the RCodes to variation of the minimum site area set out in Table 1 of the RCodes by up to onethird and to preclude variation of the average site area per dwelling set out in Table 1 of the RCodes by up to onethird.
54 Gregory Developments' submission that, on its proper interpretation, cl 5.7.5 operates only in the Town Centre Precinct involves a misreading of the provision. Rather than indicating that the provision only applies in the Town Centre Precinct, the words 'with the exception of the Town Centre Precinct' in cl 5.7.5 mean that limiting the 'density bonus' for aged or dependent persons' dwellings to 'the increased density from the minimum site area being reduced by up to onethird', and thereby precluding a 'density bonus' in terms of increased density from the average site area per dwelling being reduced by up to onethird (which would otherwise be available under cl 5.1.1 C1.4i of the RCodes), does not apply in the Town Centre Precinct. In other words, in the Town Centre Precinct, cl 5.1.1 C1.4i of the RCodes continues to apply unaffected by the first sentence of cl 5.7.5 of the Scheme. The second sentence of cl 5.7.5 imposes a requirement that in order for the average site area per dwelling to be varied by up to onethird under cl 5.1.1 C1.4i of the RCodes in the Town Centre Precinct, there must be 'compliance with the performancebased criteria contained in the relevant local planning policy'. However, the site is not located in the Town Centre Precinct and, therefore, the density bonus limitation under cl 5.7.5 applies to the development application.
55 As indicated earlier, Gregory Developments also submits that cl 5.7.5 'only makes sense for multi-unit design … and it doesn’t make sense when applied to grouped dwellings such as this application'. Gregory Developments submits that the wording of cl 5.7.5 does not 'make sense' if applied to grouped dwellings, because 'it deals with minimum site area, not average site area', whereas it would make sense for multiple dwellings in relation to which Table 1 of the RCodes prescribes minimum, but not average, site areas based on the residential density number or code of the land.
56 However, as discussed earlier, cl 5.7.5 does 'deal with' average site area, because, by limiting the 'density bonus for Aged or Dependent Persons' Dwellings or Single Bedroom Dwellings … to the increased density from the minimum site area being reduced by up to onethird', cl 5.7.5 precludes the granting of a 'density bonus' in terms of increased density from the average site area per dwelling being reduced by up to onethird (which would otherwise be available under cl 5.1.1 C1.4i of the RCodes). Clause 5.7.5 does 'make sense' for grouped dwelling development, because it limits the density of aged or dependent persons' dwellings or single bedroom dwellings in flexible coded areas under the Scheme (other than the Town Centre Precinct) to the number contemplated by the base code of R20, or the increased higher code determined under cl 5.7.3, and the increased density from the minimum site area per dwelling being reduced by up to onethird.
57 Finally, Gregory Developments' references to provisions of the City's Housing Strategy and local planning policies adopted by the Council is misplaced. The Scheme is, in effect, a statute, because s 87(4) of the PD Act provides that LPS 15 'has full force and effect as if it were enacted by [the PD Act]'. The Housing Strategy is a strategic planning document of the City and local planning policies are policy documents made by the Council under LPS 15. Provisions of the Housing Strategy and of applicable local planning policies may well be relevant when assessing the development application on its merits. However, the proper interpretation of cl 5.7.5 of the Scheme cannot be determined from a strategic planning document of the City or from policy documents made under the Scheme. As the Court of Appeal said in City of Kwinana v Lamont [47], '[t]he High Court of Australia has iterated, and reiterated, that the starting point and the ending point for the task of statutory construction is the statutory text'.
Conclusion
58 The average site area per dwelling proposed in the development application (172m²) is less than the average site area per dwelling for grouped dwellings in the R40 code set out in Table 1 of the RCodes (220m²). Clause 5.7.5 of LPS 15 precludes approval of the proposed development, because it prevents the average site area set out in Table 1 of the RCodes being reduced by up to onethird for the purposes of an aged or dependent persons' dwelling on the site, which, absent cl 5.7.5 of the Scheme, would be possible under cl 5.1.1 C1.4i of the RCodes.
59 Given that the average site area per dwelling is less than the average site area per dwelling set out in Table 1 of the RCodes in relation to the R40 code, and given that the average site area per dwelling proposed in the development application may not be reduced under cl 5.1.1 C1.4i of the RCodes in consequence of cl 5.7.5 of the Scheme, the proposed development does not conform with the provisions of the RCodes in relation to average site area and must therefore be refused.
Orders
60 For these reasons I make the following orders:
1. The preliminary issue is answered as follows:
Clause 5.7.5 of the City of Belmont Local Planning Scheme No. 15 precludes approval of the proposed development.
2. The application for review is dismissed.
3. The decision of the respondent to refuse development approval for five aged or dependent persons' dwellings at No 19 Gregory Street, Belmont is affirmed.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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