JONES and CITY OF SWAN
[2023] WASAT 22
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JONES and CITY OF SWAN [2023] WASAT 22
MEMBER: MS C BARTON, MEMBER
HEARD: 29 NOVEMBER 2022, 30 NOVEMBER 2022 AND 1 DECEMBER 2022
DELIVERED : 28 MARCH 2023
FILE NO/S: DR 244 of 2021
BETWEEN: BRETT JONES
Applicant
AND
CITY OF SWAN
Respondent
SAMUEL AND AMY CALABRESE
Interveners
Catchwords:
Town planning - Development application - Single dwelling - Building envelope - Proposed dwelling outside building envelope - Amenity - Visual amenity - Whether development compatible with its setting - Impact on amenity of adjoining property - Impact on amenity of neighbours - Visual impact on locality - Orderly and proper planning - Light pollution - Vehicular noise - Noise - Restrictive covenant - Notification on title
Legislation:
City of Swan Local Planning Scheme No. 17, cl 5.5.1, cl 5.5.3, cl 5A.1.1, cl5A.1.2.1, cl 5A.1.3.1, cl 5A.1.4.4, cl 5A1.4.5
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Evidence Act 1906 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 27(1), cl 67, cl 67(a), cl 67(b), cl 67(h), cl 67(m), cl 67(n), cl 68(2)
Planning and Development Act 2005 (WA), s 252(1), s 257B(3)
Planning Regulations Amendment Regulations 2020 (WA), Pt 2, reg 74(2)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 29(3), s 31, s 32(1), s 32(2)(a), s 32(2)(b), s 37(3)
State Planning Policy 7.3 - Residential Design Codes
Transfer of Land Act 1893 (WA), s 70A, s 70A(3), s 136D
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Algeri (acting as Agent) |
| Respondent | : | Mr C Slarke |
| Interveners | : | Mr T Houweling |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
| Interveners | : | Cornerstone Legal |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 133
Jones and City of Swan [2022] WASAT 101
Jones and City of Swan [2022] WASAT 52
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Presiding Member of the Metropolitan Central Joint Development Assessment Panel v 43 McGregor Road Pty Ltd [2018] WASC 98
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Smith and City of Bayswater [2006] WASAT 176
SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32; [2003] WATPAT 138
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Mr Brett Jones (applicant), seeks approval to construct a single house outside the building envelope (proposed development) at No 139 (Lot 2160) Litchfield Promenade, Jane Brook (property or subject site).
The respondent is the City of Swan (City or respondent). On 13 October 2021, the City resolved to refuse the proposed development (City's decision).
On 10 November 2021, the applicant commenced proceedings in the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking a review of the City's decision.
The applicant's neighbours at No 135 (Lot 2161) Litchfield Promenade, Jane Brook, (adjoining property) were granted leave to intervene in the proceedings pursuant to s 37(3) of the State Administrative Tribunal 2004 (WA) (SAT Act) (interveners).[1] The interveners live immediately east of the property and object to the proposed development because it will interrupt views from the adjoining property of the rural landscape to the west, and cause light and noise pollution to their residence.
[1] See Jones and City of Swan [2022] WASAT 52.
I have concluded, for the reasons that follow, that the application for review should be dismissed because the proposed development is not compatible with its setting and will have an unacceptable impact on the visual amenity of the adjoining property. It will also detract from the visual amenity of the broader locality. Further, in the circumstances of this case, the location of the proposed development outside the building envelope is inconsistent with the requirements of orderly and proper planning.
Issues for determination
The key issues that arise for determination are as follows:
1)Whether the location of the proposed development will have:
a.an unacceptable impact on the amenity of neighbouring properties; and
b.an unacceptable visual impact on the locality.
2)Whether the proposed development satisfies the requirements of orderly and proper planning.
The Tribunal's review jurisdiction
By reason of s 17 of the SAT Act, the application pursuant to s 252(1) of the PD Act falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction which may modify the operation of the SAT Act in relation to the matter).[2]
[2] SAT Act, s 18.
The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.[3]
[3] SAT Act, s 27.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5]
[4] SAT Act, s 32(2)(a).
[5] SAT Act, s 32(1).
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[6] The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[7] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
Conduct of the proceedings and witness evidence
[6] SAT Act, s 27(1).
[7] SAT Act, s 32(2)(b).
The applicant relied on the expert planning evidence of Mr Jason Hunt, a town planner with Statewest Planning. Mr Hunt prepared a witness statement dated 15 November 2022, which he adopted as his evidencein-chief and was cross-examined.
The City relied on the expert planning evidence of Mr Thomas Hockley, a town planner and senior associate with Allerding & Associates. Mr Hockley prepared a witness statement dated 11 November 2022, which he adopted as his evidence-in-chief and was cross-examined.
Mr Samuel Calabrese, an intervener, prepared a witness statement dated 26 November 2022, which he adopted as his evidence-in-chief and was cross-examined.
The Tribunal had the benefit of a site view of the property, and the broader locality, which was attended by the parties' representatives and expert witnesses. The site view commenced at the property where we observed the position and level of the proposed garage and driveway, as well as the existing vegetation and proposed vegetative screening. We then attended the adjoining property to observe views in a southwesterly direction towards the building envelope and across the location of the proposed development towards the Swan Coastal Plain. We also took in vistas of the subject site and estate dwellings from the cul-de-sac at Tathra Place and travelled through the residential area of Jane Brook, concluding the site view at the end of Wiltshire Avenue where we observed the vegetated ridgeline to the east and identified the location of the subject site on the western face of the Darling Range.
During the site view, we observed the locations of photographs taken by the expert town planners of the topography of the subject site, across the subject site from the western boundary of the adjoining property, and from the Jane Brook residential area looking towards the subject site and vegetated ridgeline. We also viewed existing dwellings in the rural estate which had utilised extensive earthworks and retaining structures.
Factual background
Certain factual matters were not in dispute between the parties. I make the following findings set out in this paragraph in relation to those matters.
1)The applicant is seeking approval to construct a single house outside the building envelope established by the Jane Brook Local Structure Plan[8] (Structure Plan) (existing building envelope) pursuant to cl 68(2) of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (Deemed Provisions).[9] It is not an application to relocate the existing building envelope.[10] The single dwelling comprises a two-storey timber framed dwelling with a Colorbond sheet roof, detached garage and swimming pool.[11]
[8] Incorporating Amendment No. 6 approved by resolution of the Western Australian Planning Commission (WAPC) on 29 August 2018.
[9] Respondent's SIFC dated 8 April 2022, para 11; Applicant's SIFC dated 9 May 2022, para 8; Exhibit 1, page 11.
[10] Jones and City of Swan [2022] WASAT 101 at para 31.
[11] Respondent's SIFC dated 8 April 2022, para 11; Applicant's SIFC dated 9 May 2022, para 8.
2)The subject site is in Jane Brook, a suburb in the foothills on the western face of the Darling Range, approximately 25 kilometres east of the Perth central business district.[12]
[12] Respondent's SIFC dated 8 April 2022, para 5; Applicant's SIFC dated 9 May 2022, para 5
3)The subject site:[13]
[13] Respondent's SIFC dated 8 April 2022, para 3; Applicant's SIFC dated 9 May 2022, para 5.
a.is formally described as Lot 2160 on Deposited Plan 407898 being the whole of the land in Certificate of Title Volume 2911 Folio 609 (title);
b.has an area of 1.016 hectares with a frontage to Litchfield Promenade;
c.is currently vacant and contains vegetation and rocky outcrops;
d.falls from east to west by 23.5 metres from the highest point in the south-eastern corner of the subject site (being 113 metres Australian Height Datum (AHD)) to the lowest point in the north-west corner of the subject site (being 89.5 metres AHD);
e.contains an existing building envelope of approximately 1000 m2 located in its northern moiety, being 35 metres wide (measured east to west) and 30 metres deep (measured north to south).[14]
[14] Respondent's SIFC dated 8 April 2022, para 4; Applicant's SIFC dated 9 May 2022, para 5.
4)The subject site is located in the Landscape Zone under the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme)[15] and is zoned 'Rural' under the Metropolitan Region Scheme (MRS).
[15] Respondent's SIFC dated 8 April 2022, para 29; Applicant's SIFC dated 9 May 2022, para 14.
5)The subject site forms part of the Highland Ridge Private Estate (Estate).
6)The title is encumbered by two restrictive covenants which were registered by the developer of the Estate and noted on the subdivision plan pursuant to s 136D of the Transfer of Land Act 1893 (WA) (TL Act) as follows:
a.Restrictive covenant N407747 (RC N407747) which expires on 31 December 2025 and provides a series of Estate covenants including that the owner covenants: [16]
[16] Applicant's supplementary bundle of documents dated 19 August 2022, page 11.
i.not to construct a residence or any ancillary structure except within the designated building envelope unless prior approval of the City and the developer of the Estate is first obtained; and
ii.not to re-locate, extend, re-configure or split the designated building envelope without the prior approval of the City and the developer of the Estate.
b.Restrictive covenant N407748 (RC N407748) provides a restriction on the clearing of any native tree outside the building envelope so as to preserve potential foraging and breeding habitat for protected Black Cockatoos as required by a condition of a decision notice dated 22 July 2010 made under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act decision). Annexure A to RC N407748 is an extract from the Structure Plan showing the approved building envelopes.[17] RC N407748 binds registered proprietors in perpetuity.
[17] Applicant's supplementary bundle of documents dated 19 August 2022, page 16.
7)Other than the removal of a branch for bushfire management purposes, no clearing of any native tree is required for the purposes of the proposed development.[18] Consequently, neither the terms of RC N407748 nor the EPBC Act decision preclude the Tribunal from approving the proposed development.[19]
[18] Jones and City of Swan [2022] WASAT 101 at [40]; Respondent's supplementary s 24 bundle of documents dated 24 November 2022, page 13.
[19] Jones and City of Swan [2022] WASAT 101 at [42].
8)Also registered on title are two notifications under s 70A of the TL Act advising proprietors and prospective purchasers of factors affecting the use or enjoyment of the property as follows:[20]
[20] Respondent's s 24 bundle of documents dated 8 April 2022, page 7; respondent's supplementary bundle of documents dated 24 November 2022, page 5.
a.the property is subject to conditions of the Western Australian Planning Commission (WAPC) subdivision approval No. 149832 dated 19 December 2014 that, amongst other matters, require dwellings and buildings to be located within specified building envelopments (N407749) (notification on title).
b.the property is situated in the vicinity of the future PerthAdelaide National Highway and may, in the future, be affected by transport noise associated with its operations (N407750).
9)On 20 January 2021, the applicant applied to the City for approval to construct a single house outside the existing building envelope.[21] The proposed development is to be located in the south-east corner of the property and would be serviced by an internal driveway.[22] In support of his application, the applicant submitted a Bushfire Attack Level (BAL) Assessment and a Bushfire Management Statement indicating the extent of the Asset Protection Zone (APZ) required to achieve BAL 29 or below.
[21] Exhibit 1, page 130. I note that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the Deemed Provisions. However, cl 90(2) of the amended Deemed Provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former Deemed Provisions apply in this case.
[22] Respondent's SIFC dated 8 April 2022, para 11 and para 13; Applicant's SIFC dated 9 May 2022, para 8 and para 9.
10)At an ordinary meeting of Council on 13 October 2021, the City resolved to refuse the proposed development for the following reasons:[23]
[23] Exhibit 1, page 131.
1.The shift in the site of the building envelope will result in a reduction of amenity to the adjoining property owner at No. 135 Litchfield Promenade, detracting from the semi-rural nature and bringing the dwelling in close proximity to their own, a significant departure from the [Structure Plan].
2.The addition of a long gravel driveway will result in increased noise and dust from vehicles travelling close to the neighbour's boundary.
11)On 10 November 2021, the applicant sought review of the City's decision and, following mediation, the City was invited to reconsider its decision pursuant to s 31 of the SAT Act. On 2 March 2022, the City resolved not to approve the revised plans of the proposed development (amended application) on the basis that development outside the building envelope 'will adversely and negatively affect the amenity of the [adjoining property]'.[24]
12)The amended application dated 11 February 2022 is the proposal the subject of the application for review.[25]
The Tribunal's consideration
[24] Respondent's s 24 bundle of documents dated 8 April 2022, page 220.
[25] Respondent's SIFC dated 8 April 2022, para 23; Applicant's SIFC dated 9 May 2022, para 9.
The applicant seeks approval to construct a single house outside the property's existing building envelope. The applicant provided the following reasons in support of his application to position the dwelling in a different location on the property:[26]
1.The current location is in a gully that is the focus point of pre and post development overland flows.
2.The soil conditions at the site are clay and these are highly reactive to wetting and drying. These actions result in movement that may cause cracks, foundation, retaining and walls. Building in a location that is subject to water pooling or inundation is not suitable.
3.The locality has granite outcrops and excavation into this type of material is expensive and problematic.
4.The current building envelope has a 20% grade and requires retaining and fill or cut or combination to achieve a level building area.
5.The setback from the existing road (approximately 20m) and the future highway increases the impacts of vehicular noise and pollution, greater setbacks significantly reduce these impacts.
6.Native [v]egetation is growing within the building envelope and requires removal, the new location is cleared.
[26] Exhibit 1, page 132.
I will first consider the purpose of the building envelope having regard to the history of the Estate, including the conditions of subdivision approval granted by the WAPC and the provisions of relevant structure plans.
The purpose of the existing building envelope
The original Jane Brook Structure Plan, dated 27 March 2008, (original Structure Plan) was prepared with the goal of facilitating the expansion of the Jane Brook foothills community with a combination of rural and urban settings and a coordinated planning framework.[27]
[27] Respondent's s 24 bundle of documents dated 8 April 2022, page 237.
An extensive landscape and visual appraisal (Visual Appraisal) was conducted of the lots comprising the Estate because of their elevated and rising topography. The original Structure Plan provides in cl 3.2:[28]
Epcad consultant landscape architects undertook an extensive landscape and viewscape analysis of the site, with particular attention to the 'landscape' portion of the site and ridgelines as the site rises up towards the east. A copy of the Landscape and Visual Appraisal is contained at Appendix 9 which details the external locations from which views were analysed and the methodology involved. The resultant building exclusion areas, being those sites not suited to building upon due to their visible nature, identified across the site is included at Figure 7.
The visual appraisal has resulted in the recommendation and adoption of building envelopes, as depicted in the Structure Plan, located outside of the most exposed areas and ridgelines, and then substantiated on an individual basis on site to ensure that the proposed development integrates into the landscape without being obtrusive, enabling the current view of the Darling Range and associated foothills to be protected.
…
The retention of the natural vegetation and topography, without the need for retaining walls or earthworks in the 'landscape' zone, combined with the site responsive placement of dwellings shall ultimately ensure the objectives of landscape protection are achieved.
[28] Respondent's s 24 bundle of documents dated 8 April 2022, page 240.
The Visual Appraisal was carried out to understand the implications of development in landscape and visual terms from publicly accessible locations.[29] It utilised a computer-generated digital terrain model that was 'used to identify the visibility areas anticipating potential publicly accessible viewpoints'.[30] The Visual Appraisal provides that the modelling results were validated through direct on-site observations or 'ground truthed':[31]
The model enables draft zones for building envelopes to be prepared which were then "ground truthed" on site and amended to take into account other factors such as quality of vegetation, potential access, fire management etc.
[29] Respondent's s 24 bundle of documents dated 8 April 2022, page 580. Appendix 9 to the original Structure Plan.
[30] Respondent's s 24 bundle of documents dated 8 April 2022, page 580.
[31] Respondent's s 24 bundle of documents dated 8 April 2022, page 580.
The Visual Appraisal resulted in the recommendation and adoption of building envelopes.[32] Plans showing the existing building envelope on the subject site are included in Figure 8 of the original Structure Plan.[33] Building exclusion areas are shown in Figure 7 of the original Structure Plan.[34] Clause 3.2 of the original Structure Plan provides that the building exclusion areas are 'those sites not suited to building upon due to their visible nature'.[35]
[32] Respondent's s 24 bundle of documents dated 8 April 2022, page 240.
[33] Respondent's s 24 bundle of documents dated 8 April 2022, pages 292-294.
[34] Respondent's s 24 bundle of documents dated 8 April 2022, page 291.
[35] Respondent's s 24 bundle of documents dated 8 April 2022, page 240.
Later, on 19 December 2014, the WAPC granted subdivision approval for the Estate land, which included the subject site. Condition 17 of the subdivision approval required the developer to place a notification, pursuant to s 70A of the TL Act, on the certificate of title of all lots that '[d]wellings and buildings are to be located within specified building envelopes …'.[36]
[36] Exhibit 1, page 328.
On 12 August 2016, the notification on title was lodged at Landgate. Also on 12 August 2016, RC N407747 was made pursuant to s 136D of the TL Act with the effect that the owner of the subject site covenants not to:
Building Envelope
(d)construct on a lot a residence or any ancillary structure or part thereof except within the designated building envelope for the lot unless prior approval of the City of Swan and the Developer is first obtained. In this clause 'ancillary structure' includes but is not limited to garages, effluent disposal systems, water tanks, toilets, sheds, pools and gazebos;
(e)relocate, extend, re-configure or split the designated building envelope for the lot without the prior approval of the City of Swan and the Developer.
The expression 'building envelope' is not defined in RC B407747. It is, however, defined in RC N407748 as follows:
Building Envelope means that area of land within a Lot on the Structure Plan or any other plan approved by the City and the Commission, if required, within which all buildings and effluent disposal facilities on that Lot must be contained.
An extract from the original Structure Plan showing the approved building envelopes is included as Annexure A to RC N407748.
Whilst the definition of 'building envelope' in RC N407748 may not strictly inform the meaning of that expression in RC N407747, there was no dispute that the existing building envelope is the area of land shown on the original Structure Plan.
On 29 August 2018, the WAPC approved the Structure Plan. The subject site is identified within the 'Landscape Lots' zone in Plan 1 of the Structure Plan.[37] Plan 1 contains 'Notes' relating to the development of land within the Structure Plan area and lists matters that are relevant to the development of the subject site, including that 'all buildings are to be located within building envelopes where designated'.[38] It also provides:[39]
All development on the Landscape zoned lots is to be in accordance with Design Guidelines prepared to the specifications of the City of Swan and implemented through a developer covenant. The Design Guidelines are to address, but not limited to, the following criteria: building materials/colours, building design, whether outbuildings are permitted and if so their location within the building envelope, and are to stipulate that building envelopes cannot be extended or split.
[37] Respondent's s 24 bundle of documents dated 8 April 2022, page 615.
[38] Structure Plan, Plan 1, Note 4; Respondent's s 24 Bundle dated 8 April 2022, page 615.
[39] Structure Plan, Plan 1, Note 9; Respondent's s 24 Bundle dated 8 April 2022, page 615.
The Highland Ridge Design Guidelines (Design Guidelines) are in similar terms to RC N407747 and require the construction of dwellings entirely within designated building envelopes. The Design Guidelines also provide that the design vision for the Estate is 'to create unique, contemporary rural home sites which are sensitively designed to take advantage of, but also seamlessly coexist with, the existing natural features of the site'.[40]
[40] Respondent's s 24 bundle of documents dated 8 April 2022, page 621.
It follows that the existing building envelope on the subject site was adopted in the original Structure Plan, and reflected in Design Guidelines for the Estate, following the Visual Appraisal. Based on these documents, I find that the purpose of the existing building envelope is to protect the current view and landscape values of the Darling Range and associated foothills.
The City's local planning instruments provide development controls that relate to designated building envelopes. I will next outline the relevant provisions of LPS 17 and the City's local planning policies.
City planning instruments related to building envelopes
The Landscape Zone is a 'structure plan area' pursuant to cl 5A.1.1 of LPS 17 and, consequently, an area that requires comprehensive planning.[41] LPS 17 provides that the development of land within a structure planning area is to be 'generally in accordance with'[42] any structure plan that applies to that land.[43]
[41] LPS 17, cl 5A.1.2.1
[42] On the meaning of 'generally in accordance with', see Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 133 at [26].
[43] LPS 17, cl 5A.1.3.1.
Clause 5A.1.4.4 of LPS 17 provides that buildings must be located in building envelopes depicted on a structure plan but, pursuant to cl 5A.1.4.5 of LPS 17, certain structures may be approved outside building envelopes. Clause 5A.1.4.4 of LPS 17 and cl 5A.1.4.5 of LPS 17 relevantly provide:
5A.1.4.4Where building envelopes are depicted on a Structure Plan, all buildings and effluent disposal facilities shall be located within the building envelopes shown on those plans.
5A1.4.5Notwithstanding the provisions of sub-clause 5A.1.4.4, Council may approve the construction of the following structures outside of building envelopes:
(a) water tanks;
(b) windmills;
(c) stock watering and feed troughs; and
(d)roofed structure[s] open on all sides for the purpose of providing shelter to animals.
Where the provisions of LPS 17 are inconsistent with the Deemed Provisions, the Deemed Provisions prevail and the provisions of LPS 17 are, to the extent of the inconsistency, of no effect.[44] I find that the provisions of LPS 17 which require development to comply with or be generally in accordance with a structure plan that applies to land within a structure plan area are inconsistent with cl 27(1) of the Deemed Provisions because, pursuant to the latter provision, a decisionmaker determining an application for development approval is to have due regard to structure plans approved by the WAPC but is not bound by them. In this matter, the parties agreed, and there was no dispute, that I must have due regard to, but am not bound by, the structure plans that apply to the subject site.
[44] Planning and Development Act 2005 (WA), s 257B(3); See Puma Energy Australia and City of Cockburn [2016] WASAT 36 at [30].
Notwithstanding that a structure plan cannot bind a decision-maker, the respondent contends that LPS 17 can point to a specific aspect within a structure plan, such as a designated building envelope, and make that aspect a development standard or requirement.[45] I accept the respondent's contention, and I find, that building envelopes shown on the Structure Plan, which are incorporated by reference into the Scheme by a specific provision, in this case cl 5A.1.4.4 of LPS 17, are development standards or requirements of the Scheme. I further find that cl 5.5.1 of LPS 17 provides for variations to development standards or requirements prescribed under the Scheme in respect of development to which the State Planning Policy 7.3 - Residential Design Codes (RCodes) does not apply.[46] The parties agreed, and I find, that the RCodes do not apply to the proposed development because the Landscape Zone is not subject to any residential density code.[47]
[45] ts 6, 29 November 2022.
[46] Applicant's SIFC dated 9 May 2022, para 16; ts 6, 29 November 2022.
[47] Applicant's SIFC dated 9 May 2022, para 16; ts 6, 29 November 2022.
Consequently, I may grant approval for the proposed development pursuant to cl 5.5.1 of LPS 17 provided I am satisfied of the matters in cl 5.5.3 of LPS 17. That is, the proposed development would be appropriate having regard to the criteria set out in cl 67 of the Deemed Provisions and that noncompliance will not have an adverse effect on the occupiers or users of the proposed development, the inhabitants of the locality or the likely future development of the locality.[48]
[48] LPS 17, cl 5.3.3.
If I am wrong, and the existing building envelope is not a development standard or requirement of the Scheme, I nevertheless have discretion to approve the proposed development pursuant to cl 68(2) of the Deemed Provisions, having due regard to the criteria set out in cl 67 of the Deemed Provisions.
The City of Swan Local Planning Policy POL-C-080 Building Envelopes (Building Envelopes LPP) is also relevant to the determination of these proceedings. The objective of the Building Envelopes LPP is to specify the City's position on the nomination, relocation and modification of building envelopes and to outline matters that will be considered when an application for the construction of a building outside a building envelope is assessed.[49] It applies to all building envelopes nominated or proposed to be nominated on land zoned 'Rural-Residential', 'Special Rural', 'Landscape' and 'Special Use' under LPS 17.
[49] Respondent's s 24 bundle of documents dated 8 April 2022, page 634. See also cl 2.3 of the City of Swan Local Planning Policy POL-TP-126 Building and Development Standards - Rural Zones.
Relevantly, cl 5.2 of the Building Envelopes LPP provides guidance on the approval of development outside building envelopes. It provides:
5.2Approval of Development Outside Building Envelopes
5.2.1The Scheme allows Council discretion in approving the construction of the following structures outside of building envelopes:
a)watertanks;
b)windmills;
c)stock water and feed troughs; and
d)roofed structures open on all sides for the purpose of providing shade and shelter for animals.
5.2.2Council will generally only approve such development where it meets all of the following criteria:
a)Is located no closer than 15m to the lot boundaries;
b)Does not require clearing of any significant vegetation on the lot;
c)Is constructed using materials or colours that do not detract from the visual amenity of the locality;
d)Is not located in a visually prominent position such as on a skyline or in close proximity to a building envelope on an adjoining lot.
For the purposes of assessing whether the proposed development will have an unacceptable impact on the amenity of neighbouring properties and an unacceptable visual impact on the locality, I will next set out the description and characterisation of the locality provided by the expert witnesses. In this context, it is relevant to refer to the objectives of the Landscape Zone, which are set out in cl 4.2.16 of LPS 17 as follows:
(a)provide for low density rural residential development and associated rural residential activities, recognizing the visual characteristics of the landscape;
(b)ensure as far as practicable, that the environmental and landscape characteristics of the area are not compromised by development and use of the land for either rural or residential purposes;
(c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora.
The amenity and character of the locality
I must, in considering the amended application, have due regard to the amenity of the locality including, relevantly, the character of the locality.[50] The term 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
[50] Deemed Provisions, cl 67(n).
The correct approach to an amenity assessment does not involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development.[51] The Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (Sunbay).[52] In Sunbay, the Tribunal referred to the decision of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Western Australian Town Planning Appeal Tribunal observed that:[53]
… the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The [Town Planning Appeal] Tribunal emphasised that the first part of the inquiry involves a determination, 'as a matter of fact, [of] the objective character of the area that represents the present state of amenity'.
[51] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70].
[52] Sunbay at [20].
[53] Sunbay at [20].
In Ridgecity Holdings Pty Ltd and City of Albany [No 2] (Ridgecity) [2006] WASAT 187, the Tribunal considered the concept of the locality and found:[54]
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[54] Ridgecity at [42].
Mr Hunt described the locality, in this case, as those rural properties along Litchfield Promenade, Tarlo Bend, Tathra Place and the section of Pechey Road north of the intersection with Litchfield Promenade.[55] According to Mr Hunt, the locality is characterised by single houses on rural residential vegetated lots with a combination of open woodland, scrub, grasslands and granite outcrops.[56] In Mr Hunt's opinion, the desired character of the locality is for single residential dwellings on rural lots that retain remnant vegetation.[57] He observed that one and twostorey buildings and associated outbuildings have been suitably positioned on lots constrained by granite outcrops, topography and remnant vegetation.[58]
[55] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 19.
[56] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 20.
[57] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 112.
[58] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 112.
Mr Hockley identified an immediate locality that includes the subject site and six surrounding properties that are adjacent to or within close proximity to the subject site.[59] According to Mr Hockley, the immediate locality comprises lots within the Landscape Zone which are characterised by the retention of mature trees and existing natural features, with the sensitive positioning of development within nominated building envelopes.[60] Mr Hockley considered the broader locality to be the area generally bounded by Litchfield Promenade to the east, the Perth-Adelaide National Highway road reservation to the north, Augustus Drive to the west and Litchfield Promenade to the south.[61] The broader locality identified by Mr Hockley reflects the boundaries of the Structure Plan area. He described the broader locality as an exclusively low density single residential area, with the elevated Landscape Zone lots in the east forming the foreground to the John Forrest National Park.[62]
[59] Witness statement of Thomas James Hockley dated 11 November 2022, para 18; ts 98, 30 November 2022.
[60] Witness statement of Thomas James Hockley dated 11 November 2022, para 47.
[61] Witness statement of Thomas James Hockley dated 11 November 2022, para 19.
[62] Witness statement of Thomas James Hockley dated 11 November 2022, para 39.
Mr Hunt agreed with Mr Hockley's delineation of the broader locality but considered that the immediate locality extended to all lots located in the Landscape Zone.[63]
[63] ts 99, 30 November 2022.
I accept the delineation of the immediate locality as described by Mr Hockley because it identifies those properties in close proximity to the subject site for the purposes of assessing the amenity impact of the proposed development. Based on Mr Hockley's evidence, which I accept, I find that the immediate locality is characterised by rural lots with natural features, including the retention of native vegetation and granite outcrops, and the sensitive positioning of development. I further find that the broader locality is characterised by an exclusively low density single residential area, contrasted with the elevated and vegetated Landscape Zone lots to the east and adjacent to the John Forrest National Park.
I will next consider whether the location of the proposed development outside the existing building envelope will have an unacceptable impact on the amenity of properties in the immediate locality, being the six properties that are adjacent to or within close proximity to the subject site, including the adjoining property (neighbouring properties).
The amenity of neighbouring properties
Visual amenity
It is the applicant's position that the proposed development will not have an unacceptable visual impact on neighbouring properties. In support of its position, the applicant relied on the evidence of Mr Hunt.
In Mr Hunt's opinion, the proposed development will have a minimal impact on views from the locality to the west and poses no significant impairment on the visual amenity to any neighbouring property.[64] Mr Hunt noted that the original Structure Plan does not refer to the protection of views from lots within the Structure Plan area as a desired outcome.[65]
[64] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 127.
[65] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 110.
Mr Hunt considers that the existing building envelope is illconceived because it does not account for steepness, vegetation retention, noise separation and drainage.[66] In his opinion, the planning framework contemplates that development may occur outside an existing building envelope subject to a merits assessment of the specific location and scale of the proposal.[67] Mr Hunt considers that the merits of the proposed development outweigh any perceived loss of visual amenity from the interveners' perspective.[68] He observed that the proposed development is built into the slope, is at a level below the finished ground floor level of the adjoining property, does not require the clearing of native vegetation, and aims to minimise excavation, retaining structures, and other earthworks.[69]
[66] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 109.
[67] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 107.
[68] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 120.
[69] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 115 and para 119.
In contrast, based on the location, orientation and configuration of the adjoining property, the respondent says that the proposed development would be visible to the interveners.[70] Further, having regard to the height, bulk and scale, orientation and appearance of the proposed development, the respondent contends that it is incompatible with its setting for the purposes of cl 67(m) of the Deemed Provisions.[71] In support of its position, the respondent relied on the evidence of Mr Hockley and Mr Calabrese, an intervener and owner of the adjoining property.
[70] Respondent's SIFC dated 9 May 2022, para 94.
[71] Respondent's SIFC dated 9 May 2022, para 95.
Mr Calabrese said that he and his wife were attracted to the Estate because of the quiet profile and the feeling of seclusion that is provided by the unimpeded rural landscape.[72] He chose to purchase a larger lot away from the residential area because of the quiet profile and isolated character of the dwellings located on Litchfield Promenade.[73]
[72] Witness statement of Samuel Vincent Calabrese dated 26 November 2022, para 4.
[73] Witness statement of Samuel Vincent Calabrese dated 26 November 2022, para 8.
Mr Hockley provided the following evidence about the impact of the proposed development on the amenity of the adjoining property:[74]
The [adjoining property] has been constructed within its designated building envelope and it currently has views westwards towards the City over the cleared area on the [subject site] where the development is proposed. The construction of a dwelling outside the designated building envelope on the [subject site] in the location proposed will in my opinion adversely impact the amenity of the adjoining neighbours through the introduction of a highly visible built form.
…
As well as adversely affecting the view from [the adjoining property], the proposed development will impact on the amenity of that property by bringing development into a visually prominent location and reducing the feeling of seclusion enjoyed by [the adjoining property].
[74] Witness statement of Thomas James Hockley dated 11 November 2022, para 60 and para 62.
In Mr Hockley's opinion, the proposed development is incompatible with its setting having regard to its close proximity to the adjoining property, its finished floor level and resulting height, and its orientation and appearance in a highly visible elevated ridgeline.[75] Mr Hockley also considered the proposed development is at odds with the expectations of the interveners in the planning and design of the adjoining property.[76]
[75] Witness statement of Thomas James Hockley dated 11 November 2022, para 64.
[76] Witness statement of Thomas James Hockley dated 11 November 2022, para 64.
Having regard to the location, orientation and configuration of the adjoining property, I find, based on the evidence of Mr Hockley which I accept, that the proximity of the proposed development will reduce the feeling of seclusion currently enjoyed by the interveners. Contrary to the evidence provided by Mr Hunt, I find that the original Structure Plan refers to the protection of views from lots within the rural area. The Visual Appraisal in Appendix 9 to the original Structure Plan provides as follows:[77]
… The rural development area has been set out with reference back to the exercise of intervisibility and topographic analysis to ensure buildings are positioned in locations that allow views without being obstructive elements[.]
[77] Respondent's s 24 bundle of documents dated 8 April 2022, page 587.
I accept the evidence of Mr Hockley, and I find, that the proposed development is not compatible with the desired future character of its setting because it will introduce a prominent built form on an elevated ridgeline which will be highly visible from the adjoining property.[78]
[78] ts 126, 30 November 2022.
Consequently, for these reasons, and having due regard to cl 67(m) of the Deemed Provisions, I find that the proposed development will have an unacceptable impact on the visual amenity of the adjoining property. There was no evidence to support a finding that the amenity of other neighbouring properties would be affected by the proposed development.
Noise and light pollution
The applicant amended its original development application to, amongst other changes, replace the proposed gravel driveway with a sealed driveway, to modify the orientation of the garage, and to plant eight native Cottonwood Hibiscus trees along the boundary with the adjoining property (proposed landscaping).[79]
[79] Respondent's s 24 Bundle dated 8 April 2022, page 146.
Notwithstanding the applicant's amendments, Mr Hockley considered that the proposed location of the driveway adjacent to the boundary of the adjoining property could cause vehicular noise and light pollution at night. Mr Hockley expressed the following opinion:[80]
… The additional noise and light disturbance this traffic will cause may not be considered significant in a more densely populated urban residential location, but in this location it has the potential to be an irritant to the neighbour and will adversely affect their amenity.
[80] Witness statement of Thomas James Hockley dated 11 November 2022, para 62.
Under cross-examination, Mr Hockley conceded that the noise from the driveway, in isolation, would not be unacceptable.[81] He also did not consider that noise emanating from the proposed dwelling, in isolation, would be problematic.[82] Mr Hockley expressed concern about potential amenity impacts from vehicles exiting the garage at night but considered that the proposed landscaping would assist to reduce the light spill from headlights.[83] Because the proposed landscaping is within the APZ, Mr Hockley said the vegetation selected for screening must comply with the City's bushfire hazard separation guidelines.[84]
[81] ts 173, 30 November 2022.
[82] ts 175, 30 November 2022.
[83] ts 177, 30 November 2022; ts 179-180, 30 November 2022.
[84] ts 178, 30 November 2022.
Mr Hunt considered that the proposed landscaping would address the issue of light pollution.[85] He acknowledged that there would be noise from the proposed dwelling (including the driveway) but he did not consider it would have an adverse effect on amenity because there would be noise around the area in general.[86] Mr Hunt observed, in relation to the current amenity of the adjoining property, the following:[87]
… I think anyone building anywhere around them will, of course, have a - an impact on the amenity that they currently have because at the moment essentially they have a three hectare lot because they have no - they have no neighbours. So any - any level of anyone building anywhere is - is of course going to have an impact on the amenity of any of the neighbours.
[85] ts 125, 30 November 2022.
[86] ts 125, 30 November 2022.
[87] ts 125, 30 November 2022.
Based on the evidence before me, I am not satisfied that noise generated by the proposed development (including the driveway) would have an unacceptable amenity impact on the adjoining property. Whilst there may be some light spill from vehicles exiting the garage at night, it was generally agreed by the expert witnesses that the proposed landscaping would help ameliorate any adverse amenity impacts on the adjoining property.
Amenity of the broader locality - visual impact
As referred to earlier, the purpose of the existing building envelope is to protect the current view and landscape values of the Darling Range and associated foothills. I will next consider whether the proposed development will have a visual impact on the broader locality as delineated by the expert witnesses and, if so, whether it will detract from the current and likely future amenity of the locality.
It is the respondent's position that the proposed development is incompatible with the desired future character of the area because it will be located in a building exclusion area shown in Figure 7 of the original Structure Plan which was designed, following the Visual Appraisal, to negate landscape and visual impacts.[88]
[88] Respondent's SIFC dated 9 May 2022, para 94.
The applicant produced a plan showing the building exclusion areas from Figure 7 of the original Structure Plan overlaid with the delineated areas of the designated building envelopes from the current Structure Plan to demonstrate that, for many of the lots in the Landscape Zone, the two areas are not aligned.[89] The applicant contends that the proposed development will not have any adverse amenity impact on the broader locality because, in contrast to developing within the existing building envelope, extensive excavation, earthworks and retaining structures will be unnecessary.[90]
[89] Exhibit 3.
[90] ts 28, 29 November 2022.
In preparing his evidence, Mr Hockley determined that there are a small number of dwellings in the Estate that have been constructed outside designated building envelopes.[91] He also identified examples of dwellings that had been constructed on elevated ridgelines within the Landscape Zone.[92] However, Mr Hockley observed that the ability to view the dwellings had been largely avoided by the sensitive positioning of development.[93] Mr Hockley expressed the following opinion about the impact of the proposed development on the amenity of the broader locality:[94]
Within the broader locality, the construction of the proposed two-storey dwelling within the elevated area at the southern end of the [subject site] will introduce a highly visible building into an otherwise heavily screened and landscaped setting which would negatively impact the existing character and established amenity of the locality. This is noting that the proposed location of the two-storey dwelling is to be positioned between the 108m AHD (approx.) and the 104.5 AHD (approx.) contours, with a ground floor Finished Floor Level of 106.5m AHD. This is substantially higher than contour levels within the nominated building envelope which is positioned between contours 91m AHD and 100m AHD and will result in a dwelling that is more visible from the surrounding areas within the immediate and broader locality, being located on higher ground in a cleared portion of the [subject site].
[91] Witness statement of Thomas James Hockley dated 11 November 2022, para 52 and para 53; Figure 5.
[92] Witness statement of Thomas James Hockley dated 11 November 2022, para 55; Figure 4.
[93] Witness statement of Thomas James Hockley dated 11 November 2022, para 55.
[94] Witness statement of Thomas James Hockley dated 11 November 2022, para 56; Figure 6.
Mr Hockley acknowledged, under cross-examination, that the method of construction of the proposed development would avoid the need for extensive retaining but, due to the visibility of the dwelling, he did not consider it was a site-responsive placement.[95]
[95] ts 145, 30 November 2022.
In contrast, it was Mr Hunt's opinion that the proposed building site is consistent with the existing and desired character and amenity of the locality.[96]
[96] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 123.
Whilst witnesses with expertise in landscape and visual analysis were not called to give evidence in these proceedings, Mr Hockley assessed the impact of the proposed development on the visual amenity of the locality with reference to its setting and elevation in the landscape, and the position of existing built form in the Estate. Mr Hunt's consideration of these matters was less extensive. Consequently, I accept Mr Hockley's assessment, and I find, that whilst the proposed development would not require significant retaining structures, it would introduce a highly visible built form on an elevated topography within a presently cleared portion of the subject site. I further find, based on the evidence of Mr Hockley, which I accept, that the exposed location of the proposed development at a higher position on the subject site will result in a dwelling that is more visible from surrounding areas within the immediate and broader locality. For these reasons, I find that the proposed development is incongruous with the existing character of the locality and will detract from the current and future visual amenity of the locality for the purposes of cl 67(n) of the Deemed Provisions.
The requirements of orderly and proper planning
In considering the amended application, I am required by cl 67(b) of the Deemed Provisions to have due regard to the requirements of orderly and proper planning.
The meaning of the phrase 'orderly and proper planning' was considered by Pritchard J of the Supreme Court of Western Australia in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226. In summary, her Honour determined that orderly and proper planning requires the suitable or appropriate use of land that is based on a systematic and logical approach to decision-making. Her Honour held:[97]
179… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
(Citations omitted).
[97] Marshall at [179]-[182].
It is the applicant's position that the proposed development does not offend any orderly and proper planning consideration.[98] Whilst the applicant acknowledged that the preparation and purpose of the Structure Plan is consistent with orderly and proper planning processes, he says that a departure from it will not result in an adverse planning or amenity outcome in the circumstances of this case.[99]
[98] ts 220, 1 December 2022.
[99] ts 221, 1 December 2022.
The applicant says that he is entitled to have the amended application determined on its merits notwithstanding the proposed development is to be located outside the existing building envelope. The applicant's agent, Mr Algeri, referred to the decision in SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32; [2003] WATPAT 138 (SPB), in which the Town Planning Appeal Tribunal of Western Australia said:[100]
The function for the tribunal is not, of course, to determine whether a proposed development is the best possible development, having regard to all issues, that might conceivably be placed on the subject site. What the tribunal must do is to assess whether, in the interests of all orderly and proper planning, and the amenity of the area, and having regard to all applicable planning instruments, a development should be approved. Thus, unless it can be said that a proposed development is contrary to any of those considerations, it should be approved notwithstanding that some may think that a better development of the site might be possible.
[100] SPB at [90].
In support of its position, the applicant relied on the evidence of Mr Hunt. Mr Hunt considered that the proposed development is consistent with orderly and proper planning because it will not have any unacceptable amenity impact.[101] In his opinion, the planning framework contemplates the construction of a dwelling outside the existing building envelope subject to a merits assessment of the specific location and proposed scale of the development.[102] Mr Hunt considered that the proposed development will have minimal impact on views to the west from the adjoining property and no significant impairment to visual amenity in the broader locality.[103]
[101] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 106; ts 195, 30 November 2022.
[102] Witness statement of Jason Atlee Hunt dated 15 November 2022, para 107.
[103] ts 195-196, 30 November 2022.
The interveners say that the proposed development is not consistent with orderly and proper planning.[104]
[104] ts 232, 1 December 2022.
The respondent agreed with the interveners' position and pointed to the designation of building envelopes under the Structure Plan as forming part of the orderly and proper planning process.[105] On this basis, the respondent considered that SPB was distinguishable because it did not involve a building envelope.[106] The respondent contends that there is an obligation to develop within the existing building envelope as set out in the Scheme and the Structure Plan, which is reinforced by the conditions of the WAPC approval, the notification on title, and by RC N407747.[107]
[105] ts 241, 1 December 2022.
[106] ts 249, 1 December 2022.
[107] ts 241, 1 December 2022.
In support of its position, the respondent relied on Mr Hockley's opinion that the existing building envelope forms part of the planning framework. Mr Hockley observed:[108]
From the perspective of orderly and proper planning, in my opinion it is relevant that the [a]pplicant, like any purchaser of a Landscape Lot, would have been aware of the existence of the designated building envelope at the time of purchase. Not only is the designated building envelope a part of the planning framework, it is reinforced by a restrictive covenant … In my view the existence of the designated building envelope in this location derived from a detailed planning process with the intention of protecting the character of the locality and the amenity of residents means that a high bar is set for any proposal which seeks to develop outside the designated building envelope.
[108] Witness statement of Thomas James Hockley dated 11 November 2022, para 66.
For the reasons that follow, I find that locating the proposed development outside the existing building envelope is not, in the circumstances of this case, consistent with the requirements of orderly and proper planning.
First, as I referred to earlier, the purpose of the existing building envelope, as set out in the Structure Plan, is to protect the current view and landscape values of the Darling Range and associated foothills. I have found that the proposed development will detract from the visual amenity of the locality and, therefore, permitting the construction of the applicant's dwelling to proceed in its proposed location, outside the existing building envelope, would be inconsistent with the Structure Plan provisions. Whilst I am not bound by the Structure Plan, it is a matter to which I must have due regard in the exercise of my discretion pursuant to s 67(h) of the Deemed Provisions.
Second, certain building exclusion areas were adopted in the original Structure Plan following the Visual Appraisal. The Visual Appraisal was an extensive digital terrain modelling process where the results were 'ground truthed' and, where necessary, amended to ensure buildings are located outside the most visually exposed areas and ridgelines. I consider that the proposed development, which will site a new dwelling at a higher AHD than the existing building envelope, is inconsistent with the results of the Visual Appraisal. There was no new landscape and/or visual analysis before me to disturb those results.
Third, the notification on title pursuant to s 70A of the TL Act was a condition of subdivision approval which, as a planning authority, the WAPC had power to impose.[109] The notification on title requires dwellings and buildings to be located within the existing building envelope (as provided for in the original Structure Plan). Whilst the notification on title is not a planning instrument, I consider it is relevant to the exercise of my discretion because it resulted from a State planning assessment and approval process that sought to achieve the siting of development within designated building envelopes. I observe that the notification on title can be contrasted to RC N407747 by which the applicant covenants not to construct a residence or any ancillary structure outside the existing building envelope without first obtaining the approval of the developer of the Estate and the City. RC N407747 is enforceable by the owner of a benefitted lot in respect of a breach of the restrictive covenant and will expire on 31 December 2025. However, the notification on title can only be removed by the Registrar of Titles in accordance with s 70A(3) of the TL Act. Whilst I have placed some weight on the notification on title, I am not bound by its terms (or those of RC N407747) in the determination of these proceedings.[110]
[109] See Presiding Member of the Metropolitan Central Joint Development Assessment Panel v 43 McGregor Road Pty Ltd [2018] WASC 98 at [54].
[110] See Smith and City of Bayswater [2006] WASAT 176 at [34] and the authorities cited in Jones and City of Swan [2022] WASAT 101 at [55] to [60].
Fourth, I have found that the proposed development will have an unacceptable impact on the amenity of the adjoining property because it will introduce a highly visible building into an otherwise heavily screened and landscaped setting. The respondent says that it would be unfair to allow the proposed development because the interveners had relied on the location of the building envelope on the subject site in developing the adjoining property. Whilst I consider it relevant that the interveners orientated their dwelling having regard to the building envelope on the subject site, and that RC N407747 informed their expectations of amenity, I do not regard these matters as determinative. If the expert evidence supported a finding that the amenity impacts of the proposed development were acceptable, the amended application could be approved on its merits notwithstanding the interveners' reliance on the location of the existing building envelope and RC N407747. However, the evidence before me does not support such a finding or conclusion.
Finally, the applicant offered several reasons why the dwelling should be positioned in a different location on the property and outside the existing building envelope. These included the need for extensive excavation, earthworks and retaining structures and the related costs of constructing in difficult terrain, the management of overland water flow due to the excessive gradient of the property, the clearing of native vegetation, and reducing the impacts of vehicular noise and pollution from the future Perth-Adelaide National Highway. Whilst an engineering assessment of the property concluded that the location of the proposed development is more suitable for construction, it did offer mitigation strategies to address the slope and soil type of the existing building envelope and overland flows.[111] Consequently, based on the evidence before me, I am satisfied that the applicant's concerns can be addressed through appropriate engineering and drainage solutions.
Conclusion
[111] Letter to City of Swan from Pritchard Francis dated 10 February 2022; Exhibit 1, page 170.
Having due regard to the relevant matters in cl 67 of the Deemed Provisions, I conclude that the correct and preferable decision is to dismiss the application for review under s 252(1) of the PD Act. I have found that the proposed development is incompatible with its setting and will have an unacceptable impact on the amenity of the adjoining property. It will also detract from the visual amenity of the locality. Further, for the reasons just stated, the location of the proposed development outside the existing building envelope is, in the circumstances of this case, inconsistent with the requirements of orderly and proper planning.
Accordingly, I will affirm the respondent's decision made on 2 March 2022 to refuse development application DA-69/2021 for a single dwelling outside the existing building envelope.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 2 March 2022 to refuse development application DA-69/2021 for a single house outside the building envelope at No 139 (Lot 2160) Litchfield Promenade, Jane Brook, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
28 MARCH 2023
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