JONES and CITY OF SWAN and SAMUEL AND AMY CALABRESE - [2022] WASAT 52

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   JONES and CITY OF SWAN [2022] WASAT 52
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   21 JUNE 2022
FILE NO/S:   DR 244 of 2021
BETWEEN:   BRETT JONES
Applicant
AND
CITY OF SWAN
Respondent
SAMUEL AND AMY CALABRESE
Intervenors

Catchwords:

Practice and procedure - Town planning - Development application - Participation by third party - Whether third party has sufficient interest - Whether intervention necessary in order for Tribunal to meet its objectives - Environmental issues - Clearing of native vegetation - Restrictive covenant resulting from EPBC Act process - Public interest matters

Legislation:

Biodiversity Conservation Act 2018 (WA)
City of Swan Local Planning Scheme No 17
Environment Protection and Biodiversity Conservation Act 1999 (Cth), Pt 9, s 67, s 75, s 77A
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 27, cl 67(2), cl 67(2)(n), cl 67(2)(o), cl 67(2)(zb)
Planning and Development Act 2005 (WA), s 3(2)(c), s 237A(2), s 239(1), Sch 7
State Administrative Tribunal Act 2004 (WA), s 37(3)
Transfer of Land Act 1893 (WA), s 136D

Result:

Application to intervene successful

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A
Intervenors	:

Solicitors:

Applicant	:	Altus Planning (acting as Agent)
Respondent	:	Allerding & Associates (acting as Agent)
Intervenors	:	Cornerstone Legal

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

Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Curlewis and City of Albany [2021] WASAT 85
Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400; (1987) 63 LGRA 197
Squarcini and Milino Pty Ltd v State Planning Commission (unreported Supreme Court, WA, Scott J, Library No 960200, 17 April 1996)
The Match Group v Metropolitan South-West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
Western Australian Planning Commission v Dungey [2010] WASC 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding relates to an application made by Mr Brett Jones (Applicant) to the City of Swan (City or Respondent) for a single house on Lot 2160, No 139 Litchfield Promenade, Jane Brook (Land). The single house is proposed to be located outside of the building envelope established by the Jane Brook Local Structure Plan (Structure Plan).
Samuel and Amy Calabrese own Lot 2161, No 135 Litchfield Promenade which adjoins the Land (Adjoining Land) and apply to intervene in the proceeding pursuant to s 37(3) of the State Administration Act 2004 (WA) (SAT Act) (Proposed Intervenors).
The Proposed Intervenors are concerned that the proposal to relocate the building envelope on the Land, and to facilitate the construction of a single house thereon, will be contrary to two restrictive covenants applying to the Land (and to the Adjoining Land) and therefore, the Proposed Intervenors' use and enjoyment of the Adjoining Land would be detrimentally impacted.
For the reasons that follow, I am satisfied that intervention is appropriate as it is likely to assist the Tribunal in making the correct and preferable decision.

Background

The following factual background, which is not contested, informs the context for the application to intervene.
On 20 December 2020, the Applicant applied to the Respondent for the construction of a single house outside of the building envelope for the Land. The proposed development is a two-storey timber framed dwelling with a Colorbond sheet roof with a detached garage as well as a swimming pool (Proposed Development).
The Land:
a)is located in Jane Brook, a suburb in the foothills on the western face of the Darling Ranges which is approximately 25 kilometres east of the Perth Central Business District;
b)has an area of 1.016 hectares and fronts 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 Land (being 113 metres Australian Height Datum (AHD)) to the lowest point in the north-west corner (being 89.5 metres AHD); and
e)contains a building envelope of approximately 1,000m² located in its northern moiety.
The Proposed Development is to be located in south-east corner of the Land and would be serviced by an internal driveway. The Applicant's justification to develop outside the building envelope is:
a)to relocate the home as far as practical away from the future Perth to Adelaide Highway for both noise and air pollution reasons;
b)the current building envelope is in a gully showing signs of erosion and which may also act as a funnel for overland waterflow from a neighbouring property;
c)to relocate the house to higher ground with less slope and earthworks and thus disruption to the natural landscape; and
d)to avoid construction in areas of rocky outcrops.
At its meeting on 13 October 2021, the Respondent resolved to refuse the Proposed Development for the following reasons:
1.The shift in the site of the building envelope will result in a reduction of amenity to the [the Adjoining Land], 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.
The Applicant sought review in the Tribunal and the matter was subject to mediation following which modifications were made to the Proposed Development.
These revisions were considered by the Respondent on 2 March 2022. The Respondent resolved to not approve the Proposed Development on the basis that development outside of the building envelope on the Land will 'adversely and negatively affect the amenity of the [Adjoining Land]'.

Applicable planning framework

For the purposes of considering the question of intervention, it is unnecessary for me to traverse the applicable planning framework in close detail. However, the following aspects of the framework warrant mentioning.
The Land (and the relevant locality for present purposes) is zoned 'Landscape' in the City of Swan Local Planning Scheme No 17 (LPS 17).
The Land is also subject to the Structure Plan, cl 9 of which reads:
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.
In addition, the Land and the Adjoining Land are subject to two restrictive covenants which were imposed by the developer of the Highland Ridge Private Estate (Estate). The two restrictive covenants are as follows:
a)Restrictive covenant (RC N407748) was imposed to give effect to the Referral Decision (discussed below). It notes that the decision under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was conditional upon certain trees being retained in perpetuity. The Deed gives effect to that EPBC Act decision by the covenantee covenanting not to clear any native trees outside of the approved building envelope on a lot. The approved building envelopes were shown on Annexure A, an extract from the Structure Plan. The covenants are enforceable by the developer and the owner of each lot. RC N407748 was imposed pursuant to s 136D of the Transfer of Land Act 1893 (WA) (TL Act).
b)Restrictive covenant (RC N407747) provided a set of Estate Covenants which bind all owners of lots in the Estate and discloses a range of restrictions, including the requirement not to develop outside of the building envelope on each lot and that no building envelope will be relocated without the approval of the developer and the Respondent. These Estate Covenants will expire on 31 December 2025. The Estate Covenants are enforceable by the owners of the lots. RC N407747 was imposed pursuant to s 136D of the TL Act.
The clearing restrictions in RC N407748 flow from the decision (being Referral Decision 2009/5261) of the Assistant Secretary of the Department of the Environment, Water, Heritage and the Arts (DEWHA) under s 75 and s 77A of the EPBC Act on a referral.
In making a decision that an action was not a 'controlled action'[1] under the EPBC Act if undertaken in a particular manner, the 'manner in which [the] proposed action must be taken' included requirements that 977 specified trees not be cleared and that a memorial of title be imposed on land titles to prevent the specified trees being cleared in perpetuity. In addition, the developer had to plant 3,430 trees in areas identified as 'Private Rural Lots' or within areas under the management of the Department of Environment and Conservation, within 6 kilometres of the Estate (Referral Decision).
[1] Defined in s 67 of the EPBC Act to mean: 'An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28B, be) prohibited by the provision. The provision is a controlling provision for the action'.
The Referral Decision makes it clear that the locality in question is a foraging and breeding habitat for the Black Cockatoo.[2] The three species of Black Cockatoo are listed as 'endangered' or 'vulnerable' under both the Biodiversity Conservation Act 2018 (WA) (BC Act) and the EPBC Act.[3]
[2] Being the Forest Red-tailed Black Cockatoo (Calyptorhynchus banksii naso), Carnaby's Black Cockatoo (Calyptorhynchus latirostris) and Baudin's Black Cockatoo (Calyptorhynchus baudinil).
[3] The Carnaby's Black Cockatoo and Baudin's Black Cockatoo are listed as 'endangered' under both the BC Act and the EPBC Act. The Forest Red-tailed Black Cockatoo is listed as 'vulnerable' under both the BC Act and the EPBC Act (>
From what I can ascertain, the restriction on clearing outside of the building envelope was included in the Structure Plan when it was originally endorsed in 2008 by the City (and by the Western Australian Planning Commission in 2009) (Notes 2 and 3 on the Structure Plan). The current iteration of the Structure Plan includes the clearing restrictions in cl 9.
The relevant point being that the need to restrict clearing of native vegetation in the Estate, and relevantly the Land, as identified in RC N407748 and RC N407747, is reflected at some level, in the local planning framework via the Structure Plan. As I have stated, the building envelopes that are shown in RC N407748 were extracted from the Structure Plan.

Issues

The Respondent and the Applicant do not agree on the issues that arise for consideration in relation to the Proposed Development. The Respondent submits that the issue to be determined is as follows:
1.Whether it is orderly and proper to grant approval to the proposed single residential dwelling outside of the approved building envelope having regard to:
1.1the impact of the development on the amenity of surrounding properties;
1.2the visual impact arising from the development of the site;
1.3those matters to be addressed under cl 67(2) of the deemed provisions including: (a), (b), (c), (fa), (g), (h), (m), (n), (p), (q), (w), (x), (y) and (zb).
The Applicant considers the Respondent's formulation of the issues to be too broad in nature and non-specific.
The Applicant considers that the 'only true issue for determination' is:
Whether the location of the proposed development outside the existing building envelope would create an unacceptable visual impact on neighbouring properties, particularly [the Adjoining Land].
It is unnecessary for me, for the purposes of intervention, to set out precisely the issues that the Tribunal, considering the Proposed Development on its merits at a final hearing, will be required to determine.
As I come to explain, the Respondent's case is that the Proposed Development does not warrant approval having regard to the applicable planning framework based primarily, it seems, on amenity considerations, namely the visual impact of the Proposed Development.
The Applicant's case is that the only issue in contest is the visual impact of the Proposed Development on the Adjoining Land.
As will be apparent, neither the Respondent nor the Applicant consider that the impact on environmental values - in terms of the potential clearing of native vegetation - of the Proposed Development warrant express consideration (although I accept the Respondent references a range of subclauses in cl 67(2) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) some of which do touch on environmental issues).

Proposed Intervenors' submissions

The Proposed Intervenors submit that they have a sufficient interest in the proceeding so as to justify leave to intervene and that intervention is necessary in order for the Tribunal to meet its objectives under the SAT Act.
The Proposed Intervenors' submissions for intervention are premised on the Referral Decision. The gravamen of their argument is that the reason why the Structure Plan was not assessed under Pt 9 of the EPBC Act was that arrangements were required to be put in place (via memorials on title) to protect the specified trees in 'perpetuity'.
The Proposed Intervenors submit that, in effect, the Proposed Development seeks to 'breach' RC N407748 as it will facilitate clearing outside of the nominated building envelope.
The Proposed Intervenors further submit:
a)it is 'not possible to vary a building envelope particularly in circumstances where the envelope is the subject of requirements imposed by the EPBC Act';
b)that the relevant power to vary a restrictive covenant, which is provided for in Sch 7 to the Planning and Development Act 2005 (WA) (PD Act), is not included in LPS 17; and
c)if clearing was to occur outside of the areas nominated in the restrictive covenant the action would become a 'controlled action' for the purpose of the EPBC Act.
Finally, the Proposed Intervenors submit that the Applicant would have, at the time of purchase, been made aware of, and agreed to be bound by, the 'special conditions' imposed by the developer of the Estate which attached to the Land via RC N407748 and RC N407747.

Applicant's submissions

The Applicant opposes intervention. The Applicant submits that there will not be any relevant clearing outside of the building envelope. Rather what is proposed is the development of a single house. Formal approval is not sought to relocate the building envelope.[4]
[4] The City no longer has statutory power to determine applications to amend building envelopes by reason of the effect of cl 27 of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (deemed provisions).
The Applicant further submits that, in any event, there will no 'clearing' outside of the building envelope. This is because the relevant definition of 'clearing' in RC N407748 excludes clearing done 'for maintenance, safety or bush fire management purposes'.
The Applicant also sets out that only one tree will be impacted by clearing associated with the Proposed Development which will involve a branch being removed for the purposes of establishing an 'asset protection zone'.
The Applicant also submits that the restrictive covenants (RC N407748 and RC N407747) are not 'planning instruments relevant to this application for review'. The Applicant also submits that the Proposed Intervenors have not articulated a 'vital interest other than to seemingly act as some form of inspector, arbiter, regulator, or secondary respondent in this matter'.

Respondent's submissions

The Respondent does not oppose leave being granted to intervene. The Respondent submits it had regard to the restrictive covenants in that they form a private agreement between landowners within the Estate.
The Respondent submits that it opposes the Proposed Development based on amenity impacts (namely visual amenity it seems) but does not focus on the restrictive covenants in the way that the Proposed Intervenors do.
I now turn to the principles which inform the question of intervention in planning reviews.

Intervention in the Tribunal

Intervention may be granted pursuant to s 37(3) of the SAT Act. The principles that inform the question of intervention in planning reviews are well known and settled.
These principles were set out by Judge Chaney, as he then was, in ING Development Australia Pty Ltd and Western Australian Planning Commission.[5]
[5] ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 (ING) [28].
The principles are:
a)in order to be granted leave, the proposed intervenor must demonstrate, at least, an interest sufficient to gain standing based on the tests arising from the Australian Conservation Foundation Inc v Commonwealth of Australia (Australian Conservation Foundation);[6]
[6] Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493.
b)demonstrating a sufficient interest does not, of itself, justify the granting of leave to intervene;
c)a special interest group will not gain standing to intervene just because of its constitutional objects which may focus on issues relevant to the matter before the Tribunal, nor will a private citizen be granted leave to intervene merely on the basis of strong personal beliefs;
d)the interest in question need not be a legal interest, although it often will be;
e)demonstrating an interest which is sufficient so as to justify joinder under s 38 of the SAT Act is not sufficient;
f)the proposed intervenor will need to establish that intervention is necessary to enable the Tribunal to meet its objectives under both the SAT Act (including minimising costs and avoiding delays) and, in this instance, the PD Act. Relevant factors to consider will include:
i)the likely contribution of the intervenor for the proper disposition of the issues;
ii)whether the interest to be represented and the material to be advanced will be adequately dealt with by the parties to the proceeding; and
iii)the overall impact that the grant of intervention will have on the proceeding;
g)ordinarily, an intervenor will only be permitted to support or oppose a decision contended for by a party and will not be permitted to introduce new issues for consideration; and
h)intervention will, in general terms, not be permitted where the third party seeks to raise the same point that is being raised by an existing party.
In Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission (Wattleup Road)[7] Judge Parry recited the principles set out in ING and identified the two principal elements in the exercise of discretion under s 37(3) of the SAT Act.
[7] Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 [11]
The two principal elements are:
1)the proposed intervenor must demonstrate an interest sufficient to meet the test of standing to seek judicial review, as set out in the Australian Conservation Foundation decision; and
2)the proposed intervenor will, generally, need to demonstrate that intervention is necessary to enable the Tribunal to meet its objectives as well as the objectives of the PD Act.

Disposition

I have found this application to intervene to be finely balanced. On one view the Applicant simply wants to develop a single house on the Land. The Proposed Development falls within the scope of s 237A(2) of the PD Act (what is often referred to as a 'Class 1 Application'). The proposal for a single house on a lot zoned 'Landscape' cannot be said to be, of itself, particularly controversial in planning terms.
However, on another view, the Applicant seeks to develop that single house on an area of the Land that, under the Structure Plan and two restrictive covenants, is to be left undeveloped.
The discretion under s 37(3) of the SAT Act is broad.[8] Ultimately, I am of the view that I should allow intervention if I am reasonably satisfied that it is necessary in order to enable to make the correct and preferable decision on the review. It is also the case, as has been confirmed in cases such as Wattleup Road[9] and Curlewis and City of Albany[10], that intervention can, in exceptional circumstances, be granted to allow an intervenor to expand the issues to be decided beyond those issues raised by either the Respondent or the Applicant. This is such a case.
[8] Wattleup Road [11].
[9] Wattleup Road [27]-[31].
[10] Curlewis and City of Albany [2021] WASAT 85 [118].
Before I proceed, I wish to stress why, in part at least, this has been a difficult matter. The Proposed Intervenors raise a number of 'jurisdictional' arguments which are complex legal arguments. However, by reason of the Applicant's election under s 239(1) of the PD Act, there was no oral hearing in order to allow the Proposed Intervenors' arguments to be more fully ventilated and considered.[11]
[11] Refer Western Australian Planning Commission v Dungey [2010] WASC 52 (Beech J) in this regard. While a legal practitioner may prepare documents, he or she may not appear at a hearing in a Class 1 matter.
However, based on the materials before me I am satisfied, and so find, that the Proposed Intervenors meet both of the principal elements set out in Wattelup Road and that intervention should be granted. My reasons follow.
First, the Proposed Intervenors, as owners of the Adjoining Land have an interest in the Proposed Development beyond that of an ordinary member of the public. In the language of Australian Conservation Foundation, I am satisfied that the Proposed Development has the potential to injure or harm the Proposed Intervenors' property rights.
Second, I am satisfied that intervention is necessary in order for the Tribunal to meet its objectives and to make the correct and preferable decision upon the review. The arguments to be put by the Proposed Intervenors are different from the case being put by the Respondent.
The Respondent's case, unsurprisingly, rests on the proposition that the Proposed Development does not warrant approval under the applicable planning framework, including the Structure Plan. The Respondent's case is put, from what I can ascertain, largely on the basis of visual amenity considerations. The Applicant's case is that the proceeding is only about visual amenity.
On the other hand, the Proposed Intervenors submit that there are jurisdictional issues that must be addressed. The first is whether the City and the Tribunal on review has power to approve the Proposed Development on the basis that it would, in effect, be contrary to the Referral Decision and RC N407748 which was established to give effect to the Referral Decision.
Put another way, the Proposed Intervenors contend that the City and the Tribunal on review cannot approve the Proposed Development as it would, in effect, be approving an action that would be a 'controlled action' under the EPBC Act. Once an action is a 'controlled action', it is an action that is subject to one of the assessment processes set out in Pt 8 of the EPBC Act.[12] On that basis, the Proposed Intervenors submit that the Tribunal cannot approve the Proposed Development in the absence of the DEWHA's consent. While there may be some conceptual and jurisdictional difficulties with the Proposed Intervenors' argument, especially in the light of decisions such as The Match Group,[13] I am not prepared, at least at this time, to summarily dismiss it.
[12] Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011 [43]-[44] (Kerr J).
[13] The Match Group v Metropolitan South-West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227.
The second jurisdictional argument is that the Proposed Intervenors submit that the restrictive covenants that apply to the Land are, in effect, binding on the City and, on review, the Tribunal.
This is because the City has not sought to vary the effect of either of these restrictive covenants, which the City could have done via the power set out in item 11(1) of Sch 7 to the PD Act. That is to say, there is an express power for a local planning scheme to extinguish or vary the effect of any restrictive covenant that applies to land within the scheme area. However, neither RC N407748 nor RC N407747 have been varied by LPS 17. The Proposed Intervenors therefore submit the City, and the Tribunal on review, must give effect to these restrictive covenants and, as a result, lack jurisdiction to allow for the development of the Land at variance with them.
In so far as the Proposed Intervenors rely on RC N407747, their argument must, I find, fail. That is because there is an express power to vary a building envelope with the consent of the developer and the City.
RC N407748 is different. RC N407748 is the restrictive covenant that, by its express terms, gives effect to the Referral Decision and there is no express power to vary the approved building envelopes. The Proposed Intervenors' argument in this regard raises its own questions, including whether the City can be bound by RC N407748 when it is not a party to that covenant. There may also be a question as to whether a restrictive covenant can otherwise fetter the exercise of planning powers under a written law such as LPS 17. Furthermore, one may also need to consider whether a power to vary may be inferred.
These questions can be the subject of further submissions and argument. Again, I express no concluded view on those questions, but I am satisfied the Proposed Intervenors' contention should not be rejected without, at least, further consideration.
In addition to the jurisdictional arguments put forward by the Proposed Intervenors, there is a further question as to whether the Referral Decision, RC N407748 and RC N407747 are relevant considerations for the City and the Tribunal in the exercise of planning discretion.
The Applicant submits that RC N407748 and RC N407747 are not 'planning instruments relevant to this application for review'.
As a broad proposition, the Applicant's submission can be accepted. In general terms, restrictive covenants, which are directed to the arrangements within a private estate, do not inform the exercise of planning discretion. That is because land use planning, in particular development control, is directed towards protecting the public interest. In R v City of Munno Para; Ex parte John Weeks Pty Ltd , King CJ noted that:
… The purpose of the planning legislation is not to inhibit development but to facilitate its occurrence in way that is both orderly and compatible with the public interest[.][14]
[14] R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400; (1987) 63 LGRA 197, 206 (King CJ).
In this instance, the Proposed Intervenors bring to the Tribunal the issue of the restrictive covenants which affect both the Land and the Adjoining Land and the Estate. While in general terms, a restrictive covenant may be said to be a private matter, as a matter of substance, the restrictive covenants in question are not directed solely to private interest matters.
To the contrary, the restrictive covenants, in particular RC N407748, are the product of a statutory process under the EPBC Act and a decision that an action was not a 'controlled action if undertaken in a particular manner'.
That is to say that RC N407748 is, in effect, an environmental control applying to the Estate (which includes the Land). To my mind, RC N407748, which operates to prevent clearing of Black Cockatoo habitat across the Estate, is a matter of public interest. To the extent that RC N407747 reinforces the requirements for building envelopes to be retained so as to protect native vegetation, so too is it.
It follows that, to that extent, I disagree with the Applicant that the restrictive covenants are not relevant in the exercise of discretion. I do acknowledge that there are private remedies available for individual landowners within the Estate to seek to enforce compliance if a restrictive covenant is breached. Even so, as an environmental control applying to the Estate, I find they may be relevant considerations in the exercise of planning discretion.
In my view, the Referral Decision, as a decision made under the EPBC Act, which informs the arrangements within the Estate upon which subdivision and development may proceed, may also be a relevant consideration in the exercise of discretion.
The range of considerations addressed in cl 67(2) of the deemed provisions is very broad. Since the decision of the Supreme Court in Squarcini v State Planning Commission it has been accepted that environmental factors are relevant town planning considerations.[15] It is also the case that the environmental effects of a development are now an express relevant consideration by reason of cl 67(2)(o) of the deemed provisions. Furthermore, cl 67(2)(zb) is a catch-all provision that allows the City and the Tribunal on review to have due regard to 'any other planning consideration'.
[15] Squarcini and Milino Pty Ltd v State Planning Commission (unreported Supreme Court, WA, Scott J, Library No 960200, 17 April 1996).
In my view, having regard to the context of the issues that arise in this proceeding, due regard may be had to the Referral Decision, RC N407748 and RC N407747 (to the extent that RC N407747 addresses building envelopes), in the exercise of planning discretion. Of course, the weight to be given to these factors is a matter for the Tribunal which will determine the Proposed Development on its merits.
It follows that, in the unusual circumstances of this case, I find that intervention is necessary for the Tribunal to be able to reach the correct and preferable decision.
In the result, I find that the Proposed Intervenors should be given leave to intervene to press their arguments that the Referral Decision, RC N407748 and RC N407747 operate to prevent, or at least militate against, the Proposed Development being approved. However, I do not consider it appropriate for the Proposed Intervenors to be given leave to intervene unconditionally. The leave granted to the Proposed Intervenors will be limited to the matters I have identified.
Before I finish, it is appropriate that I reiterate that this decision should in no way be read as a commentary of the merits or otherwise of the Proposed Development. The merits of the Proposed Development, in the light of the applicable planning framework, will be for the Tribunal to determine at a final hearing.
I will hear from the parties as to the final form of orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
21 JUNE 2022