JOSEPH and CITY OF NEDLANDS - [2022] WASAT 13

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   JOSEPH and CITY OF NEDLANDS [2022] WASAT 13
MEMBER:   MR R POVEY, MEMBER
HEARD:   10 DECEMBER 2021
DELIVERED          :   17 FEBRUARY 2022
FILE NO/S:   DR 24 of 2021
BETWEEN:   DAVID KAKKASSERY JOSEPH
CHRISTINE DAVID JOSEPH
Applicants
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning - Development application - Short-stay accommodation - Short-term accommodation - Holiday house - Airbnb - Hosted accommodation - Weight to be accorded to policy - Low density residential area - Amenity - Compatibility of proposed use with its context - Orderly and proper planning

Legislation:

City of Nedlands Local Planning Scheme No 3, cl 16(2), Table 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8, Sch 2, cl 64, cl 67(2), cl 67(2)(e), cl 67(2)(y), cl 67(2)(zb), cl 74(1), cl 74(2), cl 75(1), cl 75(2)
Planning and Development Act 2005 (WA), s 252(1)
Planning Regulations Amendment Regulations 2020 (WA), reg 74(2), Pt 2
State Administrative Tribunal Act 2004 (WA), s 18, s 24, s 27, s 27(1), s 29(5)(b), s 31, s 32(1), s 32(2)(a), s 32(2)(b)

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicants	:	In Person & N/A
Respondent	:	Mr T Hockley (Planning Advocate)

Solicitors:

Applicants	:	N/A
Respondent	:	N/A

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

D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99
Hewison and Shire of Augusta-Margaret River [2014] WASAT 62
Hope and City of Joondalup [2007] WASAT 8
Kogon and City of Vincent [2019] WASAT 75
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and the Western Australian Planning Commission, [2005] WASAT 40
Nield and Shire of SerpentineJarrahdale [2021] WASAT 94
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for review made under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the City of Nedlands' (respondent or City) decision to refuse a 'holiday house' (proposed development) at Lot 96 (No 37), Strickland Street, Mount Claremont (subject site).
On 27 October 2020, the proposed development was considered at a Council meeting, but the Council failed to make a decision pursuant to cl 75(1) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) and the application was deemed refused pursuant to cl 75(2) of the Deemed Provisions. On reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on 23 March 2021, the respondent refused the application and provided reasons. Following mediation, which resulted in an amended application in the form of an updated management plan, the respondent was again invited to reconsider its decision pursuant to s 31 of the SAT Act.
On 24 August 2021, the respondent refused the amended application for the following reasons:
1. The proposal is not compatible or complimentary with the adjoining residential development and is contrary to an objective of the Residential zone under the Scheme;
2. The proposal does not comply with Clause 67(2)(n)(iii) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 as the development is not in keeping with the amenity of the locality, including the social impacts of the development;
3. The proposal would have a detrimental impact on the existing residential amenity and character of the immediate low density residential area; and
4. The Management Plan proposed does not meet the Policy Objective of the City of Nedlands Short Term Accommodation Local Planning Policy as the short term accommodation does not maintain a high standard of amenity for the surrounding neighbourhood through the management controls.
Mr David Kakkassery Joseph and Mrs Christine David Joseph (applicants or owners) are seeking orders from the Tribunal to set aside the City's decision made on 24 August 2021 and grant approval for the proposed development. For the reasons set out in this decision, I conclude that the amended application, the subject of this review, should be allowed subject to conditions. The Tribunal will set aside the City's decision and substitute a new decision.

The Tribunal's review jurisdiction

The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of SerpentineJarrahdale [2021] WASAT 94 at [27] to [30], and, for completeness, is set out below:
27By reason of s 17 of the SAT Act, the application 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 (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).[1]
28The 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 on the basis of the information and evidence before it.[2]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[3] 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.[4] The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[5]
30The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[6] 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.

Subject site and locality

[1] Section 18, SAT Act.

[2] Section 27, SAT Act.

[3] Section 32(2)(a), SAT Act.

[4] Section 32(1), SAT Act

[5] Section 27(1), SAT Act.

[6] Section 32(2)(b), SAT Act.

The subject site can be described more particularly as follows:
a)has an area of 1012m²;
b)is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and Residential R20 under the City of Nedlands Local Planning Scheme No 3 (LPS 3);
c)contains a five bedroom, single storey, single house;
d)contains an ancillary dwelling, located at the rear of the property; and
e)contains five car parking bays, in the form of a double garage and a single carport, accessed from Olearia Lane, at the rear of the subject site, and a double carport accessible from Strickland Street.
The locality, identified by the respondent's planning witness, Mr Thomas James Hockley, which I accept, extends from the subject site to an area bounded:[7]
•to the north, by the northern boundary of the local centre;
•to the west, the properties opposite in Strickland Street, which extend through to Clematis Lane;
•to the south, nine residential properties south of the subject site in Strickland Street (up to the southern boundaries of 55 and 56 Strickland Street); and
•to the east, the eastern side of Rochdale Road.
[7] ts 21-23, 10 December 2021.
In respect to the character of the locality, Mr Hockley's evidence, which I accept, is that the locality is characterised as follows:[8]
a)contains Residential R20 zoned land in the immediate vicinity of the subject site and developed as a low density single residential area;
b)has a local centre, zoned Local Centre R60, in proximity to the subject site, located at the corner of Strickland Street and Asquith Street, which is mixed use in nature, containing food, retail and office uses and a small number of multiple dwellings above the ground floor commercial uses; and
c)is not located within or near any significant high-density mixed use areas, public transit areas or key tourism locations.

The proposed development

[8] Exhibit 4 - Witness Statement of Thomas Hockley, paras 13-15.

The proposed development is for the single dwelling at the subject site to be used as a holiday house (short-term accommodation).
Under LPS 3, 'holiday house' is defined as follows:[9]
… a single dwelling on one lot used to provide shortterm accommodation but does not include a bed and breakfast.
[9] Exhibit 2 - Respondent's Statement of Issues Facts and Contentions (SIFC), para 31.
Under the City of Nedlands Local Planning Policy - Short Term Accommodation (LPP-STA), 'short term accommodation' is defined as follows:[10]
Means temporary accommodation provided either continuously or from time to time with no guests accommodated for periods totalling more than 3 months in any 12-month period.
[10] Exhibit 3, Respondent’s s 24 bundle, page 191.
The holiday house will accommodate up to six guests, in up to four bedrooms. Guests will park in the two car parking bays in the double carport accessible from Strickland Street. The owners will also reside onsite in ancillary accommodation at the rear of the subject site, when the holiday house is occupied, and use the car parking at the rear (three bays) accessed from Olearia Lane. When the holiday house is not occupied, the owners will continue to reside in the single dwelling.
The application includes a management plan which deals with the operation of the holiday house.[11] This plan includes minimum stay periods (of two consecutive nights), a maximum of six guests, checkin/check-out times and a code of conduct for guests. The owners, who reside onsite, are the nominated contact in the event of complaints.

Summary of procedural history

[11] Exhibit 3, Respondent's s 24 bundle, pages 140-142.

In April 2019, the applicants commenced operation of the holiday house at the subject site without planning approval. In November 2019, the Council of the City adopted the LPP-STA. When the LPP-STA was adopted, an amnesty period was offered by the City to encourage already operating short-term accommodation providers to obtain planning approval. In response to this, on 27 May 2020, the applicants lodged a retrospective application seeking development approval.
The application was advertised to 38 surrounding owners and occupiers between 6 and 20 July 2020. Four submissions were received, all objecting to the proposed development. The submissions raised issues relating to noise, waste generation and management, car parking, intensity of the use and adverse impacts on the amenity of the locality. On 3 August 2020, the applicants provided a response to the submissions received, contesting the concerns raised.[12] On 8 September 2020 an officer report was presented to a Council Committee meeting recommending approval, subject to conditions. The Council Committee deferred the item.
[12] Exhibit 3 - Respondent's s 24 bundle, pages 255-256.
The Council Committee then considered the application on 13 October 2020 and adopted the officer recommendation of approval with one amendment, reducing the temporary approval period from 12 months to six months. This became the Council Committee's recommendation to the Council meeting scheduled for 27 October 2020.
On 22 October 2020, the City received a petition with 31 signatures objecting to the proposed development.[13] Also, between 22 September and 12 October 2020 a further nine submissions were received from surrounding residents, including eight in objection and one in support.[14] The additional submissions raised concerns of reports of anti-social behaviour, reports of loose rubbish along the street, concerns that the owners living in the ancillary accommodation would not hear noise in the holiday house, concerns about the proximity of bedrooms along the southern side of the neighbouring dwelling at 35 Strickland Street, concerns relating to the use of the front of the subject site as an entertaining area, and reports of activity associated with the holiday house during the evening hours with guests arriving at different times of the night and early morning.
[13] Exhibit 3 - Respondent's s 24 bundle, pages 218-220.
[14] Exhibit 3 – Respondent's s 24 bundle, pages 221-254.
The application was considered at the Council meeting on 27 October 2020 where the Council Committee's recommendation for approval was put, but the motion lost, six votes to seven. The application was deemed to be refused pursuant to cl 75(2) of the Deemed Provisions.
On 19 November 2020, the applicants made application to the Tribunal, albeit under an incorrect Act, seeking review of the deemed refusal. On 29 January 2021, the Tribunal rectified the application to come under the PD Act. The Tribunal also invited the respondent to reconsider its decision pursuant to s 31 of the SAT Act at its meeting of 23 March 2021. At that meeting the Council refused the application.
Following a directions hearing at the Tribunal, the matter progressed to mediation. Mediation resulted in orders for additional information to be provided by the applicants and a further invitation under s 31 of the SAT Act provided to the City to reconsider its decision.
On 24 August 2021, the Council considered the proposed development, which included an updated management plan, and resolved to refuse the application for four reasons previously stated at [3]. It is this application which is the subject of this review.

Planning framework

The relevant planning framework is set out in the respondent's SIFC,[15] and summarised at Annexure A. The relevant planning framework includes:
1)MRS
2)LPS 3, which incorporates the Deemed Provisions by virtue of reg 8 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
3)LPP-STA
4)City of Nedlands Local Planning Policy - Parking (LPP-P)
[15] Exhibit 2, Respondent's SIFC, at paras 27 to 52.
Additionally, the respondent's planning witness, Mr Hockley, identifies the Planning Bulletin 99 Holiday Homes Guidelines (PB99), published by the Western Australian Planning Commission (WAPC) in September 2009, as relevant.[16]
[16] Exhibit 4, Witness Statement of Thomas Hockley, paras 18 to 23 and Annexure TJH2.
Also, on 6 December 2021, the WAPC released, for the purpose of public consultation, the draft Position Statement: Planning for Tourism[17] (PSPFT) and associated Planning for Tourism Guidelines (Guidelines).[18] At the commencement of the final hearing on 10 December, I raised these draft documents with the parties and provided the opportunity for the parties to review them, make submissions and give evidence as to their relevance. At the end of the hearing, the parties confirmed they do not require further opportunity to make submissions on these documents.
[17] Exhibit 9.
[18] Exhibit 10.
The weight to be accorded to PB99 and the draft PS-PFT and Guidelines in arriving at my decision is a matter for me to consider and determine.
PB99 was published by the WAPC in 2009 and its purpose is outlined in the 'Background':
… The bulletin provides guidance to local governments when dealing with issues associated with holiday homes in the local government framework.
The bulletin proposes possible changes to local planning schemes and the preparation of local planning policies, tailored to address the specific issues encountered by local governments.
Clause 67(2) of the Deemed Provisions sets out matters to which I am to have due regard in considering an application for development approval.[19] Relevantly, cl 67(2) requires I have due to regard to:
…
(e)any policy of the Commission[.]
[19] Regulation 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.
Mr Hockley's evidence is that PB99 is a relevant consideration under cl 67(2)(e) as a policy of the WAPC.[20] However, State Planning Policy 1 - State Planning Framework[21] (SPP 1), does not identify planning bulletins in the State planning framework. Further, the purpose of PB99 is to inform local governments when formulating their local planning framework. For these reasons I find Mr Hockley's reliance on PB99 as a policy of the WAPC in this case, which involves the assessment and determination of a development application, is misconceived. PB99 may be considered relevant under cl 67(2)(zb) (any other planning consideration the local government considers appropriate), however for the reasons detailed in [29], I find, it should be accorded minimal weight. In any event, Mr Hockley concedes PB99 is a lower order document in the hierarchy of State planning instruments.[22]
[20] ts 24, 10 December 2021.
[21] SPP1 - dated November 2017.
[22] ts 24, 10 December 2021.
The local planning framework for a holiday house use consists of LPS 3 and a local planning policy, the LPP-STA. Both are contemporary planning documents, coming into operation in 2019. Objective 3.4 of the LPP-STA is '[t]o establish a clear framework for the assessment and determination of applications for short-term accommodation'. Consequently, I place greater weight on the local planning framework which addresses the specific issues in the City associated with the holiday house use, including location, scale and whether the proposed development involves a keeper, or not, residing onsite, and minimal weight on PB99 published in 2009. I find the evidence of respondent's planning witness, Mr Hockley, in respect to preferred locations for holiday houses, which relies on cl 4.4 of PB99, should therefore be accorded minimal weight in my decision.
In respect to the draft PS-PFT and Guidelines, these are intended to replace PB99 and several other planning bulletins. Position Statements and Guidelines are established in SPP 1 as a part of the State planning framework. The draft documents were released for public comment on 6 December 2021. As advised, cl 67(2) of the Deemed Provisions requires, at (e), that I give due regard to any policy of the WAPC.
To determine the weight the draft documents should be accorded in this matter, it is necessary to consider them against the four stage test established in Nicholls and the Western Australian Planning Commission, [2005] WASAT 40 at [45]:
…
(1)In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2)If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3)The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4)The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.

First, it is necessary for me to consider if the PS-PFT and Guidelines are a seriously entertained planning proposal. Given that the documents were released for public comment by the WAPC on 6 December 2021, I find they are seriously entertained, and therefore a matter for consideration in the planning assessment in this case.
Second, in considering the proposed development against the draft documents I find the proposed development is largely consistent with these documents and approval of the proposed development will not render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
Third, in considering the weight to be accorded to the consistency between the application (proposed development) and the draft, relevant to this matter, the draft PS-PFT proposes the introduction of land use definitions of 'hosted accommodation' and 'unhosted short-term rental accommodation'. It is uncontroversial that the proposed development would meet the proposed land use definition for 'hosted accommodation', as the owners live onsite. The Guidelines, at cl 4.4.1, contain 'Statutory considerations' and include, at Table 3, 'zoning options for local government consideration'. Table 3 includes two criteria. The first is to determine where short-term accommodation is best located in the local government area and the second, is to determine appropriate use classes and permissibility for each zone. In terms of use classes and permissibly, Table 3 includes a proposal that 'hosted accommodation' be a 'P' (permitted use), exempt from development approval 365 days of the year in the Residential zone and any other zones deemed appropriate by a local government. However, cl 5 of the draft PSPFT contains 'Policy Measures'. This advises as follows:[23]
Local government are best placed to plan for tourism within their communities, with local knowledge of tourism activity, opportunities and constraints, including potential impacts and what requirements, if any, should be placed on tourism proposals[.]
[23] Exhibit 9, draft PS-PFT, page 2.
Considering this overarching statement and acknowledging the draft status of the PS-PFT and Guidelines, I accord minimal weight to the draft documents and greater weight on the City's local planning framework.
Fourthly, in weighing my conclusions on the above matters and considering all other relevant considerations of this case, the draft PSPFT and Guidelines provide no impediment to the exercise of planning discretion in granting approval in this case.

Conduct of the hearing and evidence

Each party filed and gave to the other party a SIFC. On 15 October 2021, the respondent filed a bundle of documents under s 24 of the SAT Act. The applicants filed numbered photographs with descriptions on 5 December 2021.
The respondent relies on the evidence of Mr Hockley, who is a town planner with the firm Allerding and Associates. Mr Hockley was also the respondent's planning advocate at the final hearing. Mr Hockley prepared a witness statement dated 26 November 2021. The applicants did not file or call any witness evidence.
The respondent submits that in these circumstances, where the applicants have been given an opportunity to provide their own planning evidence, but elected not to do so, and where cross-examination of the witness by the applicants is not informed by expert material, this leaves the Tribunal with no other option but to accept the evidence of the respondent's planning expert in its entirety.[24] The respondent relies on D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99 at [54], [55] and [57] to support this position.
[24] ts 72-73, 10 December 2021.
Although the applicants did not provide witness evidence, given Mr Hockley's written and oral evidence, and consideration of the applicants' various submissions and also of material in the respondent's s 24 bundle of documents, there are certain aspects of his evidence I find should not be given significant weight and, as a consequence, are not persuasive when arriving at the correct and preferable decision in this case. These aspects are identified in these reasons at [28]-[29], [58], [73]-[74], [79][80], [85][86] and [93].
The matter was heard on 10 December 2021. At the commencement of the final hearing, together with the parties, I viewed the subject site and surrounds, including the interior and grounds of the proposed holiday house, and several surrounding streets, including Olearia Lane and the local centre at the north-west corner of Strickland Street and Asquith Street.

Issues for determination

The parties agree there are three issues for determination:
1)whether approval of the proposed development would be consistent with the objectives of the Residential zone of LPS 3;
2) whether approval of the proposed development would be consistent with the objectives of the LPP-STA; and
3)whether approval of the proposed development would be consistent with the principles of orderly and proper planning.
I will consider each of the issues in turn.

Expert evidence

As explained, the respondent filed a witness statement from Mr Hockley, who is a qualified and experienced town planner. Mr Hockley's witness statement sets out an assessment of the proposed development and the issues for determination framed against relevant criteria of cl 67(2) of the Deemed Provisions. Mr Hockley's evidence is summarised below.
Mr Hockley identifies one objective of the Residential zone of LPS 3 relevant to this matter, which is, '[t]o provide for a range of nonresidential uses, which are compatible and complementary to residential development'.[25] Mr Hockley says the applicants' short-term booking model and the transient nature of occupants are key factors which distinguish the holiday house use as non-residential in nature.
[25] Exhibit 4 - Witness Statement of Thomas Hockley, at para 60.
Mr Hockley's evidence is that to consider compatibility of the holiday house use within its setting it is necessary to contemplate the expectations where holiday houses should be located.[26] To do this, Mr Hockley relies on PB99, which he says provides guidance for the preferred location of these uses, with cl 4.4 stating, '[a]s a guide, holiday homes are more appropriate in areas of high tourism amenity and close proximity to key tourism attractions … but may not be appropriate in suburban locations'. Mr Hockley's evidence is that the subject site is not in an area of high tourism amenity or near tourist attractions. Mr Hockley also says the subject site is in proximity to only one bus service and it is therefore likely that guests will rely on vehicles as their main form of transport. Mr Hockley considers the nearby local centre services the local neighbourhood, rather than having a broader destination or tourism focus. Mr Hockley advises the holiday house use, which is surrounded by low density single residential land uses, could give rise to adverse offsite amenity impacts to neighbours arising from noise and parking conflicts. Mr Hockley's evidence is that the future character of the locality will remain largely consistent with the current character, as there are no proposals to change the residential density of the locality.
[26] Exhibit 4 - Witness Statement of Thomas Hockley, at para 62.
When considering whether the proposed development is compatible with its setting, Mr Hockley's evidence is that the submissions received during community consultation raise concerns about the history of noise impacts and in particular night-time activities associated with use of the holiday house by guests and the use of the alfresco area on the northern side of the property. Mr Hockley identifies this alfresco area as abutting a residential property (35 Strickland Street) with bedroom windows close to the common boundary of the subject site. Mr Hockley identifies two other outdoor areas that are also available for use by guests, being the landscaped front yard and a grassed area at the rear, located between the proposed holiday house and the ancillary dwelling.
Mr Hockley's evidence is that the LPP-STA is a relevant consideration in this matter.[27] He says objective 3.1 requires consideration of whether the location of the proposed development is compatible with the surrounding area. He also identifies objectives 3.2 and 3.3 and says there is potential for the proposed development to be utilised by guests in a manner that creates amenity impacts by way of noise. Mr Hockley considers submissions from residents have identified concerns associated with the historical use of the subject site as a holiday house. Mr Hockley also sets out the provisions of cl 11 of the LPP-STA which contemplates an initial approval period of 12 months, with the ability for the City to then consider any substantiated complaints at the point of an application for renewal of the development approval. Mr Hockley's evidence is that, while in his view the proposed development should be refused, if an approval is granted, a 12 month period would allow the opportunity to consider whether in fact there had been any impact on the local amenity from the use.[28]
[27] Exhibit 4 - Witness Statement of Thomas Hockley, at para 82.
[28] Exhibit 4 - Witness Statement of Thomas Hockley, at paras 87-88.
Mr Hockley's evidence in respect to car parking is that the LPP-P is relevant and advises the onsite parking provision for the proposed development meets the parking development standards of this policy.[29] However, he says that additional vehicle movements and car parking may arise compared to a residential use, due to use by guests and their visitors. Mr Hockley also identifies the possibility of a higher frequency of late night vehicle movements, although he concedes this is unlikely to be a significant issue.[30]
[29] Exhibit 4 - Witness Statement of Thomas Hockley, at para 89.
[30] Exhibit 4 - Witness Statement of Thomas Hockley, at para 102.
In respect to the management plan for the holiday house, Mr Hockley accepts this may go some way to addressing the issue of noise and the use of the premises as a holiday house.[31] However, he identifies the following five items which, in his opinion, are deficient:
•check-in and check-out times;[32]
•the procedures for management of complaints by the owners; [33]
•the display of a sign at the subject site;[34]
•the detail of the keeping of a register of guests;[35] and
•the detail of the keeping of a register of complaints and associated management actions.[36]
[31] Exhibit 4 - Witness Statement of Thomas Hockley, at para 106.
[32] Exhibit 3 - page 140, item 4 of the Management Plan.
[33] Exhibit 3 - page 140, item 5 of the Management Plan.
[34] Exhibit 3 - page 141, item 14 of the Management Plan.
[35] Exhibit 3 - page 141, item 15 of the Management Plan.
[36] Exhibit 3 - page 141, item 16 of the Management Plan.
When considering the issue of orderly and proper planning, Mr Hockley's evidence is that the proposed development, which is in a low density, predominantly residential, locality with limited public transport access and a lack of clear management measures to manage adverse offsite amenity impacts, means that approval would be contrary to the principles of orderly and proper planning.
As noted earlier, the applicants did not file or call any witness evidence. However, the applicants filed a document titled 'Response to: DR 24/2021 Joseph v City of Nedlands - Respondent's Draft Without Prejudice Conditions and Witness Statement of Thomas Hockley'.[37] In this document the applicants disagree with most of the opinions offered by Mr Hockley in his planning evidence. I have treated this document as the applicants' submissions as to the weight I should give Mr Hockley's evidence.
[37] Exhibit 8 - Applicants' response to without prejudice conditions.
I will now address the three issues for determination in turn.

Issue 1 - Whether approval of the proposed development would be consistent with the objectives of the Residential zone of LPS 3

The objectives of the Residential zone of LPS 3 are:[38]
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
•To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks

Contentions - Issue 1

[38] Exhibit 3 - LPS 3, cl 16(2) Table 2.

The respondent contends that the proposed development introduces a land use that is not compatible with, or complementary to, residential development, and therefore is not consistent with the objective in bullet point 3. The respondent says this is because the proposed holiday house, accommodating up to six guests, and with the potential for additional visitors, is in a predominantly low density residential area. Further the respondent says there is a lack of clear management measures proposed to manage offsite impacts of noise and traffic.[39]

Consideration of Issue 1

[39] Exhibit 2 - paras 54 to 56.

I accept Mr Hockley's evidence that the locality is a low density, predominantly residential area, and the subject site, which is zoned Residential R20, is surrounded on all sides by single residential dwellings.[40] Mr Hockley's evidence also identifies the local centre, located at the north-west corner of Strickland Street and Asquith Street, as being within the immediate locality.[41] Mr Hockley's evidence is that Strickland Street, in the vicinity of the subject site, is impacted by an overspill of on-street parking apparently associated with this local centre.[42] The prevalence of on-street parking in Strickland Street is also shown in photographs submitted by the applicants.[43] Mr Hockley, under cross-examination, concedes that his main concern relates to noise, amenity and activity and acknowledges that parking is not a key concern.[44]
[40] ts 42-43, 10 December 2021.
[41] ts 21, 10 December 2021.
[42] ts 22, 10 December 2021.
[43] Exhibit 7 - Applicants' Numbered Photos with Descriptions, Photos 1 to 4.
[44] ts 49, 10 December 2021.
When considering the compatibility of the holiday house use within its setting, Mr Hockley's evidence is:[45]
In order to consider the compatibility of the use within its setting, it is necessary to contemplate the expectations where holiday houses/short term accommodation uses should be located.
[45] Exhibit 4 - Witness Statement of Thomas Hockley, at para 62.
Here, Mr Hockley's evidence does not consider the relevant policy measures in cl 4.1 of the LPP-STA, instead he relies on PB99 for guidance of preferred locations for a holiday house use. His evidence is that because the subject site is not in, or in close proximity to, a recognised tourism precinct, or key tourism attractions, the subject site is not a suitable location for a holiday house.[46] However, for the reasons outlined earlier at [28]-[29], I afford minimal weight to PB99 and greater weight to the local planning framework.
[46] Exhibit 4 – Witness Statement of Thomas Hockley, paras 62 to 67.
From a statutory perspective, it is uncontroversial that a 'holiday house' use is an 'A' use in the Residential zone, as detailed in Table 3 of LPS 3. The Deemed Provisions define a class A use as follows:[47]
… in relation to a zone, means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with clause 64[.]
[47] Exhibit 3, Item 18 at cl 1.
However, there is nothing in the local planning framework, including in LPS 3, that discourages a holiday house use in the Residential zone, including in a low-scale, predominantly residential area. In fact, specifically addressing the expectations of where a holiday house use can be located in the City, which I accept is a relevant consideration, the policy measures of the LPP-STA at cl 4.1 plainly establish that applications for a holiday house where a keeper resides onsite are generally supported in all zones where allowed under the Scheme.[48]
[48] Exhibit 3 – Respondent's s 24 bundle, page 186; LPP-STA at s 4.1.
Further, there is nothing about the size of this holiday house, which accommodates a maximum of six guests, that is contrary to the provisions of LPS 3 or the LPP-STA. The evidence of Mr Hockley does not identify specific concerns about the size of this holiday house in respect of the maximum number of six guests to be accommodated. Also, Mr Hockley accepts the onsite car parking for the proposed development meets the requirements of the LPP-P.[49]
[49] Exhibit 4 – Witness statement of Thomas Hockley, para 89.
Therefore, the location and scale of this holiday house do not give rise to concerns that they are not compatible with and complementary to residential development, as outlined in the relevant objective of LPS 3. The pivotal question, therefore, in this case, is whether the potential offsite amenity impacts of this holiday house, as identified by the respondent, can be appropriately managed in its context, and in circumstances where there is a management plan, and the owners live onsite and will be the keepers. I accept that potential offsite amenity impacts are an important consideration in this case, and these need to be satisfactorily addressed for the proposed development to meet the relevant objective of LPS 3. The offsite amenity impacts are considered in issue 2 at [75] to [82], and specific findings are at [87] and [88].

Findings - Issue 1

I accept that the proposed development is in a low-scale, predominantly residential, locality but I find the proposed development would be consistent with the objectives of the Residential zone, and in particular consistent with the objective at bullet point three, which is '[t]o provide for a range of nonresidential uses, which are compatible with and complementary to residential development', for three reasons.
First, the proposed development does not in any way physically alter the low-scale residential streetscape of Strickland Street. The amenity of this section of Strickland Street is influenced by the nearby presence of the local centre at the corner of Asquith and Strickland Streets, which has routine overspill of customer car parking along Strickland Street in the immediate vicinity of the subject site.[50] This has a noticeable impact on the residential amenity of this section of the street in terms of traffic and car parking. In this regard, I find the proposed development will not cause a detrimental impact in the context of this residential locality.
[50] Exhibit 7 – Applicants' Numbered Photos with Descriptions, Photos 1 to 4.
Second, the specific nature of the proposed development involves a holiday house where the owners live onsite as the keepers. LPS 3 allows Council to exercise its discretion to approve holiday houses in two zones, the Residential zone and the Mixed-Use zone. LPS 3 (and the LPP-STA) does not purport to limit the locations where in the Residential zone a holiday house should be approved. Further, the LPP-STA identifies that, in circumstances where a keeper resides onsite, a holiday house is 'generally supported' in all zones where allowed under the Scheme. In this case, as the keepers reside on the site, and are therefore capable of promptly addressing potential amenity impacts, I find this holiday house use would be complementary to residential development.
Third, in respect to compatibility of the proposed development with its residential setting, although concerns are raised in submissions from neighbours about noise, I find these concerns are capable of being addressed through management and, if necessary, complaint handling measures (this is addressed in issue 2 at [82] and [87]-[88]). I also find the amenity concerns, raised in submission from neighbours, have not been adequately established (this is also detailed further in issue 2 at [78][81]). It is uncontroversial that the holiday house was operating, albeit without approval, from April 2019, and noteworthy that for much of this time it operated with no concern of any offsite amenity impacts, including noise, traffic and car parking. I therefore find this holiday house use would be compatible with its residential setting.

Issue 2 - Whether approval of the proposed development would be consistent with the objectives of the LPP-STA

The objectives of the LPP-STA are provided in cl 3 as follows:[51]
3.1To ensure the location and scale of short-term accommodation uses are compatible with the surrounding area.
3.2 To maintain a high standard of amenity for the surrounding neighbourhood through required management controls.
3.3 To ensure properties used for a short-term accommodation uses do not have an undue impact on the residential amenity of the area by way of noise, traffic, or parking.
3.4 To establish a clear framework for the assessment and determination of applications for short-term accommodation.

Contentions - Issue 2

[51] Exhibit 3, Respondent's s 24 bundle, page 186.

The respondent contends that objective 3.1 of the LPP-STA requires consideration whether the location of the short-term accommodation is compatible with the surrounding area. The respondent says the low-scale residential nature of the location and lack of clear management measures to manage offsite impacts of increased noise and traffic means the proposed development does not meet objective 3.1.[52]
[52] Exhibit 2 – Respondent’s SIFC, para 55.
The respondent also contends the proposed development does not meet objectives 3.2 and 3.3 of the LPP-STA. The respondent says the submissions from neighbours identify concerns about the historical use of the property for short-term accommodation. The respondent says that elements of the applicants' management plan (specifically items four, five and 16) do not provide a satisfactory response to ensure the amenity of the locality is not unduly affected.[53]

Consideration of Issue 2

[53] Exhibit 2 - Respondent's SIFC, para 54.

Mr Hockley's evidence is that objective 3.1 of the LPP-STA requires consideration as to whether the location of a short-term accommodation proposal is compatible with the surrounding area.
From a locational perspective, considering the objectives of the Residential zone of LPS3, I outlined my findings under issue 1. However, it is uncontroversial that a holiday house use requires the exercise of discretion under LPS 3, and I accept Mr Hockley's evidence that the LPP-STA is a relevant consideration in this matter.[54]
[54] Exhibit 4 - Witness Statement of Thomas Hockley, para 82.
Clause 1.0 of the LPP-STA establishes the purpose of the policy:
The purpose of this policy is to provide guidance and development provisions for operators seeking to establish short-term accommodation within the City of Nedlands.
Objective 3.4 of the LPP-STA is 'to establish a clear framework for the assessment and determination of applications for short-term accommodation'. The witness evidence of Mr Hockley does not address objective 3.4. Mr Hockley's witness statement also does not address the specific policy measures of the LPP-STA in cl 4.0. Clauses 4.1 and 4.2 provide policy measures relevant to holiday houses. Clause 4.1 deals with holiday houses where the keeper resides onsite (as is the case for the proposed development) and, as already mentioned, says:
Applications for Holiday House where a keeper resides on-site are generally supported in all zones where allowed under the scheme.
Mr Hockley identifies there are two zones under LPS 3 where holiday houses are allowed under the Scheme, one being the Residential zone, the other the Mixed-Use zone.[55] The LPP-STA contains no other criteria to identify preferred locations for a holiday house use. Mr Hockley concedes that he did not refer to the policy measures in cl 4.0 of the LPPSTA in his witness statement.[56] Mr Hockley advises that although not identified, he has taken the policy measures into account[57] but, in his view, because the proposed development does not meet the preferred locations in cl 4.4 of PB99, he concludes the location of the proposed development does not meet objective 3.1 of the LPP-STA.[58]
[55] ts 31-32, 10 December 2021.
[56] ts 25-26, 10 December 2021.
[57] ts 26, 10 December 2021.
[58] Exhibit 4 - Witness Statement of Thomas Hockley, para 83.
In respect to objectives 3.2 and 3.3 of the LPP-STA, Mr Hockley's evidence is that the proposed development does not meet these objectives because there is potential for the proposed development to be used in manner that creates undue impact on residential amenity by way of noise and the applicants' management plan does not adequately address these concerns.[59]
[59] Exhibit 4, Witness Statement of Thomas Hockley at paras 84.
I accept the question of amenity impacts of the proposed development is to be considered against objectives 3.2 and 3.3 of the LPP-STA. 'Amenity', is defined in the Deemed Provisions as follows: [60]
… means all those factors which combine to form the character of an area and include the present and likely future amenity.
[60] Exhibit 3, Respondent's s 24 bundle, page 3 at item 18.
In this respect, I also accept Mr Hockley's evidence that there are no changes proposed to the planning framework which are likely to result in a change to the amenity of this locality in the foreseeable future.[61] The respondent cites St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 (St Patrick's) as relevant as it sets out, at [39], that the Tribunal is to undertake an objective inquiry as to the existing character of the area and an assessment of the likely future character.[62] I accept the existing low scale, predominantly residential character of the locality, is likely to remain unchanged in future. As articulated in St Patrick's, at [40], the Tribunal is assisted by the expert opinions of town planners and the views of residents, given they are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity.
[61] Exhibit 4, Witness Statement of Thomas Hockley at paras 79 to 81.
[62] ts 75-76, 10 December 2021.
In respect to residents' submissions, Mr Hockley identifies that residents describe the area as a quiet residential neighbourhood, home to a number of young families with young children.[63] Further, Mr Hockley's evidence is there is a specific amenity concern, being the proximity of the outdoor areas on the subject site and the adjoining bedroom windows at 35 Strickland Street, located immediately to the north of the subject site.[64] Mr Hockley says two noise complaint reports were made in June 2020, just after the development application was submitted in May 2020,[65] and identifies two submissions from the residents of 35 and 42 Strickland Street who raise specific concerns of noise and anti-social behaviour.[66]
[63] ts 76, 10 December 2021.
[64] Exhibit 4, Witness Statement of Thomas Hockley at paras 70, 91 to 92, 96 to 98 and Annexure TJH5.
[65] ts 32-36, 10 December 2021.
[66] Exhibit 3, Respondent's s 24 bundle, pages 224-227 and pages 242-243.
This is contested by the applicants, who submit there is no evidence of noise complaints at the subject site and that the Police have repeatedly confirmed no disturbance emanating from the subject site.[67] Further, the applicants submit,[68] and I accept, that this question was answered in the City officer's report, presented to Council on 23 March 2021, where the City officer states:[69]
The Assessing Officer called Wembley Police Station on 10 February 2021 to ask the Police Station to confirm if there have been any police incident reports against No. 37 Strickland Street, Mount Claremont. The Police Station confirmed that on the Statewide Database, there have been no police incident reports against the subject property in relation to street drinking, antisocial behaviour or noise.
The Assessing Officer has also enquired with the City of Nedlands Rangers Department who have confirmed that Rangers have no complaints for the subject property.
In light of the above findings, there have been no complaints or issues for this site to the City's Planning Department, City's Rangers Department, or the Police. It can therefore be considered that although the holiday house has been operating since 2019, there have been no negative impacts on the local amenity through anti-social behaviour or noise.
[67] Exhibit 6, Applicants' SIFC, para 9.
[68] ts 70-71, 10 December 2021.
[69] Exhibit 3, Respondent's s 24 bundle, page 113.
The applicants also submit more recent emails involving two of the City's elected members and officers at the Wembley Police Station. In an email, dated 24 August 2021, the Senior Sargent advises:[70]
…
The two [report] numbers do not relate to 37 Strickland Street, Mt Claremont.
I have conducted a search for any attendance at this address since the beginning of the year and I cannot locate any police involvement at this address.
I understand that there may have been two noise complaints in 2020 but nothing significant.
Other than that, I cannot find any police attendance or other reports[.]
…
[70] Exhibit 8, Applicants' Response to Without Prejudice Conditions, Attachment (email exchange), page 2.
Given the above, it is evident, and I accept, there is not a history of noise and antisocial behaviour at the subject site. Additionally, as there was no evidence placed before me, I can only conclude that there were no negative amenity impacts when the holiday house was operating (albeit without development approval) from April 2019 to May 2020.
The applicants propose a management plan, with sixteen items, and incorporating a code of conduct,[71] to provide the management framework for the operation of the holiday house and the conduct of guests. Mr Hockley's evidence is that the management plan is deficient, and he identifies concerns with paragraphs '4, 5, 14, 15 and 16'.[72] Mr Hockley's main concerns can be summarised as the check-in and check-out times of guests and the recording and handling of complaints by the owners. I accept Mr Hockley's evidence that these items of the management plan are deficient. However, they are not so deficient that the concerns cannot be appropriately addressed by conditions of approval, which would require specific amendments to the management plan, to be approved by the City.

Findings - Issue 2

[71] Exhibit 3, Respondent's s 24 bundle, pages 140 to 142.

[72] Exhibit 4, Witness Statement of Thomas Hockley at para 99.

I find approval the proposed development would be consistent with the objectives of the LPP-STA for four reasons.
First, it is plain from the policy measure in cl 4.1, that from a locational perspective the LPP-STA establishes that an application for a holiday house where a keeper resides on the site (as is the case here) is 'generally supported' in all zones where allowed under LPS 3. The fact the subject site is located in a low-scale, predominantly residential, locality and not in close proximity to recognised tourist attractions or public transit does not weigh against approval of the proposed development because these are factors which are common characteristics in the Residential zone. From a scale perspective, the size of the proposed development is consistent with policy measures in the LPPSTA. While the policy measures in cl 4.1, which relate to a holiday house use where the keeper resides on the site, do not provide a guide as to the acceptable scale of the holiday house, cl 4.2 (for where a keeper does not reside onsite) indicates proposals may be supported where the number of guests is limited to six persons, which is the maximum number of guests proposed in this case. Further, considering the layout of the single dwelling, the ancillary accommodation and the outdoor areas at the subject site, the holiday house is capable of comfortably accommodating up to six guests, the keepers and associated car parking.
Second, objective 3.4 of the LPP-STA, is 'to establish a clear framework for the assessment and determination of applications for short-term accommodation'. Therefore, for the local planning framework to be applied correctly, it must be applied in its entirety and not selectively, in the assessment and determination of applications for short-term accommodation. Mr Hockley's evidence does not address this objective and he did not conduct a full assessment of the proposed development against the requirements of the LPP-STA, omitting assessment against the specific and relevant policy measure contained in cl 4.1.
Third, Mr Hockley's evidence does not expose his reasoning why the specific policy measure of cl 4.1 of the LPP-STA should not be applied to the proposed development. In evidence Mr Hockley said he considered the policy measure in cl 4.1, but 'that I probably haven't stated it specifically'.[73] However, it is not evident that he did, in fact, consider this policy measure. Mr Hockley's further evidence is, 'I've taken a step back and looked at the objectives and how the land use relates to the objectives and the other sort of applicable planning framework'.[74] Mr Hockley's identification of 'the other sort of applicable framework', being PB99, as mentioned previously at [28], is misconceived. Mr Hockley's evidence, on this point, I find, is evasive and does not assist the Tribunal in its central task of making the correct and preferrable decision in the application for review. This is because the responses do not provide a complete assessment, or an objective opinion, ordinarily expected from a planner when considering a local planning policy, in this case the LPPSTA, which has been adopted expressly as the framework for the assessment and determination of applications for short-term accommodation in the City.
[73] ts 26, 10 December 2021.
[74] ts 26, 10 December 2021.
Fourth, I find that although the management plan in its current form will not adequately ensure a high standard of amenity will be maintained and that offsite impacts will not be experienced (as required by objectives 3.2 and 3.3 of the LPP-STA), the management plan is not so deficient that it cannot be improved to address the specific concerns Mr Hockley identifies in his evidence.[75] These matters can, in fact, be readily addressed through appropriately worded conditions of approval, which I find should also include a 12 month temporary approval period, together with an updated management plan. A temporary approval, in this case, is consistent with the principles of orderly and proper planning and with cl 11 of the LPP-STA and, as Mr Hockley accepts in his evidence,[76] provides an opportunity for an objective evaluation of the impact on local amenity, in particular noise, associated with operation of the proposed development. Conditions of approval are discussed further at [103][106].
[75] Exhibit 4, Witness Statement of Thomas Hockley at para 99; see also ts 36-41, 10 December 2021.
[76] Exhibit 4, Witness Statement of Thomas Hockley at para 88.
Fifthly, with respect to the particular concerns about noise impacts from the patio area of the subject site which is in close proximity to bedroom windows at 35 Strickland Street, I find that these impacts are capable of being addressed through the approved management plan and code of conduct which applies to guests of the holiday house. Operation of the proposed development in compliance with the approved management plan will form part of the conditions of approval and does not permit parties and events and also requests guests limit noise and not play loud music. Additionally, visitors of guests are permitted between the hours of 10 am and 8 pm only. I find these measures, combined with the fact that the owners reside at the subject site and manage the holiday house, means they can promptly address noise concerns if they arise. Further, the respondent does not seek to impose conditions of approval limiting the times of use for this patio area or the outdoor areas at the subject site generally. However, should the use of this patio area be established as a valid concern during the 12 months temporary approval period, then this aspect can be reviewed should a further approval be sought.

Issue 3 - Whether approval of the proposed development would be consistent with the principles of proper and orderly planning

Contentions - Issue 3

The respondent contends that approval of the proposed development would be contrary to the principles of orderly and proper planning because it has the potential to adversely affect the amenity of the locality through the impacts of increased noise and traffic. The respondent says this is evidenced from the objections received from surrounding residents which ought to be given due regard under cl 67(2)(y) of the Deemed Provisions.[77]

Consideration of Issue 3

[77] Exhibit 2 - Respondent's SIFC, para 57.

When considering orderly and proper planning the respondent cites the principles outlined by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180][182] (Marshall) as relevant:[78]
… 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'.
However, 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.
While 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.
[78] ts 81, 10 December 2021.
Mr Hockley's evidence is that the location of the subject site is unsuitable because it is a low density, predominantly residential, area and not close to any significant high density mixed use areas or public transit.[79] Mr Hockley also expresses the view there is a lack of clear management measures to address offsite impacts, such as increased noise. Mr Hockley's evidence is that the relationship between the outdoor entertaining areas on the subject site with sensitive areas on the neighbouring lot, to the north, needs to be considered with the management measures proposed by the applicants and the history of the subject site and the submissions made by neighbours.[80]
[79] Exhibit 4, Witness Statement of Thomas Hockley at para 69.
[80] Exhibit 4, Witness Statement of Thomas Hockley at para 70.
The respondent cites Kogon and City of Vincent [2019] WASAT 75, Hope and City of Joondalup [2007] WASAT 8 and Hewison and Shire of Augusta-Margaret River [2014] WASAT 62 as decisions where the Tribunal has found short-term accommodation in residential areas to be a commercial use and, considering the differing characteristics of the residential settings in each case, also found the use not to be compatible with the amenity of the surrounding area. However, these decisions are distinguishable from the proposed development as each does not involve the owners residing onsite as the keepers of the holiday house, as proposed here. Additionally, in this case, the LPP-STA forms part of the relevant local planning policy framework for the assessment and determination of the proposed development.
The planning framework, against which this application is assessed, provides policy measures at cl 4.0 of the LPP-STA. It provides a separate specific policy measure, at cl 4.1, for holiday houses where the keeper resides onsite, stating these 'are generally supported' in all zones where allowed under the Scheme. Mr Hockley's evidence does not assess the proposed development against the relevant policy measure, or advance reasons why it should not apply.

As previously stated, the LPP-STA does not nominate or purport to limit the locations in Residential zoned areas under LPS 3 where holiday houses should be approved, other than requiring that the location and scale should be compatible with the surrounding area. In this case, the starting point when applying the principles of orderly and proper planning in Marshall, is to consider the relevant objectives of the Residential zone in LPS 3, then the objectives of the LPP-STA, which first requires consideration of the location and scale of the proposed development, under objective 3.1, and informed by policy measure 4.1, which generally supports a holiday house in the Residential zone where a keeper resides onsite. As outlined in the earlier findings on the preceding issues, factors of location and scale of the proposed development do not weigh against its approval.
Turning again to Marshall, and accepting that discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, the orderly and proper planning question, in this case, is whether the potential offsite impacts of this holiday house, in the context of this low-scale, predominantly residential locality, and the particulars of the subject site, as identified in the evidence of Mr Hockley and in submissions from neighbours that it will have an adverse impact, can be adequately ameliorated by the management plan proposed? I have addressed this in issue 2 and my findings are at [83]-[88].

Findings - Issue 3

I find approval of the proposed development would be consistent with the principles of proper and orderly planning for three reasons.
First, the local planning framework (LPS 3 and the LPP-STA) does not limit holiday houses to specific locations in the Residential zone.
Second, there is nothing, from a location and scale perspective in this predominantly residential locality, about the proposed development where the keeper resides on the site, that makes it manifestly unsuitable when assessed against the relevant planning framework. Therefore, the orderly and proper planning approach in this case, I find, is to apply the specific policy measure in cl 4.1 of the LPP-STA, which generally supports holiday houses of this kind in the Residential zone.
Third, the potential offsite amenity impacts of the holiday house identified by the respondent are, in this case, capable of being satisfactorily addressed through the implementation of an updated management plan and appropriate conditions of approval, including a temporary 12 month approval period. The 12 month approval period, as stated previously, will provide the opportunity for an objective evaluation of the impact of the proposed development on local amenity, and is consistent with the principles of orderly and proper planning.

Conclusion

The proposed development, a 'holiday house', is a discretionary use and capable of approval under LPS 3. I consider that because the proposed development involves the owners residing at the subject site as the keepers, and the associated management measures, together with the imposition of appropriate conditions of approval, including a temporary 12 month period of approval and an updated management plan, are matters which weigh in favour of approving the proposed development.
I conclude that, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up my findings in respect to the issues for determination, the correct and preferrable decision is to approve the proposed development because it is consistent with:
1)the objectives of the Residential zone of LPS 3;
2)the objectives of the LPP-STA; and
3)the principles of orderly and proper planning.
Accordingly, I will set aside the City's decision to refuse the retrospective development application (DA20-48595) for a 'Holiday House' at the subject site and substitute a new decision approving the proposed development subject to conditions.

Conditions

In the event the Tribunal determined that the application should be approved, the City provided 11 without prejudice conditions. At the hearing, in response to the witness evidence of Mr Hockley, the respondent submitted amended wording to condition 3[81] of the without prejudice conditions. This relates to an updated management plan to be submitted and approved by the City.[82] The later approval of an updated management plan by the City can occur in accordance with cl 74(1) and (2) of the Deemed Provisions.
[81] Note: Condition 3 is condition 'f' in the Tribunal's orders.
[82] ts 55-56, 10 December 2021.
The applicants accept most of the conditions.[83] However, the applicants object to one part of amended condition 3.[84] Part (a) of condition 3 requires check-in and check-out of guests occur between the hours of 7 am and 8 pm only. The applicants submit that check-in and check-out times should be flexible. The applicants submit that while it is expected that for 90 percent of bookings, guests will arrive and depart between the nominated times, there is likely to be occasions when they cannot. The applicants submit the condition is impractical, 'if a guest's flight was to arrive at 11 pm, does the guest just wait on the road and come back and check-in after 7 am?'[85]
[83] ts 59-64 and 67, 10 December 2021.
[84] ts 58-59, 10 December 2021.
[85] ts 58, 10 December 2021.
I accept that in most instances it is likely guests will check-in and check-out during the times nominated by the respondent. However, I also accept there may be occasions this will not be possible, and there can be some flexibility around check-in and check-out times. It will be important for the owners, who live onsite and are the keepers of the holiday house, to manage occurrences of check-in and check-out by guests outside of the 7 am to 8 pm timeframe. They will need to make guests explicitly aware of the need to minimise noise and disturbance to mitigate possible offsite amenity impacts. Also, in this case, as the owners live on the site and manage the holiday house, they are capable of monitoring and promptly addressing noise concerns. I find that the respondent's proposed condition 3(a) should be modified and read:
Check-in and check-out are generally limited to between the hours of 7 am and 8 pm. Where travel arrangements require a guest to check-in or check-out outside of these times, the owners are to provide clear instructions, in writing, to the guest advising of the need to minimise noise and disturbance to neighbours.
Other minor changes are required to the respondent's proposed without prejudice conditions. The respondent's proposed conditions 7 and 8 duplicate condition 1 and are therefore not required. Condition 2,[86] which relates to the 12 month period for the approval, is modified to expressly nominate commencement of the 12 month approval being from the date of this decision, rather than from the date when the decision reviewed would have had effect (being 24 August 2021), therefore giving 12 months approval for the operation of the proposed development.[87]
[86] Condition 2 is (b) in the Tribunal’s orders.
[87] Condition (b) is modified using s 29(5)(b) of the SAT Act.

Orders

The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent on 24 August 2021 to refuse a retrospective development application (DA2048595) for a Holiday House (Short-Term Accommodation) at 37 Strickland Street, Mount Claremont, is set aside and a decision substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and the City of Nedlands Local Planning Scheme No 3, subject to the following conditions:
(a)This approval is for a Holiday House. Development shall be in accordance with the land use as defined within City of Nedlands Local Planning Scheme No 3, the approved plan(s), any other supporting information and conditions of approval. It does not relate to any other development on the lot.
(b)The approval period for the Holiday House will expire 12 months from 17 February 2022.
(c)A maximum of six guests are permitted to reside at the Holiday House at any one time.
(d)Each booking for the Holiday House must be for a minimum stay of two consecutive nights.
(e)A maximum of two guest vehicles for guests of the Holiday House are permitted on the premises at any one time.
(f)Prior to the commencement of operations, the management plan is to be updated and submitted to the City of Nedlands addressing:
(i)Check-in and check-out are generally limited to between the hours of 7 am and 8 pm. Where travel arrangements require a guest to check-in or check-out outside of these times, the owners are to provide clear instructions, in writing, to the guest advising of the need to minimise noise and disturbance to neighbours.
(ii)A template for a guest register, including full name, usual place of residence, contact details including phone number and email address and check-in and check-out dates, is to be provided.
(iii)Details of complaints management, including how the complaint will be made and received, the responsibilities for handling the complaint and what actions have been taken to address the complaints, is to be provided.
(iv)A template for a complaint register, including name and address of the complainant, date and time of complaint, description of complaint and actions taken to address complaint, is to be provided.
(v)The complaint register is to be maintained and made available to the City of Nedlands upon request.

(g)The management plan is to be approved by the City of Nedlands prior to the commencement of operations and thereafter implemented to the City of Nedlands satisfaction.
(h)A copy of the Code of Conduct and approved management plan for the Holiday House shall be provided to residents of adjoining and abutting properties prior to the commencement of operations.
(i)The Code of Conduct shall be provided to guests of the Holiday House at the time of check-in and displayed in a prominent location within the entrance area of the dwelling.
(j)Prior to commencement of operations, the applicant/owner is to submit a signage proposal for the Holiday House to the City of Nedlands.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
17 FEBRUARY 2022

ANNEXURE A

The Planning Framework

State Planning Framework

Metropolitan Region Scheme (MRS)

The subject site is zoned 'Urban' under the MRS.

Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Clause 67(2) in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), sets out the matters to which due regard must be had in considering a development application (to the extent the matter is relevant).

Relevant matters to be considered in the context of this application include but are not limited to:

…
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(e)any policy of the Commission;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting, including -
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

(n)the amenity of the locality including the following -
...
(ii) the character of the locality;
(iii) social impacts of the development;

…
(s) the adequacy of -
(i) the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;

(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…

(w) the history of the site where the development is to be located;
…
(y) any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.

Planning Bulletin 99 Holiday Homes Guidelines - September 2009 (PB99)

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Background

This bulletin sets out the interim position of the Western Australian Planning Commission (WAPC) in relation to the planning and regulation of holiday homes in Western Australia. The bulletin provides guidance to local governments when dealing with issues associated with holiday homes in the local government planning framework.
The bulletin proposes possible changes to local planning schemes and the preparation of local planning policies, tailored to address the specific issues encountered by local governments[.]

4.4 Preferred locations for holiday homes

To reduce conflict between holiday homes and ordinary dwellings, particularly in residential zones, ideally they should be located in preferred areas identified either through the tourism component of the relevant local planning strategy, or in a local planning policy. As a guide, holiday homes are more appropriate in areas of high tourism amenity and close proximity to key tourism attractions such as the beach, town centre or rural areas, but may not be appropriate in suburban locations.

Draft Position Statement: Planning for Tourism and Planning for Tourism Guidelines - December 2021

1.       Policy intent
The intent of this Position Statement is to guide the appropriate location and management of tourism land uses through the planning framework and:
•    facilitate acceptable development of new and evolving tourism opportunities;
•    provide a high-level of amenity in tourism areas;
•    deliver quality land use planning outcomes[.]

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5. Policy measures
Local government are best placed to plan for tourism within their communities, with local knowledge of tourism activity, opportunities and constraints, including potential impacts and what requirements, if any, should be placed on tourism proposals.

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5.3 Statutory planning considerations
The local planning scheme and supporting local planning instruments (such as local planning policies) give effect to local strategic planning through statutory land use and development control[.]

5.3.2 Short-term rental accommodation
Short-term rental accommodation is divided into two categories: hosted and unhosted. Local planning schemes can control the desired location of short-term rental accommodation through a combination of zoning and land use permissibility. Development control measures can be set through local planning schemes and local planning policies to manage size, location and potential amenity impacts[.]

5.3.2.1 Hosted accommodation
For new schemes, scheme amendments and scheme reviews, local government should incorporate the land use definition for 'hosted accommodation'[.]

Local planning framework

Local Planning Scheme No 3 (LPS 3)

The subject site is zoned 'Residential' under LPS 3 with a residential density coding of R20.

The proposed development is classified as a 'Holiday House' (Short-Term Accommodation) under LPS 3.

Clause 38 of Pt 6 of LPS 3 defines 'Holiday House' as follows:

Holiday house means a single dwelling on one lot used to provide short-term accommodation but does not include a bed and breakfast.

'Holiday House' land use is an 'A' use within the Residential zone under Table 3 - Zoning Table of LPS 3.

Table 2 under cl 16(2) of LPS 3 provides the following objectives for the Residential zone:

•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
•To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.

City of Nedlands Local Planning Policy - Short Term Accommodation (LPPSTA)

1.0 Purpose

1.1The purpose of this policy is to provide guidance and development provisions for operators seeking to establish short-term accommodation within the City of Nedlands[.]

3.0 Objectives

3.1To ensure the location and scale of short-term accommodation uses are compatible with the surrounding area.
3.2To maintain a high standard of amenity for the surrounding neighbourhood through required management controls.
3.3To ensure properties used for a short-term accommodation uses do not have an undue impact on the residential amenity of the area by way of noise, traffic, or parking.
3.4To establish a clear framework for the assessment and determination of applications for short-term accommodation.

4.0 Policy measures

Holiday House
4.1 Applications for Holiday House where a keeper resides on-site are generally supported in all zones where allowed under the scheme[.]

5.0 Car parking

5.1Car parking is to be in accordance with the requirements of the Parking Local Planning Policy[.]

8.0 Management plan

8.1 The Management Plan report is to include the following, as a minimum:
(a)Establishing the maximum number of guests which will stay, in addition to (if applicable) those which reside at the property on a permanent basis.
(b)Establishing a code of conduct detailing the expected behaviour and obligations of guests. The code of conduct shall be displayed in a prominent position within the premises.
(c)Details of how complaints regarding anti-social behaviour, car parking and noise, amongst other matters, will be managed by the landowner(s).
(d)The contact details of the landowner(s) if a neighbour wants to lodge a complaint.
(e)Details regarding guest check-in and check-out procedures (i.e. days and times).
(f)Details of how car parking for those staying at the property and (if applicable) those residing at the property on a permanent basis, will be managed by the landowner(s). The measures proposed are to ensure vehicles will always have easy access to on site car parking spaces.
(g)Details of how the guests will be informed of the requirements for parking.
(h)Details regarding how guests are expected to maintain the property.
(i)Details whether pets and guests associated with those staying at the property will be permitted, and if so, how this will be managed.
(j)Details of compliance with Strata By-laws (if applicable) in the form of a Statement of Compliance.

(k) To provide details of waste disposal[.]

15.0 Definitions

15.1For this policy the following definitions apply:

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Holiday house - Means a single dwelling on one lot used to provide short-term accommodation but does not include a bed and breakfast.

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Short term accommodation - Means temporary accommodation provided either continuously or from time to time with no guest/s accommodated for periods totalling more than 3 months in any 12-month period[.]

City of Nedlands Local Planning Policy - Parking (LPP-P)

1.0 Purpose

1.1The purpose of this policy is to define standards for car parking for nonresidential developments[.]

3.0 Objectives

3.1 To facilitate the development of sufficient parking facilities for cars and other wheeled vehicles[.]

4.0 Policy measures

4.1Minimum parking requirements

4.1.1All development shall provide car parking on-site in accordance with Table 1, unless otherwise approved by the City[.]

Table 1 - Parking Requirements provides the following car parking requirement for Holiday house:
Holiday house - 1 per guest bedroom, in addition to any bays required under the R-Codes for the dwelling (if applicable)[.]