JOYDEM PTY LTD and CITY OF NEDLANDS - [2022] WASAT 78

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   JOYDEM PTY LTD and CITY OF NEDLANDS [2022] WASAT 78
MEMBER:   MS M CONNOR, MEMBER
HEARD:   24 AND 25 MAY 2022, 27 MAY 2022 AND 8 JUNE 2022
DELIVERED          :   2 SEPTEMBER 2022
FILE NO/S:   DR 263 of 2021
BETWEEN:   JOYDEM PTY LTD
Applicant
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning - Development application - Grouped dwellings - Whether the proposed development is compatible with its setting - Height, bulk and scale - Impact on the amenity of the locality - Residual planning discretion - Upcoding of locality from R12.5 to R60 - Impact on existing locality - Desired future character - Whether the proposed development demonstrates compliance with the design principles and satisfies objectives of R-Codes Vol 1 in relation to outdoor living areas, landscaping, parking and visual privacy

Legislation:

City of Nedlands Local Planning Scheme No 3, cl 7(2), cl 9, cl 16(2), cl 17, cl 18(2), cl 25(1), cl 26, Sch 1
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67(2)
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 1.5, Pt 2, cl 2.4, cl 2.5, cl 2.5.1, cl 2.5.2, cl 2.5.3, cl 5.3, cl 5.3.1, cl 5.3.2, cl5.3.3, cl 5.4.1, Appendix 1
State Planning Policy 7.3 - Residential Design Codes Volume 2, Appendix A2

Result:

Application for review allowed
Development approval granted for five grouped dwellings at No 18 (Lot 117) Tyrell Street, Nedlands

Category: B

Representation:

Counsel:

Applicant	:	Mr C Wallace
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Lavan
Respondent	:	McLeods

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

Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Gnech Building Co and Town of Claremont [2018] WASAT 77
Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Stewart and Town of Cottesloe [2019] WASAT 100
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Joydem Pty Ltd (applicant) seeks review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Nedlands (City, Council or respondent) on 23 November 2021 to refuse to grant development approval for the construction of five grouped dwellings at No 18 (Lot 117) Tyrell Street, Nedlands (subject land or site).
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to grant development approval for the proposed development under the Metropolitan Region Scheme (MRS) and the City of Nedlands Local Planning Scheme No 3 (LPS 3 or Scheme) subject to 13 conditions set out in Attachment A to these reasons.

Subject land and immediate surrounds

The subject land is more particularly described as Lot 117 on Deposited Plan 1747 being the whole of the land contained in Certificate of Title Volume 1853 Folio 72 and is 809m² in area.
The site is rectangular in shape, being 20.12 metres wide and 40.23 metres deep and has an east-west orientation. The highest point of the site is the Finished Floor Level (FFL) of the existing house, which is to be demolished, at 10.13 Reduced Level (RL) and the lowest point is in the north-east corner of the site at 9.28 RL.
The site is located on the eastern side of Tyrell Street in the street block bounded by Tyrell Street to the west, Stirling Highway to the north, Archdeacon Street to the east and Edward Street to the south.

The procedural history

On 23 June 2021 the applicant lodged an application with the City seeking development approval under MRS and LPS 3 to construct five grouped dwellings on the subject land.[1] Further amended plans were submitted on 16 September 2021 and 5 October 2021.[2]
[1] Respondent's s 24 Bundle of Documents dated 12 April 2022 (Exhibit 3) Tab 8.
[2] Respondent's s 24 Bundle of Documents dated 12 April 2022 (Exhibit 3) Tab 12 and Tab 13.
The application was advertised in accordance with the respondent's local planning policy - Consultation of Planning Proposals. Comments were sought from 26 owners and residents and 14 submissions were received.[3] A petition signed by 21 owners and residents of Tyrell Street objecting to the proposed development was tabled at the Council meeting of 23 November 2021.[4]
[3] According to the Council's report of 9 November 2021 there were 11 submissions objecting to the proposed development, one submission of support, and two requests to extend the advertising radius.
[4] Witness Statement of Geoffrey John Bosich dated 12 May 2022 (Exhibit 6) Annexure GJB 2.
The amended development application was recommended for approval, subject to nine conditions, by the City's assessing planning officers in their report to the Planning and Development Committee (PD Committee). However, at its meeting on 9 November 2021, the PD Committee recommended that 'the Chief Executive Officer be requested to present to Council reasons for refusal as part of the Council Agenda'.[5]
[5] Respondent's s 24 Bundle of Documents dated 12 April 2022 (Exhibit 3) Tab 18.
The Council at its meeting of 23 November 2021 resolved, contrary to its assessing planning officers' recommendation, to refuse to grant development approval for the proposed development for the following five reasons:
1.The lot boundary setbacks are inconsistent with clause 5.1.3 of the Residential Design Codes and result in the appearance of excessive building bulk to adjoining properties, and do not provide adequate direct sun and ventilation to the building and open spaces on the site and neighbouring lots.
2.The lack of sufficient onsite visitor parking is inconsistent with clause 5.3.3 of the Residential Design Codes and is inadequate to cater for the projected needs of the development given the parking restrictions along Tyrell Street.
3.Building height be limited to two (2) storeys to fit into the existing streetscape.
4.Large window facing east and west are required to have either permanent shading or reduced in size.
5.There is inadequate landscaping on site.
On 13 December 2021, the applicant sought review by the Tribunal of the Council's decision to refuse to grant development approval. The applicant seeks an order that the respondent's decision be set aside and a decision substituted granting development approval, subject to appropriate conditions, to the proposed development.
As part of the proceedings in this matter the parties engaged in mediation resulting in further amended plans being provided to the respondent.[6] The Tribunal, pursuant to s 31 of the SAT Act, invited the respondent to reconsider its decision.
[6] Respondent's s 24 Bundle of Documents dated 12 April 2022 (Exhibit 3) Tab 15.
The proposed development was recommended for approval subject to nine conditions by the administration of the City and considered by the Council at its meeting of 22 March 2022, where the Council resolved in essence to affirm its previous decision.
The applicant filed further amended plans on 14 April 2022, which by order of the Tribunal of 14 April 2022, are taken to be the plans the subject of this review.[7]
[7] Applicant's Bundle of Documents dated 23 May 2022 (Exhibit 14) Tab 2.
The matter proceeded to final hearing for adjudication by the Tribunal. The Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject land and surrounds.[8]

Proposed development

[8] A detailed description of the view can be found at ts 14-19, 24 May 2022.

The proposed development comprises five grouped dwellings all serviced via a common driveway, which is located parallel to the northern boundary of the site. The essential form, presentation and function of the proposed development is five townhouses.
Units 1 and 5 are two storeys in height and include three bedrooms, two bathrooms, a kitchen, meals, living and balcony. Unit 1 is oriented towards Tyrell Street and Unit 5, located at the rear of the site, fronts onto the common driveway. Units 2, 3 and 4 are three storeys in height and also front onto the common driveway. Each unit comprises four bedrooms, three bathrooms, a kitchen, dining, living area and balcony.
Each grouped dwelling has a two car bay garage, and one visitor carpark space is provided on-site located in the front setback area. The FFLs of the proposed development are as follows:
•garages - 9.1 RL;
•ground floor level - 9.2 RL;
•first floor level - 12.207 RL; and
•second floor level (Units 2, 3 and 4) - 15.214 RL.

Planning framework

The subject land is zoned 'Urban' in the MRS and 'Residential' with a density coding of R60 under LPS 3.
LPS 3 is comprised of the Scheme Text, the deemed provisions, (set out in the Planning and Development (Local Planning Schemes) Regulations2015 (WA) (Sch 2) (deemed provisions), and the Scheme Map. To the extent of any inconsistency between a deemed provision with another provision of LPS 3, the deemed provision prevails, and the other provision is, to the extent of the inconsistency, of no effect.[9] Further, pursuant to cl 7(2) of LPS 3 the Scheme is to be read in conjunction with the City of Nedlands Local Planning Strategy (LP Strategy).
[9] Section 257B(3) of the PD Act.
Clause 9 of LPS 3 set outs the aims of the Scheme. The relevant aims relating to this matter include:
(a)Protect and enhance local character and amenity;
(b)Respect the community vision for the development of the district;
(c)Achieve quality residential built form outcomes for the growing population[.]
Clause 16(2) of the Scheme sets out the objectives of the Residential Zone, which includes the following relevant objectives:
•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 streetscape throughout residential areas.
…
•To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.
'Residential' is a 'P' (permitted) use in the Residential zone, providing the use complies with the relevant development standards and requirements of the Scheme.[10]
[10] Clause 17 Zoning Table and cl 18(2) of LPS 3.
Clause 25(1) of the Scheme provides that '[t]he R-Codes[11], modified as set out in clause 26, are to be read as part of this Scheme'. Clause 26 of LPS 3 does not relevantly modify the R-Codes in terms of any of the issues for determination in this review. I will refer to relevant provisions of the RCodes Vol 1 when considering the issues concerning those provisions below.
[11] The applicable Residential Design Codes for the purposes of this matter is State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes).
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of LPS 3 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy; (subclause (c));
•any local planning strategy for this Scheme endorsed by the Western Australian Planning Commission (WAPC) (subclause (fa));
•the compatibility of the proposed development with its setting (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•whether adequate provision has been made for the landscaping of the subject land to which the application relates (subclause (p));
•the history of the site where the proposed development is located (subclause (w));
•the availability and adequacy of the proposed development for access to public transport and access by older people and people with disability (subclause (u));
•any submissions received on the application (subclause (y); and
•any other planning consideration the local government considers appropriate (subclause (zb).
Further, Sch 1 - Supplemental provisions of LPS 3 incorporates an additional subclause (zc) to cl 67(2) of the deemed provisions, being:
(zc) any advice of the Design Review Panel.
In addition to clause 67(2)(c), the Tribunal, pursuant to s 241(1)(a) of the PD Act is required to have due regard to any State planning policy that may affect the subject matter of an application for review. Apart from the RCodes which is a State planning policy that is to be read as part of the Scheme, the parties agree that State Planning Policy 7.0 - Design of the Built Environment (SPP 7) is a policy that falls within the ambit of cl 241(1)(a) of the PD Act.

LP Strategy

The LP Strategy was endorsed by the Commission in September 2017 and 'sets out the long-term strategic direction for land use and development within the City of Nedlands' and 'provides the framework and direction to ultimately support the operation of a new Local Planning Scheme [being LPS 3] and gives the rationale and context for its content'.
The stated intention of the LP Strategy for Population and Housing is to:
To facilitate potential realisation of the specified housing targets through a strategic approach that aims to conserve and enhance the quality of the City of Nedlands' existing attractive residential neighbourhoods. Strongly encourage development of a considerable number of additional dwelling units of a diverse nature within the targeted infill areas.[12]
[12] Clause 5.1 of LP Strategy (Exhibit 4 Tab 3).
Three strategies identified to promote this intention that are relevant to this application include:
…
•Develop appropriate Transition Zones of predominantly residential development adjacent to Urban Growth Areas [particularly Stirling Highway] to realise the conscious effort to maintain separation from existing high quality, low density residential areas.
•Facilitate quality development in targeted infill areas and along transit corridors to respond to the growing demand for high quality residential development in well serviced areas.
…
•Facilitate greater diversity, specifically higher density multiple and grouped dwelling developments in targeted infill areas to provide a diverse range of dwelling types to accommodate changes in population trends.
The stated intention of the LP Strategy for Urban Design, Character and Heritage is:
Retain and enhance the character and streetscape of the City's existing residential areas whilst promoting best practice urban design principles in targeted infill areas. Maintaining and enhancing high quality streetscapes will be of the utmost importance to decision making, and developments will need to respond to the unique character of each precinct.[13]
[13] Clause 5.8 of LP Strategy (Exhibit 4 Tab 3).
The strategies identified to achieve this intent are as follows:
•Ensure the Local Planning Scheme and other development controls are in place to retain and enhance the existing character of each identified precinct.
•Develop mechanisms to promote and/or incentivise best practice urban design outcomes in areas experiencing change and in areas of transition (for example, between precincts, corner sites, different densities/land uses, targeted infill areas etc.).
•Within Urban Growth Areas and Transition Zones provide opportunities for City lead investment into improvement of the public realm.
•Further understand the elements that contribute to streetscapes to inform consistent statutory control.
•Protect and promote places of heritage significance through the City, including civic, commercial and residential buildings, parks and gardens.
The subject land is located within the 'Second Transition Zone', in the Nedlands South Precinct. The LP Strategy explains 'Transition Zones' as follows:

Transition Zones will exist immediately adjacent to Urban Growth Areas for the purposes of creating a buffer between high intensity and low intensity development. This buffer will visually smooth the differences in built form (e.g., height, bulk etc.) and help mitigate any conflict between non-compatible land uses.
It is expected the Transition Zones will contain mostly residential developments of multiple dwellings (apartments) and grouped dwellings (townhouses and similar). Some small scale non-residential uses may still be appropriate.[14]
[14] Clause 4.1 Explanatory Notes of LP Strategy (Exhibit 4 Tab 3).

The subject land is located in the 'Second Transition Zone'[15] and within the Nedlands South Precinct.[16] The applicable strategies set out in cl 5.9.11 Nedlands South that apply to the relevant Transition Zone are:
…
Within the Transition Zones adjoining Stirling Highway, ensure the height, scale and bulk of redevelopment smoothly integrates back to the established residential character of the area.
oFacilitate medium rise, medium intensity predominately residential redevelopment within the First Transition Zone.
oFacilitate low rise, diverse residential built form within the Second Transition Zone.
[15] LP Strategy, Local Planning Strategy Map (Exhibit 4 Tab 3).
[16] LP Strategy, Map 1 Precinct Boundaries (Exhibit 4 Tab 3).
The LP Strategy provides the following 'Guide to density terminology':

Guide to density terminology

Existing Residential

Predominantly R10-R12.5 (10 -12.5 dw/ha)

Low density Below R40 (< 40 dw/ha) Low rise 1 - 3 storeys

Medium density R40 - R80 (40 - 80 dw/ha) Medium rise 3 - 9 storeys

High density Above R80 (> 80 dw/ha) High rise 9+ storeys

Issues

The parties identified five principal issues for determination in these proceedings, which can be stated as follows:

1)whether the proposed development is considered acceptable having regard to the relevant considerations in cl 67(2) of the deemed provisions;
2)whether the proposed development demonstrates compliance with the design principles in cl 5.3.1 'Outdoor living areas' and satisfies relevant objectives of the R-Codes Vol 1;
3)whether the proposed development demonstrates compliance with the design principles in cl 5.3.2 'Landscaping' and satisfies relevant objectives of the R-Codes Vol 1;

4)whether the proposed development demonstrates compliance with the design principles in cl 5.3.3 'Parking' and satisfies relevant objectives of the RCodes Vol 1; and
5)whether the proposed development demonstrates compliance with the design principles in cl 5.4.1 'Visual privacy' and satisfies relevant objectives of the RCodes Vol 1.

The Tribunal will address each issue in turn.

Clause 67(2) considerations and exercise of residual discretion

Mr Wittkuhn, the respondent's representative, describes this issue as a 'foundational issue'. The respondent relies on Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 (Sapphire) at [36], where Parry J observed as follows:
… satisfaction of all relevant deemed-to-comply requirements or demonstrating compliance with corresponding design principles and satisfaction of relevant objectives of the R-Codes Volume 1 does not mandate approval by the planning consent authority of a proposed development. The planning consent authority retains residual planning discretion to assess and determine the proposed development, including by refusal of the proposed development on its merits, under the applicable local planning scheme, including the deemed provisions in all local planning schemes under Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions)[.]

The respondent contends that the proposed development conflicts with aims of LPS 3 and the objectives of the Residential zone as it does not 'protect and enhance the local character and amenity' or 'respect the community vision for the development of the district'. The respondent submits that the bulk and scale of the proposed development is incompatible with its setting[17] and will have an adverse amenity impact on the locality[18] and as such, the proposed development warrants refusal.
[17] Clause 67(2)(m) of the deemed provisions.
[18] Clause 67(2)(n) of the deemed provisions.
The applicant asserts that the approval of the proposed development is consistent with orderly and proper planning as the planning framework creates a legitimate expectation for medium density housing in this locality. The applicant says the realisation of this expectation will result in considerable change and have a significant impact on the existing amenity of the locality. The applicant submits that the proposed development is fundamentally compliant with the R-Codes in relation to bulk, height, scale and overshadowing and as such, the impact of the proposed development on the future desired amenity of the locality is minimal.
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. As articulated by the Tribunal in Sapphire at [38], planning law in relation to the assessment of amenity impact is well settled. The approach adopted is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, where the Town Planning Appeal Tribunal observed at 304 that 'the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. Consistent with the definition of amenity in cl 1 of the deemed provisions, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] also confirmed that an evaluation of amenity should take account of future amenity. Further, as articulated in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48]:
… in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity], a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents [of the locality who] are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]
The Tribunal had the benefit of expert evidence from Mr Simon John Bain, a town planning consultant who is currently employed as a senior planning officer (part-time) at the City, called on behalf of the respondent and Ms Bianca Sandri, a town planning consultant, called on behalf of the applicant.
Mr Bain considers the 'boarder' locality to be generally consistent with the boundaries of the 'Nedlands South Precinct'[19] with the exclusion of the properties east of Bruce Street. In terms of the 'narrower' locality he identified all the lots in Tyrell Street, Thomas Street and Archdeacon Street, with the exception of the lots zoned R-AC1 in LPS 3,[20] extending from Stirling Highway in the north to Edward Street in the south and included lots fronting Edward Street from the Thomas Street intersection in the west to the Archdeacon Street intersection in the east.[21] However, based on his observational analysis of the streetscape qualities in the 'narrower' locality he further refines 'locality' to the streetscape of Tyrell Street 'because [he] acknowledge[s] that the pertinence of the streetscape is greatest for the subject street, more so than neighbouring streets[.]'[22]
[19] The Nedlands South Precinct is bounded by Bay Road, Melvista Avenue, Hillway, Kingsway and the rear (southern boundaries) of the lots fronting Stirling Highway.
[20] Mr Bain did not include the R-AC1 zoned lots 'as these represent a mixed-use zone with commercial land uses' (Exhibit 10) para 55.
[21] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) Annexure 3.
[22] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 68.
Ms Sandri did not agree with the 'locality' as defined by Mr Bain and considered it to be confined to the Tyrell Street lots in the street block bounded by Edward Street to the south and Stirling Highway, No 24 Tyrell Street, Nos 21-23 Tyrell Street and the road reserve of Edward Street between Thomas and Archdeacon Streets.[23]
[23] Witness Statement of Bianca Sandri dated 17 May 2022 (Exhibit 15) Annexure BS2.
The Tribunal in Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187 considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
In oral evidence both planning experts accepted that Nos 15, 17 and 19 Archdeacon Street form part of the 'locality' as the proposed development will have some impact on these properties. The point of difference between the planning experts in defining the boundaries of the 'locality' is whether the two lots fronting onto Stirling Highway, which are zoned R-AC1 in LPS 3, should be included in the 'locality'. The Tribunal is of the view that these two lots form part of the visual character of Tyrell Street and should not be excluded because of their zoning under LPS 3.
There is consensus between the planning experts about the dominant characteristics of the existing streetscape of the locality, which Ms Sandri describes as follows:
Tyrell Street was settled during the inter-war period between 1920-1934 and dwellings in the street generally display characteristic from the style of development that feature in that era.
Existing dwellings are one and two stories (sic) in height, with brick and masonry finishes and tiled pitched roofs. Other notable features which for part of the existing streetscape character include:
•Dwellings which are setback approximately 9m, with low level open fencing, large windows and prominent verandahs.
•Dwellings with or without carports within the front setback area. Those with carports are usually constructed in a brick or render finish and pitched roof to complement the existing dwelling. Single vehicle crossovers.
•Landscaping within the primary street setback area, with between one or two large trees on the verge.
While Ms Sandri accepts that the Tyrell Street streetscape is relatively intact, she does not attach any significance to this as 'there are very similar streetscapes with very similar intact dwellings that exist within the R12.5 and R10 areas'.[24] Further, she considers the locality to be 'in transition' towards the higher density as advocated by the upcoding which means that the likely future amenity of the locality will be significantly different as there is an expectation to develop to the R60 coding. She submits that change is imminent as can be observed from the development approval at No 20 Tyrell Street, Nedlands (No 20), albeit a two storey single house, which responds to the R60 coding with respect to setbacks and introduces a concealed roof element into the streetscape. She acknowledges that the proposed development is the first of its type in Tyrell Street, but points to other recent developments of multiple dwellings and grouped dwellings currently under construction in the surrounding streets,[25] to provide a context and an understanding of the transition that is occurring in the Nedlands South Precinct.
[24] ts 11, 25 May 2022.
[25] The following developments currently under construction were observed on the view – Nos 13-11 Webster Street, Nedlands, Nos 14-16 Webster Street, Nedlands, Nos 18-20 Webster Street, Nedlands, and No 2 Thomas Street, Nedlands. A sign advertising the development of five town houses at No 15 Thomas Street, Nedlands was observed.
Conversely, Mr Bain considers the character of Tyrell Street to be 'distinctively different to the surrounding streets and indeed the broader precinct because of the high degree of integrity and intactness of the street. Based on his survey of the locality he concludes that 'the Residential zoned land between Stirling Highway and Edward Street (Nos 1A to 22 Tyrell Street) are almost entirely original single houses of the Californian Bungalow architectural style'.[26] Although Mr Bain notes that Tyrell Street is not included on any formal heritage list or any heritage area under LPS 3, to support his conclusions in regards to the integrity and qualities of the Tyrell Street streetscape he refers to the 'Draft Proposed Character Retention Areas'[27] which includes Tyrell Street as a character retention area. Mr Bain considers the proposed development to be 'unacceptably incongruous with the existing streetscape of Tyrell Street and would compromise the integrity and desirable qualities of that streetscape'.[28]
[26] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 94.
[27] Mr Bain, in his witness statement, explains that this document has been commissioned by the City and undertaken by Stephen Carrick Architects but is currently in draft form and has not been considered by the City as yet.
[28] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 133.
Mr Bain considers that best guidance to the future character of the locality can be gained from the role of the Second Transition Zone identified in the LP Strategy. He acknowledges, as a consequence of its inclusion and subsequent upcoding in LPS 3 that the character of the locality will undergo some degree of change in terms of scale and built form. However, he submits that there should not be an automatic expectation that development can take advantage of the upper limits of the density coding as the bulk and scale of the proposed development needs to be considered in the context of the existing streetscape.
Mr Bain advocates that in terms of understanding the function of the Transition Zones as expressed in the LP Strategy[29] that 'low-rise' within the Second Transition Zone is best understood by reference to the RCodes Volume 2 - Apartments (RCodes Vol 2), Appendix A2 - 'Streetscape Character Type', which provides as follows:
SUBURBAN CONTEXTS
Low-rise
Context: Neighbourhoods that provide a mix of detached housing, group housing and apartments. They are predominately 1 - 2 storeys but may include 3-storey development on neighbourhood connector streets, adjacent to open space and/or on key sites. Apartment development should be located within walking distance of public transport, local shopping and local open space and may create a transition zone between a lower density residential area and higher density land uses.
Character: Streetscapes have a landscaped character and prevailing built form patterns of 1-2 storey detached dwellings with defined front and side setbacks. New development should reflect the prevailing streetscape patterns and include significant onsite landscaping to enhance the streetscape and provide amenity for residents and neighbours.[30]
[29] Clause 5.9.11 of LP Strategy - that is 'to ensure that height, scale and bulk of the development smoothly integrates back to the established residential character of the area', and more particularly 'facilitate low rise, diverse residential built form within the Second Transition Zone'.
[30] Original emphasis.
Mr Bain concludes that based on his reading of the LP Strategy a two storey outcome is consistent with the expectation created by the upcoding to R60.[31] He further surmises that the proposed development would not be considered 'low-rise' as envisaged by R-Codes Vol 2 'because it is not limited to two storeys; and it would not qualify for three storeys' due to its location.[32]
[31] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 64.
[32] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 62.
Ms Sandri disagrees with Mr Bain's use of the 'Streetscape Character Type - Low-rise' as found in the R-Codes Vol 2 to ascertain the meaning of 'low rise' in the context of the LP Strategy. She submits that the appropriate source is the 'Guide to density terminology' (Guide) found at page vii of the LP Strategy (which is set out in full at [35] above). Her interpretation of the Guide and its application is as follows:
… low density equates to low rise; medium density equates to medium rise. Given that the zoning [of the subject land] is [coded] R60, it is best described as medium density and there was an anticipation as part of the strategy that medium rise would be three to nine storeys.
Ms Sandri is of the opinion that a number of design features have been incorporated into the proposed development that demonstrate a design response that is reflective of the R60 coding and the future desired streetscape, as well as, seeking to reduces the impact of the proposed development on the existing streetscape. These include:
•providing a transition from the current to future streetscape of the locality with the inclusion of two storey built form framing the front and rear of the proposed development;
•reducing the prominence of the proposed development by lowering the FFL of the building so that it sits approximately 1.2 metres lower than the adjoining lot at No 20; and
•increased side setbacks to the first and second floor levels of Units 2, 3, and 4, which assists in reducing the impact of the southern elevation and overshadowing on No 20.
The Tribunal also heard evidence from Mr Enhui Zhang, Mr Geoffrey John Bosich, Mr Jeremy Hams, and Dr Susan Skull and admitted into evidence a witness statement of the Honourable Kerry Sanderson AC CVO, all owners and/or residents in this section of Tyrell Street. Each of the locality witnesses expressed concern about the height, bulk and scale of the proposed development, which they consider to be an overdevelopment of the site and inconsistent with the visual amenity of the existing streetscape of the locality. All of the locality witnesses acknowledged that they are aware of the up-coding of the locality and accepted that some infill development is likely to occur but consider it should be sympathetic to the existing character of the locality. The common view held by the locality witnesses is that the maximum height of the proposed development should be two storeys.
The following observations made by Parry J in Sapphire at [57] are analogous to this locality:
… Although the planning framework requires new medium density development, such as the proposal, to respect existing character and amenity, including streetscape, it follows inevitably from the up-coding of the site and locality that the appearance, use and density of development in the immediate locality of the site, and in other parts of Dalkeith which have been the subject of up-coding, will change.
Similarly, the planning framework seeks to promote medium density development in a locality that was coded R10/12.5 under the previous town planning scheme. Clearly, the planning framework envisages a significant change in the built form within the areas that fall within the Transition Zones and as such, the existing streetscapes in these areas will undergo considerable change, as observed in Webster and Thomas Streets. The characteristics of medium density housing consistent with the intensity of R60 will undoubtably have a significant impact on the existing streetscape in terms of diversity of housing types, setbacks, building separation, height, and building mass.
While Mr Bain was critical of the 'method of measuring the appropriate setback for a length of wall adjacent to a lot boundary'[33] and the resultant design outcomes that may be achieved, there is no dispute that the proposed development is compliant with the deemed-to-comply requirements of the R-Codes in relation to setbacks, height and overshadowing.
[33] R-Codes, Figure Series 4 - Wall length for lot boundary setbacks.
It is well-established that 'the conformity of a residential development with all applicable provisions of the R-Codes does not mandate approval' and that the decision-maker 'retains residual planning discretion to assess and determine the proposed development under the applicable local planning scheme, including the deemed provisions'.[34] However, the authorities also recognise that '[i]n most planning assessments, the fact that a development conforms to a relevant provision of the R-Codes is likely to be significant in relation to a related matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration'.[35]
[34] Dumbleton & Anor and Town of Bassendean [2005] WASAT 145; Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223; Sapphire.
[35] Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 at [42].
Further, pursuant to cl 67(2)(m) of the deemed provisions, the Tribunal is required to give 'due regard' to:[36]
(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.
[36] Subparagraph (i) of what is now cl 67(2)(m) of the deemed provisions was added on 15 February 2021.
The LP Strategy is the strategic document that provides the long-term direction and rationale that underpins the local planning scheme. The planning experts agreed that the R-codings as depicted in LPS 3 for the Transition Zones adjoining Stirling Highway generally followed the strategic direction as contemplated in the LP Strategy. However, there was disagreement about the expectation created by the term 'low-rise' as coined in the LP Strategy and the upcoding to R60 under TPS 3.

'Low-rise' is clearly defined as '1 - 3 storeys' in the Guide that forms part of the LP Strategy and as such, there is no basis to turn to the RCodes Vol 2. Further, although the display of the Guide is a little misleading, each of the terms defined are discrete and should be read as such. Plainly, in construing the document as a whole, the purpose of the Transition Zones is to provide areas that will facilitate a range of housing types to meet the infill density targets and to provide a buffer between the Urban Growth Areas and the 'Existing Residential' (R10R12.5) areas for the purposes of visually smoothing the differences in built form (e.g. height, bulk etc.). There is an express expectation that the Transition Zones will contain mostly residential development of multiple dwellings (apartments) and grouped dwellings (town houses and similar). More particularly, it is intended that the Second Transition Zone (within the Transition Zones adjoining Stirling Highway in the Nedlands South Precinct) is to facilitate one to three storeys, and diverse residential built form so that the height bulk and scale of new development integrates back to the 'existing residential' area.
There is no doubt that at present the Tyrell Street streetscape in this locality is relatively intact and that the predominant building height in the locality is now one to two storeys. However, the planning framework clearly envisages change in the 'appearance, use and density of development in the locality. There are already signs of change and the commencement of the transitioning of this locality to the 'desired future character', evident in the approval of No 20 which exhibits characteristics consistent with the higher density coding. The proposed development, even if only two storeys in height, will further alter the pattern of development in the locality due its divergence in built form and setbacks. Several of the locality residents expressed concern about the visual impact of this form of development (townhouses) as viewed from their properties, however, the built form configuration and appearance accords with the desired future character of the locality as expressed in the planning framework.
It is accepted that not all lots within the Transition Zones or the locality will be redeveloped but given the strategic direction, reinforced by the upcoding under the statutory planning framework, the character of the Transition Zones and locality will significantly change in terms of scale and built form. I do not agree with Mr Bain's conclusion that 'a twostorey outcome is consistent with the expectation created by the upcoding R60'. Whereas the predominant building height in the locality is now one to two storeys, the future predominant building height, with the exception of the lots coded RAC1 and R160, is likely to be two to three storeys.
The height of the proposed development is consistent with the desired future character of the locality, and I am satisfied that the design of the proposed development, located as it is in a precinct undergoing transition, responds appropriately to the desired future character as contemplated in the local planning framework in terms of height, bulk and scale. Further, I am satisfied that the design responses incorporated into the proposed development, as evinced by Ms Sandri at [54], assists in ameliorating the impacts of height on the existing streetscape of Tyrell Street, No 20, and the adjoining properties at the rear of the subject land that front onto Archdeacon Street. Consequently, I am satisfied, on the evidence, that the proposed development is consistent with the aims of the Scheme and the objectives of the Residential zone.

Whether the proposed development demonstrates compliance with the design principles in cl 5.3.1 'Outdoor living areas' and satisfies relevant objectives of the R-Codes Vol 1.

It is common ground between the parties, and clearly the case, that the proposed development does not satisfy the deemed-to-comply requirements of cl 5.3.1 C1.1 and therefore is required to be assessed under the corresponding design principles cl 5.3.1 P1.1, which state:
P1.1A consolidated outdoor living area[37] is provided to each single house and grouped dwelling which provides space for entertaining, leisure and connection to the outdoors that is:
•of sufficient size and dimension to the functional and usable;
•capable of use in conjunction with a primary living space[38] of the dwelling;
•sufficient in uncovered area to allow for winter sun and natural ventilation into the dwelling;
•sufficient in uncovered area to provide for landscaping, including the planting of tree(s); and
•optimises use of the northern aspect of the site.
[37] 'Outdoor living area' is defined in Appendix 1 of the R-Codes as: '[t]he area external to a single house, grouped or multiple dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use and is readily accessible from the dwelling'.
[38] 'Primary living space' is defined in Appendix 1 of the R-Codes as: '[t]he area within a dwelling that is the focus of life and activity and usually the largest room. This area is connected with the outdoor living area or balcony, and includes the following room types: living room, lounge room, games room, family room, or an integrated living area that has one of these room types together with a kitchen or dining area'.
Clause 1.5 of the R-Codes enables the WAPC to prepare more detailed explanatory guidelines on the matters addressed in the R-Codes Vol 1, and if prepared should be considered in the determination of proposals. It is intended that these guidelines will provide advice and guidance to assist interpretation and assessment of proposals against the design principles and/or deemed-to-comply provisions of the R-Codes Vol 1.
The WAPC has published a document entitled R-Codes Residential Design Codes Explanatory Guidelines (2021) (Guidelines). It is stated on the front page of the Guidelines that '[t]hese guidelines supplement State Planning Policy 7.3 Residential Design Codes Volume 1 and are to be read in conjunction with that policy'. It is therefore necessary to also have regard to any relevant parts of the Guidelines when seeking to understand what is meant by a provision of the R-Codes.
The format of the Guidelines provides for both 'general guidelines' relating to development proposals and guidelines relating to a specified part of the R-Codes.
The Guidelines provide the following guidance in relation to 'Outdoor living areas':
General guidelines
6.1 Outdoor living areas (Clause 5.3.1 of R-Codes Volume 1)
At least one outdoor area for each dwelling is required for entertaining and leisure that is:
•large enough to be function and usable;
•directly accessible from primary living space; and
•with access, if possible to winter sun.
Outdoor living areas should be oriented to make best use of northern sunlight, (where climatically appropriate) and provide opportunities for natural ventilation by cooling breezes.
Additional, where an outdoor living area is provided in the street setback area, it should have visually permeable fencing or balustrading (for balconies) to facilitate casual street surveillance.
Part 5 only
6.1.1 Outdoor living areas - Part 5 of R-Codes Volume 1 (Clause 5.3.1 of R-Codes Volume 1)
Because of the importance of providing shade in summer, especially in conjunction with outdoor living areas, a part of the outdoor living area (up to one-third) can be roofed (refer to Figure 13 in the R-Codes Volume 1). The unroofed area(s) is to ensure access to natural light from the outdoor living area and primary living space is maintained.
This clause should be read in conjunction with 5.3.2 Landscaping to ensure tree planting and associated areas are taken into consideration in the design and assessment of this area.
The development outcome cl 5.3.1. P1.1 seeks to achieve is the provision of '[a] consolidated outdoor living area' that provides 'space for entertaining, leisure and connection the outdoors'.
'Consolidated' is a word that is not defined in Appendix 1 - Definitions of the R-Codes (or the Scheme) and as such it is appropriate to consider the normal and common meaning of the word. Having regard to the context in which it is used 'consolidated' means 'to bring together compactly in one mass or connected whole; unite; combine'.[39]
[39] Macquarie Dictionary Online (2022).
Clause 5.3.1 P1.1 sets out a number of design criteria, which combined, demonstrate compliance with the design principle.
Each grouped dwelling has been designed with a ground floor courtyard (courtyard) that is accessed via a bedroom or front door and a balcony that can be used in conjunction with a primary living space of the dwelling. The applicant accepts that the courtyards do not form part of the 'consolidated outdoor living area' but provides additional outdoor living opportunities for the residents and contends that the dedicated outdoor living area for each grouped dwelling is the balcony.
The dimensions of the balconies as shown on drawing No. A100.3[40] and the respective total area of the outdoor living areas for each unit are set out in Table 1 below:
[40] Applicant's Bundle of Documents (Exhibit 14) page 4.

Table 1: Dimensions and Total Area of Balconies

Unit No Dimensions of Balconies Total Outdoor Living Area/Balcony

Unit 1 3.4 x 3.91m 13.294m²
5.5m² covered by vergola

Unit 2 3.82 x 3.74m (14.28m²)
1.6 x 3.87m (6.192 m²) 20.478m²

Unit 3 3.78 x 4.09m 15.460m²

Unit 4 3.68 x 3.74m (13.76m²)
1.6 x 3.875m (6.2m²) 19.963m²

Unit 5 3.4 x 3.91m 13.294m²

The respondent contends that the outdoor living areas of the proposed development do not demonstrate compliance with the design principles in cl 5.3.1 P1.1, in particular:

•the outdoor living areas for all units are of insufficient size and dimension to be functional and usable;
•there is insufficient uncovered area of the outdoor living areas for Units 2, 3 and 4 to allow for winter sun and natural ventilation into the dwellings;
•there is insufficient uncovered area of the outdoor living areas for Units 2, 3 and 4 to provide for landscaping; and
•the outdoor living areas for Units 2. 3 and 4 fail to optimise use of the northern aspect of the site.

Of sufficient size and dimension to be functional and usable

Mr Bain considers that the balconies for each of the grouped dwellings are either too small in area or too small in one or both dimensions to be capable of use for active, or passive use. His approach looked at the capacity of the balconies to accommodate 'typical outdoor furniture and provide for manoeuvring space'.[41] He estimated that a minimum of 16m² would be required to accommodate a six-seater outdoor table, a BBQ, an outdoor sofa and two planter boxes (typical outdoor furniture). Based on this premise, he concludes that the outdoor living area for Units 1, 3 and 5 are 'considered to be too small to accommodate the above-mentioned furniture' and that while the total area of the outdoor living areas for Units 2 and 4 exceed the 16m², the 'usable area' is too small to accommodate typical outdoor furniture.
[41] Witness statement of Simon John Bain dated 18 May 2022 (Exhibit 10).
Ms Sandri considers that the outdoor living areas have an area that is regular shaped which allows for a variety of furniture to be accommodated and highlights the functionality and usability of the design which provides connectivity between the outdoor living area and the primary living area of the dwellings through the use of stacker doors and allows the outdoor living area and the indoor living areas to be used on a larger scale.
There was an attempt by the respondent to quantify this aspect of the design principles by reference to the deemed-to-comply requirements.[42] As the Tribunal has previously articulated,[43] this approach is contrary to cl 2.5.1 of the R-Codes, which states that '[t]he decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s)'.[44]
[42] Minimum outdoor living area of 16m² with minimum length and width dimension of 4 metres.
[43] Sapphire [47] and [65].
[44] Original emphasis in bold and added emphasis in italics.
I do not hold the same concerns expressed by Mr Bain and prefer the evidence of Ms Sandri for the following reasons. Firstly, the typical outdoor furniture as identified by Mr Bain is at best one potential arrangement of furniture that could be accommodated on a balcony and as Mr Sandri pointed out, all the balconies, except for Unit 5, are adjacent to the dining area and quite possibly a different arrangement of furniture would be preferred and capable of being accommodated. Secondly, each balcony has an area that is a regular shape and of a size capable of use for entertaining and leisure. Thirdly, as Ms Sandri highlights the ability to integrate the outdoor living area with the internal living spaces is a positive design outcome that increases the usability and functionality of both spaces. Fourthly, while the courtyards, by definition, are not considered to be outdoor living areas they will, as the applicant submits, provide additional outdoor living opportunities for the residents.

Sufficient in uncovered area to allow for winter sun and natural ventilation into the dwelling

There is no dispute that the outdoor living areas/balconies for Units 1 and 5 demonstrated compliance with this aspect of the design principles.
Further, the planning experts agree that the balcony of Unit 3 is totally covered by the overhang of the second floor of that dwelling and consequently, no direct winter sunlight into the dwelling is obtained from the outdoor living area. Ms Sandri explained that this design outcome appears to have emanated from comments made by the Design Review Panel (DRP) about modifying the balconies 'so as to not overlook neighbouring lots' because 'screening in lieu of setbacks is not considered acceptable'.[45]
[45] Respondent's 24 Bundle of Documents (Exhibit 3) page 154.
The DRP in their initial review assigned a rating of 1 (not supported) to Principle 6 - Amenity (Principle 6) of SPP 7 recommending, amongst other things, that the balconies be modified. The design response put forward by the applicant to address the DRP's concern involved increasing the setback to the balcony of Unit 3 from the northern boundary to 6 metres, which reduced the overall size of the balcony by approximately 5m² but negated the need for privacy screening to this balcony.[46] The applicant also provided further justification in response to the DRP's suggestions. The amended plans and further justification were reviewed by the DRP Chair, Mr Simon Anderson, and the rating to Principle 6 was modified to 'Supported', the relevant comment being, 'addressed the visual privacy for the northern neighbours'.
[46] Respondent's s 24 Bundle of Documents (Exhibit 3) Tab 10.
The planning experts' calculations in relation to the amount of uncovered area for the balconies of Unit 2 and Unit 4 differs as they did not use the same plan as a basis for their assessment. Mr Bain estimates, based on Drawing No. A 101.1,[47] that 1.0 metre (18.26%) of the balcony for Unit 2 and 0.8 metre (14.9%) of the balcony for Unit 4 is uncovered and calculates the winter sun penetrating into the first floor of each dwelling to be 0.49m², which equates to 0.68% (Unit 2) and 0.7% (Unit 4) of the floor area.
[47] Applicant's Bundle of Documents (Exhibit 14) page 7.
Ms Sandri calculates, based on Drawing Nos. A100. 3 and A100.4,[48] that 4.7m² of the balcony of Unit 2 and 4m² of the balcony of Unit 4 is uncovered and estimates that the dining areas (primary living spaces) receive 2m² and 1.9m² of direct winter sunlight respectively.[49] She also highlights that the narrow portion of the outdoor living areas, measuring 1.6 metres by 3.97 metres, are unroofed and provides daylight into the primary living spaces. Ms Sandri considers that the direct sunlight coming through the outdoor living areas, whilst she accepts is small, is sufficient given the design of the dwellings provides large areas of direct winter sunlight through the north facing major openings of the primary living areas.
[48] Applicant's Bundle of Documents (Exhibit 14) pages 4 and 5.
[49] Exhibit 18.
It is clear from the Guidelines that the intent of this design aspect is to ensure that the design outcome of the outdoor living area is such that natural light to the primary living area is maintained. Although the diagrams prepared by the planning experts demonstrate that minimal or no winter sun penetrates into the primary living spaces in these three dwellings from the outdoor living area, as pointed out by Ms Sandri, 'the living areas also have a northern frontage, which have a major opening and which each allow for direct winter sunlight into the dwellings'.[50] It is because of this design response that I am satisfied that the design outcome demonstrates compliance with the design principle, which in essence, seeks to ensure that the design of the outdoor living area does not compromise winter sun penetrating into the dwellings.

Sufficient in uncovered area to provide landscaping, including the planting of tree(s)

[50] ts 158, 25 May 2022.

The respondent contends that the outdoor living areas do not demonstrate compliance with this design principle as the balconies for Units 2 and 4 have minimal uncovered area and Unit 3 has no uncovered area to provide landscaping. The respondent further argues that the courtyard areas cannot be taken into account on this point as it is the 'consolidated outdoor living area' not supplementary outdoor living area, which must satisfy each of the design criteria.
The applicant submits there is opportunity to provide planting on the balcony in planter boxes and that the voids in Units 2, 3 and 4 also provide opportunity for vertical gardens and landscaping. The applicant accepts that although the architectural renders[51] show landscaping on the balconies and in the void area, the detailed plans do not. The applicant says that this can be easily remedied by the imposition of a condition on the approval.
[51] Respondent's s 24 Bundle of Documents (Exhibit 3) pages 190-193.
I also note that the Council Report dated 9 November 2021, whilst relating to the amended plans dated 5 October 2021, incorporates the advice from the DRP chair indicating that the rating to Principle 2 'Landscape Quality' of SPP 7 was amended from 'yet to be addressed' to 'Supported', with the following comment - 'Improved the landscaping both on ground and on structure' (Emphasis added).[52]
[52] Respondent's s 24 Bundle of Documents (Exhibit 3) page 297.
While the detailed plans of the proposed development do not indicate landscaping on the balconies, I am satisfied that there are sufficient uncovered areas on the balconies of Units 1, 2, 4 and 5 to provide similar landscaping treatments as illustrated in the architectural renders and a condition should be imposed requiring the landscaping design to incorporate landscaping on the balconies.
As pointed out by the respondent there is no uncovered area to the balcony of Unit 3. This design issue could perhaps have been remedied by the inclusion of a planter box along the face of the balcony, although this design solution was not put to the planning experts for their consideration. The outdoor living area in the main satisfies the general guidelines as contained in cl 6.1 'Outdoor living areas' of the Guidelines and the design of this unit incorporates a planter box adjacent to the balcony (in front of the lounge room), a ground floor courtyard which provides a second open space area where a Snow Pear and a Capital Pear are to be planted and the void area similarly could incorporate a vertical garden as illustrated in the architectural renders. In the exercise of judgment, taking into consideration the merits of the overall design and having regard to the relevant objective of the design element,[53] and the design principles of cl 5.3.2, which are to be read in conjunction with this cl 5.3.1, I am satisfied that the intent has been satisfied.

Optimises use of the northern aspect of the site

[53] The relevant objective of cl 5.3 Site planning and design states:- 'Landscaping design should optimise function, useability, privacy and social opportunity, equitable access, respect neighbours' amenity and provide for practical establishment and maintenance'.

The respondent contends that the balconies do not optimise 'in the sense of achieving the best possible result', 'making the best of, making the most effective use of'[54] the northern aspect of the site as design features, such as the overhangs over three of the balconies, the 1.6 metre visual privacy screening and the 'narrowness' of the balconies in favour of indoor floor area compromises the outdoor living areas. Mr Bain is of the opinion that in order to demonstrate compliance with this design principle all five units 'should have been designed with wider balconies on the northern side, with lower screens/balustrades and less overhang from upper floors'.[55]
[54] Macquarie Dictionary Online (2022) definition of 'optimise'.
[55] Witness Statement of Simon John Bain (Exhibit 10) para 230.
Ms Sandri submits that the whole design of the proposed development has been prefaced on maximising the northern aspect of the site and highlights the benefits attained from locating the driveway adjacent to the northern boundary of the site, which results in a significant setback to the adjoining property ensuring that the outdoor living areas will be protected from any undue overshadowing impacted from future development on No 16 Tyrell Street, Nedlands (No 16). She also considers that the design outcome, notwithstanding the visual screening of the balconies, allows direct sunlight into the outdoor living areas and the north facing unobscured major openings afford direct sun to penetrate the primary living areas of the dwellings. In her opinion, there is no need for the balconies to extend the full width of each of the lots in order for them to optimise the northern aspect when considering all the other elements of the R-Codes.
I am satisfied that the design of the outdoor living areas fulfils the design criteria of cl 5.3.1 P1.1. The R-Codes are performance based and the design principles, which provide an alternate pathway, are not intended to be limiting or prescriptive.[56] Mr Bain's assertion that in order for the outdoor living areas to optimise use of the northern aspect of the site the balconies needed to extend the full extent of the northern face of each dwelling, is limiting and is one design solution. The intent of this design principle is to ensure that outdoor living areas are located so as to take advantage of the northern aspect of the site and will depend on the opportunities and constraints of the site. In this instance, the design outcome of the proposed development seeks to optimise the northern aspect of the site by providing direct winter sun to both the outdoor living areas and the internal floor area of the dwellings. This design outcome is considered to be an appropriate response.
[56] Guidelines, page 12.
Further, as recognised in the Guidelines, compromises will need to occur when two design elements have conflicting outcomes. Such is the case in this instance. While all the balconies have a northern aspect, screening is required to most of the balconies to minimise adverse impact on the privacy of the adjoining property. There is no doubt that the screening reduces the access to winter sun to the outdoor living areas, but the design response still ensures that the direct winter sun access penetrates into the outdoor living areas.
Given my findings above in relation to each of the design criteria, I conclude in relation to issue 2 that the proposed development demonstrates compliance with the design principles in cl 5.3.1 Outdoor living areas and satisfies the relevant objectives of the R-Codes Vol 1.

Whether the proposed development demonstrates compliance with the design principles in cl 5.3.2 'Landscaping' and satisfies relevant objectives of the RCodes Vol 1

The respondent contends that the proposed development does not satisfy deemed-to comply requirement cl 5.3.2 C2.1vi of the R-Codes, which states:
Landscaping of grouped and multiple dwelling common property and communal open spaces in accordance with the following:
…
vi.trees which are greater than 3m in height shall be retained, in communal open space which is provided for the development[.]
The respondent asserts that as the proposed development involves the removal of a 9 metre high Jacaranda tree and a 5 metre high Almond tree it does not satisfy cl 5.3.2 C2.1vi of the R-Codes as this provision requires the applicant to retain trees that are greater than 3 metres in height in communal open space and therefore, the proposed development is required to be assessed under the corresponding design principles.
The applicant rejects the respondent's interpretation of cl 5.3.2 C2.1vi and says that as the proposed development does not provide any communal open space, nor is it required to be provided in accordance with the R-Codes, so this clause is not applicable in this instance. On this interpretation, the applicant submits that the proposed development satisfies the deemed-to-comply requirements of cl 5.3.2 C2.1. In the alternative, the applicant submits that the proposed development demonstrates compliance with the corresponding design principle.
The Guidelines confirm that landscaping of all dwelling types should be designed and installed with regard to, amongst other things but relevantly, the desirability of retaining existing trees and that existing trees may be included to satisfy the minimum tree requirements of cl 5.3.2 C2.2.
The specific design element of cl 5.3 'Site planning and design' addresses the landscape treatment of open space. On first blush it would appear the cl 5.3.2 C2.1 speaks to landscaping of common property and communal open spaces of grouped and multiple dwellings developments.
The Tribunal is not persuaded that the applicant's interpretation of cl 5.3.2 C2.1 of the R-Codes is correct for the following reasons. Firstly, cl 5.3.2 C2.1 goes beyond just considering the landscaping[57] of common property and communal open area and addresses the siting and location of elements such as car parking, bin storage area and clothes drying areas, as well as landscaping.
[57] Landscape, landscaping or landscaped is defined in Appendix 1 of the R-Codes as: 'Land development with garden beds, shrubs and trees, or by the planting of lawns, and includes such features as rockeries, ornamental ponds, swimming pools barbecue area or playgrounds and any other such area approved by the decision-maker as landscaped area'.
Secondly, the Guidelines confirm that landscaping of all dwelling types should be designed and installed with regard to, amongst other things but relevantly, the desirability of retaining existing trees and that existing trees may be included to satisfy the minimum tree requirements of cl 5.3.2 C2.2. Bearing in mind the deemed-to-comply provisions are related to the design principles and objectives,[58] and not the converse. The provisions when read as a whole and in context supports the desirability of retaining existing trees as provided for in dot point five of the design principle, although an alternate pathway is provided if existing trees are to be removed. The corresponding deemed-to-comply requirement, being cl 5.3.2 C2.1 vi, provides the 'straight forward pathway to approval' which requires the retention of trees greater than 3 metres in height in communal open space.
[58] Guidelines, page 12.
On this reading, the proposed development does not satisfy the deemedto-comply requirements of cl 5.3.2 C2.1 and therefore is to be assessed under cl 5.3.2 P2.
The respondent says that the proposed development does not demonstrate compliance with design principle cl 5.3.2 P2, which states:
Landscaping of open spaces that:
…
•retains existing trees and/provides new trees to maintain and enhance the tree canopy and local sense of place.
The respondent contends that the landscaping proposed does not provide new trees which would qualitatively amount to maintaining or enhancing the tree canopy for the local sense of place. The respondent says that the proposed landscaping has no bearing on the visual quality of the outcome and is not consistent with or sympathetic to the characteristics of the locality.
Mr Thibaut Holl was engaged by the applicant to provide an expert opinion on whether the proposed development will increase or decrease the existing tree canopy coverage on the site, and whether the proposed landscaping plan is consistent with the current streetscape of Tyrell Street. Mr Holl in oral evidence clarified that his assessment is based on 'Site Plan GL Drawing No A100.2, Plot date 4/14/2022'[59] (landscaping plan), which he did not design, and relies on the arboricultural report prepared by Mr Rick Thomas of ArborCulture Australia Pty Ltd[60] to validate measurements he had taken on-site.
[59] Applicant's Bundle of Documents dated 23 May 2022 (Exhibit 14) page 3.
[60] Annexure 3 to Witness Statement of Thibaut Holl dated 8 June 2022 (Exhibit 19).
Mr Holl identified the existing trees to be removed as a Plum tree, an Almond tree and a Jacaranda tree and calculated the existing canopy coverage, to be 147.59m².
The landscaping plan shows:
•13 Pyrus Callereryana (Capital Pear) - six positioned south of the common drive in the 2.5 metre front setback area, five along the rear boundary and one in each of the courtyards of Units 2, 3 and 4;
•five Magnolia Grandiflora (Little Gem) positioned in the verge area adjacent to the 2.5 metre front setback area;
•three Pyrus Naivalis (Snow Pear) - one in each of the courtyards of Units 2, 3 and 4; and
•four Plumeria Obtusa (Singapore White Frangipani) - located along the northern boundary of the site.
He assessed the canopy footprint of the landscaping plan to be 207.83m² at planting and 230.95m² at maturity.[61] He estimated maturity to be between four and 10 years depending on the variety. Mr Holl is of the opinion that the landscaping proposed will not only maintain but increase the canopy footprint on the site significantly.[62]
[61] ts 21, 8 June 2022 - Mr Holl in oral evidence amended the figure of 346.39m² provided in his witness statement at para 18.
[62] Witness Statement of Thibaut Holl dated 8 June 2022 (Exhibit 19) para 14.
Mr Holl's methodology in establishing the measurements of the canopy footprint for the existing and proposed trees was not challenged. Mr Holl, in cross-examination, conceded that the depiction of the trees as shown on the landscaping plan does not represent the outcome of the planting at maturity. He agreed that it was likely that at maturity the canopy of the six Capital Pears planted in the front setback area would touch each other and fill the whole of the front setback and overhang the verge area. In re-examination, he confirmed that the proposed canopy cover would still be greater than the canopy cover that exists at present if the number of Capital Pears in the front setback was reduced by two.
Mr Holl observed that the front yards of the properties in Tyrell Street do not adopt a specific style of landscaping, although the use of ornamental trees and shrubs in the gardens is evident. He considers the proposed landscaping will enhance the existing landscaping of the properties on Tyrell Street whilst remaining consistent and in character, with the essence and nature of the existing landscaping of the street.
As the Tribunal has previously articulated, 'the provisions of the [RCodes] do not relate to the land between the "lot" and the surface of the road, commonly referred to as the verge area'.[63] The inclusion of the future canopy of the five Little Gems in Mr Holl's proposed canopy analysis is incorrect as these new trees, if approved by the local government, are located in the verge area and should not form part of the proposed canopy analysis for the purposes of cl 5.3.2 of the RCodes. In any event, based on Mr Holl's calculations the canopy footprint of the landscaping plan with the exclusion of the five Little Gems and two of the Capital Pears in the front setback area[64] would still exceed the existing canopy coverage.
[63] Stewart and Town of Cottesloe [2019] WASAT 100 at [161].
[64] The canopy footprint would equate to 153.96m².
The Tribunal accepts the evidence of Mr Holl about the contribution of the landscaping plan in the streetscape and is satisfied on the evidence, that the new trees will maintain the tree canopy. The respondent's criticism about the use of deciduous trees in the front setback area is perhaps a little disingenuous given that the three existing trees are deciduous and there are deciduous trees throughout the streetscape of Tyrell Street. The Tribunal is satisfied that the landscaping plan demonstrates compliance with cl 5.3.2 P2 and satisfies the relevant objective relating to landscape design of the R-Codes Vol 1.

Whether the proposed development demonstrates compliance with the design principles in cl 5.3.3 'Parking' and satisfies relevant objectives of the R-Codes Vol 1

There is no dispute that the proposed development does not satisfy the deemed-to-comply requirements of cl 5.3.3 of the R-Codes, which requires the provision of two on-site visitor car parking spaces. The proposed development incorporates one visitor car parking space, this being located within the front setback area.
The respondent contends that the development does not demonstrate compliance with the cl 5.3.3 P3.1 and cl 5.3.3 P3.2, which state:
P3.1Adequate car parking is to be provided on-site in accordance with projected need related to:
•type, number and size of dwellings;
•the availability of on-street and other off-street parking; and
•the proximity of the proposed development to public transport and other facilities.
P3.2Consideration may be given to a reduction in the minimum number of on-site car parking spaces for grouped and multiple dwellings provided:
•available street parking in the vicinity is controlled by the local government; and
•the decision-maker is of the opinion that a sufficient equivalent number of on-street spaces are available near the development.
The respondent submits that there is insufficient car parking on-site to satisfy the projected need based on the type, number and size of the dwellings. Mr Bain is of the opinion that there is likely to be demand for a considerable number of extra car parking spaces for use by the occupants due to the size of the dwellings (three and four bedroom units), as well as for visitors and that the extra car parking demand generated by the proposed development will need to be accommodated in the street. His assessment references the deemed-to-comply requirements (cl 5.3.3 C3.1), which he observes to be '2 bays per two bedroom dwelling' as a minimum, and asserts that '[t]he three 4 bedroom units are likely to generate demand for up to twice the number of car bays (6 extra bays)'.[65] He also analysed data from the Australian Bureau of Statistics,[66] which he submits shows there is considerable higher car ownership in the suburb of Nedlands (65.43% of occupied private dwellings have 24+ vehicles compared with 62.91% for the Perth Metro Area).
[65] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 244.
[66] Australian Bureau of Statistics - 2016 Census of Population and Housing. G30 - Number of Motor Vehicles by occupied private dwellings.
Further, the respondent contends that the availability of on-street parking in Tyrell and Edward Streets is limited due to the on-street parking demand generated by the Tresillian Arts Centre (Tresillian), which is located on the south-west corner of Tyrell and Edward Streets. The respondent submits that there is already a parking problem in the locality, which has resulted in the City imposing parking restrictions in Tyrell Street[67] and the surrounding streets. The respondent considers that reliance on on-street parking to satisfy the visitors demand of the proposed development will only exacerbate the existing problem and may also cause Tresillian attendees to be unable to find convenient parking.
[67] Parking restrictions prohibit on-street parking on the eastern side of Tyrell Street and limit on-street parking on the western side of Tyrell Street to a two hour limit between 8 am and 5 pm Monday to Friday.
Mr Bain calculated, based on the current lot configuration, that there are '24 car bays available in the street on the western side for the 24 properties in the street'.[68] He asserts that if every property in Tyrell Street is redeveloped with similar parking arrangements as indicated in the proposed development there will be the need for considerably more than 24 on-street car parking spaces to meet the demand. Further, he considers that it is not possible to provide off-site visitor car parking for the proposed development that is accessible at all times due to the high demand for street parking from non-residential activities in the area and the parking restrictions in Tyrell Street.
[68] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 249.
The locality witnesses consider lack of car parking to be a significant issue in Tyrell Street, particularly at times when Tresillian has classes operating. The locality witnesses observe that vehicles can be parked for the entire length of the street, which they say gives rise to traffic safety issues and difficulty with rubbish collection. There is concern that insufficient visitor car parking for the proposed development will further exacerbate an already undesirable situation.
The applicant submits that the proposed development demonstrates compliance with the cl 5.3.3 P3.1 and P3.2 for the following reasons. Firstly, the overall proposed development accommodates 11 car parking bays and only seven car parking bays are required.[69] Secondly, the site is located less than 250 metres from a high frequency bus route on Stirling Highway, a factor that supports a reduction in the number of car parking spaces to be provided. Thirdly, Tyrell Street is a street controlled by the local government and the shortfall of one visitor car parking bay can be accommodated in the street. The applicant relies on the calculations of Mr Bain in relation to the number of available car parking spaces and the number of lots in the street and submits based on his calculation 'it seems equitable that each lot should have an available onstreet car parking bay of one'.[70] Further, the applicant points to the support by the Council's planning officers for a reduction of the visitor car parking bays in lieu of additional landscaping.
[69] Clause 5.3.3 C3.1 and C3.2 require one car parking space per grouped dwelling, as the site is located 250 metres from a high frequency bus route, and two visitor car parking spaces to be provided.
[70] ts 39, 8 June 2022.
Part 2 of the R-Codes addresses the approval process and identifies that where a proposal does not meet deemed-to-comply provision(s) of the R-Codes and addresses design principle(s), the decision-maker is required to exercise judgment to determine the proposal.[71] In the exercise of judgment, subject to cl 2.5.2 and cl 2.5.3 of the R-Codes, the decision-maker is to consider the merits of proposals, having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes.[72] Clause 2.5.1 of the R-Codes provides further direction and states:
The decision-maker, in its assessment of a proposal that addresses the design principles(s), should not apply the corresponding deemed-to-comply provision(s).
[71] Clause 2.4 of R-Codes.
[72] Clause 2.5.1 of R-Codes.

Curiously, cl 5.3.3 P3.2 of the R-Codes seems to reference the corresponding deemed-to-comply provisions by referring to the consideration of 'a reduction in the minimum number of on-site car parking spaces' for grouped and multiple dwelling provided certain criteria are met. A stance which is also reflected in the Guidelines. In this instance, the proposed development exceeds the minimum number of on-site car parking spaces for the type of dwelling and location as specified in cl 5.3.3 C3.1 by providing an additional car parking space for each dwelling but only provides one of the two visitor car parking spaces required under cl 5.3.3 C3.2.
I am satisfied that the proposed development demonstrates compliance with cl 5.3.3 P3.1 and P3.2 for the following reasons. Firstly, the provision of a two car bay garage for each grouped dwelling is considered to be adequate for the projected needs, given the type and size of the dwellings and will assist in reducing demand for on-street parking from residents of the proposed development.
Secondly, clearly the R-Codes contemplate satisfying some of the demand for residential parking, especially visitor car parking, through the use of on-street car parking where appropriate.[73] Whilst it is acknowledged that there is competing demand for on-street parking from attendees of Tresillian (a community use), street car parking is controlled by the local government and the car parking restrictions imposed reflect the local demand, providing a high turnover of vehicles. The car parking restrictions assist in controlling the availability of on-street car parking. Mr Bain's reliance on the Guidelines to assert that visitor car parking spaces are to be provided in a location that is accessible at all times and that 'due to the lack of available car parking in the street due to parking demands in the area and the parking restrictions in Tyrell Street … it is not possible to provide off-site visitor car parking for the subject development in a location that is accessible at all times',[74] is misplaced. Clearly, this section of the Guidelines addresses cl 5.3.3 C3.2 of the RCodes which relates to the provision of visitor car parking on-site and does not pertain to the availability of on-street car parking. The Tribunal is satisfied that on the evidence there is sufficient car parking provided on-site and available on-street car parking to adequately cater for the demands of the proposed development.
[73] Clause 5.3.3 P3.1, cl 5.3.3 P 3.2 of R-Codes and Guidelines page 38.
[74] Witness Statement of Simon John Bain dated 18 May 2022 (Exhibit 10) para 265.
Thirdly, the proposed development is less than 250 metres from a high frequency bus route located on Stirling Highway, which provides access to key locations across metropolitan Perth and opportunity for use of public transport by residents in the locality.

Whether the proposed development demonstrates compliance with the design principles in cl 5.4.1'Visual privacy' and satisfies relevant objectives of the R-Codes Vol 1

The respondent contends that the balcony of Unit 1 does not demonstrate compliance with the cl 5.4.1 of the R-Codes as it will enable direct overlooking of active habitable spaces and outdoor living areas of No 16.
The applicant submits that it is the applicant's intention that this balcony be screened in accordance with the deemed-to-comply requirements of the RCodes and is prepared to accept a condition being imposed requiring such screening.
Given the concession by the applicant, this issue was not agitated during the final hearing.

Conclusion

Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval to the proposed development.
For all the reasons above, I am persuaded that the correct and preferable decision in all of the circumstances of this case, is to set aside the respondent's decision and to substitute a decision to approve the development application subject to the imposition of appropriate conditions.

Conditions

In accordance with the Tribunal's usual practice and programming orders, the City formulated and provided a set of draft 'without prejudice' conditions which it contends should be imposed if the Tribunal considers that approval of the proposed development subject to conditions is appropriate.[75] Fourteen conditions and three advice notes were submitted.
[75] Exhibit 12.
The applicant initially objected to proposed conditions 3, 9, 11 and 13.[76] However, during closing submissions the respondent informed the Tribunal that it no longer pressed proposed conditions 9 and 11 and the applicant resiled from its position in relation to proposed conditions 3 and 13. The parties also agreed that proposed condition 6 should be amended to read as follows:
The development shall not be occupied for residential habitation until and unless the norther elevation of the first floor balconies of Units 1, 2, 4 and 5; and all other screening and obscure windows shown on the approved plans, are screened in accordance with the Residential Design Codes by either:-
a.fixed and obscure glass to a height of 1.6 metres above finished floor level; or
b.fixed screening devices to a height of 1.6 metres above finished floor level that are at least 75% obscure, orientated to allow direct winter sunlight and made of a durable material; or
c.a minimum sill height of 1.6 metres above finished floor level; or
d.an alternative method of screening approved by the City of Nedlands.
[76] Exhibit 16.
In addition, given my findings at [90] a condition requiring the landscaping plan to be amended to include landscaping on the balconies and in the void areas of Units 2, 3 and 4 is to be imposed. The parties have agreed on the final wording of the condition to be imposed.
In regard to appending advice notes, there is a line of authorities that speaks to the status of advice notes in review matters.[77] For those same reasons, I will not append any of the suggested advice notes to this development approval.
[77] Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [78]-[79]; St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [87]; Gnech Building Co and Town of Claremont [2018] WASAT 77 at [127].

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the City of Nedlands made on 22 March 2022 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (being a reconsideration of its decision made on 23 November 2021) to refuse to grant development approval for the construction of five grouped dwellings at No 18 (Lot 117) Tyrell Street, Nedlands is set aside and a decision is substituted that development approval is granted under Metropolitan Region Scheme and City of Nedlands Local Planning Scheme No 3 for the construction of five grouped dwellings as shown on plans filed on 14 April 2022 subject to the conditions in Attachment A.

ATTACHMENT A
1.This approval relates only to the development as indicated on the plans received by the City of Nedlands on 14 April 2022, hereinafter referred to as the 'approved plans'.
2.The development, including the use approved by this development approval, must be implemented (and where relevant maintained in implementation) only in accordance with the approved plans, except in the event (but only to the extent) that any of these conditions require a variation from what is depicted in the approved plans.
3.The development must be substantially commenced within the period of two years commencing on the date of the State Administrative Tribunal's decision to grant development approval in Tribunal proceeding DR 263 of 2021. The development approval lapses if the development has not substantially commenced within that period.
4.All works indicated on the approved plans shall be wholly located within the lot boundaries of the subject site.
5.The development shall not be occupied for residential habitation until and unless it is ensured that all fences (if any) within the primary street setback:
(a)do not exceed 1.8 metres in height from natural ground level; and
(b)are visually permeable above 1.2 metres in height to the satisfaction of the City of Nedlands.

The said fences (if any) are to continue to comply with the requirements of (a) and (b) as long as the grouped dwellings or any of them remain in place.
6.The development shall not be occupied for residential habitation until and unless the northern elevation of the first floor balconies of Units 1, 2, 4 and 5; and all other screening and obscure windows shown on the approved plans, are screened in accordance with the Residential Design Codes by either:-
(a)fixed and obscure glass to a height of 1.6 metres above finished floor level; or
(b)fixed screening devices to a height of 1.6 metres above finished floor level that are at least 75% obscure, orientated to allow direct winter sunlight and made of a durable material; or
(c)a minimum sill height of 1.6 metres above finished floor level; or
(d)an alternative method of screening approved by the City of Nedlands.

The required screening shall be thereafter maintained to the satisfaction of the City of Nedlands as long as the grouped dwellings or any of them remain in place.
7. Prior to the issue of a building permit, an amended Landscaping Plan relating to the site as a whole, identified in drawing GL A100.2 plot date 4.14.22, is to be submitted to and approved by the City of Nedlands. The amendments to the Landscaping Plan are limited to achieving landscaping on the balconies and in the voids to Units 2, 3 and 4.
8.The development shall not be occupied for residential habitation until and unless landscaping has been completed in accordance with the approved plans or any approved written modifications, to the satisfaction of the City of Nedlands. All landscaped areas are to be maintained on an ongoing basis as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.
9.Prior to the issue of a demolition permit and/or a building permit, a Demolition and Construction Management Plan shall be submitted and approved to the satisfaction of the City. The approved Construction Management Plan shall be observed at all times throughout the construction process to the satisfaction of the City.
10.The waste management plan prepared by Big Sky Developments prepared May 2021 forms part of this development approval and shall be complied with at all times as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.
11.All storm water discharge from the development shall be contained and disposed of onsite unless otherwise approved by the City of Nedlands.
12.The street tree(s) within the verge in front of the lot are to be protected and maintained through the duration of the demolition and construction processes to the satisfaction of the City of Nedlands. Should the tree(s) die or be damaged, they are to be replaced with a specified species at the owner's expense and to the satisfaction of the City of Nedlands.
13.For the purpose of these conditions, visually permeable means the vertical surface has:
•Continuous vertical gaps of 50 millimetres or greater width occupying not less than one third of the total surface area;
•Continuous vertical or horizontal gaps less than 50 millimetres in width, occupying at least one half of the total surface area in aggregate; or
•A surface offering equal or lesser obstruction to view as viewed directly from the street.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
2 SEPTEMBER 2022

Guide to density terminology
Existing Residential		Predominantly R10-R12.5 (10 -12.5 dw/ha)
Low density	Below R40 (< 40 dw/ha)		Low rise	1 - 3 storeys
Medium density	R40 - R80 (40 - 80 dw/ha)		Medium rise	3 - 9 storeys
High density	Above R80 (> 80 dw/ha)		High rise	9+ storeys

Unit No	Dimensions of Balconies	Total Outdoor Living Area/Balcony
Unit 1	3.4 x 3.91m	13.294m² 5.5m² covered by vergola
Unit 2	3.82 x 3.74m (14.28m²) 1.6 x 3.87m (6.192 m²)	20.478m²
Unit 3	3.78 x 4.09m	15.460m²
Unit 4	3.68 x 3.74m (13.76m²) 1.6 x 3.875m (6.2m²)	19.963m²
Unit 5	3.4 x 3.91m	13.294m²