KEMSTONE INVESTMENTS PTY LTD and CITY OF JOONDALUP
[2020] WASAT 115
•21 SEPTEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KEMSTONE INVESTMENTS PTY LTD and CITY OF JOONDALUP [2020] WASAT 115
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 22 JUNE 2020
DELIVERED : 21 SEPTEMBER 2020
FILE NO/S: DR 268 of 2019
BETWEEN: KEMSTONE INVESTMENTS PTY LTD
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development - Multiple dwelling - State Planning Policy 7.0: Design of the Built Environment - Residential Design Codes - Amenity - Deep soil area - Traffic - Car parking
Legislation:
City of Joondalup Local Planning Scheme No 3, cl 25(1), cl 26(5), Sch A
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 64, cl 67(g), cl 67(m), cl 67(n), cl 67(t), cl 77
Planning and Development Act 2005 (WA), s 73(2A), s 77(1)(b), s 241(1), s 241(1)(a)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
State Planning Policy 7.3 - Residential Design Codes Volume 2
Result:
Application for review dismissed
Summary of Tribunal's decision:
Kemstone Investments Pty Ltd (applicant) seeks approval to construct six multiple dwellings on Lot 957 (HN 4) Cromer Grove, Kallaroo (the Proposed Development). The application was refused by the City of Joondalup (respondent) on 16 December 2019.
The principal issues in contest where whether the Proposed Development satisfies Element Objectives O 3.3.1 (site planning for trees) and also O 3.3.3 (deep soil areas) as well as questions of traffic impacts, compatibility and amenity under cl 67 of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2017 (WA) (the deemed provisions).
The Tribunal ultimately decided to refuse the Proposed Development for two reasons. The first was that the proposed deep soil areas for the two medium trees were inadequate as they were 'squeezed' and also because of the proposed location of the visitor car parking in the front setback area.
The Tribunal found that the while the DSAs technically 'met' the recommended (or 'acceptable') requirements for medium trees under the Residential Design Codes, the proposed arrangements were far from ideal. This was because the DSAs included significant portions where the recommended minimum width was not met. The overall impression of the Tribunal was that the DSAs looked 'squeezed' and 'compromised'.
The Tribunal also found that the proposed to locate visitor parking in the front setback area was not appropriate and would have an adverse visual amenity impacts on the locality.
The Tribunal considered that the proposed DSAs and the location of the visitor car parking were reflective of the overarching issue with the Proposed Development. That is, the Tribunal considered that the Proposed Development was seeking to provide too much built form on the land and that manifested itself in inappropriate arrangements for the DSAs and visitor car parking.
Despite considering that the Proposed Development was an attractive development and that multiple dwellings were an appropriate use of the land, the correct and preferable decision was to dismiss the application for review.
Category: B
Representation:
Counsel:
| Applicant | : | Ms B Sandri |
| Respondent | : | Mr N Teo |
Solicitors:
| Applicant | : | Urbanista Town Planning |
| Respondent | : | Dynamic Planning and Developments |
Case(s) referred to in decision(s):
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application for review by Kemstone Investments Pty Ltd (the applicant) for development approval for six multiple dwellings (Proposed Development). The Proposed Development was lodged in May 2019 and refused by the City of Joondalup (City or respondent) on 16 December 2019.
The Proposed Development comprises one 2 bedroom/1 bathroom and five 2 bedroom/2 bathroom apartments together with car parking and landscaping. The Proposed Development was reviewed by the City's Design Review Panel on 17 July 2019 which resulted in amended plans being prepared.
At the final hearing of this matter on 22 June 2020 there were two principal issues in contest. The first is whether the Proposed Development achieves the Element Objectives of O 3.3.1 and O 3.3.3 of State Planning Policy 7.3 - Residential Design Codes Volume 2 (R Codes). The second is whether the Proposed Development satisfies aspects of cl 67 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the deemed provisions).
For the reasons that follow, I have determined that the correct and preferable decision is to affirm the City's decision and dismiss the application for review.
Background
The Proposed Development is situated at Lot 957 (HN 4) Cromer Grove, Kallaroo (the Land) which contains a single residential dwelling. Cromer Grove is a 'T' shaped cul-de-sac.
The Land:
(a)is irregular in shape and has an area of 728m2;
(b)is a corner block with dual street frontage to Cromer Grove;
(c)has a primary street frontage of 43.79 metres and a depth of 31.27 metres on its western boundary and 34.53 metres on its eastern boundary; and
(d)is bounded by:
(i)HN 2 Cromer Grove to the north;
(ii)Cromer Grove to the east and to the south. Cromer Grove connects to Wingala Grove; and
(iii)HN 6 to the west.
The Land sits within a residential area comprised of single dwellings of either one or two storeys. However, the area is undergoing change with a number of multiple dwelling developments emerging. While the Land sits within an immediate residential context, it is only 180 metres north-west of the Westfield Whitford City Shopping Centre (which is a 'secondary centre' pursuant to State Planning Policy 4.2 - Activity Centres for Perth and Peel).
The Proposed Development has been advertised twice pursuant to cl 64 of the deemed provisions. During the second advertising period (in relation to the proposed design that is before me) there were 46 submissions received of which 45 raised an objection. The primary concerns raised during the advertising period related to built form issues such as inter alia building height, setbacks, plot ratio and car parking.
The City's professional planning staff recommended that the Proposed Development be conditionally approved. However, on 16 December 2019, the City Council resolved to refuse the Proposed Development due to concerns relating to:
(a)overlooking of properties to the west;
(b)over shadowing of properties to the west;
(c)plot ratio; and
(d)traffic impacts relating to Cromer Grove.
At the commencement of the final hearing, I undertook a site visit in the presence of the parties and viewed the Land, Cromer Grove as well as a short section of Wingala Grove.
The issues
The parties consider that the following issues arise for consideration:
(1)Whether the Proposed Development 'complies' with the R Codes with respect to:
(a)O 3.3.1: site planning which maximises the retention of trees of existing healthy and appropriate trees and protects the viability of adjoining trees;
(b)O 3.3.2: adequate measures being undertaken to improve tree canopy or to off set reduction of tree canopy from pre-development condition;
(c)O 3.3.3: provision of deep soil areas or other infrastructure to support planning in order to sustain healthy plant and tree growth;
(d)O 3.9.4: the design and location of car parking and whether it minimises negative visual and environmental impacts on amenity and the streetscape; and
(e)O 4.5.2: whether the internal circulation area is attractive, provides good amenity and encourages social interaction.
(2)Whether the Proposed Development complies with cl 67(m), (n) and (t) of the deemed provisions.
This matter arises in the Tribunal's review jurisdiction and is a hearing de novo: s 27(1) State Administrative Tribunal Act 2004 (WA) (SAT Act). My task is to make the 'correct and preferable' decision: s 27(2) SAT Act.
Applicable planning framework
Planning schemes
The Land is:
(a)zoned 'Residential' with a split density code of R20/40 in the City of Joondalup Local Planning Scheme No 3 (LPS 3). LPS 3 includes the deemed provisions; and
(b)zoned 'Urban' in the Metropolitan Region Scheme.
The purposes of LPS 3 include inter alia to 'control and guide development': cl 8(d). The aims of LPS 3 include inter alia 'to protect amenity by ensuring that the use and development of land does not result in significant adverse impacts on the physical and social environment or the health and welfare of residents': cl 9(c).
A 'multiple dwelling' is a 'D' use in the Residential zone of LPS 3: cl 17. A 'D' use is a use that is not permitted unless approved in the exercise of planning discretion.
The R Codes are to be read as part of LPS 3: cl 25(1). Section 77(1)(b) of the Planning and Development Act 2005 (WA) (PD Act) expressly provides that a local planning scheme may include a provision that a specified State planning policy is to be read as part of LPS 3.
Clause 26(5) of LPS 3 states:
Clause 5.1.1 of the [R Codes] is modified by inserting the additional 'deemed-to-comply' criteria:
C1.5In areas where dual coding applies, site areas under the higher coding may be applied subject to the following:
(i)Development which complies with a minimum frontage of 10 metres at the setback line, with the exception of multiple dwelling sites; or
(ii)Development of multiple dwelling sites which complies with a minimum site width of 20 metres at the street boundary.
State Planning Policy
State Planning Policy 7.0 - Design of the Built Environment (SPP 7.0) establishes a broad framework for the design of the built environment in Western Australia. SPP 7.0 is to be read in conjunction with other aspects of the State Planning Framework including the R Codes: cl 4.
Schedule 1 to SPP 7.0 includes a number of design principles including inter alia landscape quality, built form and scale and amenity: cl 6. These design principles are then adopted by the R Codes: R Codes, page 8.
Local planning policy
The City has prepared the Residential Development Local Planning Policy (December 2015) (LPP). The effect of cl 67(g) of the deemed provisions is that I am required to give 'due regard' to a LPP in the exercise of planning discretion.
Clause 7.1 of the LPP provides:
For residential development located on a dual density coded lot, the 'Additional Housing Opportunity Area Deemed-to-Comply Provision' column sets out the development provisions that replace or augment the 'deemed-to-comply' provisions of the [R Codes].
Clause 7.3 of the LPP provides:
For dual-coded lots, the City may permit development or support subdivision at the higher density code subject to the following requirements being met:
7.3.1With the exception of battleaxe sites, the width of any lot, excluding an access leg to the rear lot(s), shall be a minimum width of ten metres at both the primary street boundary and the lot frontage for single house and grouped dwellings, and 20 metres for multiple dwellings;
7.3.2Development on lots which abuts a laneway shall take its vehicle access from the laneway, with the exception of retained dwellings;
7.3.3Where sole access is via a laneway and a lot does not have access to another street pedestrian access shall be provided to a street other than the laneway. The pedestrian access shall be 1.5 metres wide, unless an existing dwelling is retained in which a minimum width of one metre is acceptable.
7.3.4The verge, crossover, on-street car parking embayment and external appearance of a retained dwelling shall be upgraded in accordance with Schedule 1 and Schedule 2 of this Policy.
The Proposed Development satisfies the requirements of cl 7.3 of the LPP and it therefore meets the criteria to provide for additional housing as a 'Housing Opportunity Area'.
The R Codes
As stated, the R Codes applies to the Proposed Development. For clarity, in these reasons a reference to 'the R Codes' is a reference to the R Codes Volume 2 (apartments). The R Codes (at page iv) state:
This is a performance-based policy. Applications for development approval need to demonstrate that the design achieves the objectives of each design element. While addressing the Acceptable Outcomes is likely to achieve the Objectives, they are not a deemed-to-comply pathway and the proposal will be assessed in context of the entire design solution to ensure the Objectives are achieved. Proposals may also satisfy the Objectives via alternative means or solutions.
The aspects of the R Codes that arise for consideration in these proceedings are:
(a)Element 3.3 - Tree canopy and deep soil areas;
(b)Element 3.9 (O 3.9.4) - Car and bicycle parking; and
(c)Element 4.5 (O 4.5.2) - Circulation and open space.
In terms of the 'acceptable outcomes' for Element 3.3, the Proposed Development proposes:
(a)73m2 (10%) of deep soil areas;
(b)two medium trees;
(c)four small trees; and
(d)the removal of all existing vegetation.
In terms of the acceptable outcomes for Element 3.9 (O 3.9.4) the Land is within 110 metres of a bus stop. The Proposed Development proposes:
(a)10 car bays for residents in a secure carpark towards the rear of the Land;
(b)two visitor car bays located parallel to Cromer Grove, in front of the building within the primary street setback; and
(c)four bicycle bays.
With respect to the acceptable outcomes for Element 4.5 (O 4.5.2) the Proposed Development proposes:
(a)a circulation corridor with a minimum width of 1.5 metres on the first floor;
(b)a skylight within the circulation corridor; and
(c)a skylight and corner window located in the stairwell accessed from the ground floor car parking area and first floor area.
Clause 67 of the deemed provisions
Clause 67 of the deemed provisions sets out a range of considerations that inform the exercise of planning discretion. The parties consider that the following elements of cl 67 arise for consideration:
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety[.]
The evidence
I heard from six witnesses. The applicant called Mr Robin Burnage (a landscape architect), Ms Marina Kleyweg (a traffic engineer) and Mr Peter Mrdja (a town planner). The respondent called Mr David Miller and Mr Greg Elliot who both reside near the Land as well as Mr Reegan Cake (a town planner). Mr Mrdja and Mr Cake gave concurrent evidence.
Issue 1 - the R Codes
Trees, landscaping and provision of deep soils areas
A significant amount of the final hearing was directed to this issue (of which there are two aspects). The first is the proposed removal of an existing mature Cypress tree. The second is the proposed deep soil areas.
The removal of the Cypress Tree
Element O 3.3.1 of the R Codes requires site planning that 'maximises retention of existing healthy and appropriate trees'. There is an existing mature Cypress (Cupressus) tree on the Land which, the City contends, is 'healthy and appropriate'. The removal of the Cypress tree is necessary in order to construct the Proposed Development.
Under the R Codes, the site planning for the Land should, as a general principle, retain such trees. Where a tree that is 'healthy and appropriate' is proposed to removed, an acceptable outcome is for the removal of that tree to be supported by an arboriculture report (A 3.3.2).
Subject to Mr Burnage's oral evidence, discussed below (at [35]-[37]), it does not appear to be in contest that the existing Cypress tree on the Land meets the criteria set out in A 3.3.1 in that it:
(a)appears to be healthy with ongoing viability;
(b)is not a recognised weed;
(c)is at least 4 metres high; and
(d)has a canopy of at least 4 metres.
The applicant called Mr Burnage who, as stated, is a landscape architect. Mr Burnage is not an arborist. His witness statement was directed to the proposed trees and landscaping as well as the deep soil areas (DSAs). His witness statement was not directed at the health of the Cypress tree. In examination-in-chief he suggested that Cypress trees: 'typically don't do well in Perth' due to the 'soils' and that they are 'susceptible to cankers': ts 36, 22 June 2020.
Mr Burnage also opined that the Cypress tree appears to have 'fungal growths' and that the 'tree is not that well' and has 'limited long-term value': ts 36, 22 June 2020. He then suggested that, for these reasons, the Cypress tree was 'not healthy [and] not appropriate for long-term amenity value within a new development': ts 37, 22 June 2020.
Mr Burnage, by his own admission, is not a qualified arborist and therefore I have not given significant weight to his opinions on the health or otherwise of the Cypress tree that is proposed to be removed. A 3.3.2 of the R Codes provides a clear mechanism to address the removal of trees.
The applicant has not satisfied A 3.3.2 of the R Codes. The planning principle which underpins A 3.3.2 is sound. As is explained in the introduction to Element 3.3, 'the removal of trees from private land is contributing to a significant loss of urban tree canopy, which can take decades to replace'. The failure to provide an arboriculture report means that the proposed removal of the Cypress tree cannot therefore be regarded meeting the 'acceptable outcomes' of the R Codes.
However, it is also the case that the owner of land within the City may remove a tree on his or her land without approval. To me, that limits the weight that I can give a failure to address A 3.3.2 in terms of assessing a proposal to remove an existing tree. That is not to say, however, that A 3.3.2 should be brushed aside as irrelevant.
DG 3.3.1 of the R Codes references the need to assess 'existing and adjacent trees during the site analysis phase' with the preference that existing trees be retained. It is plain to me that retention of the Cypress tree was never seriously contemplated by the applicant.
A failure to engage with A 3.3.2 is not, of itself, a determinative consideration. However, while that may be so, it is also the case that insufficient justification has been provided in relation to the proposed removal of the Cypress tree. Because of the conclusion I have reached on other grounds, it is unnecessary that I consider this issue further. I now turn to consider the proposed DSAs.
The proposed deep soil areas
Table 3.3b and Figure 3.3b of the R Codes relate to DSAs. The R Codes explains (under the heading 'Tree canopy and deep soil areas') that a DSA is 'an area of soil that is free of built structure and has sufficient area and depth to support tree growth and infiltrate rainwater'. The Proposed Development includes two 'medium' trees and four 'small' trees.
Under table 3.3b, a 'medium tree' (being a tree which at maturity has a canopy of between 6 to 9 metres and a height between 8 to 12 metres) requires a DSA of 36m2. The minimum recommended dimension of a DSA for a medium tree is 3 metres. For 'small trees' the required DSA is 9m2 with a recommended minimum dimension of 2 metres. An acceptable outcome for DSAs is to meet the requirements of table 3.3b: A 3.3.4, R Codes. An acceptable outcome for landscaping, for existing and new trees with shade producing canopies, is to comply with tables 3.3a and 3.3b: A 3.3.5, R Codes.
The respondent contends that the DSAs for the Proposed Development do not comply with the element objectives for O 3.3.3 of the R Codes. This is because the respondent considers the proposed DSAs for both medium trees are not the required 36m2.
The proposed DSAs for the small trees are not as contentious. The requirements for the DSAs appear to be met (although I am not certain this is the case for the proposed small tree in the north-west corner of the Land).
Mr Mrdja, the applicant's planner, considers that the DSAs for each medium tree exceeds the requirements set out in A 3.3.4 of the R Codes. A 3.3.4 requires that DSAs be provided as per table 3.3a of the R Codes. Mr Mrdja considers that the DSA for the north-west tree is 43m2 and for the south-west tree is 39m2. Mr Burnage also considered that the DSAs were satisfactory: ts 40, 22 June 2020.
Mr Cake, for the respondent, was of the opinion the dimensions for the DSAs for the medium trees do not comply with the requirements of figure 3.3b of the R Codes. Mr Cake considered that the consequence of 'the proposed DSAs not achieving the required dimensions and being impacted by permeable and non-permeable paving' is that the Proposed Development 'may not provide [DSA] with sufficient area and volume to sustain healthy plant and tree growth for the required medium trees': Exhibit 12 at para 44.
The DSA for the medium tree in the proposed north-west corner of the site is triangular in shape and is in a communal area. In my opinion, the approximate area of this DSA is 21.88m2. That figure does not include the area of the triangle where the dimension is less than the recommended 3 metres. If that area were included, the area of the DSA would be approximately 30.88m2. The applicant also proposes 12m2 of permeable paving in the resident carpark. Permeable paving can be included in a DSA provided it does not exceed 20% of its area and does not inhibit the planting or growth of trees: A 3.3.6, R Codes.
The proposed DSA for the medium tree in the south-east corner of the Land is also triangular in shape. The area of the DSA is approximately 18m2 and is also in a communal area. The visitor car parking area adjoins this DSA and 13m2 of permeable paving is proposed. I have also not included the open space that is adjacent to proposed Unit 1 as there is a (low) intervening fence at the boundary with the communal area.
Mr Mrdja and Mr Burnage appear to have simply adopted the calculations of DSAs set out in the Landscape Concept Plan (SK02-G) (contained in Exhibit 4 which is the Respondent's s 24 Bundle of Documents). That Landscape Concept Plan includes any land, no matter if it is a very narrow sleeve of land, as comprising part of a DSA. I do not consider that the Landscape Concept Plan is entirely accurate or reliable with respect to the calculated areas of the DSAs.
While Mr Mrdja outlines that 'the location of the trees is aligned with the largest deposits of DSAs', nowhere in his evidence does he deal with the requirements of table 3.3b in terms of the recommended dimensions of the DSAs: Exhibit 13 at para 52. Both DSAs for the medium trees are triangular in shape and significant portions of the DSAs have dimensions less than 3 metres. I have treated Mr Mrdja's evidence on the DSAs with some caution. That is not a criticism of Mr Mrdja as he does not hold himself out as a landscape specialist.
In my view, the proposed DSAs for the medium trees are compromised in terms of their intended purpose. I accept that the Land is irregular in shape and that influences the design response that can reasonably be achieved.
DG 3.3.2 provides that the 'location of [DSAs] should be determined early in the design process and arboricultural advice obtained to ensure the [DSAs] can sustain trees. Where new trees are proposed, the [DSAs] should be sited to maximise their contribution to local amenity, such as providing shade, contributing to street canopy and improving the outlook of residents'.
I am not satisfied that the applicant has in any way considered DG 3.3.2 in this design concept on the question of DSAs. In Parts 3 and 4 of the R Codes, Design Guidance is for 'designers and development assessors': R Codes at page iv. In this instance, no arboricultural advice has been obtained and the location of the DSAs are not, in my view, located so as to maximise the contribution that landscaping may make to amenity (in particular the proposed medium tree in the northwest corner of the Land will make little contribution to amenity).
I consider that insufficient attention has been given to landscaping in what is largely a suburban context. The DSAs for the mature trees look 'squeezed' in my view. I say 'squeezed' because, as I will come to, in my view the applicant is seeking to achieve too much built form development on the Land.
One of the ways that manifests itself, in terms of the design, is that the DSAs are compromised. Whilst it might be true that the area of DSA for a medium tree (36m2) under table 3.3b may be in strict terms 'met', the DSAs are not ideal. They are triangular, significant portions of them have a dimension of less than 3 metres and it is also the case that each of them relies on permeable paving at some level. While it is no doubt the case that the size and shape of DSAs needs to be approached flexibly, the DSAs in this instance appear to be something of a design afterthought.
Whilst Mr Burnage's evidence was that his suggested species (Gledistia shademaster) are 'able to grow in some fairly tough conditions if need be' and that what is proposed to be provided is 'more than enough [for Gledistia to grow]' (ts 40, 22 June 2020) that tends to elide the point in my view.
To my mind, the over-arching intent of O 3.3.3 of the R Codes is to ensure that adequate DSAs are provided to ensure that adequate provision is made to enable trees to flourish and be appropriately integrated into developments so to ensure that the aesthetic and environmental benefits offered by trees can be delivered. Table 3.3b of the R Codes appears to be directed to that specific objective.
The proposed DSAs are required to endure and meet the landscaping needs of the Proposed Development on an ongoing basis. I am not satisfied that the DSAs proposed can be regarded as meeting the element objectives merely on the basis that trees that can survive in 'fairly tough conditions' will be selected. I am not convinced that that should be regarded as a satisfactory benchmark for the R Codes in terms of providing DSAs.
It follows that I share Mr Miller's (Exhibit 8 at para 10) and Mr Elliot's (Exhibit 9 at para 14) concern that the proposed landscaping arrangements are inadequate.
I find that the DSAs are unsatisfactory and do not meet O 3.3.3. They are unsatisfactory because they are 'squeezed' and are symptomatic of my overarching concern with the Proposed Development in that it simply asks too much of the Land (as it sits within its town planning context) in terms of proposed built form. While satisfying the requirements of table 3.3b cannot be applied as a mandatory standard, there should nevertheless be some cogent reasons put forward to provide a level of assurance that the relevant element objectives will still be achieved.
While SPP 7.0 is a policy that sets out general principles and is not, of itself, an instrument that regulates and controls design, I do note that it identifies that 'landscaping and buildings operate as an integrated and sustainable system': Sch 1, item 2. As I have stated, the proposed landscaping treatment (of which the DSAs form a key aspect) appears to be something of an afterthought and has not been properly, nor appropriately, integrated during the design concept phase.
It is also the case that while the Landscape Design Concept does show (at SKO1-G) quite extensive landscaping around the Proposed Development, the vast majority of that landscaping treatment is actually on the verge (on land that the applicant does not own and which does not form part of the Proposed Development). When the proposed landscaping on the Land is actually identified and evaluated, the issues with landscaping, manifested most acutely in the proposed DSAs for the medium trees, becomes apparent.
Car and bicycle parking
Aside from the DSAs, the other principal contest in these proceedings is around the location of the visitor car parking. The Proposed Development includes two visitor car parking bays within the front setback, forward of the building line.
O 3.9.4 of the R Codes provides that 'the design and location of car parking [should minimise] negative visual and environmental impacts on amenity and streetscape'.
A 3.9.5 of the R Codes provides that an 'acceptable outcome' is that car parking areas not be located in the street setback and not be visually prominent from the street. The Proposed Development proposes to locate the visitor car parking within the primary street setback area. For this reason the respondent submits that the Proposed Development does not satisfy O 3.9.4.
Mr Cake's opinion (Exhibit 12 at para 48) is that:
Whilst a screening hedge has been proposed to reduce the visual impact of the visitor car parking on the streetscape, its height, based on the [perspective images submitted by the applicant] will not appropriately screen cars parked in these bays.
Mr Mrdja is of the view that the Proposed Development 'has been carefully designed to provide car and bicycle parking which is integrated': Exhibit 13 at para 63. In terms of the visitor car parking bays, it is his view (Exhibit 13 at paras 65 to 68) that:
[65]The location of the visitor car parking bays at the front of the property is appropriate for the area and no different to visitors parking on the driveway of the neighbouring properties in terms of being visible from the street.
[66]In addition to the above, I consider that the southern side of Cromer Grove functions as a secondary street which provides one vehicle access point and associated visitor car parking which is unencumbered in terms of access. This is no different to visitor parking for single dwellings along Cromer Grove which will park behind garages, which are open and visible in the streetscape.
[67]Further, the three two-storey grouped dwellings located at No 3 Cromer Grove have no available space on site for visitor car parking, resulting in visitors parking on the street. The proposal is a far superior outcome as it provides additional residential bays and on-site visitor car parking to avoid the streetscape being compromised by on-street car parking.
[68]It is my opinion that the visitor car parking bays will have no impact on the streetscape and is no greater than what is currently being experienced along Cromer Grove in terms [of] visitor car parking.
The intent of the element is to ensure that 'car parking does not detract from the overall design or the intended character of the streetscape'. Having regard to the visual perspectives provided by the applicant (Exhibit 4 at document 1), the proposed vegetation, once mature, will provide a level of screening of the visitor car parking.
However, until the plants reach maturity there will be little screening relief provided. It is also the case the proposed screening relies, heavily, on proposed plantings in the road verge which, as I have stated, is land that is not owned by the applicant, nor is it part of, the Proposed Development.
Cromer Grove is a quiet residential cul-de-sac which I characterise as suburban in nature. That character is in transition as new housing emerges but the fact remains that it is a character which is dominated by single houses. In that context, I do not consider that introducing visitor car parking into the front setback as part of new multiple dwelling development can be regarded as an appropriate planning outcome.
In my view, the Proposed Development does not meet O 3.9.4. This is because the design of the Proposed Development is such that the Proposed Development does not minimise the visual or amenity impacts on the streetscape.
While the proposed vegetation screening will certainly help, the fact is that the visitor car parking is located forward of the building line, within in the front setback area and which, on any view, will be visible from the street. I do not regard that as an acceptable planning outcome in the context of Cromer Grove.
The location of the visitor car parking is, again, symptomatic of my overarching concern that there is too much built form development proposed on the Land. One of the consequences of that is the need to locate visitor car parking in the front setback area (where it has a direct impact on the streetscape environs).
Circulation and open space
Element O 4.5.2 of the R Codes requires 'circulation and common spaces' to be 'attractive, have good amenity and support opportunities for social interaction between residents'.
In this instance, Mr Cake was of the view that the proposed common area on the first floor provides 'limited' opportunity for 'passive surveillance, interaction between residents, natural ventilation and natural lighting': Exhibit 12 at para 51. Mr Cake's conclusion was that the first floor circulation and common area will have 'poor amenity' and 'will not encourage social interaction between residents': Exhibit 12 at para 56.
The internal common area on the first floor provides access to units 3, 4, 5 and 6 via a staircase. The space itself is 1.5 metres wide with two skylights and a corner window adjacent to the stairwell.
Mr Mrdja's evidence on this issue, as set out in his witness statement, was not very fulsome. His evidence was, without any real explanation or justification, that O 4.5.2 was achieved. Unsurprisingly Mr Teo, agent for the City, asked Mr Mrdja about this aspect of his evidence. The following interchange took place (ts 66, 22 June 2020):
Mr TEO:Do you consider that this internal accessway provides any reason for - does it provide any characteristics or equipment for residents to use in this area which would promote interactions between each other?
Mr MRDJA:I think - well, as much as it can do, I guess. It's not a common area you know used to be for the purposes of interaction, as say a communal space would sort of exterior to dwelling. It is an area for circulation, it's an area that is to - A, to get from one place to the other, in this instance up the stairs into your apartment. Would you have an opportunity to interact with other - with maybe three other of the residents that sort of live in those units, of course you will. I mean your doors sort of face each other, you will be passing each other, the area's wide enough. So for those people that wish to interact socially with one another within this development, if they would choose to do so I think there is the opportunity to do that. Whether it's up the stairs, or down that hallway.
The internal corridor is 1.5 metres wide (and therefore meets A 4.5.1). While there may be limited opportunities for social interaction in the common area, I consider the first floor design to be appropriate and suitable to the scale of the development proposed. It is also the case that the proposed seating adjacent to the proposed visitor car parking will provide a clear opportunity for social interaction.
Having regard to the scale of the Proposed Development, I find that O 4.5.2 has been demonstrated. I accept the opinion that Mr Mrdja offered in cross-examination in this regard. It follows that I do not accept Mr Cake's opinion on this issue. I consider Mr Cake's expectations of what can be reasonably achieved in such a context to be unrealistic.
Consideration of Issue 1
As I set out at [11], the parties consider that the question that arises for the Tribunal is whether the Proposed Development 'complies' with various aspects of the R Codes. With respect, that approach is not correct. The R Codes are not a planning instrument where the focus can be said to be on 'compliance'. Planners and designers need to discard the language of 'compliance' when they are dealing with Volume 2 of the R Codes.
The R Codes are primarily focused on whether the Element Objectives are achieved or demonstrated. The answer to that question, regardless of what the acceptable outcomes may provide, is always as an assessment of the Proposed Development in its context. A proposed development must demonstrate how the relevant element objectives are demonstrated, achieved or met.
As I have mentioned, I am concerned that elements O 3.3.3 and O 3.9.4 have not been demonstrated because the DSAs and the visitor car parking are responsive to (and a corollary of) the proposed built form.
While it is the case that the Proposed Development's built form may not be in issue, the consequences or effects of that built form, in terms of the proposed DSAs and the placement of visitor car parking, are very much in contest. The extent of proposed built form limits the capacity for the DSAs for the medium trees and the proposed visitor car parking to be adequately addressed. I find that the Proposed Development does not meet neither O 3.3.3 (in relation to the DSAs) nor O 3.9.4 (in relation to the location of the visitor car parking).
Issue 2 - cl 67 of the deemed provisions
Clause 67 of the deemed provisions sets out the range of considerations that arise in the exercise of planning discretion. Save for any 'supplementary' provisions (prepared pursuant to s 73(2A) of the PD Act), the range of considerations set out in cl 67 are to be regarded as exhaustive in terms of the factors that inform the exercise of planning considerations: Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [47]; Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76 at [53].
As set out at [29], the cl 67 factors that arise for consideration in these proceedings are cls 67 (m) compatibility, (n) amenity and (t) traffic. I turn, first, to address the question of traffic.
Clause 67 (t) - traffic
I accept the evidence of Ms Kleweg in relation to the impact of the Proposed Development in terms of traffic and the operation of the road network. The inclusion of an additional five dwellings in this locality will not be disruptive on the efficacy or efficiency of the road network.
Ms Kleweg estimates the Proposed Development will generate an additional 21 to 30 vehicle movements per day on Cromer Grove. The City did not contest or challenge Ms Kleweg's opinion in this regard. On any view, that is a very modest impact in terms of traffic.
Consistent with Ms Kleweg's evidence, I do not consider that road functionality and efficiency is an issue on which this case turns. To the extent that the presence of increased vehicles may impact on the amenity of the locality, I will deal with that in the discussion on amenity below. I find that the Proposed Development complies with cl 67(t) of the deemed provisions.
Clause 67(m) - compatibility
Mr Cake considers that the Proposed Development, while consistent in terms of appearance with the existing and surrounding development, is far more intense in scale in that it comprises six multiple dwellings. While Mr Cake does acknowledge that there are multiple dwellings in the locality, they are not the predominant built form. Mr Cake considers that the Proposed Development is inconsistent, and therefore not compatible with, the character of the locality.
Mr Mrdja considers that the Proposed Development is largely consistent with the surrounding built form. Further, Mr Mrdja notes that 'multiple dwellings' and 'grouped dwellings' are permissible in the locality. Mr Mrdja defined the 'broader locality' to be bound by Castlecrag Drive to the north, Dampier Avenue to the east, the Westfield Whitford City Shopping Centre and St Mary's Anglican School to the south and Belrose Entrance to the west: Exhibit 13 at para 12.
This 'broader locality' is described by Mr Mrdja as being 'in transition' with the 'recent construction of grouped and multiple dwellings': Exhibit 13 at para 15. Mr Mrdja refers to recently approved developments at No. 11 Wingala Grove and No. 3 Cromer Grove of examples of this transition.
While I do not quibble with Mr Mrdja's description of the 'broader locality', I do consider that what might be termed the 'immediate locality' is fairly tight. As explained by the Tribunal in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, the concept of the relevant 'locality', in planning terms, generally relates to the town planning impacts arising from a proposal: at [42]. The relationship between Cromer Grove and surrounding streets is influenced, significantly in my opinion, by the fact that Cromer Grove is a short 'T' shaped cul-de-sac. Cromer Grove carries no through-traffic. It does, however, provide a pedestrian link south to the Westfield Whitford City Shopping Centre.
Therefore, in terms of defining the relevant 'locality', in my view, it is more confined than Mr Mrdja's 'broader locality'. I find that the relevant locality is confined to Cromer Grove and the approaches from Wingala Grove (an area which broadly encompasses the various properties observed during the site visit). However, even within that more focused locality, it is still an area where multiple dwellings are emerging (including on Cromer Grove itself).
On the question of compatibility, I consider the Proposed Development to be compatible with its immediate planning context. Leaving the location of the visitor car parking (and its consequential impacts) to the side, the Proposed Development presents as an attractive two storey development.
The use of the Land for multiple dwellings is a use that is permissible, is supported by the planning framework and is already part of the emerging fabric of this locality (a locality which is in transition). In terms of its built form scale and compatibility, I have no difficulty with the Proposed Development.
Clause 67(n) - amenity
'Amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
The approach to evaluating amenity in Western Australia is settled: Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76]. The leading cases remain Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 and Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116. These cases require the existing amenity to be (objectively) evaluated and then consideration is to be given to the manner in which the proposed use will affect that existing amenity. The final task is to assess the degree of impact on the locality.
Mr Cake raises concerns about traffic from an amenity perspective, not as a matter of road functionality. Mr Cake considers that traffic impacts are a 'primary' amenity impact: Exhibit 12 at para 60. This is because the Proposed Development will result in six multiple dwellings (including 10 resident plus two visitor car parking bays).
Mr Cake observes that traffic movements to and from the Land will increase by 600% in what is a quiet cul-de-sac. Mr Cake also refers to the consequential impacts of that additional traffic in the form of greater potential for vehicle and pedestrian conflict as well increased road traffic and noise: Exhibit 12 at para 60. Mr Cake's oral evidence was consistent with his written statement: ts 74, 22 June 2020. Mr Cake also refers to the location of the visitor car parking as he considers that the location of the visitor parking in the front setback is inconsistent with, and detrimental to, the character of the locality: Exhibit 12 at para 61.
Mr Mrdja's opinion is that the Proposed Development 'does not have any adverse impacts' on the amenity of the locality: Exhibit 13 at para 77. Mr Mrdja considers that the Proposed Development is 'entirely acceptable and appropriate with the emerging and planned character of the area as [it] achieves the acceptable outcomes of the [R Codes]'. Mr Mrdja considers the question of traffic from a road network perspective, not in terms of amenity.
I have found evaluating the amenity impacts of the Proposed Development to be difficult. I consider the Proposed Development, aside from the location of the visitor car parking, to be acceptable and compatible with its planning context.
However, the inquiry into amenity goes further and considers not only the presentation of the built form but also the ongoing use of the Land for multiple dwellings. I agree with Mr Cake that there will be a marked increase in the use of Cromer Grove arising from the Proposed Development. I find that Cromer Grove is currently a quiet residential cul-de-sac which, save for one exception, currently comprises single houses. However, the nature of Cromer Grove is changing. That is evinced by the recent development of multiple dwellings at No. 3 Cromer Grove.
In terms of the amenity impacts caused by the Proposed Development, I agree with Mr Cake that there will be far more traffic, people and associated noise. Those impacts will affect the existing amenity at some level. Put simply, the cul-de-sac will be markedly busier in the event that the Proposed Development is approved.
In terms of the degree of impact on amenity caused by the Proposed Development, it is at this point where the planning intentions of the City, as manifested in the planning framework, become relevant. Both the 'broader locality' and the more immediately locality are planned to change as a result of the delivery of more diverse housing forms.
As the locality transitions and changes, that will have amenity consequences which will be felt in the form of more traffic, people and noise. It is through this lens that the question of the degree of impact (or in other words the reasonableness of that impact) on amenity should be assessed. That is, I need to consider future amenity by reference to the intentions expressed in the planning framework. I find that viewed through that lens, the amenity impacts arising from the Proposed Development, leaving the location of the visitor car parking to one side, are acceptable.
Mr Cake's mathematical observation that there will be a 600% increase in traffic entering and exiting the Land, while correct, doesn't actually advance the debate very far. The planning framework provides that the Land is suitable for closer development. I rhetorically ask would a 200%, 300% or 400% increase be ok? Where is the line between acceptable and unacceptable impacts?
In that sense, Mr Cake does not explain why a 600% increase in vehicle movements is, of itself, inappropriate. In terms of the use of the Land for multiple dwellings, I find that there are no unacceptable amenity impacts arising from the Proposed Development. It follows that I do not accept the concerns expressed by either of the resident witnesses (Mr Miller and Mr Elliot) in relation to increased traffic movements.
That leaves the location of the visitor car parking. I accept that vehicles associated with the single houses on Cromer Grove park on the driveway or on the front verge. That was evident from the site view and is a fairly common feature in most suburban areas.
The scale of the Proposed Development is such that, at times, the parking of visitor vehicles on the front verge area and street environs will be inevitable. Nevertheless, the failure to provide any visitor car parking within the Proposed Development, and for visitor car parking to be dealt entirely in the front setback area, is inappropriate in my view.
Having regard to the proposed intensity of the use of the Land (for six multiple dwellings) the result will be an almost constant presence of visitor car parking within the streetscape environment. I find that the failure to provide visitor car parking within the Proposed Development will have an adverse (visual) amenity impact on the Cromer Grove locality.
It is also the case that location of the visitor car parking compromises, to some extent, the quality of the residents' communal garden that fronts Cromer Grove. Put simply, the location of the visitor car parking diminishes the amenity of that landscaped area. To my mind, that is a further amenity issue that militates against approval of the Proposed Development.
Disposition
As is the case with any planning review, the ultimate issue is whether the proposal in question should be approved in the exercise of planning discretion. In addressing that ultimate issue, I am mindful that consideration of Proposed Development in the light of the cl 67 matters does not displace the discretion that is to be exercised. The cl 67 matters inform, but do not dictate, the exercise of discretion.
It is also the case that the I am required to have 'due regard' to any relevant State planning policy: s 241(1)(a) of the PD Act.
SPP 7.0 establishes a range of design principles which are to guide built form outcomes in Western Australia. The design principles which derive from SPP 7.0 are expressed through the R Codes. While SPP 7.0 may not have direct application to these proceedings, to the extent that it establishes a design principle that landscaping needs to be appropriately integrated with built form, I find that the Proposed Development does not demonstrate that principle.
In the context of the PD Act, the term 'due regard' has been interpreted to mean that I must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46].
It is also the case that 'due regard', as applied in the context of the PD Act, does not require any particular, or minimum weight, to be given to the cl 67 matters or any other relevant planning consideration. A flexible weighing process, in the sense set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41], is the applicable (and correct) approach to s 241(1) of the PD Act: Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA at [137] (Martin J); Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 at [114] (Simmonds J).
In terms of the R Codes, in this instance, they form part of LPS 3. Even though the R Codes form part of LPS 3, the task of evaluating the Proposed Development against the range of design objectives, remains.
For the reasons I have explained, save for two issues, the Proposed Development warrants support. The Proposed Development is attractive and, in a built form and land use sense, will sit comfortably in an area that is undergoing transition as is envisaged by the planning framework. The presence of multiple dwelling in this locality (and the consequential built form that delivers those dwellings) is mandated by the planning framework.
However, the R Codes make 'tree canopy and deep soil areas' a specific consideration in terms of the siting of development. In order to deliver the strategic planning objectives of increased densities and greater housing diversity mandated by the planning framework, trees and landscaping play a key role. This is because trees (and landscaping generally) provide visual amenity and aesthetic relief in urban areas. It is also the case that trees and vegetation deliver a range of environmental benefits and, importantly, provide habitat for fauna.
The question for me is whether the proposed DSAs support the intent of the design element by making a reasonable contribution to provide for healthy tree and canopy growth. For reasons I have explained, in my view they do not.
I accept that the provision of DSAs is just one design element that needs to be considered and that DSAs need to be evaluated in the context of the overall proposal. I also accept that in achieving an appropriate design, there will, at times, be a need for design trade-offs. Those matters will always be a question of balance and judgment.
However, for the reasons that I have explained, I find that the DSAs in this instance do not meet the O 3.3.3 as I am not satisfied that they will serve the intended purpose of supporting and thereafter sustaining health trees in the longer term. Mr Burnage's evidence was that the trees he has identified could endure 'pretty tough conditions', can hardly be said to be a ringing endorsement of the proposed DSAs.
It rather suggests the contrary in my view. That is, to me it suggests the DSAs are not ideal but Mr Burnage found a proposed tree that can likely survive. It seems remarkable to me that, in the context of a site that will be entirely cleared such that the designer can, as it were, work with a clean slate in terms of developing a design concept, the landscaping and DSAs have been addressed in the manner they have been.
In short, planning and design experts need to do better. The day has long passed where landscaping concepts, in the context of the medium and high density proposals under the R Codes, can be dealt with as a design afterthought.
The other issue is the location of the visitor car parking. In the context of Cromer Grove, which is a quiet residential cul-de-sac, some effort should have been made to accommodate some visitor car parking within the confines of the Proposed Development. As I explained at [109][112] above, the failure to adequately deal with visitor car parking within the Proposed Development will have an adverse amenity impact on the Cromer Grove locality. Again, the need to address visitor parking within the public realm stems from a built form design that, in my view, asks too much of the Land.
Ultimately, I find there is much to be said for the Proposed Development. In terms of the built form, I consider that it generally presents well to the street and public realm. It is no doubt an attractive development. However, the Proposed Development does not incorporate adequate arrangements for DSAs or visitor parking.
The applicant's case is that the Proposed Development satisfies all the relevant element objectives of the R Codes as well as the cl 67 factors and therefore approval is warranted. The applicant did not progress a submission that even if I found that the element objectives of the R Codes or the cl 67 factors were not met, that approval should nevertheless be granted in the exercise of discretion.
Ultimately, I consider that the failure to demonstrate the two R Codes design elements in contest, being the DSAs and the visitor car parking, means that, despite its positive attributes, the design of the Proposed Development is not fully, nor in my view appropriately, resolved. The failure to provide adequate visitor car parking will also have adverse amenity impacts for the purposes of cl 67(n) of the deemed provisions.
Having made those findings, the correct and preferable decision is to refuse the Proposed Development. The application for review should be dismissed.
Orders
The Tribunal orders:
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, SENIOR MEMBER
21 SEPTEMBER 2020
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