LAWRENCE and CITY OF ROCKINGHAM
[2022] WASAT 36
•9 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LAWRENCE and CITY OF ROCKINGHAM [2022] WASAT 36
MEMBER: MR R POVEY, MEMBER
HEARD: 23 AND 24 FEBRUARY 2022
DELIVERED : 9 MAY 2022
PUBLISHED : 9 MAY 2022
FILE NO/S: DR 257 of 2020
BETWEEN: MARK LAWRENCE
DEBORAH LAWRENCE
Applicants
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning - Development application - Short-stay accommodation - Short term accommodation - Holiday house - Airbnb - Weight to be accorded to policy - Amenity - Compatibility of proposed use with its context - Orderly and proper planning
Legislation:
City of Rockingham Local Planning Scheme No 2, cl 3.2.4, cl 3.2.4(b), cl 4.1.1, cl 4.18
Metropolitan Redevelopment Authority Act 2011 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8, Sch 2, cl 1, cl 65, cl 67
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 29, s 31(1)
State Planning Policy 7.3 Residential Design Codes Volume 1
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Ms D Mrdja (Planning Advocate) |
| Respondent | : | Ms A Butterworth (Planning Advocate) |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Hope and City of Joondalup [2007] WASAT 8
Joseph and City of Nedlands [2022] WASAT 13
Kogon and the City of Vincent [2019] WASAT 75
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and the Western Australian Planning Commission, [2005] WASAT 40
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Mark Lawrence and Mrs Deborah Lawrence (applicants) seek review by the Tribunal, under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision by the City of Rockingham (respondent or City) to refuse to grant development approval for a change of use from 'Single House' to 'Use Not Listed (Holiday House)' at Lot 413 (No 193), Rockingham Beach Road, Rockingham (subject site).
In these reasons, I will firstly describe the subject site and locality, the proposed development, the procedural history and the applicable planning framework. I will then set out the three principal issues for determination in these proceedings and address each of the issues in turn.
The final hearing was conducted on 23 and 24 February 2022. I heard evidence from Mr Mark DeFriest, a neighbouring property owner and resident, called on behalf of the respondent. I also heard expert evidence from Mr Thomas James Hockley, a town planning consultant, called on behalf of the respondent; and expert evidence from Ms Bianca Sandri, a town planning consultant, called on behalf of the applicants.
Further, at the commencement of the hearing, I, together with representatives of the parties and their experts, had the benefit of a view of the subject site and the immediate and wider surrounds, including Mr DeFriest's property at Unit 2, No 191 Rockingham Beach Road, Rockingham.
The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27]-[30]. For the reasons given below, I have 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 dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
Subject site and locality
The subject site is more particularly known as Lot 413 on Deposited Plan 159398 being the whole of the land contained in Certificate of Title Volume 1247 and Folio 592 and is 2022m2 in area. The lot is rectangular in shape, being 20.12 metres wide and 100.51 metres deep. The subject site has two street frontages, being Rockingham Beach Road and Kent Street and is located five lots southwest of the nearest intersection, Governor Road.
The existing single storey, single dwelling on the subject site is set back approximately 27.5 metres from Rockingham Beach Road. The garage, which is proposed to be used as a 'games room', at the rear of the dwelling is set back approximately 35.2 metres from Kent Street. The front setback area consists of a grassed area and driveway which runs along the north-east side of the dwelling to the garage at the rear. The rear setback consists of a grassed area fronting onto Kent Street. Vehicle access is also possible from this street.
The single dwelling is set back approximately 1.5 metres, and the proposed games room is set back approximately 0.7 metres, from the south-west boundary of the subject site, which adjoins Units 1 to 6, No 191 Rockingham Beach Road and No 204 Kent Street. The single dwelling is set back approximately 3.6 metres from the north-east boundary. The north-east boundary of the subject site adjoins Units 195 and 195B Rockingham Beach Road and No 208A and No 208B Kent Street.
The subject site and the surrounding lots in the street block, and those located opposite in Kent Street, are all zoned Residential R40 under City of Rockingham Local Planning Scheme No 2 (LPS 2). Opposite the subject site is the Rockingham Beach Foreshore, including the Naval Memorial Park. Approximately 150 metres from the subject site, on the north-east side of Governor Road, at No 2 Governor Road, is the Cee and See Caravan Park, and immediately abutting this site, further to the north-east, is the Co-operative Bulk Handling Grain Terminal (CBH), at Lot 1304 Rockingham Beach Road.
The planning witnesses do not fully agree on the extent of the relevant locality. Ms Sandri in written evidence provides a locality plan[1] detailing the boundaries of the locality. Mr Hockley in oral evidence disagrees with boundaries identified by Ms Sandri. The key differences Mr Hockley identifies are:[2]
a)the inclusion of residential lots in Kent Street within the street block opposite the subject site; and
b)the exclusion of CBH (to the north-east) and of the foreshore reserve and residential properties located in the street block to the south-west, located between Weld Street and Roe Street.
[1] Exhibit 10, Witness Statement of Bianca Sandri, Annexure BS2.
[2] Exhibit 14, locality plan of the planning experts, 23 February 2022.
When defining the locality, Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [42] states:
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 respect to the residential properties located opposite the subject site in Kent Street, I prefer the evidence of Mr Hockley, as he identifies, and I accept, these properties may experience direct amenity impacts of the proposed development.[3] In respect to CBH, while Mr Hockley excludes it, he accepts it is a visible feature in the backdrop of the locality.[4] CBH is a distant view when standing in the front and rear setback areas of the subject site. Considering the principles outlined in Ridgecity, CBH has little impact on, or relationship to, the subject site or to the town planning considerations relevant to the proposed development and in my view does not form part of the locality. Similarly, consideration of the locality extending to the south-west, beyond Weld Street, is in my view, too far removed from the subject site when considering the town planning impacts of the proposed development.
[3] ts 57, 23 February 2022.
[4] ts 45, 23 February 2022.
The planning witnesses, however, broadly agree[5] on the description of the context and the character of the locality, with one exception, being the short-stay (AirBnB and Stayz) properties, which Ms Sandri says exist in the locality. However, I accept Mr Hockley's evidence that no addresses were provided to identify specific sites. On that basis, I find, this aspect should be afforded little weight in the consideration of context and character of the locality and in my decision.
[5] ts 45, 23 February 2022.
The planning experts describe the overall context and character of the locality as being mixed.[6] However, Mr Hockley says the locality is predominantly residential.[7] Ms Sandri, by contrast, says that spatially the locality has land uses in three equal spatial parts being, residential zoned lots, tourist accommodation (the Cee and See Caravan Park), and the foreshore reserve.[8] In respect to the character of the locality, considering the principles in Ridgecity, I prefer the evidence of Mr Hockley, who, while he agrees there is a mix of uses in the locality, says that the predominant character of the locality is residential.
[6] ts 4, 23 February 2022; Exhibit 10, Witness Statement, Bianca Sandri, para 58.
[7] ts 50, 23 February 2022.
[8] ts 51, 23 February 2022.
When considering the future character of the locality, the planning experts agree this is unlikely to change significantly in the future, apart from potential further infill residential development. Ms Sandri's evidence on this point, which I accept, is that further infill residential development will not have a material impact on the proposed development, as the lots immediately abutting the subject site (to the south-west and north-east) have already been redeveloped and are strata titled.[9]
[9] ts 71, 23 February 2022.
The respondent cites St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 (St Patrick's) as relevant as it sets out, at [39], that the Tribunal is to undertake an objective inquiry as to the existing character of the area and an assessment of the likely future character.[10] This assessment is outlined in the preceding paragraphs [13]-[15]. Also articulated in St Patrick's, at [40], the Tribunal is assisted by the expert opinions of town planners and the views of residents, given they are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. The owner and resident of Unit 2, No 191 Rockingham Beach Road, Mr DeFriest (who has resided at this address for 14 years) provides oral evidence of the qualities and characteristics of the residential amenity of the locality:[11]
Beach, beach and beach. The major reason why I'm here is because I enjoy the beach, primarily for wind surfing and other beach activities for myself, my wife and my grandchildren. And the amenities that also have attracted me was actually the Rockingham Beach foreshore, drawn to that, just the coffee, the - not only that but the food.
…. And so the community feeling, at least this area here on the foreshore, it's a fun place to be. It's safe.
[10] ts 175, 24 February 2022.
[11] ts 34, 23 February 2022.
Mr DeFriest's evidence also describes the experience of living next to the subject site when it previously operated as a holiday house, which he says is as follows:[12]
…. we live next to a party house where the short term Airbnb tenants have shown no regard for those of us living next to 193 Rockingham Beach Road throwing food and rubbish over the fence into our back garden, singing and shouting until the early hours of the morning, using the Games Room shed for various activities with the music and bass turned up excessively.
We no longer have our grandchildren or any friends stay with us as our guest bedroom opens onto our back patio which is next to the front verandah of 193 Rockingham Beach Road. The noise from many of the parties/events is extreme and intolerable.
The proposed development
[12] Exhibit 5, Witness Statement of Mark DeFriest, para 8 b) and 8 c).
The proposed development is for a change of use from 'Single House' to 'Use Not Listed (Holiday House)'. The proposed development includes:
1)Plans showing the existing single house with three bedrooms available for guest use. The remaining two bedrooms are to be locked and are either to be used by the owner or for storage.[13]
2)The plans also show a games room. The management plan proposes a use restriction for the games room permitting use between 10 am to 7 pm. Mr Hockley's evidence is that this structure was approved by the City as a garage and cannot be used for habitable purposes, such as a games room.[14] Ms Sandri, in oral evidence concedes this, and accepts that modifications are required to comply with the State Planning Policy 7.3 Residential Design Codes Volume 1 (RCodes) for a habitable room.[15] The applicants accept the proposed games room cannot be used for this purpose until modifications are made.[16] Given the above and my later findings, it is not necessary for me to address the proposed games room further in these reasons.
3)A maximum number of people to be accommodated being four adults or one family with a maximum of five people, with a code of conduct for guests and their visitors.
4)Management by a management company, in accordance with a management plan which includes a complaints manager residing in Warnbro. Management will include installation of a noise monitoring device and the maintenance of a complaints register, with complaints managed by the management company.
5)Various booking conditions including a minimum two night stay and a bond payment.
Summary of procedural history
[13] Exhibit 16, Further updated internal plan of the dwelling and games room.
[14] Exhibit 4, Witness Statement of Thomas Hockley, para 67 and further the parties accept the games room was used when the holiday house was previously operating. The games room is set back 0.7 metres from the common boundary with No 191 Rockingham Beach Road, but has no major openings facing these properties. Several submissions from neighbours identified concerns about noise when this building was used previously as a games room; see Witness Statement of Thomas Hockley, paras 64 and 65.
[15] ts 103, 24 February 2022.
[16] ts 172, 24 February 2022.
On 5 November 2018 the respondent granted approval on 5 November 2018 for 'short stay accommodation' (as it was then classified under LPS 2) for a temporary period of 12 months, subject to certain conditions (November 2018 approval). This approval allowed accommodation for up to 12 guests.
Condition 8 of this approval required a revised management plan to be submitted to and approved by the City prior to the commencement of operations.
Condition 11 of this approval required a report to be provided to the City by 30 June 2019 providing certain details of the operations.
Condition 12 required certain procedures to be followed in the event of complaints.
It is accepted by the parties that conditions 8, 11 and 12 of the November 2018 approval were not complied with.[17] The respondent also says it received two complaints in April 2019 during the 12 month approval period. The first complaint related to a lack of development approval, which was incorrect. The second related to use of the property on two dates in March 2019. The respondent says investigations did not result in compliance action due to insufficient evidence of a breach of the conditions of approval.[18]
[17] Exhibit 2, Respondent's Statement of Issues, Facts and Contentions (SIFC), para 17; Exhibit 9, Applicants' SIFC, page 2.
[18] Exhibit 2, Respondent's SIFC, paras 15-16.
The applicants did not seek renewal of the November 2018 approval following the expiry of the 12 month approval period in November 2019. However, the holiday house continued to operate without approval until a further complaint, relating to excessive noise late at night and into the early hours of the morning, was received by the City on 20 April 2020.[19]
[19] Exhibit 2, Respondent's SIFC, para 18.
On 30 April 2020 the applicants sought development approval for a 'holiday house' accommodating up to 12 guests. On 28 July 2020, the respondent's Council refused to grant development approval. On 19 November 2020, the applicants sought review of this decision at the Tribunal.
Following mediation, which resulted in a revised development proposal (proposed development), which included a reduction in the number of guests to a maximum of four adults or a family of five people, a management plan, a code of conduct and a complaint register, the Tribunal invited the respondent to reconsider its decision pursuant to s 31(1) of the SAT Act.
The proposed development was advertised, and 11 submissions were received by the City, with 10 objecting. Issues raised in the objections included non-compliance with the previous development approval conditions, anti-social behaviour and housing affordability impacts of dwellings being used for holiday accommodation.[20]
[20] Exhibit 2, Respondent's SIFC, paras 25-26.
On 21 September 2021, the respondent's Council refused the proposed development for four reasons.[21]
a)The amended proposal for a Holiday House, is situated adjacent to medium-density residential dwellings and will adversely impact the residential amenity of adjacent owners and occupiers associated with noise disturbance from guest activity.
b)The amended proposal for Holiday House and revised management approach has not adequately demonstrated that the proponent can effectively manage or adhere to conditions if the proposal was granted Development Approval.
c)The amended proposal fails to comply with the objective of the Residential Zone of Town Planning Scheme No.2.
d)The application is inconsistent with the requirements of orderly and proper planning.
[21] Exhibit 2, Respondent's SIFC, para 28.
It is this proposed development that is the subject of this review.
Planning framework
The relevant planning framework includes:
1)Metropolitan Region Scheme (MRS).
2)LPS 2, which incorporates the Deemed Provisions by virtue of reg 8 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).
Under LPS 2 'holiday house' is defined as follows:[22]
… a single dwelling on one lot used to provide short-term accommodation but does not include a bed and breakfast.
[22] Exhibit 2, Respondent's SIFC, para 35.
Short-term accommodation is also defined, as follows:[23]
… a temporary accommodation provided either continuously of from time to time with no guest accommodated for periods totalling more than 3 months in any 12 month period.
[23] Exhibit 2, Respondent's SIFC, para 36.
The 'holiday house' land use was introduced by an amendment to LPS 2 on 29 November 2019.[24] However, this amendment did not incorporate 'holiday house' into Table No 1 - Zoning Table (Zoning Table) of LPS 2 and therefore clause 3.2.4 applies. Clause 3.2.4 states:
If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Classes, the local government may:-
a)determine that the use is consistent with the objectives and purpose of the particular zone and is therefore permitted;
b)determine that the proposed use may be consistent with the objectives and purposes of the particular zone and thereafter follow the advertising procedures of Clause 64 of the deemed provisions in considering an application for development approval; or
c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.
[24] Exhibit 2, Respondent's SIFC, para 37.
The proposed development is located on land zoned 'Residential R40' under LPS 2. The objective of the Residential Zone is:[25]
… to promote a high quality residential environment by maintaining and enhancing the quality of existing residential areas and providing for a range of residential densities and housing types throughout the Scheme Area.
[25] Exhibit 2, Respondent's SIFC, para 34; cl 4.1.1 of LPS 2.
It is uncontroversial that a 'Holiday House' land use is not listed in the Zoning Table.[26] Clause 3.2.4 of LPS 2 (previously outlined at [33]) requires that where a land use is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Classes, the local government is to determine whether or not the use is, may be or is not consistent with the objectives of the particular zone, in this case the Residential Zone.
[26] Exhibit 2, Respondent's SIFC, para 38 and Exhibit 9 - Applicants' SIFC, page 2.
In this respect, I consider the proposed development may be consistent with the objectives and purposes of the Residential Zone,[27] because when referring to the Zoning Table the land use 'Holiday Accommodation' is listed as an 'A' use.[28] 'Holiday Accommodation' was introduced as an 'A' use in the Residential Zone also by amendment 173 on 29 November 2019 and is defined in LPS 2 to mean:
… 2 or more dwellings on one lot to provide short-term accommodation for persons other than the owner of the lot.[29]
[27] Consistent with cl 3.2.4(b) of LPS 2 outlined at [34].
[28] Exhibit 3, Respondent's s 24 bundle, page 161.
[29] Exhibit 3, Respondent's s 24 bundle, page 237.
Class 'A' use is defined in the Deemed Provisions to mean:[30]
in relation to a zone, means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with clause 64[.]
[30] Deemed Provisions, cl 1.
Given 'Holiday Accommodation' is a more intensive form of development than 'Holiday House', as it involves two or more dwellings on the one lot providing short-term accommodation and is listed as a discretionary land use in the Residential Zone, the omission of 'Holiday House' as a discretionary land use in the Residential Zone of the Zoning Table (which notably also occurred with the gazettal of amendment 173 on 29 November 2019) appears an oversight. Therefore, I find the proposed development is capable of consideration under cl 3.2.4(b) of LPS 2. The proposed development has also been advertised by the City,[31] as required by cl 64 of the Deemed Provisions.
Other relevant planning instruments
[31] Exhibit 2, Respondent's SIFC, para 25.
Additionally, the parties identify Planning Bulletin 99 Holiday Homes Guidelines (PB99), published by the Western Australian Planning Commission (WAPC) in September 2009, as relevant. Also, on 6 December 2021, the WAPC released, for the purpose of public consultation, the draft Position Statement: Planning for Tourism (PSPFT)[32] and associated Planning for Tourism Guidelines (Guidelines).[33] At the commencement of the final hearing on 23 February, I raised these draft documents with the parties and provided the opportunity for the parties to make submissions and give evidence as to their relevance. At the end of the hearing, the parties confirmed they did not require further opportunity to make submissions on these documents.
[32] Exhibit 4, Witness Statement of Thomas Hockley, Annexure TJH2.
[33] Exhibit 4, Witness Statement of Thomas Hockley, Annexure TJH2.
The weight to be accorded to PB99 and the draft PS-PFT and Guidelines in arriving at my decision is a matter for me to consider and determine. In this case there is no local planning policy to provide guidance on appropriate locations for holiday houses or on other factors relevant to the exercise of planning discretion.[34]
[34] ts 30, 23 February 2022; ts 17, 24 February 2022.
Turning first to the draft PS-PFT and Guidelines. To determine the weight the draft documents should be accorded in this matter, it is necessary to consider them against the four stage test established in Nicholls and the Western Australian Planning Commission, [2005] WASAT 40 at [45]:
…
(1)In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2)If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3)The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4)The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.
First, it is necessary for me to consider if the draft PS-PFT and Guidelines are a seriously entertained planning proposal. Given that the documents were released for public comment by the WAPC on 6 December 2021, I find they are seriously entertained, and therefore a matter for consideration in the planning assessment in this case.
Second, in considering the proposed development against the draft documents I find the proposed development is largely consistent with these documents and approval of the proposed development will not render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
Third, in considering the weight to be accorded to the consistency between the application (proposed development) and the draft, it is uncontroversial the proposed development is considered 'unhosted short-term accommodation', as the owners will not live at the site.[35] The Guidelines, at cl 4.4.1, contain 'Statutory considerations' and include, at Table 3, 'zoning options for local government consideration'. Table 3 includes two criteria. The first is to determine where shortterm accommodation is best located in the local government area. Relevant to this case, siting considerations may include areas of high tourism amenity. The second criteria is to determine appropriate use classes and permissibility in each zone. For present purposes this aspect is not relevant, as it uncontroversial that the proposed development is a 'use not listed' in the Zoning Table and therefore is to be considered under cl 3.2.4 of LPS 2.
[35] ts 122, 24 February 2022.
Both planning experts regard the draft PS-PFT and Guidelines as contemporary planning documents, directly relevant to the proposed development and founded on sound town planning principles.[36] However, the planning experts accept that because the draft PS-PFT (at the time of the hearing) is being advertised, its adoption is not imminent or certain and its final form is unknown. Ms Sandri's evidence, which I accept, is that the draft PS-PFT is the most current document available and that it is based on the experiences in Western Australia since the publication of PB99 in 2009.[37]
[36] ts 131-133, 24 February 2022.
[37] ts 132, 24 February 2022.
Fourthly, in weighing my conclusions on the above matters and considering all other relevant considerations of this case, the draft PSPFT and Guidelines provide no impediment to the exercise of planning discretion in granting approval in this case.
In arriving at my decision, I have regard to the draft PS-PFT and Guidelines (consistent with cl 67(2)(e) of Sch 2 of the Deemed Provisions) and place weight on the relevant parts of these documents in my decision because I accept, that notwithstanding their draft status, they are seriously entertained; they are directly relevant to this proposed development; they are based on sound town planning principles; and they provide a contemporary planning framework. Additionally, and in the unfortunate absence of an applicable local planning policy, the draft PS-PFT and Guidelines provide guidance on relevant statutory planning considerations and mechanisms, including possible management mechanisms relevant to unhosted short-term accommodation, which are directly applicable to the proposed development. It is for this reason I accord greater weight to the draft PS-PFT and Guidelines than to PB99 in my decision.
Turning to PB99, the Tribunal found in Joseph and City of Nedlands [2022] WASAT 13 at [28] that PB99 may be given due regard under cl 67(2)(zb) of the Deemed Provisions (any other planning consideration the local government considers appropriate). Both planning experts accept PB99, is a relevant consideration.[38] However, Ms Sandri says, and I accept, that while PB99 when developed in 2009, was based on sound town planning principles there are elements that are now outdated.[39] Ms Sandri also says, and I accept, that PB99 is simply a guidance note which local governments can use in the preparation of local planning policies and local planning schemes.[40] However, in the absence of a relevant local planning policy or relevant local planning scheme provisions, I accept PB99 is a document to which I should have due regard and, notwithstanding its age and status as a planning bulletin, I accord it some weight in my decision.
Is the proposed development a commercial land use?
[38] ts 135-136, 24 February 2022.
[39] Exhibit 10, Witness Statement of Bianca Sandri, para 98 and para 101.
[40] Exhibit 10, Witness Statement of Bianca Sandri, para 102.
The respondent contends the proposed development will introduce a commercial land use into a residential context.[41] However, considering the Zoning Table, 'Holiday Accommodation' is listed under the broad Use Class heading, 'Residential Uses' and under the specific heading 'Residential'. Given 'Holiday Accommodation'[42] is a more intensive form of development than a 'Holiday House', I do not accept the land use 'Holiday House' can correctly be classified a commercial land use under LPS 2.
[41] Exhibit 3, Respondent's SIFC, para 48 and para 52.
[42] Refer definition of 'Holiday Accommodation' at [36].
Further, considering the draft PS-PFT and Guidelines there is nothing in these documents to support the respondent's contention that a 'Holiday House', such as the proposed development, should be considered a commercial land use. The draft PS-PFT (and also PB99) accepts that short-term rental accommodation may be appropriate in residential zoned areas. The draft Guidelines also suggest that shortterm rental accommodation, of a similar scale to the proposed development, should be considered a 'D' use[43] in the local planning scheme.[44]
[43] Deemed Provisions, cl 1 define class D use, in relation to a zone —[44] Exhibit 4, Witness Statement of Thomas Hockley, Annexure TJH2, Draft Planning for Tourism Guidelines, page 13.
Finally, considering the definition of the use 'Holiday House', which requires 'a single dwelling located on one lot to provide short-term accommodation but does not include a bed and breakfast', the nature of the use continues essentially to be residential, with people living at the single dwelling, albeit on a short-term rental basis.
Therefore, for the above reasons I find, in the context of LPS 2, a 'Holiday House' use is correctly considered a residential use.
Issues for determination
The parties agree the following three issues are for determination:
1)whether the proposed Holiday House is acceptable from an amenity perspective;
2)whether the proposed Holiday House is compatible within its context; and
3)whether the proposed Holiday House is consistent with orderly and proper planning.
I will now consider each of the issues in turn.
Issue 1 - whether the proposed Holiday House is acceptable from an amenity perspective
Contentions - Issue 1
The respondent contends the proposed development will introduce a commercial land use into a residential context, which is characterised by single and grouped dwellings. The respondent also contends the noise and general disturbance to neighbouring properties would exceed the ordinary expectations of a residential context. The respondent contends short-stay occupants will have a limited connection with the residential community living on the adjoining lots and given the number of adjoining dwellings considers the proposed development has the potential to impact amenity due to increased and unpredictable noise, and that these impacts cannot be remedied by reliance on the management plan.[45]
Consideration of Issue 1
[45] Exhibit 2, Respondent's SIFC, paras 48-51.
I have addressed the respondent's contention about the classification of the use of the proposed development earlier at [49][52] and found it to be a residential use in the context of LPS 2.
Turning now to whether the proposed development is acceptable from an amenity perspective. Amenity is defined in the Deemed Provisions as follows:[46]
… all those factors which combine to form the character of an area and include the present and likely future amenity[.]
[46] Deemed Provisions, cl 1.
The planning experts agree the present amenity of the locality comprises residential dwellings with a residential interface to the subject site. They identify the foreshore reserve across from Rockingham Beach Road. Kent Street is identified as a residential street. The planning experts agree the amenity of the locality is fairly intact in terms of its residential character. Mr Hockley and Ms Sandri both say the foreshore reserve may result, from time to time, in increased public activity. It is also common ground that the caravan park, located in Governor Road, is in close proximity to the subject site and brings in holidaymakers who will frequent the coast and beach for recreation purposes.[47]
[47] ts 68-69, 23 February 2022.
The planning witnesses agree the future amenity of the locality is not likely to change to a significant extent. Both accept that change is likely to be incremental and limited to infill residential development (including potentially the subject site) and will happen as residential redevelopment to an R40 density occurs over time.[48]
[48] ts 69-70, 23 February 2022.
Clause 4.18 of LPS 2 also contains provisions relating to amenity, which states:
4.18.1No land, building, vehicle, machine, tool or electrical appliance shall be used in such a manner as to permit the escape therefrom of smoke, dust, fumes, odour, noise, vibration, illumination or waste products in such quantity or extent or in such a manner as to create or be a nuisance to any inhabitant of the neighbourhood of such land or to traffic or persons using roads in the vicinity.
4.18.2 No property shall be maintained or finished so that in the opinion of the local government its external appearance would disfigure the locality or tend to blight the appearance of neighbouring properties. Further, all land and buildings shall be so used and maintained as to preserve the amenity of the neighbourhood in which they are situated.
In respect to cl 4.18, Mr Hockley's evidence identifies potential noise impacts from the operation of the proposed development and raises seven questions about the monitoring of noise and the capabilities and settings of the noise monitoring device the applicants propose to install. Mr Hockley concludes that he is not satisfied that the level of detail submitted with the management plan demonstrates that the proposed development would be acceptable from an amenity perspective.[49] However, in respect to the location, type and operation of the proposed noise monitoring device, Mr Hockley concedes the lack of detail could be addressed by way of a condition of approval.[50] MsSandri in her witness statement, when considering cl 4.18 of LPS 2, accepts the amenity consideration is the impact of potential noise to the detriment of the adjoining properties. However, she asserts that this may have been reasonably arguable based on the original application, which lacked management plans and allowed an occupancy of up to 12 guests.[51] Ms Sandri's oral evidence, when considering the noise impact, and submissions received during advertising, is that noise monitoring can be by a single noise receptor located outside, near the patio adjoining the proposed games room, because of the scale of the proposed development only accommodating four adults or a family of five.[52]
[49] Exhibit 4, Witness Statement of Thomas Hockley, paras 54-57.
[50] ts 88, 23 February 2022.
[51] Exhibit 10, Witness Statement of Bianca Sandri, para 65.
[52] ts 148-149, 24 February 2022.
In this case, there is no dispute the amenity concern is noise associated with the operation of the proposed development. This directly relates to the impact of noise on adjoining residential neighbours. Ms Sandri in her evidence, accepts the principal difference between a single residential dwelling and a holiday house is that it is expected a holiday house will create more nuisance. Ms Sandri also says that the proposed development seeks to ensure the residential environment is maintained through the application of the management plan, complaints register and code of conduct.[53] Ms Sandri accepts there were issues associated with the subject site in the past (when the holiday house was previously operating) which 'doesn't look that great', but her evidence is that every attempt has been made as part of this proposed development to ameliorate the impacts that have been expressed in the past.[54] Ms Sandri's evidence is that the proposed development has responded to submissions made by the community and the proposed development is different from the November 2018 approval because it has a significantly reduced scale (allowing four guests or a family of five not 12 guests previously approved), together with a management plan, supported by a private company to manage the property (which includes a local complaints manager), a noise monitoring device, a minimum two night stay and a code of conduct for guests.[55] Ms Sandri also says the management plan clearly states the proposed development is to be a 'quiet house' which requires all noise to be lowered at 9 pm and a strict no party policy.[56]
[53] Exhibit 10, Witness Statement of Bianca Sandri, para 85.
[54] ts 80, 23 February 2022.
[55] ts 85, 23 February 2022; Exhibit 10, Witness Statement of Bianca Sandri, para 78.
[56] Exhibit 10, Witness Statement of Bianca Sandri, para 69.
Mr Hockley, in oral evidence, accepts the proposed development is different from the November 2018 approval.[57] His evidence is that measures to reduce the intensity of the holiday house by reducing the number of guests and management measures, such as the minimum two night stay do assist with the management of the subject site. However, Mr Hockley says it is the management of the subject site and how the management measures are enforced that give rise to difficulties.[58] Mr Hockley says that based upon the neighbouring residents' comments, the past operation of the holiday house has had a negative impact upon amenity of nearby residents over the past three years which includes noise impacts, particularly after the 9 pm 'quiet house' time, and anti-social behaviour of occupants particularly when neighbours have approached the occupants of the holiday house requesting they comply with the management plan and code of conduct. Mr Hockley's evidence is that while the management plan contains measures for addressing noise complaints, there is no guarantee the 'quiet house' times will be adhered to.[59]
[57] ts 86, 23 February 2022.
[58] ts 80-81, 23 February 2022.
[59] Exhibit 4, Witness Statement of Thomas Hockley, paras 58-59.
A particular concern is the close physical relationship of the proposed development, and in particular parts of the holiday house building (the patio facing Rockingham Beach Road and the patio at the rear, adjacent to the proposed games room), notwithstanding the large lot size of the subject site. The adjoining grouped dwellings at No 191 Rockingham Beach Road have a small setback to the proposed development. Ms Sandri, in her evidence, relies on the provisions of the management plan and code of conduct to support her conclusion that the proposed development will not impact on the amenity of the locality.[60] The evidence of Mr Hockley, which I accept, is that the proposed development could have a negative impact on the amenity of the adjoining dwellings.[61] The adjoining dwellings at No 191 Rockingham Beach Road have outdoor living areas and, in particular, bedrooms in close proximity to outdoor patio areas of the proposed development and I accept the management plan cannot guarantee that negative noise impacts will not continue to occur, even with the number of guests proposed.
[60] Exhibit 10, Witness Statement of Bianca Sandri, para 78.
[61] ts 74 and ts 80-81, 23 February 2022 and Exhibit 4, Witness Statement of Thomas Hockley, paras 72-74.
A further concern, given the large size of the subject site and its extensive outdoor areas, is the management of visitors of the guests. The applicants propose guests would not be permitted unless approved by the property manager. It is, however, expected visitors will attend the proposed development as contemplated in the 'Code of Conduct for Guests and Visitors Short Term Accommodation' and detailed at clause 4.0.[62] The applicants concede that reliance on this clause of the Code of Conduct to control the number of visitors is 'probably a bit open ended' given there is no limit on the number that can attend the proposed development.[63]
[62] Exhibit 3, pages 49-53.
[63] ts 141, 24 February 2022.
When considering the hours that visitors may attend, which is also not limited by the management plan or code of conduct, the following exchange occurred between the planning witnesses in which Ms Sandri accepts the proximity of a significant number of adjoining neighbours is a consideration and concedes that it will be up to the guests and their visitors to do the right thing.[64]
Mr Hockley:
How practical, though, is that? And whose - who is going to enforce that? Is it up to the - the guests that are booking the accommodation to enforce that and say, 'Sorry guys, you have to - have to leave by this time'. I just - I just don't know - you know, speaking from experience, as well, you know, if you have people around, it's - people would be sometimes difficult to - to - to kick them out.
Ms Sandri:
I mean, the bottom line is is that I'm sure there's going to be 20 neighbours peering onto this holiday house ensuring that it's going to be compliant anyway. So, you know, I'm sure the manager is going to get a phone call if there are visitors beyond that time. And I'm not suggesting they have to be the police of it, but I think a blanket no visitors, you're not allowed to have parties, you're not allowed to have functions, there's a noise receptor, the noise receptor will, obviously, be able to establish if there's more audible noise in there than what's required, in those quieter times that's required by the house (indistinct) the alternative of having no visitors, in my opinion, is having time restrictions. It's no different to going into a property that's no smoking. It's incumbent on the owner, well, of the occupier, sorry, to not smoke in the house. And most people do the right thing.
[64] ts 144, 24 February 2022.
In Kogon and the City of Vincent [2019] WASAT 75 (Kogon), which involved a holiday house in a built-up residential location close to the Northbridge entertainment precinct, Member Willey (as he then was), when considering the range of management measures put forward, which included a noise monitoring device as is proposed here (and in that case also video monitoring), observed at [112]:
While there is nothing more that the applicant can reasonably do in order to address noise, the question of noise impacts of the Proposal remain a concern for me. If the Premises are suitable for use as a holiday house, then those who choose to stay should be entitled to use the Premises in an ordinary manner that one may use a holiday house.
The Tribunal has consistently observed, and Ms Sandri accepts,[65] that nuisance issues, such as noise, are more prone to arise from temporary occupants when compared to permanent residents. In Hope and City of Joondalup [2007] WASAT 8 (Hope), which also involved short-term accommodation in a residential area, Senior Member Parry (as he then was) observed (at [48]):
It is, therefore, reasonable to expect that visitors and short term occupants of the site would use the outdoor entertaining area more intensively and at more unpredictable hours than if the property were being resided in on a permanent basis, thus resulting in more noise and disturbance to neighbours.
[65] Exhibit 10, Witness Statement of Bianca Sandri, para 85.
In Hewison and Shire of Augusta-Margaret River [2014] WASAT 62 (Hewison) (at [54]), Member Moore observed:
… It is not disputed that the property is currently well managed but that does not alter the fact that the use of a dwelling for short stay accommodation is inherently different to the use of a dwelling for permanent residential accommodation. Short stay occupants often have a limited connection to the permanent residential community and have the potential to disrupt the area (not just immediate neighbours) by maintaining irregular and unpredictable hours for vehicle trips and entertaining.
In this case, while I accept that the subject site is unique in this locality due to its large lot size, and that the applicants propose a management plan and to install a noise monitoring device, it is the layout of the holiday house, with its outdoor patio areas which are located in very close proximity to the adjoining grouped dwellings, and to some degree compounded by a lack of control over the management of visitors attending the subject site (considering the large size and outdoor areas), that makes the proposed development unacceptable from an amenity perspective.
Findings - Issue 1
I find that the proposed development is not acceptable from an amenity perspective for two reasons.
First, if the proposed development is approved, then, notwithstanding the management measures, guests at the holiday house will have an expectation they are entitled to use the subject site in the ordinary way one would use a holiday house. This expectation on the part of guests, includes the opportunity for visitors at the subject site. This, I find, given the physical layout of the subject site and its close relationship to adjoining residential sites, and the 'open-ended' approach to the control of visitors is likely to lead to a continuing conflict with adjoining neighbours, in terms of noise and possible anti-social behaviour.
Second, more particularly the close relationship between the outdoor living areas of the proposed development (specifically the patio facing Rockingham Beach Road and the patio adjacent to the proposed games room) and adjoining residents, particularly at No 191 Rockingham Beach Road, means it is likely noise complaints will continue. Given the close proximity of the proposed development to the adjoining permanent residences (which have outdoor areas and bedrooms in close proximity to the common boundary of the subject site), the management plan does not guarantee protection of the amenity for adjoining residents.
Issue 2 - whether the revised proposed Holiday House is compatible within its context
Contentions - Issue 2
The respondent contends that as the surrounding residential properties are all used for permanent accommodation, the commercial use 'Holiday House' is not compatible because it will be used differently by shortterm guests who are less likely to have consideration for the amenity of surrounding residents and because the subject site is effectively enclosed in a purely residential context and there is otherwise no distinguishing feature to separate the subject land from the residential context in which it sits.[66]
Consideration of Issue 2
[66] Exhibit 2, Respondent's SIFC, paras 52-56.
In considering the context of the proposed development, the planning experts agree that the subject site being opposite a beach is desirable in terms of a tourist destination.[67] This position is broadly supported by the provisions in PB99.[68] The draft PS-PFT contains five policy objectives (at cl 4) and the planning experts agree bullet points two, three, four and five are relevant.[69] However, in the context of this issue, I find the policy objective at bullet point five is of particular relevance. This objective is:
Ensure land use impacts between tourism activities and other land uses (including residential areas) are appropriately managed.
[67] Exhibit 4, Witness Statement of Thomas Hockley, para 63; Exhibit 10; Witness Statement of Bianca Sandri, para 59.
[68] PB99 at cl 4.4.
[69] ts 117-119, 24 February 2022.
In respect to appropriate management of land use impacts, Mr Hockley's evidence is that he still holds concerns as to the application of the management measures proposed and that he could not say definitively that the objective in the fifth bullet point is satisfied.[70] Ms Sandri's evidence is that this objective is satisfied and she sets out further in oral evidence the various ways the proposed development has addressed many of the statutory planning mechanisms identified in cl 5.3.2.2 of the draft PS-PFT including through the restriction of guest numbers and the number of bedrooms, the preparation of a management plan and the managing of potential noise nuisance.[71]
[70] ts 120, 24 February 2022.
[71] ts 123-125, 24 February 2022.
However, in considering the issue of the compatibility of the proposed development, it is necessary to examine the immediate context of the subject site. It is uncontroversial it is in the Residential Zone with a medium density coding of R40. Ms Sandri says the proposed development directly abuts two grouped dwellings to the south-west (at No 191 Rockingham Beach Road) which are separated by the side setbacks of the dwelling and the outdoor living of the grouped dwellings and the two grouped dwellings to the north-east (at No 195 Rockingham Beach Road and No 208 Kent Street) which are separated by the driveway on the subject site. Ms Sandri's evidence is that this arrangement further reduces the impact of the holiday house on the adjoining properties.[72]
[72] Exhibit 10, Witness Statement of Bianca Sandri, para 65.
However, Mr Hockley, whose evidence on this issue I prefer as he gives a more thorough analysis of the built form context, says the adjoining lot at No 191 Rockingham Beach Road, has been developed with six, two storey town houses, with outdoor living areas abutting the common boundary with the subject site. Mr Hockley's evidence is the end of the patio of the proposed development (which fronts Rockingham Beach Road and the ocean) is approximately 1.5 metres set back from the outdoor living area of Unit 2, and less than 5 metres from the outdoor living area of Unit 3, 191 Rockingham Beach Road.[73] Mr Hockley says that the adjoining property to the north-east (No 195 Rockingham Beach Road) has full length windows on the southern elevation (abutting the subject site) and a very low boundary fence and is set forward of the single dwelling (which is to be used as part of the proposed development). He says these factors result in reduced acoustic and visual privacy to No 195 Rockingham Beach Road.[74]
[73] Exhibit 4, Witness Statement of Thomas Hockley, para 63.
[74] Exhibit 4, Witness Statement of Thomas Hockley, para 68.
Mr Hockley also identifies the adjoining property at No 208 Kent Street as having four, twostorey grouped dwellings. He says the two southern dwellings have open space along the common boundary with the subject site and the outdoor living area of the proposed development is located adjacent to their outdoor living areas.[75] Mr Hockley asserts that because the adjacent properties at No 191 Rockingham Beach Road and No 208 Kent Street have been developed to an R40 coding and each grouped dwelling has access to one small outdoor living area abutting the subject site, if the proposed development is not managed properly and if unacceptable noise is generated by guests, as occurred in the past, this will result in adverse impact on adjacent residents.[76]
[75] Exhibit 4, Witness Statement of Thomas Hockley, para 69.
[76] Exhibit 4, Witness Statement of Thomas Hockley, para 70.
Ms Sandri, in her evidence, relies on the provisions of the management plan and code of conduct to support her conclusion that the proposed development will not impact on the amenity of the locality. Ms Sandri says that the general principles contained in the code of conduct 'are integral to ensuring the proposal does not impact upon amenity' and identifies the principles which guests are to adhere to as:[77]
•Treat this as your own home.
•Respect your neighbours.
•Leave it in the appropriate condition as it was upon occupation.
[77] Exhibit 10, Witness Statement of Bianca Sandri, para 75.
However, consistent with the observations previously made by the Tribunal in Kogon, Hope and Hewison, I do not accept that guests and visitors who use the proposed development will behave in the same way they do in their own homes.
In this case, the subject site is surrounded by (except on the Rockingham Drive frontage) residential dwellings with abutting properties having windows and outdoor living areas and some bedrooms in close proximity to the subject site. I do not accept, given this context that it is sufficient to rely on an anticipation of good behaviour of guests and their visitors for the proposed development to be considered compatible.
Findings - Issue 2
I find that the proposed development is not compatible with its context for three reasons.
First, the immediate context of the subject site is residential, with single and two storey grouped dwelling developments located in close proximity to both side boundaries of the subject site.
Second, the outdoor living areas of the proposed development are in close proximity to the adjoining grouped dwellings. In particular the grouped dwellings at No 191 Rockingham Beach Road which has outdoor living areas and bedrooms located in close proximity to and, I find, are likely to be negatively impacted by the proposed development.
Third, given the Tribunal's findings in Kogon, Hope and Hewison, reliance on 'general principles' of behaviour of guests and visitors in the code of conduct, and even considering other measures in the management plan, (including a restriction in the number of guests and the noise monitoring device to be installed) is insufficient to ensure this proposed development will be compatible within its context.
Issue 3 - whether the proposed Holiday House is consistent with orderly and proper planning
Contentions - Issue 3
The respondent contends the 'Holiday House' use cannot be consistent with the objectives of the Residential Zone because it introduces a nonresidential land use and does not aid in promoting a high quality residential environment or a range of housing types. The respondent also contends the proposed development would adversely impact the amenity of the immediate residential locality, particularly given the form and layout of the existing development.[78]
Consideration of Issue 3
[78] Exhibit 2, Respondent's SIFC, paras 57-60.
When considering orderly and proper planning, the principles outlined by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179][182] (Marshall) are relevant. Her Honour's analysis on the meaning of orderly and proper planning (which was made in the context of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act), but which is equally applicable to the planning instruments made under the PD Act) is, for completeness, set out below. Her Honour outlines that the starting point for determining the meaning of the phrase 'orderly and proper planning':
179… is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
Firstly, turning to LPS 2, and from the perspective of orderly and proper planning, I find the proposed development is capable of consideration under cl 3.2.4(b) of LPS 2 for the reasons outlined earlier at [35]-[38]. Also, the nature of the 'Holiday House' land use has been addressed at [49]-[52] and found to be residential in the context of LPS 2.
Secondly, considering the subject site's location, the planning experts readily accept the location is desirable for a holiday house given its location opposite Rockingham Beach. However, Mr Hockley says he does not consider the proposed development should be approved for that reason.[79]
[79] Exhibit 4, Witness Statement of Thomas Hockley, para 82.
Ms Sandri's evidence is the proposed development does not alter the built form at the subject site, which I accept, is residential, and to that extent is consistent with the objective of the Residential Zone.[80] Ms Sandri accepts that the principal difference that is expected is that a holiday house will create more nuisance than a single residential dwelling, but she asserts that management plans reduce the potential for offsite impacts and can seemingly fit in with the locality without compromising the residential and mixed use environment.[81] Ms Sandri's evidence is that when she visited the locality she observed loud music, laughing and people talking and yelling. She said this came from a number of dwellings along Rockingham Beach Road and the highly utilised foreshore area.[82] Under cross-examination, Ms Sandri conceded her observations which occurred on two occasions, were made during daylight hours, not late at night or in the early hours of the morning, when noise from such activities is more likely to impact on residents.[83]
[80] Exhibit 10, Witness Statement of Bianca Sandri, para 84.
[81] Exhibit 10, Witness Statement of Bianca Sandri, para 85.
[82] Exhibit 10, Witness Statement of Bianca Sandri, para 86.
[83] ts 77, 23 February 2022.
Mr Hockley's evidence, which I accept, is that the proposed development is inconsistent with the objective of the Residential Zone of LPS 2 because it does not enhance the quality of the existing residential area because of the potential impacts, particularly when considering the history of adverse impacts that nearby residents experienced when the subject site previously operated as a holiday house.[84]
[84] Exhibit 4, Witness Statement of Thomas Hockley, para 79.
Finally, turning now to cl 67(2) of the Deemed Provisions[85] which contains a list of matters to which I am to have due regard, to the extent that they are relevant to the proposed development. The planning experts agree the following matters are relevant in this case:[86]
[85] The Tribunal notes that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the deemed provisions. However, cl 90(2) of the amended deemed provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former deemed provisions apply in this case.
[86] Exhibit 4, Witness Statement of Thomas Hockley, para 83; Exhibit 10, Witness Statement of Bianca Sandri, paras 107-118.
…
(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 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;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application[.]
In addition, Ms Sandri identifies cl 67(2)(a) and cl 67(2)(b) as relevant:[87]
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
[87] Exhibit 10, Witness Statement of Bianca Sandri, paras 104-107.
Further, cl 67(2)(e)[88] and cl 67(2)(zb)[89] of the Deemed Provisions are relevant and have been referred to when considering the draft PSPFT and Guidelines and PB99.
[88] Refer to [47].
[89] Refer to [48].
I accept the above cl 67(2) matters are relevant planning considerations in this case. The examination of these considerations forms the basis of my findings to Issue 1 and Issue 2. The central question, therefore, when considering orderly and proper planning in this case, is whether the amenity impacts of the proposed development, particularly in respect to noise, is acceptable in its context. Considering the analysis set out in my findings on the preceding issues I conclude, for the following reasons, it is not.
Findings - Issue 3
I find that approval of the proposed development would not be consistent with the principles of orderly and proper planning for the following four reasons.
First, while I accept the broader context, and in particular the proximity to the beach and the foreshore, makes the subject site attractive for a 'Holiday House' use, the immediate surrounding context, which is essentially residential and intact, and consists of grouped dwellings, gives rise to interface issues with the permanent residents of these dwellings.
Second, when considering the impact of the proposed development on amenity, the relationship of elements of the proposed development, such as the patio facing Rockingham Beach Road and the ocean, which is in immediate proximity to an outdoor living area and bedrooms of the adjoining unit at No 191 Rockingham Beach Road, will lead to ongoing land use conflict between the proposed development and existing permanent residential dwellings.
Third, considering the submissions received during advertising and the history of the subject site (and here I acknowledge the proposed development has sought to address identified concerns), the management measures, complaint handling procedures and code of conduct are not able to ensure the behaviour of guests and visitors will not have an ongoing negative impact on the amenity of existing residents given the context of the subject site.
Fourth, the proposed development does not 'maintain or enhance the quality of the existing residential area' which is an important part of the objective for the Residential Zone and therefore does not satisfy the objective of the Residential Zone of LPS 2.
Conclusion
The proposed development is for a change of use from a 'Single House' to 'Use Not Listed, (Holiday House)'. By virtue of s 27 and s 29 of the SAT Act and the operation of cl 3.2.4(b) of LPS 2, I am required to determine whether or not the correct and preferable decision, in this case, is for the proposed development to be approved.
Notwithstanding the findings on the various matters that require consideration under the Deemed Provisions, which include matters in cl 67(2) referred to earlier at [93]-[96], I acknowledge I retain a discretion to approve the proposed development. The central plank to the applicants' argument is that the scale of the proposed development which is accompanied by a management plan, code of conduct and a complaints procedure is capable of addressing the amenity concerns that have been raised, particularly noise impacts. For the reasons I have explained, I am not satisfied the proposed development is capable of addressing these amenity concerns and therefore, in the circumstances of this case, is not consistent with the planning framework.
Accordingly, I conclude that having due regard to the relevant matters in cl 67(2) of the Deemed Provisions and weighing up my findings on the issues before me, the correct and preferable decision, for the reasons I have outlined, is to dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
9 MAY 2022
(a) means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval; but (b) does not include a class A use.
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