Mainsail Properties Pty Ltd and City of Bunbury
[2014] WASAT 117
•9 SEPTEMBER 2014
MAINSAIL PROPERTIES PTY LTD and CITY OF BUNBURY [2014] WASAT 117
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 117 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:258/2013 | 9 MAY AND 9 JUNE 2014 | |
| Coram: | MR J JORDAN (MEMBER) MS L EDDY (MEMBER) | 9/09/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAINSAIL PROPERTIES PTY LTD CITY OF BUNBURY |
Catchwords: | Town planning Development Whether development proposal inconsistent with town planning scheme 'Special Use Zone 23' Meaning of 'Tourist Accommodation' Proposal for multiple dwellings where R40 density Meaning of 'available for tourist use' Serviced apartments Shortstay serviced apartment |
Legislation: | City of Bunbury Town Planning Scheme No 7, cl 1.6.1, cl 4.2.1.11, cl 4.7.2, cl 4.7.3, cl 5.2.3, cl 5.3.1, cl 10.2.1, cl 10.2.1(b), Sch 1, Sch 2 Greater Bunbury Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 31 State Planning Policy 3.1 Residential Design Codes (2013) |
Case References: | Chiefari v Brisbane City Council [2005] QPELR 500 Galloway & Associates and City Of Melville [2007] WASAT 238 |
Orders | On the application heard on 9 May 2014 and 9 June 2014 by Member James Jordan and Member Lisa Eddy, it is on 9 September 2014 ordered that: ,1. The application is dismissed.,2. The decision of the respondent made on 4 February 2014 to refuse to grant planning approval for the proposed development is affirmed. |
Summary | The application sought review of the respondent's decision to refuse to grant planning approval for the construction of 11 multiple dwellings on a site located at Epacris Elbow, Pelican Point. The site was within an area known as 'Grand Canals North' and was zoned Special Use 23 under the City of Bunbury Town Planning Scheme No 7. Conditions of development of land within the Special Use 23 zone required development on the site to be either grouped dwellings or tourist accommodation. The definition of tourist accommodation incorporated grouped dwelling or serviced apartments available for tourist use.,The Tribunal found that to meet the requirement that the development be available for tourist use required more than that the development would theoretically be able to be used that way. Further, the Tribunal found that the Development Guide Plan applicable to the Grand Canals North did not expressly provide for multiple dwellings on the site. Therefore, the prohibition in the City of Bunbury Town Planning Scheme No 7 on multiple dwellings on any land with a State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) density of equal to or less than R50 was found to be applicable to the site. ,The Tribunal determined that the proposed multiple dwelling development on the site would be inconsistent with the City of Bunbury Town Planning Scheme No 7.,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MAINSAIL PROPERTIES PTY LTD and CITY OF BUNBURY [2014] WASAT 117 MEMBER : MR J JORDAN (MEMBER)
- MS L EDDY (MEMBER)
- Applicant
AND
CITY OF BUNBURY
Respondent
Catchwords:
Town planning Development Whether development proposal inconsistent with town planning scheme 'Special Use Zone 23' Meaning of 'Tourist Accommodation' Proposal for multiple dwellings where R40 density Meaning of 'available for tourist use' Serviced apartments Shortstay serviced apartment
Legislation:
City of Bunbury Town Planning Scheme No 7, cl 1.6.1, cl 4.2.1.11, cl 4.7.2, cl 4.7.3, cl 5.2.3, cl 5.3.1, cl 10.2.1, cl 10.2.1(b), Sch 1, Sch 2
Greater Bunbury Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes (2013)
Result:
Application dismissed
Summary of Tribunal's decision:
The application sought review of the respondent's decision to refuse to grant planning approval for the construction of 11 multiple dwellings on a site located at Epacris Elbow, Pelican Point. The site was within an area known as 'Grand Canals North' and was zoned Special Use 23 under the City of Bunbury Town Planning Scheme No 7. Conditions of development of land within the Special Use 23 zone required development on the site to be either grouped dwellings or tourist accommodation. The definition of tourist accommodation incorporated grouped dwelling or serviced apartments available for tourist use.
The Tribunal found that to meet the requirement that the development be available for tourist use required more than that the development would theoretically be able to be used that way. Further, the Tribunal found that the Development Guide Plan applicable to the Grand Canals North did not expressly provide for multiple dwellings on the site. Therefore, the prohibition in the City of Bunbury Town Planning Scheme No 7 on multiple dwellings on any land with a State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) density of equal to or less than R50 was found to be applicable to the site.
The Tribunal determined that the proposed multiple dwelling development on the site would be inconsistent with the City of Bunbury Town Planning Scheme No 7.
The application for review was dismissed.
Category: B
Representation:
Counsel:
Applicant : Mr H Shigeyoshi (Acting as Agent)
Respondent : Mr D McLeod
Solicitors:
Applicant : Dynamic Planning and Developments
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Chiefari v Brisbane City Council [2005] QPELR 500
Galloway & Associates and City Of Melville [2007] WASAT 238
Introduction
1 On 2 July 2013 the City of Bunbury (respondent) refused to grant planning approval for the proposed development of 11 multiple dwellings on No 4 (Lot 517) Epacris Elbow, Pelican Point (site). By application lodged with the Tribunal on 22 July 2013, Mainsail Properties Pty Ltd (applicant), which is the owner of the site, sought review of the respondent's decision pursuant to s 252(1) of the Planning and Development Act 2005 (PD Act).
Site and locality
2 The site has an area of 1,368m2. Two of the site boundaries abut the Collie River foreshore reserve. The remaining boundaries are adjacent to Epacris Elbow on one side and two neighbouring properties on the other. The site is currently vacant land. The area surrounding the site, other than the foreshore, contains, for the most part, existing single residential development with single and double story dwellings.
3 The site is one of 17 lots in an area known as 'Grand Canals North'. Apart from the site, there is only one other larger lot (being approximately 1,320m2) within Grand Canals North. The remaining lots in that area range from approximately 460m2 to approximately 580m2. The other large lot was, at the time of the view by the Tribunal, in the process of being developed with five residential dwellings in the form of grouped dwellings.
4 Surrounding Grand Canals North is a typical canal development that contains over 100 residential lots.
The applicant's development proposal
5 The development proposal that the applicant originally lodged with the respondent for approval was amended slightly prior to the hearing of this matter in May 2014. It was confirmed that the version of the development proposal that the applicant wished the Tribunal to consider was that contained in Tab 5 of Exhibit 2 (T:9-10; 09.05.14). This development proposal was refused approval by the respondent following reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) on 4 February 2014. At the commencement of the second day of hearing, in June 2014, the applicant provided A3 size plans of that same version of the development proposal (Exhibit 17).
6 The development proposal is for the construction on the site of 11 dwellings. The design specifies a main two storey building, which has five dwellings on the ground floor and another five dwellings directly above on the first floor. This building is located close to the long boundary of the site that abuts the Collie River foreshore. Behind, to the south-west of that main building, is another, much smaller building, with 11 storage areas, a communal bin area on the ground floor and a dwelling directly above on the first floor. Behind the smaller building is a single storey bicycle store and an area labelled as 'communal facilities'. Between the main building and the two houses bordering to the west, north-west of the smaller building, is a car parking area.
7 It is not in dispute that the development proposal comes within the meaning of 'multiple dwelling' for the purposes of State Planning Policy 3.1 Residential Design Codes (2013) (Residential Design Codes).
Planning Framework
Region Scheme
8 The site is zoned Urban under the Greater Bunbury Region Scheme (GBRS).
Local Planning Scheme
9 The site is zoned 'Special Use zone 23 - Tourist/Residential' (SU23) under the City of Bunbury Town Planning Scheme No 7 (TPS 7 or Scheme).
10 The respondent, and the Tribunal on review, when considering an application for planning approval is required to have due regard to the matters specified in cl 10.2.1 of TPS 7. Clause 10.2.1 of the Scheme relevantly provides:
The local government in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development the subject of the application –
(a) the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area;
(b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c) any approved statement of planning policy of the Commission;
…
(e) any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State
…
(i) the compatibility of a use or development with its setting;
…
(n) the preservation of the amenity of the locality;
(o) the relationship of the proposal 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 proposal;
…
(q) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety
…
(za) any other planning consideration the local government considers relevant.
11 Clause 1.6.1 of the Scheme provides that:
The local government's general aim of the Scheme is to plan for the efficient and equitable use of land with due regard to the community needs and aspirations for quality of life and the environment.
12 The objective of the Special Use zone under TPS 7 is specified in cl 4.2.1.11 as:
… To accommodate particular land uses or developments which the local government considers appropriate, but under circumstances where the location of the site and/or the nature of the particular use or development makes it impracticable for the use or development to be included within another zone.
13 Clause 4.7.2 and cl 4.7.3 of TPS7 provide, respectively:
A person must not use any land, or any structure or buildings on land, in a Special Use zone except for the purpose set out against that land in Schedule 2 and such other use(s) which, in the opinion of the local government, is considered to be incidental to the predominant use(s) listed against the land under Schedule 2 and subject to compliance with any conditions set out in Schedule 2 with respect to that land.
The site requirements of lot area, minimum effective frontage, development type, plot ratio, car parking, setbacks, and other development provisions are to be determined by the local government and such standards are not to be less than that pertaining to similar uses under the Scheme.
14 Schedule 2 of TPS 7 relevantly includes as 'conditions' in relation to SU23:
1. Council shall consider all land use, subdivision and development on lot 172 Portofino Crescent generally in accordance with a Development Guide Plan (DGP) adopted by Council and the Western Australian Planning Commission and any Development Guide Plan should be generally in accordance with the Draft DGP contained within the Amendment No. 8 report or any variation thereto[.]
…
2. Guidelines for development are to be included within the Development Guide Plan and are to reflect the provisions outlined in this Amendment including the required compliance with the Residential Design Codes.
3. Council will encourage 'Tourist Accommodation' (*1) to be developed in the area subject to such development being compatible with the residential scale, form and character of the Grand Canals locality.
4. Density of permanent single residential accommodation shall not exceed R20, and Group Dwellings or Tourist Accommodation shall not exceed R40.
4.1 'Grouped Dwelling' and/or 'Tourist Accommodation' development to an R40 density shall occur on the two proposed larger lots at the north-eastern and south-eastern portion of the subject land, as generally shown on the Draft Development Guide Plan.
4.2 Notwithstanding clause 4.1 above, 'Tourist Accommodation' to an R40 density can also occur on proposed R20 lots subject to amalgamation of these lots to achieve a minimum lot area of 1000m2.
…
(*1) 'Tourist Accommodation' for the purpose of this amendment is defined as 'serviced apartments or grouped dwellings available for tourist use'.
15 The term 'serviced apartments' is defined in Sch 1 of TPS 7 to mean:
… group or multiple dwellings for permanent tenancy exceeding three months duration which is provided with facilities such as tennis courts, sauna, spa, common dining and recreation areas for the primary use of the residents living within the complex.
16 Schedule 1 of TPS 7 also contains the following definitions of the terms 'short stay serviced apartment' and 'short stay accommodation':
'Short-stay serviced apartment' means a building or a portion of a building being used or intended, adapted or designed to be used for the purpose of human habitation for short-stay accommodation by a single person, a single family, or no more than six persons who do not comprise a single family. A short-stay unit does not include a dwelling, but must be self-contained and incorporate areas and facilities for sleeping, food preparation, laundering and sanitation, and must be accessed by a separate entranceway.
'Short-stay accommodation' means a building or buildings used for the purpose of providing accommodation for a person or persons on a temporary basis for a period of time not exceeding three months in duration within a 12 month period.
17 It is also relevant to note that cl 5.3.1 of the Scheme states that:
Multiple dwelling development is not permitted on land zoned for residential purposes where the Residential Design Code density number is less than or equal to R50, subject to an adopted Structure Plan or Detailed Area Plan that is endorsed by the Western Austrian Planning Commission.
Local Planning Policy: Grand Canals Design Guidelines
18 Local Planning Policy 4.2.1, titled Local Planning Policy: Grand Canals Design Guidelines (LPP 4.2.1 or Policy) was adopted in April 2013 and commenced operation in June 2013 (Tab 14, Exhibit 2). Clause 1.3 of LPP 4.2.1 provides that the Policy supplements the provisions of TPS 7, and where inconsistent with the Scheme, the Scheme prevails. Clause 2 of LPP 4.2.1 outlines the purpose of LPP 4.2.1 and states:
… [T]o guide built form of residential development and to ensure that a high standard of residential development occurs within the 'Grand Canals Estate'.
19 The objectives are specified in clause 3 of LPP 4.2.1:
In accordance with the Aims of the Scheme, land use and development should achieve the following outcomes for development within the Local Planning Policy Area
(a) to achieve and maintain a high quality of residential design; and
(b) to establish and protect local character and amenity within the 'Grand Canals Estate' area.
20 The boundaries of the area covered by LPP 4.2.1 are depicted in Map 1 attached to the Policy. The precinct that is SU23 under TPS 7 is included within those boundaries. Clause 4.2 of the Policy states:
The area of land within the boundaries of the 'Grand Canals Estate' incorporates a precinct referred to as 'Grand Canals North', which is subject to a Development Guide Plan attached at Appendix A.
21 Clause 8.1 of LPP 4.2.1 provides that the development of premises is to be in accordance the requirements of:
…
(a) this Local Planning Policy: Grand Canals Design Guidelines; and
(b) the Residential Design Codes for residential and mixed use developments, subject to the variations; and
(c) the applicable zone provisions under the Scheme; and
(d) relevant Special Control Areas(s); and
(e) relevant Local Planning policies or Local Laws; and
(f) applicable Australian Standards.
Development Guide Plan
22 The Grand Canals North Development Guide Plan (DGP), which is a development guide plan in relation to land within SU23, has been adopted by the respondent and endorsed by the Western Australian Planning Commission (Tab 17, Exhibit 2). The DGP is attached at Appendix A of LPP 4.2.1.
23 The site is identified as Lot 17 on the DGP. A text box attached to Lot 17 by an arrow contains the words 'Group Housing or Tourist Facility (R40 Density)'. Under the heading 'Guidelines for Development', the following statements are made in the DGP:
1. All development is to be in accordance with this Development Guide Plan as may be amended following public consultation and with the approval of the City of Bunbury and the Western Australian Planning Commission.
2. Development of lots is to be in accordance with the following:
Permissible uses
…
On Lots 16 and 17
Grouped Dwellings and Tourist Accommodation,. In addition, all other uses that are permitted ('P' use) and discretionary ('D' use) in the Residential zones can be considered by Council. The following use is also permitted ('P' use) on Lot 17 Restaurant (Café)[.]
3. All single residential lots are to have a density no greater than R20.
4. Council will encourage Tourist Accommodation to be developed in the area subject to such development being compatible with the residential scale, form and character of the Grand Canals locality.
5. Any development for nonresidential tourist accommodation shall be designed to ensure an appropriate interface with existing and potential residential development so as to ensure the residential character and amenity of the area is not compromised.
6. All development is to comply with the Residential Design Codes ('the Codes') based on the ase density shown on the Development Guide Plan. This includes tourist development unless variation to the Codes can be justified on the basis of the nature of tourist development proposed and such variations will meet the requirements of 4. and 5. above.
…
State Planning Policy 3.1 Residential Design Codes
24 As noted above, the various documents of the planning framework refer to the Residential Design Codes. It is particularly relevant that the building design comes within the definition 'multiple dwelling' under the Residential Design Codes.
Issues
25 The respondent listed as issues to be considered in this matter the following:
1) Whether the proposed development complies with the provisions of TPS 7.
2) Whether the proposed development involves multiple dwellings on land coded R40 and as such is precluded by cl 5.3.1 of TPS 7.
3) Whether the proposed development complies with the provisions of the DGP and the conditions of SU23 contained in Sch 2 of TPS 7.
4) Whether, should the development proceed, there would be adverse impact on the amenity of the adjacent established residential area.
5) Whether, should the development proceed, there would be adverse impact on the adjoining and nearby properties, having regard to the matters of traffic generation, waste collection and onsite parking.
6) Whether, should the development proceed, there would be adverse impact on adjacent properties, having regard to the matter of privacy.
Whether the proposed development complies with the provisions of TPS 7
26 In addressing this issue, the Tribunal considered that it must first determine whether the proposed development is 'Tourist Accommodation'. As can be seen from the conditions of SU23 in Sch 2 of TPS 7 cited above, development on the site, and on the other large lot within SU23, is required to be in the form of grouped dwellings 'and/or' tourist accommodation. The definition of 'tourist accommodation' at *1 of the conditions of SU23 is 'serviced apartments or group dwellings available for tourist use'.
27 Neither party argued that the condition 'available for tourist use' attached only to group dwellings and not to both serviced apartments and group dwellings. It is our view that it was appropriate that neither party argued this proposition. Such a technical argument would have been unlikely to be persuasive given the wider context within which the definition lies and the evident intent of the provision.
28 It is necessary to bear in mind when interpreting instruments such as a town planning scheme that:
… They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
Chiefari v Brisbane City Council[2005] QPELR 500, at 502 cited in Galloway & Associates and City Of Melville [2007] WASAT 238, at [41].
29 The Scheme currently includes definitions of two types of serviced apartment, being 'serviced apartment' and 'shortstay serviced apartment': Sch 1 of TPS 7. The latter definition was added to the Scheme after the provisions relating to SU23 were in place. As the proceedings on a review such as this are by nature a hearing de novo (a hearing as if for the first time), and the Tribunal is required to make the correct and preferable decision at the time of making the decision, we must consider the Scheme as it stands now.
30 The applicant says that the reference to 'serviced apartment' incorporated into the conditions of SU23 by way of the definition of 'Tourist Accommodation' at *1 of the conditions, must be read strictly according to the words used. This means, on the applicant's submission, that 'Tourist Accommodation' includes what the Scheme defines as 'serviced apartment' but not that defined as 'shortstay serviced apartment'. The applicant further submits that the conditions of SU23 therefore clearly contemplate dwellings available for permanent use.
31 The respondent submitted that 'Tourist Accommodation' must include both a serviced apartment and a shortstay serviced apartment as defined by TPS 7.
32 Usually it would be presumed that in a legislative instrument the use of a different form of words is intended to convey a different meaning. However, we find that having regard to the intent and purpose of SU23 and the context of the use of the term 'serviced apartment' in the conditions of SU23 in Sch 2 of TPS 7, the term does there incorporate the meanings of both the terms 'serviced apartment' and 'short stay serviced apartment' as defined in Sch 1 of TPS 7.
33 The respondent submitted that in order to be 'available for Tourist use' any apartment development would have to be of the type contemplated by the definition of the term 'shortstay serviced apartment'. It was submitted that, because the definition of 'serviced apartment' requires a 'permanent tenancy exceeding 3 months', that sort of development is inconsistent with tourist use.
34 We are not persuaded by this submission. We were not presented with any evidence that tourists who visit Bunbury would not be interested in leasing a serviced apartment for a period exceeding three months. The Scheme provisions in relation to SU23 permit the development of serviced apartments, within the wider meaning of that term, and it would theoretically be a matter for any potential developer of the site to determine, if they wished to propose any apartment development, what type of serviced apartments would be most suitable and/or profitable for tourist use in this particular location.
35 The requirement specified in TPS 7 and the DGP in relation to the site, is that the development of anything other than a group dwelling 'must be available for tourist use', even if it is also available for other types of use. The applicant submitted that, there being no words included in that phrase to convey a requirement that the development be solely or exclusively for this use, it is sufficient if the development proposal is, in theory, available for tourist use. The applicant submitted that there would be no need for the development to be designed for, and operated as, a facility for tourist use only. The applicant's representative, Mr Shigeyoshi, said in evidence that the applicant did not intend to develop and operate the proposed development as accommodation specifically targeted to tourists (T:53,60; 09.05.14).
36 We find that, while the interpretation argued by the applicant is potentially open on the words used, it is inconsistent with the purpose and objectives of the Scheme and, in particular, of SU23. It must not be forgotten that the term that is defined, in relation to SU23, as including serviced apartments, is 'Tourist Accommodation'. If it had been intended that this include serviced apartments, which could be used for tourist use but also as a permanent residence, there would be no need to add the words 'available for tourist use' in the definition.
37 We find that the proposed development is for 11 multiple dwellings in the form of 'serviced apartments' in accordance with the definition of that term in Sch 1 of TPS 7. However, the proposed development is not intended, or designed, to be specifically available for tourist use. We are not satisfied that the proposed development comes within the meaning of 'Tourist Accommodation' as set out in the conditions of SU23 in Sch 2 of the Scheme.
38 Clause 10.2.1(b) of TPS 7 requires the Tribunal to have regard to the requirements of orderly and proper planning. The Tribunal has found that to adopt an interpretation that would render entirely theoretical the potential for the development to be used, in fact, for tourist accommodation, would not be consistent with orderly and proper planning. We have further found that because the proposed development does not satisfy the conditions of SU23 then it does not comply with the provisions of TPS 7.
39 Given these findings, it is not necessary to determine any of the further issues identified above. However, as our decision potentially leaves open the prospect for the applicant to amend its development proposal so as to render it available for tourist use in fact, rather than just in theory, we consider that it would be beneficial to proceed to determine the issue of the effect of cl 5.3.1 of TPS 7 on the site.
Whether the proposed development involves multiple dwellings on land coded R40 and as such is precluded by cl 5.3.1 of TPS 7
40 The respondent relies on this clause to submit that the Scheme precludes any multiple dwelling development on the site. As can be seen from the text of this clause as cited above, the Scheme generally does not permit multiple dwelling development on land zoned for residential purposes where the Residential Design Code density number is less than or equal to R50. This prohibition is subject to any adopted structure plan or detailed area plan that has been endorsed by the Western Australian Planning Commission that provides differently.
41 Clause 5.2.3 of TPS 7 provides that:
The Residential Design Codes density applicable to land within the Scheme area is to be determined by the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map or where such an area abuts another area having a Residential Design Code Density, as being contained within the area defined by the centre-line of those borders.
42 On the Scheme map there is no density number superimposed on the area identified as SU23. The area of land identified as SU23 on the Scheme map abuts residential areas with the number R20 superimposed. However, in point 4.1 of the conditions of SU23 in Sch 2 of the Scheme, it expressly states that:
'Grouped Dwellings' and/or 'Tourist Accommodation' development to an R40 density shall occur on the two proposed larger lots.
43 The site is one of those two proposed larger lots. We are satisfied that, for the purposes of cl 5.3.1 of TPS 7, the relevant Residential Design Code number is R40. Therefore, multiple dwelling development could only occur if there was an adopted and endorsed structure plan or detailed area plan that allows that to occur.
44 The terms 'structure plan' and 'detailed area plan' are not defined in TPS 7 or the PD Act. While it is not entirely clear, having regard to the imprecise nature of drafting that may be expected within an instrument such as TPS 7, and the intent of the provision, we are satisfied that the DGP is the sort of document contemplated as capable of providing an exception to the general rule in cl 5.3.1 of the Scheme. However, we are not satisfied that the DGP does provide for multiple dwellings on the R40 zoned lots in SU23. The definition of 'Tourist Accommodation' in turn incorporates the definition of 'serviced apartment'. That definition is in TPS 7, not in the DGP. The DGP does not evince any apparent thought on whether multiple dwellings are an appropriate form of development within SU23.
45 We are satisfied that cl 5.3.1 of the Scheme is intended to prevent multiple dwelling developments on residential lots with lower density coding unless specific planning for the area has taken place and this form of development is considered appropriate in all of the circumstances. It is not consistent with that intent to find that the DGP provides an exception to the prohibition of multiple dwelling development only by the use of a term that, when regard is had to definitions contained with the Scheme, could possibly include multiple dwelling development. We find that cl 5.3.1 of the Scheme precludes multiple dwelling development on the site.
Conclusion
46 The proposed development is inconsistent with the provisions of TPS 7 because:
1) it contemplates an apartment development but is not a development that is intended in fact to be available for tourist use, and therefore is not consistent with the conditions of SU23 provided in Sch 2 of the Scheme and is not consistent with orderly and proper planning; and
2) it proposes multiple dwelling development on land that has a Residential Design Code number of R40 where the DGP does not expressly provide for multiple dwellings on land with a Residential Design Code number less than R50, and therefore is inconsistent with cl 5.3.1 of TPS 7.
47 The correct and preferable decision on this application is that the applicant's request for approval of its development proposal should be refused.
Orders
1. The application is dismissed.
2. The decision of the respondent made on 4 February 2014 to refuse to grant planning approval for the proposed development is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
0
1
5