Mandurah Country Club Inc and City Of Mandurah - [2012] WASAT 122

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MANDURAH COUNTRY CLUB INC and CITY OF MANDURAH [2012] WASAT 122

MEMBER: MR J JORDAN (MEMBER)
MS R MOORE (MEMBER)

HEARD: 24 AND 25 JANUARY 2012
FINAL DOCUMENTS FILED 15 MARCH 2012

DELIVERED : 14 JUNE 2012

FILE NO/S: DR 145 of 2010

BETWEEN: MANDURAH COUNTRY CLUB INC
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning - Outline development plan - Refusal - Urban development zone - Site bounded by low density residential and golf course - Proposed building envelopes for three high density residential buildings and a redeveloped Country Club clubhouse Development extending on to neighbouring golf course lot leased by country club and road verge - Scale of proposed development - Development height policy - Consideration of height, bulk and scale - Impact on local amenity - Traffic Extent and location of car parking

Legislation:

City of Mandurah Town Planning Scheme No 3, cl 1.6(g), cl 2.1, cl 2.1.2, cl 3.11, cl 4.9.1, cl 4.9.2, cl 5.1.2, cl 7.11, cl 7.11.2.1, cl 7.11.3.5, cl 7.11.3.8, cl 7.11.3.9, cl 7.11.3.10
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)

Result:

Application for review dismissed
Decision of City of Mandurah to refuse proposed Outline Development Plan affirmed

Category: B

Representation:

Counsel:

Applicant: Mr A Stewart (Acting as Agent)
Respondent: Mr CA Slarke

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: McLeods Barristers & Solicitors

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

Avalon West Pty Ltd and Town of Victoria Park [2006] WASAT 311

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the City of Mandurah to approve an application for an Outline Development Plan to provide for the redevelopment of the clubhouse of the Mandurah Country Club Inc and the development of multiple dwellings in three tall buildings on an adjoining lot. The two lots where the development would occur comprise an elevated site between a lot where a golf course has been developed and the single residential lots of a neighbouring residential suburb.
The Tribunal concluded that the Outline Development Plan proposed development of a scale, height and bulk that would be excessive and which would have an adverse impact on the locality.
The Tribunal dismissed the application for review.

Introduction

These proceedings involve an application brought by Mandurah Country Club Inc (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Mandurah (respondent or Council) to 'refuse' (reject) an application for approval of an Outline Development Plan (ODP) for redevelopment of the Mandurah Country Club clubhouse on Lot 103 Marsh Place (Lot 103) and the development of three multistorey multiple dwelling buildings on adjoining Lot 950 Marsh Place (Lot 950), Halls Head. Together, Lot 950 and Lot 103 are referred to as 'the site'.

The site and locality

The site is owned by the applicant. Lot 103 currently has on it a twostorey clubhouse for the Mandurah Country Club. Lot 950 has a terraced bitumen paved car park for the Mandurah Country Club at the northern end, and at the southern end, has three metal sheds used for the storage of golf club equipment, including golf buggies. Access to the site is from Marsh Place and Armstrong Street at the northern end of the site. The northwestern area of the site is vegetated, while the area between the car park and the shed at the southern boundary is cleared.
Lot 950 has an area of 1.4660 hectares. It extends north to south about 250 metres, and varies in width eastwest between about 50 metres and 75 metres. Lot 950 varies in topography from about 25 Australian Height Datum (AHD) at the northern, Marsh Place, frontage to about 12 AHD near the southwestern corner.
Lot 103 (also referred to as Lot 5 on certain plans) has an area of 0.3414 hectares. Lot 103 abuts Lot 950 near the northeastern edge of the site. Lot 103 has an irregular shape, with a frontage of about 75 metres to Marsh Place, and a depth that varies between about 40 metres at the eastern side and about 70 metres where it abuts Lot 950.
Marsh Place and Armstrong Street are local access roads serving single houses. To the rear of the houses opposite the site in Marsh Place on the highest point in the locality is a water tank for the public reticulation system.
Abutting the site to the southeast on Lot 104 is a golf course on land owned by the respondent and leased to the applicant.
To the west of the site is Portmarnock Circle, a residential street that is constructed generally at a level between 7 AHD and 11 AHD. Between the site and Portmarnock Circle are single residential dwellings on sites levelled at about 10 AHD. Single residential dwellings extend to the west and north of the site. Abutting the site to the south is a grouped dwelling development with frontage to a street named Kilkenny Garden.
On the second day of the hearing, the Tribunal viewed the site and surrounding streets accompanied by the parties, their respective representatives and the witnesses. The Indian Ocean is 1 kilometre to the west and can be seen from the site above house roofs.

Planning framework

The site is zoned Urban in the Peel Region Scheme. Under the City of Mandurah Town Planning Scheme No 3 (TPS 3), Lot 103 is zoned Urban Development. Lot 950 comprises 7,581 square metres of land zoned Urban Development along its eastern side and 7,079 square metres of land reserved as 'District Recreation' at the northern, western and southern boundaries. Lot 104, on which the golf course is situated, is also reserved as 'District Recreation' under TPS 3. To the north and west of the site, land is zoned Residential with an R12.5/20 coding, and the lot abutting the site to the south has a Residential zoning with an R40 density coding. Clause 4.9.1 of TPS 3 provides that:
The Urban Development Zone is intended to provide for future residential and urban related development after comprehensive planning of the land has been carried out resulting in an approved Outline Development Plan.
Clause 4.9.2 of TPS 3 provides:
4.9.2.1The permissibility of uses in the Urban Development Zone and the relevant development and subdivision standards are specified in an approved Outline Development Plan, prepared and approved pursuant to Clause 7.11 of the Scheme.
4.9.2.2Where an Outline Development Plan imposes a classification on the land including in it by reference to reserves, zones or the Residential Design Codes, the provisions of an Outline Development Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme.
…
The designation 'District Recreation' is included in the list of 'Scheme Reserves' at cl 2.1 and in Scheme maps of TPS 3. Clause 2.1.2 of TPS 3 states:
Any Scheme Reserve until vested in the Council or other public authority may be used in accordance with:
a)for the purpose for which the land is reserved under this Scheme or pursuant to any policy adopted by Council;
…
c)for the purpose for which it was used at the date upon which the Scheme came into operation … or unless such use has been changed with the approval of the Council; or
d)for any purpose approved by the Council but in accordance with any conditions imposed by the Council;
but shall not be used otherwise for any other purpose.
The applicant filed with the Tribunal excerpts from the agreement the applicant has with the Council for lease of the golf course on Lot 104. A condition of the lease is that ratepayers be allowed to play golf on Mondays and Wednesdays, provided they have booked and paid green fees. The lessee may vary the day or, with notice, retain exclusive use of the golf course for a golf event on those days.
TPS 3 does not define 'District Recreation'. TPS 3 at Appendix 1 Interpretations includes a definition of 'Private Recreation' as follows:
recreation private: means land or buildings used for parks, gardens, playgrounds, sports arenas, or other facilities for recreation which are not usually open to the public without charge.
On the evidence, the golf course as operated appears to the Tribunal to be analogous with 'Recreation Private' under TPS 3, because the golf course is not open to the public without charge, and then on a limited basis which can be varied at the discretion of the golf club.
Plot ratio is defined in TPS 3 as follows:
plot ratio:Plot Ratio means the ratio of the gross total of the areas of all floors to the area of land within the site boundaries, and in calculating the gross total of the areas of all floors the areas shall be measured over any walls provided that lift shafts, stairs, toilets and amenities, external wall thicknesses, plant rooms and the gross floor area of any floor space used for the parking of wheeled vehicles including access to and from that space within the building shall not be included. For residential dwellings the term shall have the same meaning given to it in the Residential Planning Codes.
The Residential Design Codes of Western Australia 2010 (Codes) include the following definitions:
Plot ratio
The ratio of the gross total of all floors of buildings on a site to the area of land in the site boundaries. For this purpose, such areas shall include the area of any walls but not include the areas of any lift shafts, stairs or stair landings common to two or more dwellings, machinery, air conditioning and equipment rooms, space that is wholly below natural ground level, areas used exclusively for the parking of wheeled vehicles at or below natural ground level, lobbies, bin storage areas and passageways to bin storage areas or amenities areas common to more than one dwelling, or balconies, verandahs, courtyards and roof terraces.
Plot ratio area
The floor area of buildings on a site as delineated in the definition of plot ratio.
Clause 7.11 of TPS 3 is concerned with the preparation and adoption of ODPs. Clause 7.11.3.5 of TPS 3 requires that an ODP be advertised, and cl 7.11.3.8 requires that submissions received be considered prior to the final consideration of the ODP. Clause 7.11.3.9 of TPS 3 provides that the Council may, in regard to an ODP which has been advertised, resolve:
a)to reject it; or
b)to approve it without modifications; or
c)to approve it subject to certain modifications; and
d)in the case of an approval to stipulate conditions which the Council would impose on any development or would seek to have imposed on any subdivision in accordance with the Plan.
Clause 7.11.3.10 of TPS 3 requires that, where the Council resolves to adopt an ODP, it shall send it to the Western Australian Planning Commission (Commission) and request that the Commission approve the plan. In this case, the Council rejected the ODP and it has not been sent to the Commission.
The respondent has, pursuant to TPS 3, adopted City of Mandurah Local Planning Policy No 12  Development Height Policy (Height Policy). The parties also considered that relevant to consideration of this matter were the Commission's following documents:
•State Planning Policy No 3 Urban Growth and Settlement (SPP 3);
•Directions 2031 and Beyond;
•Liveable Neighbourhoods; and
•Draft Outer Metropolitan Perth and Peel Sub-regional Strategy.

Background

Both parties made reference to the background of the current zoning of the site and the proposed ODP. In 2002, final approval was granted for TPS 3 Scheme Amendment 38, which reclassified Lot 103 and part of Lot 950 from 'District Recreation' reserve to Tourist zone. An ODP adopted at the same time to guide the future development of the site enabled the applicant to plan for expanding the existing clubhouse and car park.
In March 2007, the Council resolved to adopt a draft Local Tourism Planning Strategy. This included identifying the Tourist zoned part of the site as a 'nonstrategic tourism site', which would provide for 20% residential use at R40. In 2007, the applicant met with the respondent and neighbours, and prepared a fresh ODP for the site.
In 2009, the Council adopted its Local Tourism Planning Strategy. The Tourist zoning of the site was not modified in this strategy because the Council had before it proposed TPS 3 Amendment 97 to re-zone the site from Tourist to Urban Development.
An ODP, which became the ODP now before the Tribunal and which included multiple dwelling buildings for the site, was advertised in January 2010 while the site was still partly zoned Tourist. In February 2010, the Council resolved not to support TPS 3 Amendment 97, and in March 2010, resolved not to approve the proposed ODP.
Contrary to the Council's resolution, in October 2010, the Minister for Planning approved TPS 3 Amendment 97, which resulted in the Tourist zoning of the site being changed to Urban Development under TPS 3 by December 2010.
On 12 May 2010, the applicant filed an application for review of the Council's rejection of its proposed ODP for the site. Alternative dispute resolution processes in the Tribunal resulted in the Council considering an amended ODP in November 2011, when it again resolved to refuse the ODP.

The ODP

The ODP before the Tribunal at the hearing was dated September 2011 and comprised the bundle of documents listed below, except Appendix G. Appendix G was filed and served on 20 February 2012 consequent to the hearing, and was the subject of submissions by the parties. The documents of the ODP are:
a)'Appendix A location plan', showing Lot 950 and Lot 103 (which is shown on the location plan as Lot 5), and an 'existing conditions' plan;
b)'Appendix B site plan', being an orthophoto of the locality with the proposed development outlined on the site;
c)'Appendix C plan diagrams', showing, in four separate plans, the relative location on the site of floor areas of the proposed buildings, accessways and car parking areas at six different relative levels from RL15.5 to RL30, plus a roof plan;
d)'Appendix D section diagrams', with four pages showing, respectively, section AA, being north to south through the site, section BB, section CC and section DD, being cross-sections through the respective buildings on the site relative to existing ground levels and proposed indicative landscaping;
e)'Appendix E character diagrams', which is a page titled 'massing diagram and character images', which has coloured stock photographs of what might be considered as commercial and member services in the Country Club clubhouse, including gymnasium, childcare, theatre, sauna and massage, restaurant and reception centre;
f)'Appendix F circulation plans', which is a car parking layout and vehicle circulation plan;
g)'Appendix G Outline Development Plan'. Filed on 20 February 2012 and set out in the format of a single sheet showing a plan view of the location of the development on and adjacent to the site, with a colour coded legend, and setting out 38 provisions to be satisfied for compliance with the ODP, including land use controls, development standards, applicant's responsibilities and administration arrangements; and
h)'Appendix H landscape strategy', which comprises a revegetation and landscape enhancement strategy plan for the land adjacent to the buildings and in the 'District Recreation' area at the west of Lot 950, including a 13 metre wide 'fauna access corridor' abutting the northern, western and southern boundaries of the site. The strategy plan includes illustration of revegetation at crosssections BB, CC and DD.
The development concept shown on the ODP can be described as follows:
a)the redevelopment of the existing clubhouse to comprise four levels; one level being a basement, the level above being part undercroft car parking and part clubhouse, with two clubhouse levels above at the Marsh Place level. From Marsh Place, this building would have the appearance of two storeys with the parapet. Provision 24 of the ODP lists the following uses from TPS 3 as 'permitted' in the clubhouse building envelope: club premises, reception centre, restaurant and recreation private. Appendix G is silent on whether the uses illustrated in Appendix E might be allowed at the discretion of the Council; and
b)development on Lot 950 of three residential apartment buildings, described relatively as 'towers' and car parking associated with both the dwellings and the uses in the clubhouse. The three buildings would be:
•North tower 22.2 metres high from 23 AHD to 45.2 AHD at the southern side and 19.2 metres high at the entry level on the northern side. Seven levels would include a partial basement car park and entry level podium with a residential tower above;
•Central tower 22.2 metres high at the southern side from 20 AHD to 42.2 AHD and 19.2 metres at the northern side. Seven levels would include a partial basement car park and entry level podium with a residential tower above;
•South tower 24.7 metres high from 15.5 AHD to 40.2 AHD at the southern side and 19.2 metres high at the northern side. Eight levels would include two partial basement car parks and entry level podium with a residential tower above.
The ODP shows an integrated development extending across both Lot 103 and Lot 950. At the northern end of the site, a basement car park extends from below the northern residential building to beneath the clubhouse. Vehicles would enter below the northern residential tower for parking for the golf club and commercial activity uses in the clubhouse. At the southern end, golf club car parking is located beneath the residential building about 100 metres from the clubhouse. Residential and golf club traffic would share the main driveway, with the entrance and exit to the site on Lot 103.
The slope of the site is such that the basement car parks would be at or near ground level on the southern side. In addition, the ODP at Appendix G shows a ground level car park for 78 cars between the southern building and the southern boundary of the site. The ODP shows development extending onto the golf course site on neighbouring Lot 104 to the extent of a section of the access road between the central building and the southern car park, and a possible new shed, said to be for the purposes of storing the golf course equipment and golf carts to replace the sheds currently on Lot 103. The ODP also shows at-grade parking extending across the Marsh Place frontage, which includes about 20 car parking bays and accessways in the road verge.

The refusal and the issues

The issues identified by the parties reflect the respondent's reasons for refusing the ODP. The issues are interrelated. They are together concerned with the potential impact on both the site and the locality from the form of development and the subsequent uses that would be allowed if the proposed ODP were endorsed. The parties identified the issues as:
1)Whether the height and scale of the proposed development shown in the ODP is excessive.
2)Whether the residential density proposed in the ODP is appropriate.
3)Whether the form and density of development proposed in the ODP will have an inappropriate adverse impact on the amenity of neighbouring properties by reason of one or more of height, bulk, scale, overlooking, reduction in privacy, noise, light or increased traffic.

Discussion

Issue 1: whether the height and scale of the proposed development shown in the ODP is excessive

The Tribunal considers it appropriate to first consider the scale of the development that would be allowed if the ODP were to be endorsed. The applicant cited Avalon West Pty Ltd and Town of Victoria Park [2006] WASAT 311 at [57], where the Tribunal stated it considered that:
… scale is a product of a matrix including height, bulk (as measured by plot ratio or in some other way), context, siting, setback, building form, design and articulation.
The Tribunal has concluded from its consideration of the evidence and the submissions of the respective parties that, if the ODP were to be approved, it would be an endorsement of development at a scale that would result in overdevelopment of the site. The site would be overdeveloped because:
•the development would extend beyond the Urban Development zone and into the 'District Recreation' reservation at the southern end of the site;
•the development would not be set back from but would extend beyond the boundary of the site into the verge of Marsh Place/Armstrong Street;
•the development would not be set back from but would extend up to and beyond the boundary of the site into neighbouring Lot 104, the golf course lot, which is reserved 'District Recreation' under TPS 3;
•the car parking and vehicle access for the clubhouse uses would extend onto the road verge, under the northern residential tower, under the southern residential tower, onto the neighbouring Lot 104 and into the 'District Recreation' reservation on the site; and
•the residential towers would not be a discrete use but would be integrated with accessways and parking for the clubhouse members and for outside customers attracted to the commercial uses.
The Tribunal has formed the view that the scale of this development is a consequence of the range of uses proposed in the clubhouse and the number of car parking bays required to service those uses, and also of the floor area proposed for residential use, which again generates the particular requirement for car parking bays and building height.
The respondent stated that it had no fundamental objection to golf club members using golf club land to gain access to a golf club car park, but it considered non-club members should be prevented from using the driveway on the golf course.
It is important to distinguish that an approval of an ODP is not an approval of an application for development approval under TPS 3. The Tribunal's concern is that an approval of the proposed ODP might be interpreted as presupposing a later approval by the Council of a particular form of development beyond the boundaries of the site. The Council, in its role as a landowner, is not a party to the ODP application. The Tribunal cannot support a development concept that purports to fetter future discretion by the decisionmaker by dictating now what decision must be made on a future development application for land that is in the ownership of a party other than the applicant. This remains a concern even if, as in this instance, the other party is the Council and, respectively, there is a lease agreement for the golf course between the Council and the applicant, and the verge is vested in the Council.
Turning to height, the Tribunal considers the proposed height of the residential towers is directly related to the scale of the development under the ODP.
It was the respondent's submission that, pursuant to cl 2.2(b) of Part A of the Height Policy and Table 4 of the Codes, the height of buildings is properly limited to between 12 metres for an external wall and 15 metres to a ridge height. The applicant disagreed, saying the Codes and Height Policy were irrelevant, as the site was zoned Urban Development under TPS 3, and cl 7.11 of TPS 3 and the Height Policy, at Part B, contemplate setting building heights through the ODP process.
As the parties state, the site does not have a designated R Coding under TPS 3. Clause 5.1.2 of TPS 3 provides that, unless otherwise provided in TPS 3, development for residential purposes shall conform to the provisions of the Codes. The Tribunal notes that the applicant looks to the standards of the Codes for such elements as setback, overshadowing and privacy to establish the merit of the development in the ODP relative to the residential development to the west.
Clause 4.9.2 and cl 7.11.2.1 of TPS 3 allow special development controls to be included in an ODP. Provision 23 of the ODP says residential development shall be in accordance with the development provisions for R80 under the Codes, but Provision 11 of the ODP sets the maximum height standards for the development, which are higher than those of the Codes for R80, as set out above.
The Tribunal considers that the starting point for an assessment of height is the relevant standard set out in the Codes and the Height Policy. A variation of height from that standard, if it is to be the exception from the density coding standards, must have a sound planning basis.
The applicant submitted that the presence of the 'District Recreation' reserve within the site and the immediate proximity of the Mandurah golf course suggest that the site is well placed to accommodate tall buildings without compromising the existing character and the desired character of the locality. The applicant said that this outcome would be consistent with the 'Scheme Objective' of 'avoiding the feeling of suburbia' at cl 1.6(g) of TPS 3.
Mr Matthew Young, a town planner called by the applicant, prepared a visual impact assessment that he said revealed that Mandurah was 'characterised by low density neighbourhoods with high scale development on selected landmark sites'. The applicant said that the development allowed under the ODP would be consistent with cl 3.11 of the Height Policy, which provides for taller buildings on landmark development sites, such as this review site, within low density neighbourhoods.
In support of its position, the applicant said the height of the proposed development was consistent with the requirements for the gradient height model at cl 2(b) of Part B of the Height Policy because it followed existing contours, minimised earthworks and had no impact on existing views enjoyed by other dwellings. The development would, it was said, utilise existing slope profiles to maximise viewing opportunities, as required for an ODP at cl 3.3 of Part B of the Height Policy.
The respondent said cl 3.11 of TPS 3 requires that landmark sites be well defined and integrated with their surrounding area. It was the respondent's submission that the site does not fit the requirements for recognition as a landmark site under the Height Policy. The respondent considered that the height of the proposed residential towers would be too out of character with the existing locality to be justified simply by the notion of infill development.
The Tribunal notes that, in respect of the northern and the southern residential towers, one level of the development is required for car parking for the patrons of the clubhouse. This is related to what the Tribunal considers to be overdevelopment of the site arising from the scale of the development.
The Tribunal has also concluded that, if the development were allowed, the site would appear as a landmark site because of the presence of the buildings. Clause 3.11 of Part B of the Height Policy acknowledges that Appendix 7 lists lots because the lot has been developed 'accordingly', but goes on to provide that any new landmark development sites be identified by the preparation of a comprehensive Development Guide Plan. The applicant argued, in effect, that the extensive work done in preparation of the ODP is sufficient to warrant consideration of the site as a landmark site.
The Tribunal has found that the topography of this site and its relationship to the district open space are not, of themselves, sufficient to warrant the site attracting the benefits of a landmark site and, consequently, a relaxation of the height controls under the Height Policy and the Codes. A requirement for a landmark site is that it be well defined and integrated within the surrounding area, with a neighbourhood or community focus. In this respect, the Tribunal considers that the site can be distinguished from cited city centre sites in a commercial setting and also from the Cape Bouvard residential tower cited as a precedent, which was planned as part of its surrounding development rather than being imposed as infill on an existing residential neighbourhood.
It is not apparent to the Tribunal how height concessions might arise simply from the way the proposed residential buildings utilise the existing contours, as provided for in the Gradient Height Model. Clause 3.4 of Part B of the Height Policy also requires consideration of the location of development height to protect existing streetscapes, built character, built scale and level of amenity. The Tribunal has not been satisfied that a future development approval could address these elements if the scale of development proposed in the ODP is to be maintained.
The site is elevated and, while Mr Young demonstrated that, from particular vantage points in the district, the proposed residential towers would not be visible, there are sufficient vantage points in the neighbourhood where residential buildings of the height proposed would become a significant feature within the character of the locality. The proposed buildings would project above the vegetation, even once the proposed landscaping had matured, and this impact on the skyline would be exaggerated by the relatively higher AHD level of the site.
The ODP seeks to have endorsed buildings of between 22.2 metres and 24.7 metres in height. This height is related to the scale of the development and the uses proposed. The fact that the site is elevated and more of the multiple dwellings would be able to take advantage of views to the coast with the given height of the structures, it is not sufficient, in the Tribunal's view, to provide a basis for endorsing an ODP provision that would introduce into the locality a height that will not have a minimal adverse impact on the existing environment.

Issue 2: whether the residential density proposed in the ODP is appropriate

In support of their respective positions on the proposed density of development in the ODP, the Tribunal was taken by the parties to each of the higher level planning documents Liveable Neighbourhoods, Directions 2030, SPP 3 and draft Outer Metropolitan Perth Peel Subregional Strategy.
Mr Young said these higher level documents all encouraged consolidation of residential areas, infill development and higher density in high amenity locations. Mr Young argued that, in a regional and strategic context, the site was proximate to local shops, the services of central Mandurah, Mandurah's available bus service which connects to the railway station, education facilities and public open space. The site also had the advantage of being adjacent to the extensive open space of the neighbouring district recreation reserve. He said that the location of the site relative to these uses and services made it suitable for the higher density residential development proposed in the ODP.
The respondent agreed the site was suitable for urban infill, but argued that the higher level planning documents referred to do not support 'across the board' increases in density throughout established suburbs. It was said the documents supported higher density development only in targeted locations where there would be no detrimental impact on the amenity and character of an existing neighbourhood.
It was common ground between the parties that the proposed ODP would enable the development of 9,000 square metres of residential plot ratio floor area within the defined building envelopes. The parties could not agree on what should be considered as the 'site' boundary for the purpose of plot ratio calculation. The Urban Development zoned land within the site has an area of 10,994 square metres, comprising the 7,581 square metres within Lot 950 and the 3,413 square metres of Lot 103.
Provisions 12.1 and 12.2 of Appendix G of the ODP state that, for the purpose of plot ratio calculation, the total Urban Development zoned land is to be used. Provision 12.1 of Appendix G of the ODP also states that, for the residential tower building envelope and the residential podium building envelope, the plot ratio for development would be that applicable to R80 under the Codes. Maximum plot ratio for R80 is 1.0:1, at Table 4 of the Codes. Provision 13 of Appendix G of the ODP states that development would not be permitted to extend beyond the prescribed three-dimensional building envelopes even if the development did not achieve the maximum plot ratio. Provision 22 of the ODP provides that, if an application is made for more than 106 dwellings, a fresh traffic study is required. If this number of dwellings were applied for, each such dwelling would have a plot ratio floor area of about 85 square metres.
Ms Amanda Butterworth, a planner called by the respondent, said the three residential buildings were on Lot 950, and so the proposed density should be based on the Urban Development zone within that lot.
The Tribunal has formed the view that the site is appropriately considered as a single lot for the purposes of the development concept in the ODP. This is because, as described above, the proposed multiple dwelling buildings and the clubhouse development and the uses associated with the clubhouse are interdependent for the purpose of vehicle access, driveways and both ground level and basement car parking. The plot ratio floor area for the multiple dwelling buildings and clubhouse can be individually identified, but Lot 103 and Lot 950 must be developed together to achieve the proposed development concept. If development in the form shown on the ODP were to proceed, the Tribunal considers that amalgamation of the two lots of the site would be required to facilitate development across what would otherwise be separate lots, to be consistent with orderly and proper planning.
TPS 3 does not designate a particular plot ratio for Urban Development zones. The site previously had under the Tourist zoning a specific maximum plot ratio equivalent to R40 for multiple dwellings. The applicant argued that, to be consistent with the objectives for changing the zoning and providing for an Urban Development zone, then the R80 coding equivalent is appropriate.
The applicant did not aggregate the plot ratio floor area of the two different uses, but determined separately the plot ratio of the clubhouse and the residential buildings, each in respect of the total area of the Urban Development zoned land. On this basis, the residential buildings were calculated by the applicant to have a plot ratio of 0.82:1, which is under the density plot ratio for the R80 coding under Table 4 of the Codes.
Ms Butterworth said the floor area of the multiple dwelling buildings and the clubhouse should be aggregated and considered as a ratio of the total Urban Development zoned area. This would be a plot ratio of 1.5:1, which, Ms Butterworth said, was the bulk and scale of buildings expected in the R100 density code, not that of R80 under Table 4 of the Codes.
The Tribunal notes that the application is not for the development approval of a particular number of dwellings. The Tribunal further notes that the ODP identifies a development concept that designates particular building envelopes and a range of uses. In the event, quite how the residential density is calculated is not determinative of the matter. In the Tribunal's view, what is determinative of the matter is the scale, bulk and extent of the development that will result from the building envelopes in the ODP and the parking and access required for that development.
The Tribunal has formed the view that the scale of the development is too great for the site, and this is interrelated with what the Tribunal has concluded are overheight buildings. If the scale of the development, including height, were reduced, then it would follow that a different plot ratio floor area would result. Whether this is calculated using the approach of the applicant or the approach of the respondent is not considered, ultimately, to be determinative of the matter. If the proposed residential density, as expressed in the proposed plot ratio floor area of the ODP, requires the proposed height and extent of the development, then the answer to issue 2 is that the residential density of the ODP is not appropriate.

Issue 3: whether the form and density of development proposed in the ODP will have an inappropriate adverse impact on the amenity of the neighbouring properties by reason of one or more of height, bulk, scale, overlooking, reduction in privacy, noise, light or increased traffic

Consistent with the conclusions reached by the Tribunal in the discussion under issue 1 and issue 2 above, the Tribunal has formed the view that development to the extent that would be allowed under the proposed ODP would have an inappropriate impact on local amenity because of the scale and height of the proposed buildings.
In addition, because of the proximity of the residential buildings, an angled view of the northsouth axis of the development would be of an apparently continuous, high structure and, in this regard, the Tribunal has formed the view that development would be of an unacceptable bulk.
In respect of overlooking and privacy, the Tribunal accepts the applicant's submission that the building setbacks, relative height above immediately neighbouring properties, and potential design controls on a development application could address any overlooking of adjoining backyards.
In respect of noise, the applicant referred to the reduction in noise because residential parking would be within the buildings. The Tribunal accepts that distance and vegetation might ameliorate vehicle noise impacts from the accessways at the eastern side of the buildings. However, it is noted that the scale of the development requires open air parking for the golf club at the front of the club building, including the road verge in Marsh Place opposite houses, and at the southern end of the site about 15 metres from the rear fence of neighbouring residences. Whether these parking areas would be used after hours and on weekends by customers of the restaurant and reception centre and by golf club members using club facilities was not clear. Noise studies more properly would be part of an application for development approval, but the Tribunal is sufficiently concerned to note the proximity of the open air parking areas to neighbouring residential uses as having potential for adverse amenity impacts.
The impact of lights from vehicles was difficult to determine on the evidence before the Tribunal. It would appear that this might be controlled by appropriate development conditions and the location of the exit and access crossovers. Similarly, a lighting plan as part of the development application might control light impact from safety and security lighting throughout the site and tall buildings.
The applicant had a traffic assessment prepared that concluded that the traffic generated by the proposed uses would not exceed the capacity of the local access roads serving the site. The applicant also submitted that the previous Tourist zoning of the site might well have had development with a greater impact than the uses now proposed in the ODP. The Tribunal, however, considers a relevant consideration to be the impact of traffic attracted to this residential locality by the uses that would be permitted under the proposed ODP, particularly a reception centre and a restaurant that would be allowed in the clubhouse. Orderly planning requires that infill development not have a detrimental impact on the amenity and character of the existing neighbourhood in which it would proceed. While the traffic volume generated might be accommodated on the roads, the traffic generated by what are proposed as 'permitted' uses in the ODP would be a concern unless constrained by conditions of development approval controlling the type and timing of traffic movement.

In respect of issue 3, the Tribunal has formed the view that, specifically, the height, bulk and scale of the development would result in an adverse amenity impact on the locality.

Conclusion

In respect to issue 1, the Tribunal has concluded that the proposed ODP would allow development of a height and scale that would be excessive.
In respect to issue 2, the Tribunal concluded that, while the density of development, of itself, is not necessarily inappropriate for the site, the building envelopes proposed to accommodate the proposed development are inappropriate, and this is interrelated with the plot ratio of the clubhouse uses and the infrastructure required to support those uses.
Certain of the items to be considered under issue 3 might be the subject of appropriate conditions under a development approval, but the Tribunal considers such conditions would not be sufficient to overcome the adverse impact which, it has concluded, the scale, height and bulk of the proposed development would have on the locality around this infill site.
The Tribunal has, therefore decided to dismiss the application for review.

Orders

1.The application for review is dismissed.
2.The decision of the City of Mandurah to reject the proposed Outline Development Plan for Lot 950 and Lot 103 Marsh Place, Halls Head is affirmed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER