MIVIANJAMA PTY LTD and SHIRE OF MUNDARING
[2022] WASAT 3
•14 JANUARY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MIVIANJAMA PTY LTD and SHIRE OF MUNDARING [2022] WASAT 3
MEMBER: MS C BARTON, MEMBER
MR R POVEY, MEMBER
HEARD: 7, 8 AND 9 SEPTEMBER 2021
DELIVERED : 14 JANUARY 2022
FILE NO/S: DR 25 of 2016
BETWEEN: MIVIANJAMA PTY LTD
Applicant
AND
SHIRE OF MUNDARING
Respondent
FILE NO/S: DR 41 of 2016
BETWEEN: MIVIANJAMA PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Development application - Exercise of planning discretion - Adaptive reuse - Orderly and proper planning - Characterisation of land use - Whether proposed use is a residential building or grouped dwelling - Dwelling - Human habitation - Caretaker's dwelling - Ancillary use - Consistency with objectives of rural residential zone - Building envelope - Building footprint - Character of locality - Rural character and amenity - Visual amenity - Traffic - Proximity to services and facilities
Legislation:
Evidence Act 1906 (WA)
Metropolitan Region Scheme, cl 30(1), cl 32
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67, cl 67(2), cl 67(2)(b), cl 67(2)(n), cl 90(2)
Planning and Development Act 2005 (WA), s 252(1)
Planning Regulations Amendment Regulations 2020 (WA), reg 74(2), Pt 2
Shire of Mundaring Local Planning Scheme No 4, cl 1.6, cl 1.6(j), cl 4.2.2, cl 4.3.2, cl 5.9.2.2, cl 5.9.2.2(b), cl 5.9.2.7, cl 5.2.9.2.9, cl 5.9.13, cl 9.4, Sch 1
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27, s 27(1), s 29(3), s 31(1), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 3.7 - Residential Design Codes Volume 1, Appendix 1
Result:
Application dismissed
Category: B
Representation:
DR 25 of 2016
Counsel:
| Applicant | : | Ms B Moharich |
| Respondent | : | Mr C Slarke |
Solicitors:
| Applicant | : | Moharich & More |
| Respondent | : | McLeods |
DR 41 of 2016
Counsel:
| Applicant | : | Ms B Moharich |
| Respondent | : | Mr A Carr |
Solicitors:
| Applicant | : | Moharich & More |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Bethane v Mohammadi [2018] WASCA 98
Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Corp and Town of Cambridge [2019] WASAT 65; 97 SR (WA) 252
G&G Corp Asset Management Pty Ltd and Presiding Member of the Metro East Joint Development Assessment Panel [2018] WASAT 9
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319
Price and Shire of Gingin [2008] WASAT 210
Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Turnbull Group v North Sydney Council [1998] NSWLEC 253
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The buildings and associated infrastructure located at No 1710 (Lot 96) Clayton Road, Helena Valley (subject land) was used as a wildlife research facility by the CSIRO from 1965 until 1998, when operations ceased (CSIRO building).
These proceedings relate to the adaptive reuse of the CSIRO building for residential accommodation. The applicant in proceedings DR25 of 2016 and DR 41 of 2016 is Mivianjama Pty Ltd (applicant). The respondent in DR 25 of 2016 is the Shire of Mundaring (Shire) and the Western Australian Planning Commission (WAPC) is the respondent in DR 41 of 2016.
On 17 August 2015, the applicant sought approval from the Shire under the Shire of Mundaring Local Planning Scheme No 4 (LPS 4 or Scheme) to use the CSIRO building for the purpose of 17 residential accommodation units, including a caretaker's unit, and communal facilities (proposed development). The application was referred by the Shire to the WAPC for determination under cl 32 of the Metropolitan Region Scheme (MRS).
The Shire and WAPC refused the proposed development. In early 2016, the applicant applied to the Tribunal for a review of the decisions to refuse the proposed development pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
On 20 January 2017, following mediation, the Shire initiated Amendment 10 to LPS 4 which proposed rezoning the subject land from Rural Residential to Special Use (Amendment 10). The proposed special use comprised a residential building with each accommodation unit containing an ensuite and kitchenette, excluding the provision of a hotplate or oven.[1] Amendment 10 was advertised by the Shire but it did not ultimately proceed.
[1] WAPC's s 24 Bundle, page 492.
On 2 October 2019, the applicant modified its development application deleting the hotplates and the words 'kitchenette' and 'caretaker's dwelling' from the plans of the proposed development (amended application).[2] The amended application was refused by the Shire and WAPC.
[2] Shire's s 24 Bundle, page 40; ts 41, 8 September 2021.
The applicant is seeking orders from the Tribunal setting aside the decisions of the Shire and WAPC in respect of the amended application and granting approval for the proposed development.
For the reasons set out in this decision, we conclude that the amended application, the subject of review, should be dismissed and the decisions of the Shire and WAPC made in respect of the amended application affirmed.
The proposed development
The proposed development comprises the following:[3]
[3] WAPC's Statement of Issues Facts and Contentions (SIFC), paras 10-17; Applicant's SIFC, page 3.
a)Sixteen single bedroom units, a manager's accommodation unit, and common facilities including a kitchen, dining area, laundry and swimming pool.
b)Each unit is to contain a single bedroom, ensuite bathroom and living area. Within the living area is a bench which is proposed to have a sink and can accommodate a small fridge. Meal preparation and dining are to be in the shared common facilities.
c)One of the 16 single bedroom units, Unit 6, is designed to be accessible for a resident with a disability.
d)The units are to be leased with a minimum three month lease. Short-term rentals are not proposed.
e)Twenty resident car parking spaces and 13 visitor bays are proposed. The parking is located along the Clayton Road and Fyfe Street frontages of the subject land and to the south of the proposed building.
f)Sewerage disposal will occur on site.
g)Reticulated water and electricity are available to the subject land.
h)The existing single house on the subject land is to be retained.
Subject land and the locality
The subject land has an area of 4.1 hectares and is formally described as Lot 96 on Deposited Plan 23238 being the whole of the land in certificate of title Volume 2157 Folio 684. It has a frontage to Clayton Road and Fyfe Street and access is proposed via Fyfe Street.
The subject land is zoned Rural under the MRS and Rural Residential under LPS 4. It adjoins Rural zoned land under the MRS to the immediate west, east and south, and Urban zoned land to the north (on the northern side of Clayton Road). To the northeast, diagonally opposite the subject land, is land zoned Parks and Recreation under the MRS. The land to the north of Clayton Road, opposite the subject land, is Residential zoned land, under LPS 4, which is coded R5.
The subject land is located approximately 10 kilometres south-west of the Mundaring town site and approximately 6 kilometres to the nearest strategic metropolitan centre, Midland. It slopes in a westerly direction down to the Helena River and Bush Forever site 215. The subject land is substantially parkland cleared, although it retains some remnant vegetation, particularly adjacent to the Helena River.
The subject land contains the CSIRO building which was used as a wildlife research facility between 1965 and 1998. The CSIRO building is located in the north-east corner of the subject land and was used as a research laboratory and offices. The CSIRO building has been vacant since 1998, and is in a dilapidated condition due to lack of maintenance, vandalism, and theft of fittings but remains structurally sound.[4]
[4] WAPC's SIFC, para 24; Applicant's SIFC, page 3.
A single dwelling, in reasonable condition, is located on the southern portion of the subject land. The subject land is within a bushfire prone area. It has no footpaths along its boundary to the Clayton Road or Fyfe Street frontages. The subject land is 985 metres from public transport bus services located at the corner of Clayton Road and Scott Street.
The Helena River traverses the locality in a south-east to northwest direction. South of the Helena River is Gooseberry Hill National Park, further Rural Residential development and a limited amount of residential (R2.5 and R5) development.
An area of land further to the west of the subject land, at the junction of Scott Street and Helena Valley Road, is zoned Urban under the MRS, and Residential R5 and Local Centre under LPS 4. This area also contains a Public Purposes (School) reserve under LPS 4.[5]
The procedural history and the decisions the subject of the review
[5] Applicant's SIFC, page 3.
On 17 August 2015, the applicant applied to the Shire for development approval under LPS 4 for a development described as a 'Residential Building' on the subject land.
The application was referred by the Shire to the WAPC for determination under cl 32 of the MRS as the proposal, in the opinion of the local government and the WAPC, may not be consistent with the Rural zone under the MRS as set out in Schedule 1, cl 2(b) of the WAPC's resolution RES 2015/01, made under cl 32 of the MRS, dated 15 May 2015.[6]
[6] WAPC's SIFC para 2.
The Shire's public consultation process generated 21 submissions, 20 of which objected to the proposed development.
On 18 December 2015 the Shire refused the application under LPS 4 for various reasons.[7] On or about 14 January 2016, the applicant applied to the Tribunal for a review of the Shire's refusal under s 252(1) of the PD Act.
[7] Shire's SIFC para 4.
On 29 January 2016, the WAPC refused the application under the MRS for various reasons.[8] On 10 February 2016, the applicant applied to the Tribunal for a review of the WAPC's refusal under s 252(1) of the PD Act.
[8] WAPC's SIFC para 4.
Following mediation, the Shire initiated Amendment 10[9] to LPS 4, and reconsideration under s 31 (1) of the State Administrative Tribunal Act (WA) 2004 (SAT Act) by the Shire and the WAPC of the amended application.
[9] The Shire was advised on 2 June 2020 that Amendment 10 to LPS 4 had been refused by the Minister for Planning (WAPC's s 24 Bundle, page 678). Amendment 10 is detailed at pages 489-514 of WAPC's s 24 Bundle.
On 10 December 2019, the Council of the Shire resolved to refuse the amended application for the following reasons:[10]
1)The land is zoned 'Rural' in the MRS and 'Rural Residential' in LPS 4 and the proposed development is contrary to the intent of the rural zoning which is to preserve the rural character, amenity and landscape of the area.
2)The proposed development is considered of a residential nature, achieving a dwelling density similar to the R5 density code, which is inconsistent with the intent of the Rural zoning under the MRS and under LPS 4.
3)Approval of the proposed development would set an undesirable precedent for 'Rural Residential' zoned land in the locality.
[10] Shire's SIFC, para 10 and Shire's s 24 Bundle, pages 57-80.
On 20 April 2021, the WAPC refused the amended application for the following reasons:[11]
1)The land is zoned 'Rural' in the MRS and 'Rural Residential' in LPS 4 and the proposed development is contrary to the intent of the rural zoning which is to preserve the rural character and landscape of the area.
2)Approval of the proposed development is contrary to orderly and proper planning by reason that the land use proposed is inconsistent with the planning intentions for this rural locality where there is a lack of facilities to support density living, and will prejudice the character of the area.
3)Approval of the proposed development would set an undesirable precedent for 'Rural' zoned land in the area.
[11] WAPC's SIFC, para 43 and WAPC's s 24 Bundle, pages 23-24.
On 12 May 2020, the Council of the Shire resolved not to adopt Amendment 10 which was initiated by the Shire on 20 January 2017 and subject to advertising.
On 2 June 2021, Amendment 10 was refused by the Minister for Planning.
Issues for determination
The following issues arise for determination by the Tribunal:
1)Is the proposed development capable of approval?
2)Is the proposed development consistent with the Rural zoning of the subject land under the MRS?
3)Is the proposed development consistent with the Rural Residential zoning of the subject land under LPS 4?
4)Is the proposed development consistent with the rural character and amenity of the locality?
5)Is the proposed development appropriately located to enable access to community services and facilities normally associated with a residential use?
6)Is approval of the proposed development consistent with the principles of orderly and proper planning?
The Tribunal's review jurisdiction
By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[12]
[12] Section 18, SAT Act.
The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[13]
[13] Section 27, SAT Act.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[14] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[15]
[14] Section 32(2)(a), SAT Act.
[15] Section 32(1), SAT Act.
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[16] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[17] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
The conduct of the hearing and expert evidence
[16] Section 27(1), SAT Act.
[17] Section 32(2)(b), SAT Act.
Each party filed with the Tribunal and gave to the other parties a statement of issues, facts and contentions. On 23 July 2021, the Shire filed a bundle of documents under s 24 of the SAT Act. The WAPC also filed a bundle of documents under s 24 of the SAT Act dated 9 July 2021. The applicant filed its bundle of documents on 12 August 2021.
The applicant relied on the evidence of Mr Jeffrey Malcolm who has 20 years' experience as a town planner and is employed by MGA Town Planners. Mr Malcolm prepared a witness statement dated 26 August 2021.
The Shire relied on the evidence of Mr Simon O'Hara who is a director and principal planner with Statewide Planning. Mr O'Hara has almost 40 years' experience as a local government planner and planning consultant. Mr O'Hara prepared a witness statement dated 27 August 2021.
The WAPC engaged Ms Amanda Butterworth to provide an independent planning assessment of the proposal which is the subject of the review. Ms Butterworth is a town planner and senior associate with Allerding & Associates and prepared a witness statement dated 26 August 2021. Ms Butterworth also prepared an amended witness statement dated 8 September 2021 which the WAPC tendered in evidence along with a summary of changes to her original statement.
The proceedings were heard on 7, 8 and 9 September 2021 with the parties and all expert witnesses attending the Tribunal in person. The Tribunal had the benefit of a site view on 7 September 2021 during which those present walked the perimeter of the proposed development footprint and observed, from the corner of Fyfe Street and Clayton Road, the change in level from the north-eastern boundary of the subject land to the location of the proposed development. We also observed a disused laboratory and an internal corridor from the western perimeter of the CSIRO building. However, no one attending the view entered the CSIRO building due to the possible existence of asbestos containing material. We left the subject land and observed the nature of development along Fyfe Street. We also observed the degree of visibility of the CSIRO building from Clayton Road, the nature of development on the northern side of Clayton Road, the footpaths on Clayton Road (commencing at Leawood Crescent), and the existing bus stops on Coulston Road. The view included the new Boya Community Centre and library on the corner of Scott Street and Clayton Road, and the Scott Street local centre.
The planning framework
Extracts from the relevant planning framework, which we have considered in determining the application, are included in Annexure A to our reasons. The relevant planning framework includes, but is not limited to, the following:
1)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)
2)MRS
3)LPS 4
4)State Planning Policy 1 - State Planning Framework (SPP 1)
5)State Planning Policy 2.5 - Rural Planning (SPP 2.5)
6)State Planning Policy 4.2 - Activity Centres Policy for Perth and Peel (SPP 4.2)
7)State Planning Policy 7.3 - Residential Design Codes Volume 1 (R-Codes)
8)North-East Sub-Regional Planning Framework and Peel and Perth @3.5 Million (North-East SubRegional Planning Framework)
9)Shire of Mundaring Local Planning Strategy (LP Strategy)
10)Shire of Mundaring Local Commercial Strategy (Local Commercial Strategy)
11)Shire of Mundaring Foothills Growth Strategy (Foothills Growth Strategy)
The Tribunal's consideration
In considering an application for development approval under LPS 4, we are required to have due regard to the matters set out in cl 67(2) of Sch 2 to the LPS Regulations (Deemed Provisions) to the extent that they are relevant to the development the subject of the application.[18] We must also have regard to the matters in cl 30(1) of the MRS.
[18] Regulation 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.
Before considering the merits of the proposed development, we must determine whether it is capable of approval under LPS 4. This will depend on whether the proposed use of the subject land is permitted in the Rural Residential zone.
Is the proposed development capable of approval?
The parties have asked us to determine whether the proposed use is properly characterised as a 'residential building' or 'grouped dwelling' under LPS 4. Both expressions are defined in Sch 1 to LPS 4 by reference to the definitions set out in Appendix 1 to the R-Codes.
A 'residential building' in the Rural Residential zone is an 'A' use. An 'A' use means that the use is not permitted unless the Shire has exercised its discretion by granting development approval after first advertising the application.[19] In contrast, 'grouped dwelling' is an 'X use in the Rural Residential zone and, therefore, a use that is not permitted. It follows that if the proposed use falls within the use class of 'grouped dwelling', it will not be capable of approval under LPS 4.
[19] Clause 1 of the Deemed Provisions.
Schedule 1 to LPS 4 provides that the expressions 'residential building' and 'grouped dwelling' have the same meaning as in the RCodes.
The R-Codes define 'residential building' as:[20]
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
•temporarily by two or more persons; or
•permanently by seven or more persons who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel a motel or a residential school.
[20] Appendix 1, R-Codes.
The expression 'grouped dwelling' is defined in the R-Codes as:[21]
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above or below another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
[21] Appendix 1, R-Codes.
The expression 'dwelling' is defined in the R-Codes as:[22]
A building or portion of a building being used, adapted or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who not comprise a single family.
[22] Appendix 1, R-Codes.
The expression 'human habitation' which is referred to in the definitions of 'residential building' and 'dwelling' is not defined in the RCodes. Because the term 'human habitation' is not defined in the RCodes, it is necessary for us to consider its ordinary meaning and the context in which it is used having regard to the purpose of the R-Codes and LPS 4.[23]
[23] See Bethane v Mohammadi [2018] WASCA 98 at [32]; Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
The word 'habitation' is defined in the Macquarie Dictionary Online as:
noun 1. a place of abode; dwelling.
2. the act of inhabiting; occupancy by inhabitants.
The Macquarie Dictionary Online defines the expression 'inhabiting' as:
verb (t) 1. to live or dwell in (a place), as persons or animals.
2. to have its seat, or exist, in.
The purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia, whilst the purpose of LPS 4 is to, amongst other things, control and guide land use and development. Having regard to the provisions and objectives of the R-Codes and LPS 4, we find that the expression 'human habitation' should be broadly construed as a place or building in which a person resides or lives.
Summary of the parties' contentions
It is the Shire's position that each unit within the proposed development meets the definition of a 'dwelling' and, therefore, if each unit is a dwelling, the proposed use falls within the use class of 'grouped dwelling'. In support of this interpretation, the Shire relied on the evidence of Mr O'Hara. In Mr O'Hara's opinion, each residential unit is a portion of a building designed or intended to be used for the purpose of human habitation on a permanent basis by a single person (or no more than six persons).[24] He stated that, based on the definition of 'dwelling' in the R-Codes, the absence of a kitchenette does not mean that the unit ceases to be used for the purpose of human habitation on a permanent basis.[25] Mr O'Hara also observed that a kitchenette could be installed even though it is not currently shown on the plans and notwithstanding the Shire's draft condition requiring no food preparation occur in the accommodation units.[26] Nevertheless, Mr O'Hara had no objection to the proposed development being characterised as a 'residential building' because he considered that the provision of communal cooking and laundry facilities is consistent with the traditional notion of a 'residential building' as opposed to a 'grouped dwelling'.[27]
[24] Witness statement of Simon O'Hara dated 27 August 2021, para 40.
[25] ts 34, 8 September 2021.
[26] Witness statement of Simon O'Hara dated 27 August 2021, para 48; ts 34, 8 September 2021.
[27] Witness statement of Simon O'Hara dated 27 August 2021, para 49.
Ms Butterworth's evidence was consistent with that of Mr O’Hara. It was her opinion that the proposed development, as illustrated on the plans, reasonably fits within the definition of a 'residential building'.[28]
[28] Amended witness statement of Amanda Butterworth, dated 8 September 2021, para 54.
The applicant rejected the Shire's contention that the proposed development is a 'grouped dwelling' simply because each unit falls within the meaning of a 'dwelling' as such an interpretation would render the definition of 'residential building' redundant.[29] The applicant relied on the evidence of Mr Malcolm in support of its position that the proposed use satisfies the definition of a 'residential building'. Mr Malcolm observed that the proposed development will house more than seven persons on a permanent basis, for a period of not less than three months. Mr Malcolm further observed that the definition of 'residential building' does not specify a maximum number of persons able to be accommodated in a single residential building. Based on the number of permanent residents to be accommodated and the communal nature of the facilities, it was Mr Malcolm's opinion that the use class of 'residential building' is the most fitting.[30]
Meaning of 'dwelling' and land use characterisation
[29] ts 24, 7 September 2021.
[30] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 63.
When determining the characterisation of a land use, one closely examines the precise activities proposed, having regard to the objective matrix of facts and circumstances, but not the subjective intentions or expectations of the parties: Turnbull Group v North Sydney Council [1998] NSWLEC 253 at [72]; Price and Shire of Gingin [2008] WASAT 210 at [51]-[52].
In Corp and Town of Cambridge [2019] WASAT 65; 97 SR (WA) 252 (Corp), the Tribunal considered whether a proposal for duplicated residential wings on the ground floor of a building was a single house or two separate dwellings. The Tribunal stated that the question as to the proper characterisation of a proposal is an evaluative judgment that involves questions of fact and degree in the sense explained by the Western Australian Court of Appeal in Nairn v Metro Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319[31] (Nairn). Whilst the Tribunal ultimately concluded in Corp that the proposal was two separate dwellings and therefore, properly characterised as 'multiple dwellings' and not a single house, it observed that a separate laundry is not a mandatory element of an independent 'self-contained' dwelling.[32]
[31] Nairn at [90] (Buss P, Murphy JA, Beech JA).
[32] Corp at [111].
The plans that are the subject of the amended application show, and we find, that each accommodation unit is designed to have a single bedroom, ensuite bathroom with toilet facilities, and living area. We further find that each accommodation unit will have an area with a bench/sink, referred to as a 'kitchenette' on the original plans, but without a hotplate or fridge on the amended plans. Under crossexamination, Mr Malcolm acknowledged that it would be anticipated that residents would have a small fridge in the units for necessities, such as medication or milk for tea and coffee in their rooms.[33] Mr Malcolm stated that there would be no cooking facilities.[34]
[33] ts 42, 8 September 2021.
[34] ts 45, 8 September 2021.
We accept the evidence of Mr O'Hara and Ms Butterworth, and we find, that each accommodation unit which comprises a bedroom, ensuite bathroom with toilet facilities, living area, and bench/sink with space for a small fridge, is designed or intended to be used for the purpose of human habitation by a single person or two persons on a permanent basis. Having regard to Corp and the meaning of 'human habitation', we find that the absence of laundry and cooking facilities does not cause each accommodation unit to cease being a dwelling. Consequently, we find that each accommodation unit is a separate 'dwelling' for the purposes of the R-Codes.
We do not, however, accept the Shire's contention that because each unit satisfies the definition of a 'dwelling' that the proposed development, taken as a whole, satisfies the land use classification in the RCodes of a 'grouped dwelling'. Although the expression 'dwelling' is referred to in the definition of 'grouped dwelling' and, therefore, informs the meaning of it, 'grouped dwelling,' and 'residential building' are separate and distinct land uses under LPS 4. To construe 'grouped dwelling' in the manner proposed by the Shire would make it impossible to characterise a land use as a 'residential building' so far as it relates to permanent as opposed temporary accommodation. We therefore accept the applicant's contention on this point.
Based on our examination of the objective matrix of facts and circumstances in this case, and our evaluative judgment, we find that the proposed use is properly characterised as a 'residential building'. We make this finding for the reasons that follow.
First, the accommodation units are not independent of each other but do rely on communal facilities including a kitchen, dining/library area, laundry, recreation courtyard and swimming pool. We find that the presence of communal facilities, particularly in relation to cooking, dining and laundry, is consistent with the definition of a residential building.
Second, the accommodation units are unique in their design with the plans of each unit showing a bench/sink but no cooking facilities and, therefore, cooking is to occur in a shared kitchen. We observe that the application was amended to remove the hotplate from the kitchenette to more closely align the proposed use to that of a 'residential building'.
Third, the manager's accommodation is located on the same site as the accommodation units, which is not characteristic of a grouped dwelling. The location of the manager's accommodation supports a finding that the proposed use is to operate as a residential building.
Fourth, the plans show 17 units, with each unit limited to one bedroom. Consequently, the proposed development will accommodate more than seven people who do not comprise a single family which, we find, is consistent with the definition of a 'residential building'.
Because the proposed use is properly characterised as a 'residential building', we find that it is capable of approval under LPS 4.
'Caretaker's dwelling' as an ancillary use
The proposed development includes a self-contained manager's accommodation unit which the Shire says is a prohibited use because it falls within the definition of a 'caretaker's dwelling,' an 'X' use in the Rural Residential zone.
The applicant contends that the use of the manager's accommodation unit should be treated as part of the 'residential building' use and not as a separate or distinct use. In support of its position, the applicant relies on the evidence of Mr Malcolm. It is Mr Malcolm's opinion that the manager's accommodation is ancillary to the use of the land as a 'residential building' because the manager will be involved in the dayto-day operations of the building and the activities of the residents, which include maintaining the grounds and the communal facilities, implementing the bushfire management plan, and ensuring the wastewater disposal apparatus is functional.[35]
[35] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 67.
A caretaker's dwelling, an 'X' use in the Rural Residential zone, is defined in Sch 1 to LPS 4 as follows:
'caretaker's dwelling' means a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant[.]
The expression 'predominant use' is defined in Sch 1 to LPS 4 as 'the primary use of premises to which all other uses carried out on the site are subordinate, incidental, or ancillary'.[36] It is a well-established principle of planning law that an activity that is subordinate, incidental, or ancillary to a predominant land use is not in itself a use requiring development approval, but rather, is part and parcel of the predominant use.[37]
[36] The expression 'incidental use' is defined in Sch 1 to LPS 4 as 'a use of premises which is ancillary and subordinate to the predominant use'.
[37] See G&G Corp Asset Management Pty Ltd and Presiding Member of the Metro East Joint Development Assessment Panel [2018] WASAT 9 at [16].
We find, based on the evidence of Mr Malcolm which we accept, that the manager is involved in the day-to-day operations of the building and the activities of the residents. Consequently, we find that the manager's accommodation use falls within the meaning of a 'caretaker's dwelling' for the purposes of LPS 4. This is because the dwelling will be occupied by a manager who will supervise an operation/building, in the form of residential accommodation units, and will reside on the same site as that accommodation. However, we find that the manager's accommodation use would not occur on the subject land without the presence of the accommodation units because the manager is required on-site to maintain the building, communal facilities, and associated services. For this reason, we find that the manager's accommodation use is subordinate, incidental, or ancillary to the predominant use of the subject land as a 'residential building' and is not a separate or distinct land use.
Consequently, we find that the proposed development is capable of approval under LPS 4.
We will next consider whether the proposed development, is consistent with the Rural zoning of the subject land under the MRS and its Rural Residential zoning under LPS 4.
Is the proposed development consistent with the Rural zoning of the subject land under the MRS?
SPP 2.5 guides planning decisions for development proposals on Rural zoned land under the MRS.[38] The policy intent of SPP 2.5 provides:
The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the important of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
[38] SPP 2.5, cl 3.3(c).
Clause 3.3(c) of SPP 2.5 provides that the policy is to be applied to State and local government decision-making for development proposals on rural zoned land. Clause 5.1 of SPP 2.5 identifies that the WAPC will seek to protect rural land as a State resource by requiring that land use change from rural to other uses be planned and provided for in a planning strategy or scheme. The applicant observed that cl 5.1 of SPP 2.5 does not apply in this case because there is no proposal for a change in land use from Rural to another use.[39] Although we accept the applicant's position in respect of cl 5.1 of SPP 2.5, we nevertheless find that because the subject land is zoned Rural under the MRS the policy intent of SPP 2.5, which is to ensure broad compatibility between land uses in order to protect landscape values, is relevant to our determination.
[39] ts 211, 9 September 2021.
It is the WAPC's position that the proposed development is inconsistent with the Rural zoning under the MRS of the subject land because of the intensity of the proposed land use. The WAPC says that the statutory and strategic planning framework does not contemplate any change to the Rural zoning. In support of its position, the WAPC relied on the evidence of Ms Butterworth.
In Ms Butterworth's opinion, the proposed development is not consistent with the Rural zoning of the subject land under the MRS because it has the potential to accommodate 34 people in permanent accommodation in addition to the residents of the single dwelling that already exists on the land.[40] Ms Butterworth observed that the scale and intensity of the proposed development, with 17 separate units over approximately 5,000m2, in addition to the retention of the existing dwelling, is not consistent with the intensity of development in nearby Rural zoned land and would not be expected in a Rural zoning.[41] In her written statement, Ms Butterworth considered the terms of the NorthEast Sub-Regional Planning Framework, the LP Strategy and LPS 4 but was unable to identify any strategy or scheme that planned or provided for future urban development or a change of zoning on the subject land.[42]
[40] Amended witness statement of Amanda Butterworth, dated 8 September 2021, para 80.
[41] Amended witness statement of Amanda Butterworth, dated 8 September 2021, para 82.
[42] Witness statement of Amanda Butterworth, dated 8 September 2021, paras 64-66 and para 79.
The applicant contends that the impact of the proposed development is consistent with the Rural zoning of the subject land under the MRS because it is a land use that is capable of approval in the Rural Residential zone under LPS 4.[43] Although the proposed use is novel and, therefore, will have a different impact to a single dwelling, the applicant's position is that the proposed use is consistent with the zoning of the subject land.[44]
[43] ts 216, 9 September 2021.
[44] ts 216, 9 September 2021.
The WAPC calculated the density of the development as equivalent to a Residential R5 density based on average lot sizes of 2,277m2.[45] Mr Malcolm, who was engaged by the applicant as an expert witness, did not agree with the WAPC's calculation as he considered it would generate a much larger and more dispersed development footprint, or higher intensity, than that proposed.[46] In Mr Malcolm's opinion, applying the methodology adopted by the WAPC would result in residential buildings being deemed inappropriate in any residential zone.[47]
[45] WAPC SIFC, paras 87-91.
[46] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 73; ts 39, 8 September 2021.
[47] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 76.
Although the proposed development is capable of approval under LPS 4, this does not mean that it is consistent with the Rural zone under the MRS. Whilst we acknowledge Mr Malcolm's concerns about the application of the WAPC's methodology to calculate density, we nevertheless find, based on the evidence of Ms Butterworth which we accept, that the proposed development is of a scale and intensity that is incompatible with other rural residential development in the Rural zone. Consequently, we find that the proposed development is inconsistent with the Rural zoning of the subject land under the MRS. We further find, based on the evidence of Ms Butterworth, which we accept, that the statutory and strategic planning framework does not contemplate any change to the Rural zoning of the subject land.
Is the proposed development consistent with the Rural Residential zoning of the subject land under LPS 4?
We have been asked to determine whether the proposed development is consistent with the Rural Residential zone under LPS 4. The objectives of the Rural Residential zone are:[48]
(a)To provide for residential use in a rural setting, in suitable and appropriate locations in reasonable proximity to services.
(b)To conserve the natural environmental as far as possible for the enjoyment of resident as well as the maintenance of ecological and landscape values, particularly by the protection of native vegetation (trees and understorey) and by water-sensitive development.
(c)To provide for other uses compatible with and complementary to rural living, subject to appropriate land capability and suitability and protection of residential amenity.
(d)To ensure the conservation of soil, watercourses and other water resources and the protection of ecological and landscape values.
[48] LPS 4, cl 4.2.2.
Clause 1.6 of LPS 4 sets out the aims of the Scheme and, relevantly provides that the Scheme aims to provide for variety and choice in housing to meet the changing needs of the community, in particular the need for housing for aged or dependent persons.[49]
[49] LPS 4, cl 1.6(j).
The Shire says that the proposed development achieves a dwelling density similar to a residential R5 density, which is inconsistent with the intent of the Rural Residential zoning under LPS 4. In support of its position, the Shire relies on the evidence of Mr O'Hara. Mr O'Hara is of the opinion that whilst the proposed development is residential in nature and located in a rural setting, it is not compatible or complementary to rural living or protection of amenity due to the high density of dwellings.[50] Mr O'Hara observed that the Shire cannot approve more than one single house on a lot in the Rural Residential zone under cl 5.9.13 of LPS 4 (with the subject land capable of being subdivided into two lots) and that more intense forms of residential use, such as, 'grouped dwellings' and 'multiple dwellings' are prohibited in the zone.[51] For these reasons, Mr O'Hara is of the opinion that the zone objectives anticipate low density single houses and, consequently, the proposed development is fundamentally different to the nature of residential development that currently exists and is planned for the Rural Residential zone.[52] Mr O'Hara also considers that the location of the subject land is not conducive to residential development of the density proposed because it is not in reasonable proximity to services. He observed that the Scott Street local centre is not within a walking catchment (with no footpath from the subject land in any event) and there is no convenient access to buses.[53]
[50] Witness statement of Simon O'Hara dated 27 August 2021, para 54.
[51] Witness statement of Simon O'Hara dated 27 August 2021, para 55.
[52] Witness statement of Simon O'Hara dated 27 August 2021, para 56.
[53] Witness statement of Simon O'Hara dated 27 August 2021, para 57.
In contrast, the applicant says that the proposed use is consistent with the Rural Residential zone and relies on the evidence of Mr Malcolm in support of its position. Mr Malcolm did not agree with the Shire's assessed impact of the proposed development. Mr Malcolm observed that if the land was subdivided and developed according to the R5 density standard, it would result in the development of 18 separate single dwellings on lots greater than 2,000m2. In Mr Malcolm's opinion, this would result in higher density living, together with a more dispersed development footprint than that proposed by the applicant.[54] Mr Malcolm is also of the opinion that the proposed development is within reasonable proximity to services because of its proximity to the Scott Street local centre and, therefore, it satisfies the first objective of the Rural Residential zone.[55]
[54] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 74.
[55] ts 76, 8 September 2021.
Whilst we do not consider applying a R5 density standard to the assessment of the proposed development is justified, we nevertheless find, based on the evidence before us, that the proposed development is of a significantly higher intensity than that which currently exists on land in the Rural Residential zone. We further find, based on the evidence of Mr O'Hara which we accept, that the objectives and development requirements for the Rural Residential zone anticipate lower intensity development than that proposed. Consequently, having regard to the provisions of LPS 4, we find that the proposed development is inconsistent with the Rural Residential zoning of the subject land.
Is the proposed development consistent with the rural character and amenity of the locality?
We must, in considering an application for development approval, have due regard to the existing and future amenity of the locality including, relevantly, the character of the locality.[56] The term 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
The locality and its current and likely future amenity
[56] Clause 67(2)(n), Deemed Provisions.
The correct approach to an amenity assessment does not involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development.[57] The Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (Sunbay) at [20]. In Sunbay, the Tribunal referred to the decision of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Town Planning Appeal Tribunal observed that:[58]
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
[The Tribunal emphasised that the first part of the inquiry involves a determination,] as a matter of fact, [of] the objective character of the area that represents the present state of amenity[.]
[57] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70].
[58] Sunbay at [20].
In Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187 at [42], the Tribunal considered the concept of locality and found as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case.
The experts agreed, and we find, that the locality, for the purposes of assessing its character and determining its amenity, encompasses those properties on the south side of Clayton Road, down to the Helena River, which are zoned and developed for rural residential purposes. There was no dispute, and we find, that the locality extends to the area opposite the subject land to the north, west of Approach Road, which is zoned Urban and developed for residential purposes, and includes land to the east of Approach Road on the north side of Clayton Road which is a mix of reserves and rural residential properties.
Mr O'Hara described the current amenity of the locality as rural in nature and observed that there is no strategic planning proposal to change the zoning in a manner that would alter the existing amenity in the future.[59] Mr Malcolm accepted that the south side of Clayton Road, between Fyfe Street and Scott Street, has a rural residential character.[60] However, he observed that the local character would be altered in the future because of the Helena Valley Urban Investigation Area, shown in the North-East Sub-Regional Planning Framework,[61] which is located within 450 metres of the subject land.[62] He also observed that higher residential densities is a strategy recommended by the LP Strategy in Helena Valley north of Clayton Road and Katharine Street.[63]
[59] Witness statement of Simon O'Hara dated 27 August 2021, para 61; ts 104, 8 September 2021.
[60] ts 90, 8 September 2021.
[61] North-East Sub-Regional Planning Framework, Perth and [email protected], WAPC, March 2018.
[62] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 83.
[63] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 83.
In Ms Butterworth's opinion, the land on the northern side of Clayton Road forms part of the relevant locality but, because it is zoned Urban, it has a different character to the land on the southern side of Clayton Road. Ms Butterworth described the southern site of Clayton Road as having a rural character typified by spacious lots predominantly above 1 hectare with scattered vegetation and limited agricultural use, and with single dwellings on most properties.[64] Because the subject land is not identified as future urban in the state strategic planning framework, Ms Butterworth considered that the amenity of the locality is not likely to substantially change in the foreseeable future.[65]
[64] Witness statement of Amanda Butterworth dated 26 August 2021, para 91.
[65] Witness statement of Amanda Butterworth dated 26 August 2021, para 92.
We accept the evidence of Mr O'Hara and Ms Butterworth, and we find, that the current amenity and character of the locality is rural in nature. We acknowledge that the Helena Valley Urban Investigation Area, shown in the North-East Sub-Regional Planning Framework, may result in a change to the amenity of the broader locality in the future but there was no evidence before us that this was imminent or certain. Also, there was no evidence before us of any proposal to rezone the subject land to urban. For these reasons, we are not satisfied, that there will be any change to the likely future amenity and character of the locality.
Summary of the parties' contentions
It is the Shire's position that the proposed development is inconsistent with the rural character and amenity of the locality because it will present as urban and be far more visible than the existing development.[66] The Shire relied on the evidence of Mr O'Hara in support of its position. Whilst Mr O'Hara acknowledged the merits of converting an old building to a new use, Mr O'Hara expressed concern that the refurbished building and other improvements will stand out as foreign in contrast to the low density rural residential character and amenity of the locality.[67] Also, in Mr O'Hara's opinion, the significant increase in traffic movements alone would affect the amenity of the surrounding residents.[68] Mr O'Hara observed that low traffic levels are an important aspect of rural residential amenity. However, he estimated that there would be 85 movements per day generated by the proposed development and that in his dealings with the Shire, traffic movements were usually limited to eight per day per lot.[69]
[66] ts 232; 9 September 2021.
[67] Witness statement of Simon O'Hara dated 27 August 2021, para 64.
[68] Witness statement of Simon O'Hara dated 27 August 2021, para 62.
[69] Witness statement of Simon O'Hara dated 27 August 2021, para 62.
In contrast, the applicant contends that the amenity of the locality will be improved by the proposed development.[70] In support of its position, the applicant relied on the evidence of Mr Malcolm. Mr Malcolm observed that the existing CSIRO building does not resemble a residential dwelling.[71] He is of the opinion that the proposed modifications will result in a building design that is more in keeping with that normally established and anticipated in the Rural Residential zone.[72] Mr Malcolm stated that vegetation clearing would be limited to the proposed development footprint, vehicle accessways and where necessary to meet bushfire safety requirements. Consequently, when viewed from Clayton Road, Mr Malcolm considers that the balance of the subject land would retain its vegetated, open landscape character.[73]
[70] ts 218, 9 September 2021.
[71] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 79.
[72] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 81.
[73] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 78.
In relation to traffic generation, Mr Malcolm noted that the increase in traffic movements of 85 vehicles per day, is only 4.25% above existing volumes on Clayton Road. Consequently, Mr Malcolm is of the opinion that the increase in traffic generation is not substantial and can be accommodated on the existing road network.[74]
The building envelope
[74] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 82.
Clause 5.9.2.7 of LPS 4 provides that where a building envelope applying to a lot is contained in the Shire's Register of Building Envelopes, every building erected on that lot shall be located within the boundaries of the building envelope. The objectives of building envelopes within the Rural Residential zone are to:[75]
(a)protect Local Natural Areas, other vegetation, watercourses, damp areas and features of special environmental significance from development;
(b)concentrate built development on each lot so as to preserve the amenity and landscape values of the area;
(c)avoid areas where ground or soil conditions may inhibit the structural integrity of buildings or cause pollution, erosion or flooding; and
(d)ensure effluent disposal systems are appropriately located.
[75] LPS 4, cl 5.9.2.2.
The Shire observed that the existing CSIRO building does not fit within the current building envelope for the subject land, which requires a 20 metre setback from the boundary to Clayton Road (building envelope).[76] This observation was consistent with the evidence of Mr O'Hara who stated that the proposed development will extend beyond the building envelope by the construction of the internal ring road and the retaining walls, resulting in the removal of mature vegetation. In Mr O'Hara's opinion, these works will not concentrate the built development so as to preserve the amenity of the landscape and, therefore, is inconsistent with the objective of building envelopes in cl 5.9.2.2(b) of LPS 4.[77] Ms Butterworth agreed with Mr O'Hara's comments and observed that the northern arm of the building would be extended further north (by approximately 3 metres) and also to the north-east for the purposes of an accessible accommodation unit (Unit 6).[78]
[76] ts 16, 7 September 2021.
[77] ts 157, 8 September 2021.
[78] Amended witness statement of Amanda Butterworth dated 8 September 2021, paras 83(e)-(f), Annexure AJB5; ts 159, 8 September 2021.
Mr Malcolm conceded, under cross-examination, that the extent of the proposed development will not be confined to the current footprint of the CSIRO building.[79] Mr Malcolm also accepted that most of the trees to be removed would be considered mature trees and that they contribute to the rural character and amenity of the locality.[80] However, he did not consider that the development would result in any perceived erosion of the existing rural residential character, but rather would improve it.[81] Mr Malcolm stated:[82]
… I would consider that in conjunction with the benefits derived from improving this building and also the extent to which screening might be applied on the corner, you know, replacement vegetation that could grow to a similar stature and density.
[79] ts 144, 8 September 2021
[80] ts 168, 8 September 2021.
[81] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 81.
[82] ts 168, 8 September 2021.
There was no dispute, and we find, that the subject land is contained in the Shire's Register of Building Envelopes[83] and that the plan showing the building envelope for the subject land depicts a 20 metre setback from Clayton Road.[84] We further find, based on the evidence of Mr O'Hara and Ms Butterworth, which we accept, that the proposed development will not be concentrated within the building envelope because of the proposed internal ring road, car parking and retaining walls adjacent to Clayton Road. We accept the evidence of Mr O'Hara and Ms Butterworth, and we find, that the removal of mature vegetation adjacent to Clayton Road to facilitate the development beyond the building envelope is inconsistent with the objective in cl 5.9.2.2(b) of LPS 4 of preserving the amenity and landscape value of the area.
Amenity impact of the proposed development
[83] WAPC's s 24 bundle of documents, page 484; Sch 11 to LPS 4.
[84] Shire's s 24 bundle of documents, page 81.
For the reasons that follow, we find that the proposed development is inconsistent with the rural character and amenity of the locality.
First, based on the evidence of Mr O'Hara, which we accept, we find that the proposed development will generate significant traffic movements which will have an adverse impact on the rural amenity. Whilst there was no dispute that the traffic generated by the proposed development could be accommodated on the existing road network, we find that low traffic levels are an important aspect of rural amenity and, therefore, the substantial increase in local traffic movements generated by the proposed development is not in keeping with the current and likely future amenity of the locality.
Second, in relation to visual amenity, we accept the evidence of Mr O'Hara, and we find, that the proposed development will appear from Clayton Road and Fyfe Street as high density dwellings which contrasts with the low density rural residential character of the locality. Notwithstanding the design elements of the proposed development that are intended to be sympathetic to the existing rural character of the locality, such as a gabled roof form and verandas, we find that the length of the modified building, combined with the inner ring road and carparking will give the proposed development an urban character when viewed from Clayton Road. We make this finding despite the existence of residential area to the north of Clayton Road on Urban zoned land which, we find, presents as low density single dwellings in a vegetated setting.
Third, we do not accept that the visual amenity of the land fronting Clayton Road will be preserved. We find, based on the evidence of Mr O'Hara and Ms Butterworth, which we accept, that the proposed development will be located closer to Clayton Road than the existing CSIRO building due to the extension of its northern arm (to the north and north-east) and the construction of the internal ring road, car parking and retaining walls. We accept their evidence, and we find, that the proposed development will be located outside the existing CSIRO building footprint which will necessitate the removal of mature vegetation on the northern boundary of the subject land. Consequently, we find that siting the development closer to Clayton Road than the existing CSIRO building footprint will detract from the existing and likely future amenity of the locality. We consider that the design of the proposed development has a significant impact on amenity and that there are opportunities to reduce the visual impact on adjoining roads.
Fourth, due to the proximity of the proposed development to Clayton Road, and the topography of the subject land, we are not satisfied that vegetation screening on the northern boundary would offset the amenity impacts identified by Mr O'Hara and Ms Butterworth. In any event, a landscape management plan did not form part of the proposed development application.
Fifth, whilst we acknowledge that the applicant may apply to the Shire to amend or remove the building envelope under cl 5.9.2.9 of LPS 4, we accept the evidence of Mr O'Hara and Ms Butterworth, and we find, that the proposed development would not be concentrated within the building envelope but would extend northward and encroach on the 20 metre setback from Clayton Road. We find, for the reasons in [96], that this is inconsistent with the objective in cl 5.9.2.2(b) of LPS 4 of preserving the amenity and landscape value of the area. Consequently, we find that the encroachment of the proposed development on the 20 metre setback from Clayton Road will detract from the existing and likely future amenity of the locality.
Is the proposed development appropriately located to enable access to community services and facilities normally associated with a residential use?
It is the applicant's position that the services in proximity to the subject land are exceptional.[85] The applicant relied on the evidence of Mr Malcolm who stated that the proximity of the subject land to urban areas, services and facilities would have been considered appropriate when it was designated Rural Residential under LPS 4.[86] In Mr Malcolm's opinion, the level of services provided by the Scott Street local centre is consistent with the attributes of a higher order centre because of the array of medical and allied health services available.[87] He identified that the subject land is within 1.3 kilometres of the Scott Street local centre which is generally consistent with the indicative trade area of 1 kilometre for neighbourhood centres under State Planning Policy 4.2.[88] Mr Malcolm also considered that the level of accessibility to employment opportunities for residents in the proposed development would be consistent with that experienced by other residents in the locality.[89]
[85] ts 220, 9 September 2021
[86] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 32.
[87] ts 77, 9 September 2021.
[88] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 68.
[89] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 71.
Both Ms Butterworth and Mr O'Hara were of the opinion that the subject land was not within a walkable catchment of the Scott Street local centre.[90] Also, in Ms Butterworth's opinion, the proposed development does not provide an appropriate community standard in terms of safety and amenity because a resident walking to the Scott Street local centre would be required to traverse a 650 metre section of Clayton Road which has no pedestrian path.[91] She also observed that the proposed development is not within a walkable catchment of a bus stop with the closest bus stop located around 1 kilometre away on Scott Street (to the west), near the intersection of Clayton Road.[92]
[90] Amended witness statement of Amanda Butterworth dated 8 September 2021, para 106; Witness statement of Simon O'Hara dated 27 August 2021, para 38.
[91] Amended witness statement of Amanda Butterworth dated 8 September 2021, para 105 and para 111.
[92] Amended witness statement of Amanda Butterworth dated 8 September 2021, para 108 and para 103.
There was no dispute, and we find, that the subject land is situated in a rural living precinct for the purposes of cl 5.3 of SPP 2.5 which requires that the subject land be adjacent to, adjoining or close to existing urban areas with access to services, facilities and amenities.[93] There was also no dispute, and we find, that the distance from the subject land to the Scott Street local centre is approximately 1.3 kilometres and approximately 1 kilometre to the Boya Community Centre which includes a library, hall, recreation grounds and tennis courts.
[93] SPP 2.5, cl 5.3(c)(i).
Based on the evidence before us, we find that the subject land has reasonable access to community services and facilities normally associated with a residential use if all residents had access to a motor vehicle at all times.[94]
[94] Amended witness statement of Amanda Butterworth dated 8 September 2021, para 109.
An objective of the Rural Residential zone under LPS 4 is to provide for residential use in a rural setting in reasonable proximity to services. Based on the evidence of Ms Butterworth, which we accept, we find, that the distance to the Scott Street local centre is not within a walkable catchment and provides an incomplete footpath in any event. We further find, based on the evidence of Ms Butterworth which we accept, that the proposed development is not within a walkable catchment to a bus stop. For these reasons, we do not consider the proposed development is within reasonable proximity to services and facilities normally associated with a residential use.
Is approval of the proposed development consistent with the principles of orderly and proper planning?
In considering the application before us, we are required by cl 67(2)(b) of the Deemed Provisions and cl 30(1) of the MRS to have due regard to the requirements of orderly and proper planning.
The meaning of the phrase 'orderly and proper planning' was considered by the Western Australia Supreme Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Pritchard J held at [179]-[180]:
… 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.
The applicant contends that the proposed development is consistent with the principles of orderly and proper planning because it would rely on an existing building in respect of a use that is permissible in the Rural Residential zone.[95] The applicant noted that there are a range of other, less desirable, uses that would be appropriate for the CSIRO building that are capable of approval under LPS 4 or the CSIRO building would remain in its current state.[96] The applicant also says that future urban development is envisaged in the locality but there is currently limited rental accommodation available.[97]
[95] ts 221, 9 September 2021
[96] ts 221-222, 9 September 2021.
[97] ts 223, 9 September 2021.
In support of its position, the applicant relied on the evidence of Mr Malcolm. In Mr Malcolm's opinion, the proposed development is consistent with orderly and proper planning because of its proximity to urban areas, services, facilities, and amenities. Mr Malcolm observed that future urban development is contemplated on the southern side of Clayton Road because the North-East Sub-Regional Planning Framework identifies the Helena Valley Investigation Area within 450 metres to the west of the subject land.[98] He also observed that while there are no proposals under the LP Strategy to increase the density of development on the subject land or surrounding land in the Rural Residential zone, the LP Strategy does include a strategy recommendation that consideration be given to increasing the residential density throughout the area of Helena Valley north of Clayton Road and Katharine Street, subject to the extension of infill sewerage and environmental constraints.[99]
[98] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 87.
[99] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 49 and para 88.
Mr Malcolm stated that the Foothills Growth Strategy specifically identifies the CSIRO building and that it should be investigated for an additional or special use as accommodation, as follows:[100]
Investigate rezoning 1710 (Lot 96) Helena Valley Road to either an Additional Use or Special Use for reuse of the former CSIRO building and possibly the curtilage for an accommodation purpose.
[100] ts 188, 9 September 2021; Exhibit 6, page 278.
Mr Malcolm observed that the aims of LPS 4 identify the need to provide for a variety and choice in housing, in particular the need for housing for aged and dependent persons.[101] Similarly, he observed that the LP Strategy identifies the need for more rental accommodation, and single bedroom accommodation suited to aged persons, singles, and childless couples.[102] Consequently, in Mr Malcolm's opinion, the proposed development would help satisfy the aims of LPS 4 and the LP Strategy.[103]
[101] LPS 4, cl 1.6(j).
[102] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 53.
[103] Witness statement of Jeffrey Malcolm dated 26 August 2021, para 89.
The Shire accepts that the proposed development allows for additional housing choice, but it is the Shire's position that the Rural Residential zone is not an area where housing choice is expected or desired because it is an entirely homogenous zone of single dwellings.[104] In any event, it is the Shire's position that because Amendment 10 was rejected it is inconceivable that the subject land would be considered for an additional use or special use under the Foothills Growth Strategy.[105]
[104] ts 235, 9 September 2021.
[105] ts 235, 9 September 2021.
In support of its position, the Shire relied on the evidence of Mr O'Hara. In Mr O'Hara's opinion, the planning framework does not contemplate a residential use of the density and intensity proposed for the subject land.[106] He acknowledged that the LP Strategy recommends that medium housing density be encouraged where reticulated sewer is available. However, Mr O'Hara stated that the subject land does not have access to reticulated sewer and, although he considers that an increase in residential density is desirable as a general planning aim, there is no proposal in the LP Strategy to increase density in the locality.[107] Mr O'Hara says that the acceptability of a higher density/intensity for the subject land was considered, and rejected, through Amendment 10.[108]
[106] Witness statement of Simon O'Hara dated 27 August 2021, para 66.
[107] Witness statement of Simon O'Hara dated 27 August 2021, para 70.
[108] Witness statement of Simon O'Hara dated 27 August 2021, para 67.
The WAPC's position on the issue of orderly and proper planning is consistent with that of the Shire. The WAPC pointed to the evidence of Ms Butterworth in support of its position. In Ms Butterworth's opinion, the proposed development does not meet the requirements of orderly and proper planning because of the intensification of the land use compared to its surrounds.[109] Ms Butterworth stated:
… In this particular case, I do not consider that the development of 17 additional units is suitable or appropriate in this particular location. I believe that the development will adversely affect the rural amenity of the locality because of the intensification of the land use comparable to its surrounds. I also consider that it will affect the visual rural amenity of the locality, particularly along Clayton Road with the presentation of retaining, a bituminised ring road and parking areas being clearly visible from the street, especially given the extent of vegetation being cleared along Clayton Road frontage.
[109] Amended witness statement of Amanda Butterworth dated 8 September 2021, para 119.
We find, based on the evidence of Mr O'Hara and Ms Butterworth, which we accept, that the adaptive reuse of the CSIRO building in the manner proposed by the applicant will lead to an intensification of land use on the subject land that is inconsistent with the Rural Residential zone. Whilst the planning framework aims to provide for a variety and choice in housing and anticipates an increase in residential density in areas that are connected to reticulated sewer, we find that it does not contemplate an increase in density or intensification of land use to the extent proposed by the applicant. There is also no proposal in the shortterm for the subject land to be connected to sewer. For these reasons, we find that the proposed development is not consistent with the requirements of orderly and proper planning. In reaching our conclusion on this issue, we have given due regard to Amendment 10 and the Foothills Growth Strategy but have not considered them determinative.
Conclusion
Because the proposed use of the subject land is properly characterised as a 'residential building', and the manager's accommodation unit is ancillary to that use, the proposed development is capable of approval under LPS 4 and the MRS.
However, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, we find that the correct and preferable decision is to dismiss the applications in proceedings DR 25 of 2016 and DR 41 of 2016 because the proposed development:
1)is inconsistent with the Rural zoning of the subject land under the MRS because it is of a scale and intensity that is incompatible with other rural residential development in the Rural zone;
2)is inconsistent with the Rural Residential zoning of the subject land under LPS 4 because it is of significantly higher intensity than that which currently exists on land in the Rural Residential zone. The objectives and development requirements for the Rural Residential zone anticipate lower intensity development than that proposed;
3)is inconsistent with the rural character and amenity of the locality;
4)is not appropriately located to enable access to community services and facilities normally associated with a residential use; and
5)is inconsistent with the principles of orderly and proper planning.
Accordingly, we will affirm the decisions of the Shire and WAPC made on 10 December 2019 and 20 April 2021, respectively, to refuse the conversion of the former CSIRO building to a residential building on the subject land.
Orders
DR 25 of 2016
The Tribunal orders in DR 25 of 2016:
1.The application is dismissed.
2.The respondent's decision made on 10 December 2019 to refuse the conversion of the former CSIRO building to a residential building at No 1710 (Lot 96) Clayton Road, Helena Valley, is affirmed.
DR 41 of 2016
The Tribunal orders in DR 41 of 2016:
1.The application is dismissed.
2.The respondent's decision made on 20 April 2021 to refuse the conversion of the former CSIRO building to a residential building at No 1710 (Lot 96) Clayton Road, Helena Valley, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
14 JANUARY 2022
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