PURSER and CITY OF NEDLANDS - [2022] WASAT 51

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   PURSER and CITY OF NEDLANDS [2022] WASAT 51
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   1 JUNE 2022
DELIVERED          :   1 JUNE 2022
PUBLISHED           :   3 JUNE 2022
FILE NO/S:   DR 262 of 2021
BETWEEN:   ANNABELLE PURSER
STEPHEN PURSER
Applicants
AND
CITY OF NEDLANDS
Respondent
FIONA ELIZABETH ARGYLE
Proposed Intervenor

Catchwords:

Practice and procedure - Town planning - Participation by third party - Intervention - Whether third party has sufficient interest - Whether intervention necessary to enable Tribunal to meet its objectives - Residential development - Neighbour - Setbacks - Compatibility - Application to make submissions under s 242 of Planning and Development Act 2005 (WA)

Legislation:

City of Nedlands Local Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2)
Planning and Development Act 2005 (WA), s 142, s 242, s 243
State Administrative Tribunal Act 2005 (WA), s 37(3), s 38
State Planning Policy 7.1 - Residential Design Codes Volume 1

Result:

Application partly successful

Representation:

Counsel:

Applicants	:	J Algeri
Respondent	:	CA Slarke
Proposed Intervenor	:	P McQueen

Solicitors:

Applicants	:	Altus Planning and Appeals (as agents)
Respondent	:	McLeods
Proposed Intervenor	:	Lavan

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

Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Clark and Western Australian Planning Commission [2007] WASAT 33; (2007) 49 SR (WA) 277
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
Pitt v Environment, Resources and Development Court (1995) 66 SASR 274
Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; 34 WAR 342
Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55
Stockdale and Shire of Mundaring [2007] WASAT 34; (2007) 49 SR (WA) 286
Walsh and Shire of Peppermint Grove [2009] WASAT 46; 61 SR (WA) 335
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
Yum Restaurants International and City of Rockingham [2008] WASAT 136

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The proposed development the subject of this proceeding is for a single house (the Proposed Development) to be located on Lot 99 (No 37C) Kinninmont Avenue, Nedlands (the Land).
These reasons deal with an application to intervene, or alternatively to make a submission, from the owner of No 39 Kinninmont Avenue, which adjoins the southern boundary of the Land.
At the conclusion of the hearing on 1 June 2022, I made orders dismissing the application to intervene but allowing a submission to be made pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act). I advised that my reasons for decision would follow. These are those reasons.
The Land was recently the subject of a subdivision approval granted by the Western Australian Planning Commission (WAPC). The subdivision created three side-by-side lots, all of which front Kinninmont Avenue. The Land is one of the three approved lots (being Lots 99, 98 and 97).
The Land:
a)has an area of 337m²;
b)is vacant and relatively flat;
c)is zoned Urban in the Metropolitan Region Scheme and Residential in the City of Nedlands Local Planning Scheme No 3 (LPS 3); and
d)has a density code of R 60.

Background

The Pursers (the Applicants) are the purchasers of the Land. Plans for the Proposed Development were submitted to the City of Nedlands (Respondent) in July 2021 and amended plans were put forward in November 2021.
At its meeting on 23 November 2021, the Respondent refused the Proposed Development on the basis of a failure to meet the following principles of State Planning Policy 7.3 - Residential Design Codes Volume 1 (R Codes):
a)design principle cl 5.1.3 - lot boundary setback; and
b)design principle cl 5.2.2 - garage widths.
The Applicants sought review in the Tribunal and further amended plans were submitted culminating in the Respondent being invited to reconsider its decision at its meeting on 22 March 2022. The Respondent's professional planning staff recommended approval, but the motion was lost on the basis that 'Council did not consider that the modifications to the plans submitted after the mediation … warranted approval being granted'.
The proposed plans were refined further on 5 April 2022 and it is these plans that form the basis of the Proposed Development and the subject of the proceeding.
I now turn to the principles which inform the question of intervention in planning reviews before the Tribunal.

Intervention in the Tribunal

Intervention in a planning review may be granted pursuant to s 37 of the State Administration Act 2004 (WA) (SAT Act). In the context of the interests being advanced by the Proposed Intervenor, I note that the intervention under s 37(3) may be granted to advance what are essentially private interests: Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; 34 WAR 342 [40] (Steytler P, Wheeler and McLure JJA).
The principles that inform the question of intervention in planning reviews are well known and settled. These principles were set out by Judge Chaney, as he then was, in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 (ING) [28].
The principles are:
a)in order to be granted leave, the proposed intervenor must demonstrate, at least, an interest sufficient to gain standing based on the tests arising from the Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 (Australian Conservation Foundation);
b)demonstrating a sufficient interest does not, of itself, justify the granting of leave to intervene;
c)a special interest group will not gain standing to intervene just because of its constitutional objects which may focus on issues relevant to the matter before the Tribunal, nor will a private citizen be granted leave to intervene merely on the basis of strong personal beliefs;
d)the interest in question need not be a legal interest, although it often will be;
e)demonstrating an interest which is sufficient so as to justify joinder under s 38 of the SAT Act is not sufficient;
f)the proposed intervenor will need to establish that intervention is necessary to enable the Tribunal to meet its objectives under both the SAT Act (including minimising costs and avoiding delays) and, in this instance, the PD Act. Relevant factors to consider will include:
i)the likely contribution of the intervenor for the proper disposition of the issues;
ii)whether the interest to be represented and the material to be advanced will be adequately dealt with by the parties to the proceeding; and
iii)the overall impact that the grant of intervention will have on the proceeding;
g)ordinarily, an intervenor will only be permitted to support or oppose a decision contended for by a party and will not be permitted to introduce new issues for consideration; and
h)intervention will, in general terms, not be permitted where the third party seeks to raise the same point that is being raised by an existing party.
In Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 (Wattleup Road) at [11] Judge Parry recited the principles set out in ING and identified the two principal elements in the exercise of discretion under s 37(3) of the SAT Act. Furthermore, the discretion under s 37(3) is broad: Wattelup Road [11].
The two principal elements are:
1)the proposed intervenor must demonstrate an interest sufficient to meet the test of standing to seek judicial review, as set out in the Australian Conservation Foundation decision; and
2)the proposed intervenor will, generally, need to demonstrate that intervention is necessary to enable the Tribunal to meet its objectives as well as the objectives of the PD Act.

Application to intervene

On 26 April 2022, the owner of Lot 275 (No 39) Kinninmont Avenue, Nedlands applied for leave to intervene in the proceeding (Proposed Intervenor). Lot 275 adjoins the southern boundary of the Land.
If intervention is not granted, the Proposed Intervenor applies for leave to make a submission pursuant to s 242 of the PD Act.
I deal, next, with the submissions on the question of intervention. I note here that the Respondent made no submissions on the question of intervention.

Proposed Intervenor's submission

The Proposed Intervenor outlines that an application to subdivide Lot 275 is currently before the WAPC. That application proposes the creation of a new lot which will immediately adjoin the Land (Proposed Future Lot).
The Proposed Intervenor submits she (as the owner of the Proposed Future Lot) will be disadvantaged because the Proposed Development does not satisfy the statutory planning provisions relating to the Land the result of which will contribute to:
a)overshadowing and an unacceptable loss of adequate direct sun to the primary outdoor and indoor living areas of the existing dwelling on Lot 275 and significant challenges for direct sunlight on the Proposed Future Lot;
b)loss of actual and perceived privacy on Lot 275 and considerable challenges for an acceptable level of privacy to be achieved on the development of the Proposed Future Lot;
c)loss of existing amenity on Lot 275 and a lack of adequate amenity afforded to the owners of the Proposed Future Lot; and
f)diminished market value of the Proposed Future Lot owing to limitations and challenges to future development.
The Proposed Intervenor further submits that intervention is necessary in order to determine the full extent of the issues concerning the Proposed Development as it holds the 'detailed and complete information' on the application to create the Proposed Future Lot.
To address that issue, the Proposed Intervenor seeks to lead independent expert evidence from an architect experienced in urban design, and to make a submission, so as to illustrate how the Proposed Development will manifest an unacceptable level of impact on the Proposed Future Lot beyond that posed to existing Lot 275.
The Proposed Intervenor submits that the issues of building setbacks and garage width (and consequential visual connectivity between the dwelling and the streetscape) cannot be assessed in isolation against the evidence to be adduced by the Applicants and the Respondent.
Rather, they require direct quantitative and qualitative analysis having regard to the matters set out in cl 67(2) of the deemed provisions (being the provisions contained in Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA)).
The Proposed Intervenor submits that the Proposed Development will have a significant and unacceptable amenity (and consequently economic) impact on the Proposed Future Lot which will be contrary to the principles of orderly and proper planning and will also create an undesirable precedent.
In this respect, the Proposed Intervenor submits that the position is analogous to that in Wattleup Road where she holds 'special' and 'particular' information that is not otherwise available to the Tribunal or to the parties.
The Proposed Intervenor submits that the parties alone cannot adequately represent the interests of the Proposed Intervenor or advance that same material that the Proposed Intervenor would advance at a hearing. That is because the information held by the Proposed Intervenor is not in the possession of the parties nor is it otherwise on the public record.
The Proposed Intervenor also submits that it is not an option for the Tribunal to fully inform itself of the amenity impacts on Lot 275 and the Proposed Future Lot without evidenced adduced by the Proposed Intervenor. This is because the evidence would need to deal with technical questions including detailed models and shadow diagrams testing the impact of the Proposed Development against the Proposed Future Lot.
The Proposed Intervenor says that, even if intervention was granted, the final hearing should still be able to be completed with two days and the issues in contest are not being expanded upon. Therefore, there will be no unreasonable impact on the conduct of the proceeding.
On 31 May 2022, the Proposed Intervenor filed an affidavit. The Proposed Intervenor deposes that the subdivision to create the Proposed Future Lot is still being assessed by the WAPC and that it is her intention to construct a dwelling on the Proposed Future Lot (to be No 39A). In oral submissions Mr Paul McQueen, counsel for the Proposed Intervenor, added that a development application has been lodged for a single storey single house on the Proposed Future Lot to be lived in by a family member.

Applicants' submission

The Applicants oppose leave being granted to intervene. They say that there is nothing to suggest that the Proposed Future Lot will actually be created.
It is also the case, the Applicants submit, that having regard to the issues in contest in the proceeding, the Respondent is likely to call planning evidence and could also call the Proposed Intervenor as a witness in support of its case. Indeed, it appears to be common ground that the Applicants and the Respondent will each adduce planning evidence at the final hearing.
The Applicants submit that the Proposed Intervenor does not have a sufficient interest in the proceeding to either intervene or to make a submission pursuant to s 242 of the PD Act for the following reasons:
a)while approval of the Proposed Development of a single dwelling will result in a change on the Land, the extent and impact of this change is not necessarily any different from that for any other property in an urban context where the applicable density coding does not reflect the existing built form or lot pattern;
b)the Proposed Intervenor has not articulated what 'specific disadvantages beyond amenity impacts' will occur and therefore, the concerns are no higher than mere grievance; and
c)any intended emphasis on any regard to be given future subdivision and development applications on the Proposed Future Lot prior to approvals being granted and subsequently acted upon, are merely speculative.
The Applicants reject the Proposed Intervenor's submission that only she holds the information that informs the Proposed Future Lot. Any such information could be included in a supplementary bundle or in a witness statement.
The Applicants also reject the submission that there is non-compliance with the R Codes and assert that such a statement 'is false and misleading'. The question of whether the Proposed Development complies with the R Codes is in contest in the proceeding (in Issues 1 and 2). Furthermore, any claims by the Proposed Intervenor that there will be non-compliance with respect to overshadowing or privacy are rejected as the Proposed Development meets the deemed-to-comply requirements in relation to such design elements.
The Applicants also submit that any architect called by the Proposed Intervenor can only speculate on the likely built form of any future dwelling that may be contemplated on the Future Proposed Lot. That submission was overtaken, to some extent, by the fact that the Proposed Intervenor has, on the day before the hearing, lodged a development application for the Future Proposed Lot.

Consideration and result

Intervention

The situation that confronts this locality is a consequence of the change in density coding that accompanied the finalisation and gazettal of LPS 3. Prior to LPS 3, the locality had a density coding of R 10. As this particular locality transitions to an R 60 area, the inevitable consequence of that will be subdivisions where lots smaller than that would otherwise be permissible under the R 10 coding will be created and subsequently developed.
That the development on newly created lots, smaller than those which prevail in a locality, evokes some concerns and misgivings from neighbours is not a novel planning issue. In this regard, see Walsh and Shire of Peppermint Grove [2009] WASAT 46; 61 SR (WA) 335.
In saying that, I am not blind, nor unsympathetic, to the fact that some of the amendments to the density codes in LPS 3 were made contrary to the wishes of some people in the community. That community must now live with the very real and tangible planning consequences of those amendments. Some of the changes in built form arising from these amendments to the planning framework will be significant, perhaps even stark. I am in no doubt that that backdrop colours this proceeding, and the desire to intervene, at some level.
However, for the following reasons, I decline to grant leave for the Proposed Intervenor to intervene.
In terms of addressing the principal considerations set out in Wattleup Road, I am satisfied that the Proposed Intervenor has a 'sufficient interest' in the sense explained by Mason J in Australian Conservation Foundation. That is to say, I am satisfied that, as an adjoining landowner who will have a direct interface with the Proposed Development, the Proposed Intervenor has a direct material interest in the proceeding. In this regard, I do not accept the Applicants' submissions.
However, turning to the second test from Wattleup Road, I am not satisfied that intervention is necessary in order for the Tribunal to meet its objectives under the SAT Act to make the correct and preferable decision in relation to the Proposed Development. My reasons for that conclusions can be shortly stated.
At the background of this reasoning is the reality that there are no third-party planning appeals in Western Australia and joinder to a planning review is expressly excluded by s 243 of the PD Act. It is not for me, as the Tribunal, to manufacture, in effect, a broad third-party appeal right under the device of intervention. While the discretion may be broad, s 37(3) of the SAT Act must also be read and applied in the context of SAT Act as a whole, together with consideration of the enabling Act (the PD Act).
Ultimately, this is an application for a single house on a lot in a residential area. The Proposed Development does not satisfy the deemed-to-comply requirements of the R Codes and thus needs development approval. The Respondent is not satisfied that, on the merits, approval should be granted and hence the matter is on review before the Tribunal. That is a very common planning scenario.
In this instance, the Respondent is concerned about the boundary setbacks (Issue 1) and the garage width and the interface between the dwelling and the street (Issue 2) as well as compatibility issues (Issue 3).
The Proposed Intervenor's concerns about setbacks reflect Issue 1 and the question of compatibility arises under Issues 2 and 3. Furthermore, the question of setbacks does, at some level, encapsulate the corollary issues of overshadowing and privacy as well as its built form aspects. The point being that the evidence sought to be adduced by the Proposed Intervenor will likely be adduced by the Respondent.
In this regard, there is no basis for intervention. Rather than assisting the Tribunal, I find that the Proposed Intervenor would simply be duplicating evidence that would result in the parties incurring additional and unnecessary costs.
The prospect of the creation of the Future Proposed Lot does not change the outcome. That lot is not yet created and is therefore only a possibility at this time. Furthermore, the Respondent will be aware of that prospect by reason of the consultation requirements for subdivision embedded within s 142 of the PD Act.

The proposed dwelling on the Future Proposed Lot also does not change how the discretion under s 37(3) of the SAT Act should be exercised. The Proposed Intervenor deposes that she intends to construct an intervening dwelling between Lot 275 and the Land.
I simply cannot envisage how that outcome can do anything but lessen the impact of the Proposed Development (should it ultimately be approved) on Lot 275. I find that the Tribunal does not need expert architectural evidence to confirm that. The Proposed Development may still cause an impact on Lot 275, but any impact must be diminished somewhat by the Proposed Intervenor's proposed intervening dwelling which will be located on the Future Proposed Lot.
Noting that the Proposed Intervenor is seeking to develop a dwelling on the Future Proposed Lot, I also accept that there will be issues to manage between the Proposed Development and that proposed dwelling. However, any such planning and design issues are not novel nor necessarily complex. I am satisfied that the planning evidence that will be adduced can adequately address the management of that interface (noting that at this time, the prospect of a dwelling on the Proposed Future Lot is, at this time at least, hypothetical).
Accordingly, I find there is no basis on which intervention should be granted. The application to intervene is dismissed.
Section 242 submissions
I turn next to the question of a submission pursuant to s 242 of the PD Act. The authorities on this question include Shire of Augusta-Margaret River v Gray (2005) 143 LGERA 55 [139] (Pullin JA); Clark and Western Australian Planning Commission [2007] WASAT 33; (2007) 49 SR (WA) 277 [21]-[30]; Stockdale and Shire of Mundaring [2007] WASAT 34; (2007) 49 SR (WA) 286 [27] (Barker P); and Yum Restaurants International and City of Rockingham [2008] WASAT 136 at [17]-[29] (Chaney DP). The leading authority is Pitt v Environment, Resources and Development Court (1995) 66 SASR 274, 275 (Doyle CJ).
The relevant considerations, for the purposes of s 242 of the PD Act, include:
a)the nature and strength of the interest of the proposed submitter;
b)the contribution which the [proposed submitter] is likely to be able to make to a proper resolution of the issues before the [Tribunal];
c)whether the interest which the [proposed submitter] represents and the material to be advanced by that person will be adequately dealt with by the parties already before the [Tribunal];
d)the impact upon the proceedings;
e)the interests of the parties before [the Tribunal] as of right and the public interest in the prompt and efficient despatch of proceedings; and
f)any other factors particular to the case.
In this instance, I find that the Proposed Intervenor's interest in the proceeding, as an adjoining landowner, is relatively strong and that written submissions would not impact on the conduct of the proceeding.
While the submission would canvas and overlap with the planning evidence that will no doubt be adduced by the parties, the position of the Proposed Intervenor as a neighbour would, in my view, inform that evidence and therefore assist the Tribunal in reaching the correct and preferable decision.
I will therefore allow the Proposed Intervenor to make a submission pursuant to s 242 of the PD Act.

Orders

The Tribunal orders:
1.The application to intervene is dismissed.
2.The owners of No. 39 Kinninmont Avenue, Nedlands may file a submission outlining the concerns with the development the subject of the proceeding, any such submission is to be filed 7 days prior to the final hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
3 JUNE 2022