ROE and CITY OF VINCENT - [2020] WASAT 84

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ROE and CITY OF VINCENT [2020] WASAT 84
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   29 JULY 2020
FILE NO/S:   DR 31 of 2020
BETWEEN:   COLIN ROE
CORRINE ROE
Applicants
AND
CITY OF VINCENT
Respondent

Catchwords:

Town planning - Application for review by judicial member of decision of non-legally qualified member - Scope of review - Requirement to identify question of law - No question of law identified

Legislation:

City of Vincent Local Planning Scheme No. 2, cl 7(1), cl 16(1), Pt 4, cl 25, cl 26
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 60, cl 61, cl 61(1)(c), cl 67, cl 67(g)
Planning and Development Act 2005 (WA), s 244, s 244(1), s 244(3)
State Administrative Tribunal Act 2004 (WA), s 3, s 27, s 105
State Planning Policy 7.3: Residential Design Codes Volume 1, Pt 5, cl 5.2, cl 5.2.2, cl 5.4.2, cl 7.3.1(a)

Result:

Determination of Tribunal in Roe and City of Vincent [2020] WASAT 8 affirmed

Category: B

Representation:

Counsel:

Applicants	:	Mr A McGlue
Respondent	:	Mr A Roberts

Solicitors:

Applicants	:	Lavan
Respondent	:	McLeods Barristers & Solicitors

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

Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Roe and City of Vincent [2020] WASAT 8
Thomas and Town of Cambridge [2013] WASAT 206
Zampatti v Western Australian Planning Commission [2010] WASCA 149

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Under s 244(1) of the Planning and Development Act 2005 (WA) (PD Act), the Tribunal constituted by a judicial member may, of its own motion or upon an application by a party under s 244(3), 'review a direction, determination or order upon a matter involving a question of law that was made by the [Tribunal] when constituted without a legally qualified member'.
This matter comes before the Tribunal by way of an application dated 11 February 2020 made by the applicants (applicants) under s 244(3) of the PD Act. The applicants seek a review of a decision of the Tribunal constituted by Member Ms R Moore reported as Roe and City of Vincent [2020] WASAT 8 (Member's Decision).
Ms Moore is not a legally qualified member of the Tribunal within the meaning of s 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The nature of the review

Section 244 of the PD Act relevantly provides as follows:
SAT review of some SAT decisions
(1)The State Administrative Tribunal constituted by a judicial member may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.
(2)The State Administrative Tribunal constituted by a judicial member may
(a)affirm the direction, determination or order; or
(b)revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.
…
Pullin JA in Zampatti v Western Australian Planning Commission [2010] WASCA 149 (Zampatti) at [27] (Buss JA agreeing) held that 'an applicant for review [under s 244(1) of the PD Act] by a judicial member must demonstrate that there has been some step taken by the … member in arriving at its conclusion which involved a 'question' of law', but that '[i]f the law is referred to [in the decision of the member] but the parties were not in issue about the law, then there will be no 'question' of law.'
If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review; Zampatti at [28].
It is 'a prerequisite of jurisdiction that the question of law identified must be really, and not colourably involved'; Zampatti at [28].
Pullin JA and Kenneth Martin J expressed different views in relation to whether s 244 of the PD Act requires the demonstration of an error of law in the primary decision. Pullin JA held that an applicant for review by a judicial member must demonstrate that there has been some step taken by the member who is not legally qualified in arriving at his or her conclusion which involved a 'question' of law, but that it is not necessary to show that there was an error of law; Zampatti at [27]. Kenneth Martin J held that the requirement to demonstrate an error of law is 'reasonably implied in the nature of the s 244 review process'; Zampatti at [51].
In Zampatti at [26], Pullin JA said that the word 'review' requires consideration of the context in which the word appears. His Honour noted in this regard that 'it is relevant that the legislative framework found in the [PD Act] and the SAT Act provides that a review before [the Tribunal] is a hearing de novo (by reason of s 27 of the SAT Act) but does not so provide in relation to a review under s 244 of the [PD Act]'. His Honour considered that this is likely to have been a deliberate omission because, by the time a case reaches the point where an applicant seeks a review under s 244, an applicant will have had the opportunity to put forward a case of its choosing to the respondent and then be given a further opportunity to put forward the same or a different case before the Tribunal. His Honour in the same passage observed that it would be an expensive and wasteful procedure to allow a third merits review before a judicial member.
His Honour noted, also at [26], that s 244 states that the review is only permitted if the matter involves a question of law. That, his Honour said, also makes it clear that the right of review under s 244 is not to open up a fresh merits review.
If a decision does involve a question of law, then the whole of the decision and not merely the question of law is open to review; Zampatti at [27].
Kenneth Martin J in Zampatti at [105] said that he also does not accept that a judicial member of the Tribunal under s 244 of the PD Act is required to conduct a full review hearing de novo. Rather, a review under s 244 is a review by re-hearing, which 'carries its own character, by reference to a unique statutory heritage'; Zampatti at [109] per Kenneth Martin J.
He further observed (Zampatti at [111]) that the notion that a judicial member of the Tribunal was required in a s 244 review to deal with questions of law not formulated or put for consideration at the hearing by the member who is not legally qualified is 'manifestly unworkable'.

Background to the Member's Decision

The land the subject of the Member's Decision comprises Lot 201 (No 48A) and Lot 202 (No 48) Egina Street, Mount Hawthorn (Lots or, individually, a Lot).
On 20 May 2019, the applicants submitted two separate development applications to the respondent (City) for the Lots. The two proposed developments are each for a single dwelling, one on each Lot. Both dwellings are two storey and similar in floor plan.
Each proposed dwelling has a double garage accessed from Egina Street. The dwelling at No 48 has a street setback to the garage of 8.21 metres and the garage of No 48A has a street setback of 8.31 metres. Both dwellings have upper level balconies that project either 1.1 or 1.2 metres over the garage below.
The two development applications were considered by the City in August 2019. Development approval in both cases was refused. The City's reasons for refusing the two development applications are set out in the Member's Decision at [13] and [14]. Without repeating those reasons but in broad summary, in the case of each of the development applications the City considered that, as a consequence of the bulk, scale and dominating appearance of the proposed single dwelling and garage, the proposed development:
(a)is not an appropriate design for the context of the place;
(b)is not compatible with the established residential area in which it is located and is inconsistent with an objective of the Residential zone under the Scheme;
(c)is not compatible with its setting; and
(d)would have an adverse impact on the amenity and character of the locality.
The City's concerns which led to its refusal also include the adequacy of onsite landscaping, sustainability principles and, in the case of Lot 201, concerns about a proposed boundary wall.
The applicants then applied to the Tribunal for a review of the City's two decisions and, following the hearing of the review (Review Hearing), the Member's Decision was delivered on 13 January 2020.

Planning framework

Before I turn to the findings of the member and her reasons for those findings, it is first necessary to consider the relevant planning framework within which the member made her decision. This is set out at [19]-[26] of the Member's Decision and I respectfully agree with what the member says there. For convenience, I will repeat those paragraphs.
The Lots are both zoned Urban under the Metropolitan Region Scheme and Residential with a density coding of R-30 under the City of Vincent Local Planning Scheme No. 2 (LPS 2 or Scheme).
Clause 7(1) of LPS 2 states that the Scheme includes the provisions of the Scheme text, the plans, maps, diagrams, illustrations and materials, the Scheme map and the provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).
Under cl 60 of the deemed provisions, a person must not commence or carry out any works on, or use, land without obtaining development approval unless the development is exempt under cl 61.
Clause 61(1)(c) of the deemed provisions states that development approval is not required for the erection of a single house on a lot if the State Planning Policy 7.3: Residential Design Codes Volume 1 (R Codes) apply to the development and the development satisfies the deemed-to-comply requirements of the R Codes.
Clause 67 of the deemed provisions sets out the matters that the local government (and the Tribunal on review) is to have due regard to when considering an application for development approval, and relevantly includes the following:
(a)the aims and provisions of this Scheme …;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(e)any policy of the Commission;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(y)any submissions received on the application[.]
Dwelling (single house) is a 'P' use in the Residential zone in accordance with 'Table 1 - Zoning table' of LPS 2, which means that the use is permitted if it complies with the relevant development standards and requirements of the Scheme.
Part 4 of LPS 2 sets out general development requirements and at cl 25 states that the R Codes (as modified by cl 26) are to be read as part of the Scheme. Clause 26 of LPS 2 contains modifications to the R Codes which were not relevant in the proceedings before the member and which I do not consider to be relevant in these proceedings.
However, the member considered that the City of Vincent Local Planning Policy No. 7.1.1: Built Form (Built Form Policy) was relevant to her decision; Member's Decision at [26].
I respectfully agree that the Built Form Policy was a relevant consideration by virtue of cl 67(g) of the deemed provisions.

Member's Decision

I now turn to the Member's Decision and the reasons for her decision.
At [27] of the Member's Decision, the member sets out what she understood and what clearly was accepted by the parties at the Review Hearing to be the two issues to be determined. They are as follows:
(1)Whether the proposed dwellings satisfy the objectives of the Residential zone, particularly:
(a)whether they facilitate and encourage high quality design with regard to their presentation to the streetscape; and
(b)whether they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
(2)Whether the designs of the proposed dwellings are consistent with sustainability principles, including solar passive design and energy efficiency, and whether approval of the dwellings would be consistent with the design principles and objectives of the R Codes relating to solar access to adjoining sites (cl 5.4.2).
In these reasons I will refer to these issues as, respectively, Issue 1 and Issue 2.
The applicants say in their s 244 application to the Tribunal that a review is sought only in respect of Issue 1 because '[t]he Tribunal found in favour of the [applicants] in relation to [Issue 2]'.
I will therefore focus as far as possible on Issue 1 only.
At [22] of the Member's Decision, the member says:
… It is common ground between the parties that the proposed dwellings do not satisfy all of the deemed-to-comply requirements of the R Codes and therefore are not exempt from the requirement to obtain development approval.
This is consistent with what was stated in opening on behalf of the City at the Review Hearing that 'the parties both accept that the Tribunal, should it choose to do so, has the discretion to refuse the application under [the Scheme] and/or has the discretion to refuse a residential development that meets the provisions of the [R Codes]' and that this was not an issue between the parties; ts 8, 6 November 2019.
The Member then reminded herself of the planning framework which I set out in full earlier in these reasons.
She set out (at [29]) the objectives of the Residential zone as they appear in the Scheme as follows:
The objectives of the Residential zone are set out in cl 16(1) of LPS 2 as follows:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
•To promote and encourage design that incorporates sustainability principles, including but not limited to solar passive design, energy efficiency, water conservation, waste management and recycling.
•To enhance the amenity and character of the residential neighbourhood by encouraging the retention of existing housing stock and ensuring new development is compatible within these established areas.
•To manage residential development in a way that recognises the needs of innovative design and contemporary lifestyles.
•To ensure the provision of a wide range of different types of residential accommodation, including affordable, social and special needs, to meet the diverse needs of the community.
The Member then summarised both the City's and the applicants' respective arguments.

The City

The City's position at the Review Hearing was that neither of the developments satisfies the objectives of the Residential zone for a number of reasons, including that the respective garage frontages represent approximately 80.2 % of the total frontage across each Lot and that, while a balcony is placed above and projects in front of the garage, it does not extend the full width of the garage. Further, the internal rooms of the development are positioned further back behind the setback of the garage in a manner that does not mitigate the appearance and dominance of the garages in the streetscape.
Further, the City said, the proposed dwellings do not enhance the amenity or character of the area nor are they considered to be compatible in the area because of the bulk, scale and dominating appearance of the garages.

The applicants

The applicants at the Review Hearing pointed to the deemed-to-comply requirements for garage width and street setback as set out at C2 in cl 5.2.2 of the R Codes.
The deemed-to-comply provision C2 under cl 5.2.2 of the R Codes reads as follows:
Where a garage is located in front or within 1m of the building, a garage door and its supporting structures … facing the primary street is not to occupy more than 50 per cent of the frontage at the setback line as viewed from the street. This may be increased to 60 per cent where an upper floor or balcony extends for the full width of the garage and the entrance to the dwelling is clearly visible from the primary street.
The applicants submitted that the garages are set back greater than 1 metre behind portions of the building and therefore satisfy these provisions. In addition, the applicants maintained that the City had the opportunity to further restrict this requirement in their Built Form Policy (in accordance with cl 7.3.1(a) of the R Codes), and chose not to do so.
The applicants contended that the location and width of the proposed garages also satisfy the objectives of the Residential zone in terms of good design and compatibility with the character and amenity of the area. This is because of its setback, the overhanging balcony and because the garage door is proposed to be made from 'a visually permeable material, which provides visual depth and reduces the bulk of the garage door on the streetscape'.

Expert evidence

Both parties presented planning evidence at the Review Hearing.
The applicants' expert, Mr Mrdja, supported the applicants' position that the proposed developments satisfy the relevant deemed-to-comply provisions of the R Codes and the City's Built Form Policy. He said that by satisfying the deemedtocomply provisions for garage width and street setback, the developments demonstrated that they also satisfied the objectives of the Residential zone; Member's Decision at [36].
In respect of the garage widths, Mr Mrdja said that because 'there was a separation of more than 1m between the building and the garage, there are no further controls to consider in relation to garage width'; Member's Decision at [37].
With regard to the street setback of the proposed developments in accordance with the Built Form Policy, Mr Mrdja said that the proposed developments 'respect the average street setback' of adjoining properties by ensuring that the garages are set back 8.2 metres (No 48) and 8.3 metres (No 48A) respectively which is greater than the deemedtocomply requirements in the Built Form Policy; Member's Decision at [38].
Mr Mrdja considered that the proposed developments are of a modern and contemporary nature and incorporate design features that are respectful to the character of the area. It was his opinion that there is no distinct built form character that dominates the streetscape but that the front façade of the developments incorporate design features which are distinctive of the general area. He was of the opinion that the size, width and location of the garages satisfy the objectives of the Residential zone.
The City's expert, Mr Allerding, did not address the deemed-to-comply provisions of the R Codes or the Built Form Policy in relation to garage width or street setback, other than to say that he accepted that meeting the deemed-to-comply provisions is 'a significant measure towards achieving planning objectives'; Member's Decision at [39].

Mr Allerding, however, was of the opinion that the proposed developments do not achieve a high quality design outcome in terms of their presentation to the street and that they fail to appropriately consider their context of place and the existing (and likely future) amenity of the area, particularly because of the dominance of the garages of the streetscape; Member's Decision at [46].

Member's deliberations

The member set out the objectives for cl 5.2 of the R Codes at [43] of the Member's Decision as follows:
To contribute towards the character of streetscapes including their views and vistas and provides security for occupants and passers-by, a landscape to ensure adequate shade, privacy and open space for occupants, and an attractive setting for the collection of buildings.
She also sets out at [44] the design principles for garage width in P2 of cl 5.2.2 of the R Codes:
Visual connectivity between the dwelling and the streetscape should be maintained and the effect of the garage door on the streetscape should be minimised whereby the streetscape is not dominated by garage doors.
The member accepted Mr Mrdja's opinion that the proposed developments satisfy the deemed-to-comply requirements for street setbacks, particularly as the City's expert presented no differing opinion. However, the member did not accept Mr Mrdja's opinion in regard to the assessment of the garage widths of the proposed developments.
With regard to the assessment of the garage widths, the member described Mr Mrdja's argument at [41] of the Member's Decision in the following way:
Mr Mrjda argued that the proposed dwelling designs (with balconies projecting more than 1 metre forward of the face of the garages below) means that the garages are not 'located in front or within 1 metre of the building', as referred to by the deemed-to-comply provision for garage width. The Tribunal takes it that he is saying that this means that the deemed-to-comply provision (which restricts garage widths to either 50% or 60% of the frontage at the setback line as viewed from the street) does not apply to these developments and, as there are no other deemedto-comply provisions, it can be inferred that there are no restrictions on garage widths in this case. Mr Allerding did not dispute this argument.
The member then went on to say at [42]:
The Tribunal is of the view that this is an incorrect assessment of the proposed developments under cl 5.2.2 of the R Codes. If, as argued by Mr Mrdja, the deemed-to-comply provisions do not apply to the proposed developments then the developments are to be assessed against the design principles for that element having regard to the objectives. The absence of a relevant deemed-to-comply requirement does not equate to compliance with the deemed-to-comply requirements of that element. The Tribunal agrees with Mr Mrjda that C2 of cl 5.2.2 of the R Codes does not apply to the proposed developments because the design of the dwellings is such that they do not fit the circumstances referred to in the wording of C2. This means that the developments should be assessed against the design principles for this element and the Tribunal is to exercise its judgment in considering the merits of the proposed developments having regard to the streetscape objectives and the garage width design principles.
The member then proceeded to assess the proposed developments, against the design principles in P2 of cl 5.2.2 of the R Codes, the objectives of the Residential zone and generally in terms of their impact on streetscape character with particular regard to the impact of the proposed garage doors on the streetscape; Member's Decision at [45] to [57].

Member's conclusions

In relation to streetscape, the member preferred the evidence of the City's expert. She found that in the existing streetscape, double garage doors are not a dominant element. She said that, despite the applicants' design attempts, the proposed design does not reduce the visual impact of the garage doors on the streetscape. The balconies, materials and design details do not minimise the area of the double width garages as a proportion of the overall width of the lot. Further, providing these garage doors in a visually permeable material does not alter the dominance of this element on the front elevation of the dwellings or on the streetscape.
The member concluded on Issue 1 that the proposed developments do not comply with the design principles in P2 of cl 5.2.2 of the R Codes in relation to garage width because they will have an adverse impact on the streetscape of Egina Street. She also found that the proposed developments do not satisfy the streetscape objectives of the R Codes because they will make a negative contribution towards the character of the streetscape.
The member further found that the proposed dwellings do not satisfy the objectives of the Residential zone because they are not of high quality design in regard to their presentation to the streetscape, nor do they enhance the amenity and character of the residential neighbourhood in a form that is compatible within the area.
Even though the member accepted the applicants' contentions on Issue 2 in relation to solar access to adjoining sites, the member affirmed the decision of the City in respect of both Lots to refuse the development applications.

Documents filed for the s 244 review

The applicants' application for review under s 244 included an attachment which set out the grounds for the application and also the applicants' submissions in support of its application (AS).
The City filed its submissions in relation to the applicants' application on 18 February 2020 (RS).
The applicants filed 'reply' submissions on 21 February 2020 (ARS).

Question of law involved

Under paragraph 7 of the Tribunal's Practice Note 4, entitled Review of decisions of the Tribunal under section 244 of the Planning and Development Act 2005, the Tribunal requires in s 244 applications that the applicants provide 'a statement of the grounds for review clearly identifying the question or questions of law said to be involved'.
The applicants in their application set out three 'grounds' for the review (to which I will refer as Grounds or Ground 1, Ground 2 and Ground 3 respectively in these reasons) The Grounds appear in the applicants' application at AS at paras 1-3 and are in the following terms:
(1)The Tribunal misconstrued [the R Codes], by purporting to assess the development application against a particular design principle, in circumstances where the corresponding deemed-to-comply provision did not actually apply to the development application.
(2)In the alternative to ground 1, if the Tribunal was correct to assess the development application against the R Codes design principle in question, then the Tribunal misinterpreted and misapplied the design principle, by failing to properly engage with the considerations referred to in the design principle.
(3)Also in the alternative to ground 1, if the Tribunal was correct to assess the development application against the R Codes design principle in question, then the Tribunal denied procedural fairness to the [applicants], by not giving the [applicants] an opportunity to be heard in relation to whether the development application adequately addressed the design principle.
The applicants have not complied with Practice Note 4 because they did not specifically identify what they say are the questions of law involved in the Member's Decision. Instead, they have identified 'errors of law' which they say the member made in the Member's Decision.
However it is possible, from a reading of Ground 1 in the context of the application as a whole, to discern the question of law which the applicants say is involved. The question concerns the approach that the member took at [41] and [42] of the Member's Decision to C2 of cl 5.2.2 of the R Codes. In particular, it is the member's failure to conclude that, because the relevant garage is more than 1 metre behind the relevant building, then the deemed-to-comply provision C2 of cl 5.2.2 of the R Codes, which deals with 'garage width', does not apply (the word used in Ground 1) to the proposed developments and therefore the garage widths are unrestricted.
I have come to this conclusion for these reasons.
I have already set out the deemed-to-comply provision C2 of cl 5.2.2 of the R Codes at [43] of these reasons, but for convenience I repeat C2 here:
Where a garage is located in front or within 1m of the building, a garage door and its supporting structures … facing the primary street is not to occupy more than 50 per cent of the frontage at the setback line as viewed from the street. This may be increased to 60 per cent where an upper floor or balcony extends for the full width of the garage and the entrance to the dwelling is clearly visible from the primary street.
Accordingly, the applicants say that C2 of cl 5.2.2 of the R Codes 'is only enlivened' … '[w]here a garage is located in front or within 1m of the building …'; AS at para 11.
The applicants go on to say (AS at para 12) that C2 essentially refers to a garage that is located either:
(a)closer to the street than the rest of the dwelling; or
(b)further from the street than, but still within 1 metre of, that part of the dwelling that is closest to the street.
The applicants say (AS at para 13) that the member in the Member's Decision at [42] accepted this interpretation when the member said:
The Tribunal agrees with Mr Mrdja that C2 of cl 5.2.2 of the R Codes does not apply to the proposed developments because the design of the dwellings is such that they do not fit the circumstances referred to in the wording of C2.
The applicants submit that the important point for the purpose of the s 244 review is that the proposal before the member did not feature any garage 'in front or within 1 metre of the building'; AS at para 15.
The member at [41] of the Member's Decision, which the applicants accept as being an accurate summary of the expert evidence, said:
Mr Mrdja argued that the proposed dwelling designs (with balconies projecting more than 1 metre forward of the face of the garages below) means that the garages are not 'located in front or within 1 metre of the building', as referred to by the deemed-to-comply provision for garage width. The Tribunal takes it that he is saying that this means that the deemed-to-comply provision (which restricts garage widths to either 50% or 60% of the frontage at the setback line as viewed from the street) does not apply to these developments and, as there are no other deemed-to-comply provisions, it can be inferred that there are no restrictions on garage widths in this case. Mr Allerding did not dispute this argument.
The member then said at [42] of the Member's Decision:
The Tribunal is of the view that this is an incorrect assessment of the proposed developments under cl 5.2.2 of the R Codes. If, as argued by Mr Mrdja, the deemed-to-comply provisions do not apply to the proposed developments then the developments are to be assessed against the design principles for that element having regard to the objectives. The absence of a relevant deemed-to-comply requirement does not equate to compliance with the deemed-to-comply requirements of that element. The Tribunal agrees with Mr Mrjda that C2 of cl 5.2.2 of the R Codes does not apply to the proposed developments because the design of the dwellings is such that they do not fit the circumstances referred to in the wording of C2. This means that the developments should be assessed against the design principles for this element and the Tribunal is to exercise its judgment in considering the merits of the proposed developments having regard to the streetscape objectives and the garage width design principles.
It is in this passage, in the applicants' submission, that the member made an 'error of law'. This is because, in the applicants' opinion, the R Codes do not invite or require an assessment against design principles in circumstances where the corresponding deemed-to-comply provision does not apply; AS at para 20.
The applicants say (AS at para 34) that a decision-maker is only required to assess a development application against design principles in the R Codes where:
(a)a deemed-to-comply provision in the R Codes applies; and
(b)that deemed-to-comply provision is not satisfied.
The applicants say that the position is that the R Codes do not seek to regulate garage widths in the case of garages that are located more than 1 metre back from the closest part of the dwelling to the street; AS at para 39.
That being the case, the applicants say that there is no basis under the R Codes for the Tribunal to assess the development application against design principle P2 at cl 5.2.2 of the R Codes and in doing so this amounted to an error of law; AS at para 40.

Ground 1 - disposition

I do not consider that Ground 1 identifies an issue or question of law involved in the Member's Decision. The law which was involved in the resolution by the member of Issue 1 is, I accept, the interpretation of the deemed-to-comply provision C2 of cl 5.2.2 of the R Codes. This was undoubtedly referred to in the Member's Decision. However, there was no issue or question between the parties at the Review Hearing about the law involved.
In any event, even if it can be said that there was an issue about C2 of cl 5.2.2 of the R Codes, both parties accepted that 'the Tribunal, should it choose to do so, has the discretion to refuse the application under the respondent's scheme and/or has the discretion to refuse a residential development that meets the provisions of the residential design codes'; ts 8, 6 November 2019.
It is clear from the Member's Decision that the member understood that the applicants considered that the garages, because they are set back more than 1 metre behind portions of the buildings, satisfy C2 of cl 5.2.2 of the R Codes. It is also clear that the City did not express a contrary view; Member's Decision at [41]. However, this was all in the context of the member's consideration of the applicants' argument that the developments satisfied the objectives of the Residential zone; Member's Decision at [36]. The City's expert witness, Mr Allerding, did not expressly agree with that argument. He did say though that meeting the deemedtocomply provisions is at its highest, only 'a significant measure towards achieving planning objectives'; Member's Decision at [39].
Further, the applicants' view about satisfaction or otherwise of C2 of cl 5.2.2 of the R Codes was also made in the context of the member's reasoning in relation to Issue 1, namely whether the developments satisfy the objectives of the Residential zone and the streetscape objectives of the R Codes. Nowhere in Issue 1 is there any reference to compliance or otherwise with C2.
I disagree with the member's assessment (at [41] of the Member's Decision) that Mr Mrdja was saying that the deemed-to-comply provision C2 (which restricts garage widths to either 50% or 60% of the frontage at the setback line as viewed from the street) does not apply to these developments (my emphasis). From an examination of the transcript of the Review Hearing and of Mr Mrdja's witness statement, I understand Mr Mrdja in fact to be saying that he considered C2 to be satisfied (my emphasis). The applicants in their submissions for the s 244 review also seem to have taken the same approach that the member took; for example, AS at para 20, AS at para 35.
In any event, the member only inferred that Mr Mrdja was submitting that there are no restrictions on garage widths in this case. I do not understand that he actually expressed that opinion. Further, the applicants' representative at the Review Hearing in closing said that 'where a development satisfies the deemed-to-comply provisions, the development is considered to satisfy the design principles and is considered acceptable'; ts 95, 6 November 2019. However, she did not go so far as to say that in these circumstances the garage widths are therefore unrestricted. I therefore do not consider that the parties were in issue about this.
Accordingly, when the member at [42] of the Member's Decision said that she disagreed with what she understood Mr Mrdja's view to be, namely that if the deemed-to-comply provision C2 does not apply then there are no restrictions on garage widths, I consider that she was doing no more than making an observation to that effect.
The member in fact assessed the development applications against the objectives of the Residential zone, and by so doing the member was dealing with Issue 1 and was doing precisely what she had expressly understood the parties were asking her to do.
I will, however, proceed on the basis that there is an issue of law between the parties, namely that, if the deemed-to-comply provision of the R Codes restricting a garage width to either 50% or 60% of the frontage is not satisfied in the case of these developments and there are no other relevant deemedtocomply provisions, then is it the case that there are no restrictions on garage widths?
In my view, this interpretation of the R Codes is incorrect. To interpret the R Codes in this way would lead to an inconsistency with the objectives of the R Codes set out in Part 1 to, amongst other things, provide residential development of an appropriate design for the context of place and Scheme objectives. It would also be inconsistent with the objectives of Pt 5 of the R Codes to, amongst other things, ensure that development and design is appropriately scaled, particularly in respect to bulk and height and is sympathetic to the scale of the street and surrounding buildings.
I agree with what the City submits, namely that the applicants' interpretation 'would have the illogical consequence that if residential development is designed so it does not meet the deemed-to-comply provision of a particular design element, that design element would then be irrelevant in assessing the proposal'; RS at para 25. That is not a construction which should be adopted.
I concur with the member that the absence of a relevant deemedtocomply requirement does not equate to compliance with the deemed-to-comply requirements of that element. If C2 of cl 5.2.2 of the R Codes is not satisfied because the design of the dwellings is such that they do not fit the circumstances referred to in the wording of C2, then the developments should be assessed against the design principles for this element. This is the path that the member took in the Member's Decision.
In my view, the member's decision on the question of law involved was correct.
Grounds 2 and 3 can be dealt with quite briefly.
Unlike in Ground 1, from Ground 2 I am unable to discern what it is that the applicants say is the question of law involved. The applicants say that when considering the proposed development against design principle P2 at cl 5.2.2 of the R Codes, the Tribunal must consider whether the proposal maintains visual connectivity between the dwelling and the streetscape and whether the proposal causes the streetscape to become dominated by garage doors; AS at para 43.
The applicants say that the member did not consider whether the proposal maintains visual connectivity between the dwelling and the streetscape and has therefore failed to properly engage with the analysis required by the design principles; AS at paras 4445.
The applicants concede that the member found that garage doors are not currently a dominant element in the existing streetscape and that the proposed garage doors would be 'dominant elements' in the streetscape; AS at paras 46-47.
The applicants say, however, that the finding that the proposed garage doors would be 'dominant elements' in the streetscape is not the same as determining that the proposal would result in the streetscape itself becoming dominated by garage doors. The applicants say that, again, the member failed to properly engage with the analysis required by the design principles; AS at para 48.

As I understand Ground 2, the applicants are thus seeking to draw a distinction between a finding that the garage doors would be dominant elements in the streetscape on the one hand and the garage doors resulting in streetscape becoming dominated by garage doors on the other hand; RS at para 39 and ARS at para 19. In my view, to make that distinction requires 'an overly critical or pernickety' reading of the Member's Decision, to use the words quoted in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], and I am not prepared to draw that distinction. LPS 2 (which in this case incorporates the R Codes) should be construed broadly rather than pedantically and with a sensible practical approach consistent with its town planning purpose; Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 at [84].
In my view, the member when considering the applicants' application was aware of the terms of P2 of cl 5.2.2 of the R Codes. It is set out in full at [44] of the Member's Decision. Undoubtedly, the main focus of the Member's decision concerned the effect of the garage doors on the streetscape and she found that:
(a)garage doors are not currently a dominant element in the existing streetscape (Member's Decision at [54] and [56]); and
(b)the proposed garage doors would be 'dominant elements in the streetscape'; Member's Decision at [55].
In doing so the member was addressing Issue 1, and if the issues which were before the member were not encompassed in either Issue 1 or Issue 2 then that is an error of fact. It is apparent that the applicants disagree with the member's conclusions on Issue 1. However, that does not mean that the matter involves a question of law. It is my conclusion that the applicants' application under Ground 2 does not give rise to a review under s 244 of the PD Act.
Turning to Ground 3, I am again unable to discern what question of law the applicants say is involved.
The applicants say that the member effectively refused their application based on design principle P2 at cl 5.2.2 of the R Codes but that the applicants were not invited to make submissions or adduce expert evidence on the matters referred to in P2.
The applicants say that such a failure constitutes a denial of procedural fairness to the applicants; AS at para 58.
I do not consider that Ground 3 identifies an issue or question of law involved in the Member's Decision. Undoubtedly an alleged denial of procedural fairness in a hearing before the Tribunal could give rise to an appeal under s 105 of the SAT Act, but I cannot conclude that a denial of procedural fairness could in any way be described as involving a question of law on the part of the member in the sense contemplated by s 244 of the PD Act.
In any event, if I am wrong then I cannot see from an examination of the transcript or from the evidence presented to the member at the Review Hearing that the member in any way denied either party the opportunity of presenting their respective cases as they saw fit. The hearing and the evidence before the member focussed on the effect of the proposed garages on the streetscape, in the context of the applicable planning framework, including the R Codes. Both parties were given ample opportunity to present their respective cases. I do not consider that there was a denial of procedural fairness.
If the substance of Ground 3 is that the member erred when she identified the issues to be resolved at the Review Hearing then this is an error of fact on the part of the member. However, it is apparent from the transcript from the Review Hearing that the parties were entirely in agreement as to the issues to be resolved before the Tribunal at the Review Hearing.
It seems to me that the applicants are in fact seeking a further merits review in respect of the City's decision to refuse approval, on the basis of new evidence which they now wish to present. That in turn would involve a further hearing or a return of the matter to be reheard by another member. These are not options under s 244 of the PD Act.
I must therefore refuse the applicants' application under Ground 3.

Orders

1.The Tribunal orders that the applicants' application for a review under s 244 of the Planning and Development Act 2005 (WA) is refused and the determination of the Tribunal in Roe and City of Vincent [2020] WASAT 8 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
29 JULY 2020