SANCTUARY APARTMENTS PTY LTD and SHIRE OF BROOME - [2008] WASAT 163

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SANCTUARY APARTMENTS PTY LTD and SHIRE OF BROOME [2008] WASAT 163

MEMBER: MR M SPILLANE (MEMBER)
MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)

HEARD: 14 MARCH 2008

DELIVERED : 15 JULY 2008

FILE NO/S: DR 331 of 2007

BETWEEN: SANCTUARY APARTMENTS PTY LTD
Applicant
AND
SHIRE OF BROOME
Respondent

Catchwords:

Town planning - Short-stay tourist accommodation - Plot ratio - Overdevelopment of site - Council policies - Orderly and proper planning

Legislation:

Planning and Development Act 2005 (WA), s 138(2), s 252(1)
Residential Planning Codes of Western Australia (2008), Pt 6
Shire of Broome Town Planning Scheme No 4, cl 2.1, cl 2.3, cl 2.4, cl 4.17.2.6, cl 5.1, cl 5.2.3, cl 5.4, cl 5.4.1, cl 5.4.2, cl 5.10.1, cl 10.2

Result:

Application for review refused
Respondent's decision to refuse affirmed

Category: B

Representation:

Counsel:

Applicant: Mr P Webb (Acting as Agent)
Respondent: Mr A Pawluk (Acting as Agent)

Solicitors:

Applicant: Peter D Webb & Associates (Town Planners)
Respondent: Andrew Pawluk & Associates (Town Planners)

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Zhang v Canterbury City Council (2001) 115 LGERA 373

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Sanctuary Apartments Pty Ltd applied to the Tribunal for a review of a decision of the Shire of Broome to develop shortstay tourist accommodation at Lot 42 Sanctuary Road, Broome.
The respondent argued that the proposal was an overdevelopment of the site and did not meet the requirements of its town planning scheme or policies. The applicant rejected that the proposal was an overdevelopment of the site and argued that it was below the maximum height allowed and with some reasonable concessions in respect of landscaping and car parking should be allowed.
The Tribunal found that in its present form the proposal should not be approved but noted that Council had stated it would be prepared to favourably consider an application which reduced the impact of building bulk and allowed for breeze circulation to adjoining sites.

Introduction

These proceedings involve an application brought by Sanctuary Apartments Pty Ltd pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of a decision of the Shire of Broome to refuse approval of tourist shortstay accommodation development containing 44 single bedrooms, a caretaker's unit and a reception/main entry area on Lot 42 Sanctuary Road, Broome (site).

Site and locality

The site comprises an area of 2,184 square metres with a frontage to Sanctuary Road of 26 metres. A single storey structure and associated camel pens currently exist on the site.
The site is situated on the southern side of Sanctuary Road approximately 50 metres west of the roundabout at the intersection of Sanctuary Road and Capang Drive in the Cable Beach area of Broome.
Adjoining the properties to the west is a private house, to the east a grouped dwelling complex consisting of two storey town houses and to the south another grouped dwelling complex.

Planning framework

The State Administrative Tribunal (Tribunal) stands in the shoes of the original decision-maker and under s 138(2) of the PD Act is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give approval that conflicts with the provisions of the local planning scheme.
For the purposes of this matter the Shire of Broome Town Planning Scheme No 4 (TPS 4 or Scheme) is the relevant planning scheme that applies to the land. The site in question is zoned Tourist under the provisions of TPS 4, the objectives of which zone are to:
"(a)ensure that short stay tourist and holiday accommodation are the predominant land uses in this zone; and
(b)encourage a range of recreational activities and accommodation styles within the Tourist zone; and
(c)have regard to the Local Planning Strategy and refer to the relevant policy, when considering applications for development of self contained tourist accommodation and/or strata titled accommodation within the Tourist zone; and
(d)ensure that development conforms with any plan or strategy endorsed by the Council and the Commission; and
(e)require a Development Plan to be undertaken for particular land parcels, if in the opinion of Council the preparation of a Development Plan is required prior to the approval of the subdivision and/or development of any land within the Tourist Zone."
TPS 4 consists of the Scheme texts and the Scheme maps. At cl 2.1 of the Scheme text it confirms that the Scheme Report entitled Local Planning Strategy (LPS) should be read in conjunction with the Scheme text.
Clause 3.4 of the LPS under the heading "Scheme Text Provisions" states:
"General provisions in the Scheme Text which also assist in reinforcing Council's vision for the town include:
•Broome style architecture - describing the features of the architecture which has become characteristic of Broome and contribute to its uniqueness, including colourbond and timber materials, pitched roof, verandahs, lattice and shutters.
•A two storey height limit to reinforce the domestic scale of Broome.
•Landscaping requirements for development to reinforce the openness and natural environment of the area."
Further elements of the LPS which are relevant are:
Clause 2.4.1 under the heading Climate which states:
"…
The west, south-westerly and easterly winds during the year are significant for cooling purposes across the Peninsula in the high year round temperatures. Consequently, this is an important consideration when locating and spacing urban form and open space across the Peninsular [sic]." and
Clause 5.3.1 under the heading "Cable Beach Tourist Precinct" states:
"…
•Tourist accommodation shall be in accordance with Council Policy on Holiday Accommodation and Tourist Development.
…
•Subdivision and Development should have regard to the Cable Beach Tourist Node Structure Plan."
It is noted that cl 2.1 of TPS 4 under the heading "Reference to Scheme Report - Local Planning Strategy states:
"The provisions of the Scheme Report - Local Planning Strategy ("Local Planning Strategy") are intended to be read in conjunction with the Scheme and the Council may have regard to any such provisions which are relevant when making decisions under or in relation to the Scheme. If any inconsistency arises between the Scheme Report Local Planning Strategy and the Scheme, the provisions of the Scheme shall prevail."
Clause 2.3 of TPS 4 allows for the creation of local planning policies. Over the years a number of policies have been developed which are referred to in the Local Planning Strategy and are also relevant to this application, they are:
•Policy 4.1.10 - Tourist Accommodation Developments (Excluding Caravan Parks within the Tourist Zone) (Policy 4.1.10)
This policy was adopted by the respondent in 1996 and reviewed in 2001, 2003 and 2004. The aim of Policy 4.1.10 is stated as being:
"To encourage the development of high quality low rise tourist accommodation with associated facilities and to limited permanent residential accommodation in a Tourist Zone in accordance with the strategic vision and development plan for the Cable Beach Tourist Precinct as defined in the Cable Beach Development Plan, which was adopted by Council in April 2003."
•The Cable Beach Development Plan (CBD plan)
This was adopted by Council in April 2003 to establish a strategic framework for the coordinated development of tourist, commercial and residential land usage within the Cable Beach locality.
It is noted that the CBD plan has to date, not been endorsed by the Western Australian Planning Commission, although the respondent considers the plan relevant. The CBD plan is referred to in Council's latest review of Policy 4.1.10 which was completed in April 2004.
•Cable Beach Tourist Node Structure Plan (Structure Plan)
The objective of the Cable Beach Tourist Node Structure Plan was to prepare a Structure Plan Concept for the Cable Beach Tourist Node and Lot 833, which would assist in guiding future development and subdivision design for the land east of Lullfitz Drive.
In respect of local planning policies cl 2.4 of TPS 4 states:
"A Local Planning Policy is not part of the Scheme and shall not bind the Council in respect of any application for planning approval but the Council shall have due regard to the provisions of any such Policy and the objectives which the Policy is designed to achieve before making its decision."
The application of the policy to decisions is a matter that has been considered on more than one occasion by the Tribunal and will be referred to later in these reasons.

Proposed development and Council's decision

The application before the Tribunal was not the original application before Council but an amended proposal put up by the applicant following discussion between the two parties. The amended proposal was refused by Council at its meeting of 30 August 2007. It was common cause that the amended proposal was the development application before the Tribunal for consideration. The details of that amended proposal were as follows:
•"Two buildings each with 3 stories[.]
The buildings are connected by walkways on the 2nd and 3rd floor.
The walkways have shade and rain cover. One portion of the walkway is extended to provide shade over the ground floor BBQ. A swimming pool is located in the middle and undercover car parking provided at the rear."
•"Maximum ridge height 11.5 metres."
•"Building footprint = Two rectangular structures[, t]he floor plan of which measures 17.5ms x 30.6m and 17.5ms x 40.6m."
Break between = 6.3 metres."
•"Roof form addresses the 'Broome Style' architecture."
•"Building material detailed."
•42 single bedroom short stay tourist accommodation units[.]
3rd floor units contain internally connected 'lofts'."
•"Two storey, two bedroom caretaker's unit."
•"Reception and main entry."
•"An elevator."
•"An enclosed bin storage/service/linen storage area. The linen storage and laundry is redesigned and relocated."
•"On site 30 car parking bays."
•"No boat or caravan bays."
•Dedicated on site bus coach parking bay."
•"1 metre landscaping strip along part of the front boundary[.]
Detailed landscaping plans provided."
Council at its ordinary meeting of 30 August 2007 passed the following resolution:
"That Council:
1)Refuses the application for planning approval 2007/159 for a tourist resort at Lot 42 (16) Sanctuary Road, Cable Beach for the following reasons:
a)The development does not provide a 3 metre wide landscaped area along the street frontage as required by Town Planning Scheme No 4;
b)The proposed building does not comply with Council's requirements as expressed in the Cable Beach Development Plan that built form should have a floor plan no bigger than 15 x 20 [metres];
c)The bulk of the proposed building severely restricts the flow of breezes to the adjacent properties; and
d)There is no provision for guests' boats and caravans.
2)Advises the applicant it is prepared to favourably consider an application for the site proposing a number of buildings to reduce the impact of building bulk and allow for breeze circulation to adjoining sites and addressing the issue of provision of guests' boats and caravans."
All the evidence and submissions taken at the hearing were in respect of this proposal and it is in respect of this proposal that the Tribunal makes its determination.

Application for review

The application for review was filed on 28 September 2007 and came on for hearing on 14 March 2008.
The applicant filed various documents and called three witnesses, namely, Mr Peter Webb, consultant planner; Mr Frank Ricci, architect; and Mr Christopher Borella, one of the two directors of the applicant who had experience in the development and management of tourist related facilities. Mr Andrew Pawluck, consultant town planner, gave evidence on behalf of the respondent.

Consideration of the issues

During the course of the hearing, a number of issues were raised by both sides as being relevant in determining the matter. Some of these arose directly from Council's reasons for refusal and others were raised during the course of the review. They included issues such as landscaping, car parking, the flow of breezes, building bulk and plot ratio.
The respondent argued that all of the issues were symptoms of one issue being the overdevelopment of the site.

Plot ratio

Council's reasons for decision refer in particular to the floor plan of the built form and the restriction of the flow of breezes to adjacent properties.
At the hearing, counsel for the respondent clearly raised the issue of density of development on the site and in particular plot ratio as a significant issue, to the extent that by the time the parties filed their closing submissions, both parties addressed the issue of plot ratio in detail with each submitting its own calculations.
Both parties accepted that the hearing before the Tribunal is a hearing de novo, and the issue of plot ratio was clearly raised and dealt with by both parties as a significant one.
The Scheme and policy regulations that deal with Plot Ratio are:
Clause 5.1 of TPS 4 under the heading "Compliance with Development Standards and Requirements" states:
"Any development of land is to comply with the standards and requirements of:
(a)the provisions of this Scheme; and
(b)without limiting the generality of subclause 5.2.3, the Residential Design Codes - in respect of development for residential purposes."
Clause 5.2.3 of TPS 4 under the heading "Residential Design Codes" states:
"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes."
Clause 5.4.1 and cl 5.4.2 of TPS 4 under the heading "Variations to Site and Development Requirements" states:
"5.4.1If a development is the subject of an application for planning approval and does not comply with the standard or provision prescribed under clauses 4.13 to 4.26 inclusive and 5.6 to 5.13 inclusive of the scheme or a standard prescribed by the Residential Design Codes, the Council may, notwithstanding that noncompliance, approve the application unconditionally or subject to such conditions as Council considers appropriate.
5.4.2The power conferred by this clause may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be appropriate having regard to the criteria set out in clause 10.2; and
(b)the noncompliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality."
Clause 10.2 of TPS 4 sets out the matters Council may have due regard to when considering an application. Amongst the matters listed are:
"(a)the aims and provisions of the Scheme …
(b)the Scheme Report - Local Planning Strategy;
(c)the requirements of orderly and proper planning …;
(d)any approved Statement of Planning Policy of the Commission;
(It is noted that the R Codes are a supplementary policy under State Planning Policy 1.)
…
(i)any environmental consideration;
…
(k)the preservation of the amenity of the locality;
(l)the relationship of the proposal to development on adjoining land or on other land in the locality;
…
(r)whether adequate provision has been made for the landscaping of the land to which the planning application relates and whether any trees or other vegetation on the land should be preserved.
…
(z)any other matter which in the opinion of the Council has planning relevance."
Clause 3 of Policy 4.1.10 under the heading "Short Stay Accommodation - Design, Density, Plot Ratio, Setbacks & Height Limits" states:
"•…
•The development standard of the R40 Code of the Residential Design Codes shall be applied with regard to plot ratio, site cover and setback. The height controls contained in [TPS 4] shall apply.
•A plot ratio or dwelling bonus of up to 20% may be granted where a developer provides the following facilities:
•meeting/conference room/s;
•recreational facilities such as swimming pool/s, tennis court/s, games room/s, a gymnasium and a sauna [; and]
•food and beverage facilities
•…
•Developments that adjoin[ing] residential zoned land shall be designed so as not to impact negatively on the privacy and amenity of the adjoining residents."
In the context of this application, all of those Scheme and policy requirements are relevant.
The maximum plot ratio allowed for multiple dwellings under the medium density code of R40 Residential Design Codes of Western Australia (2008) (R Codes) is 0.60. The respondent argued that the proposed development considerably exceeds the maximum plot ratio of 0.06 allowed by the R Codes.
The applicant, on the other hand, pointed to the fact that a recent amendment to TPS 4 increased the allowable height for tourist developments from 10 metres to 14 metres and that measurement was more pertinent when considering bulk and scale as it was a "statutory limit" contained within TPS 4 whereas the plot ratio was in effect only a policy or guideline. The applicant submits that if a touristrelated development were to be built to the full 14 metre height now allowed under TPS 4, it could be developed to a height of four storeys. In the applicant's view, the plot ratio consideration is less relevant in the circumstances of the zoning of the site than is the allowable height.
In the context of the present case, particularly in light of the arguments put forward, it is pertinent to restate the Tribunal's position in respect of the application of policy.
As held by the New South Wales Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, at [75], a planning consent authority is required to treat a properly adopted planning policy as a fundamental element in, or a focal point of the decisionmaking process.
Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24] as follows:
"… If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach".
These oftexpressed excerpts have been adopted in the Tribunal on several occasions and are restated here as being the correct approach to lawful policies.
That said, the Tribunal sees no reason why a development standard of the R40 R Codes and the height controls contained in TPS 4 cannot live together. They are both guiding factors. The maximum height allowed under a Scheme is just that, a maximum height. Once the height of a building is at or below the maximum, then it may be approved from a height perspective. Even if it was over the maximum, Council does have discretion to allow it under cl 5.4 of TPS 4. However, the building must also be measured and assessed by a number of other criteria set out in the Scheme and relevant policies. Criteria such as built form, plot ratio, parking, and the effect of the development on adjoining properties for example by shadow, overlooking and in this instance, breezes. Height is but one issue.

The Explanatory Guidelines of the R Codes [at Part 6 - Design Elements] explain:
"The R Code number provides a guide to the permissible maximum density of development. …
…
Plot ratio is an indirect form of density control, although it is a relatively effective means of controlling building bulk, which is its main purpose in the Codes."
In their closing statements both the applicant and respondent furnished detailed plot ratio calculation tables to the Tribunal.
On measuring the plans for the development, the applicant calculated the total square metres of floor space which should be included in such a calculation as being 1,922 square metres. The respondent arrived at a total floor area of 2,466 square metres.
The definition of plot ratio in the R Codes is:
"The ratio of the gross total of all floor of buildings on a site to the area of land in the site boundary. For this purpose, such areas shall include the area of any walls but not include the areas of any lift shafts, stairs or stair landings common to two or more dwellings, machinery, air conditioning and equipment rooms, nonhabitable space that is wholly below natural ground level, areas used exclusively for the parking of wheeled vehicles at or below natural ground level, lobbies or amenities areas common to more than one dwelling, or balconies or verandahs open on at least two sides."
Based on that definition, the Tribunal is of the view that both parties' calculations contained errors, the respondent's by including matters which should not have been included and thereby inflating its figure, while the applicant excluded matters which should have been included and thereby deflated their figure.
The one figure both parties did agree on was the site area which was 2,184 square metres.
The maximum plot ratio in the R Codes for R40 is 0.6.
Applying that to the respondent's total of 2,466 square metres of floor area as against a site area of 2,184 square metres generates a plot ratio of 1.13.
Using the applicant's figure of 1,922 square metres as against the same floor area generates a plot ratio of 0.88.
Clause 3 of Policy 4.1.10 allows for a plot ratio bonus of 20% where a developer provides the following facilities:
•meeting/conference room/s;
•recreation facilities such as swimming pool/s, tennis court/s, games room/s, a gymnasium and a sauna;
•food and beverage facilities.
In the present circumstances only a swimming pool is provided.
The issue of the 20% bonus was put to Mr Ricci, the architect, for the applicant who confirmed his view to be that by putting in only one of the items listed, in this case the swimming pool, that was sufficient to obtain the full 20% bonus.
If that is correct, the maximum floor area allowed including the full 20% bonus would be 1,572 square metres. That is because a plot ration of 0.6 would allow a floor area of 1,310 square metres for a site of 2,184 square metres which would rise to 1,572 square metres if the 20% bonus was granted.
The applicant's floor area calculation of 1,922 square metres (which the Tribunal believes is a low calculation), would still be in excess of the maximum allowed of 1572 square metres by approximately 350 square metres or 22% even if the applicant was given the benefit of the full 20% bonus.
If no bonus was granted, the difference between the 1,310 square metres allowed under the 0.6 ratio as against the applicants calculation of floor are of 1,922 square metres would be 612 square metres or approximately 47% in excess of the 1,310 square metres allowed.

Building bulk

In respect of the question of bulk, Mr Borella gave a number of examples of other tourist developments which he believed did not comply with the requirements the respondent was attempting to impose on this application.
He was particularly concerned about the respondent's wish to implement a 20 metre by 15 metre footprint.
On examination of the nine developments referred to by Mr Borella, it was found that only three, namely the Quest in Sanctuary Road, the Beaches Backpackers in Sanctuary Road, and Lot 2230 Cable Beach Road (adjoining the divers' camp) were within the Cable Beach area covered by the same policies that relate to this matter and the plot ratio of those three developments appeared to be, on the evidence before the Tribunal, lower than that applied for in the present application and within that allowed by the R Codes.
The requirement for a 15 metre by 20 metre building footprint referred to in the respondent's reasons for refusal comes from the Architectural Design Guidelines in Appendix A to the CDP. The style of development in Broome the respondent wishes to promote is something which is referred to in a number of plans and policies including cl 3.4 of the LPS referred to earlier. Other examples are:
Clause 6.2.1 of the Structure Plan under the heading "Tourist" which states:
"…
Development within this zone will reflect the Council's criteria for determining tourist accommodation. This will result in a high quality lowrise development that is responsive to the Broome environment and the traditional Broome building and landscape character.
Accommodation densities have been determined in accordance with Council's current policy on tourist accommodation. A maximum accommodation density equivalent to the R.40 density code of the Residential Planning Codes is proposed. This density was chosen as this enables one accommodation unit to be developed for every 250 sqm which allows a range of accommodation types to be catered for in the precinct."
Clause 6.7 of the Structure Plan states:
"The principles emulated in the Plan are to provide a scale of built form that is compatible with the NorthWest, and in particular Broome. As such, the building bulk and height should be broken to maintain building placement in conjunction with the scale and form of buildings in Broome. To maintain the existing lowrise nature of buildings in Broome, it is recommended a twostorey height limit is appropriate for the Structure Plan area. Spaces between buildings is another characteristic that is encouraged to be responsive to the climate of Broome. Accordingly, large setbacks should be maintained with breezeways to enable movement of prevailing westerly and easterly breezes."
Clause 5.10.1 of TPS 4 under the heading "Broomestyle Architecture of Building" states:
"The building style of all buildings within the Scheme area shall be compatible with the 'Broome architectural style' which reflects a low scale of building bulk and has regard for local climatic conditions and traditional architecture. The provision of this clause does not apply to buildings in the Port zone, Industry zone, Light and Service Industry and all single residential dwellings in a Development zone, General Rural zone, Rural Agriculture zone, Rural Living zone or Residential zone, except if the single dwelling is located in the 'Old Broome Precinct'."
Being in the Tourist Zone the requirements of this clause apply to the development under review.
The aerial photograph furnished to the Tribunal as Exhibit 13, appears to show that developments such as Cocos and Blue Skies have been designed and built using a number of building footprints rather than one or two large buildings.
The Tribunal accepts Mr Borella's evidence that there are examples of larger buildings in the area but in the Tribunal's view this is not the desired outcome when looking at all of the respondent's planning instruments for the Cable Beach area.

Car parking

The respondent argued that the inability of the site to accommodate all of the required onsite parking was a further symptom of overdevelopment.
Mr Borella believed that in his experience there was enough parking on the site at 30 bays for 42 apartments.
He explained that the "drive market", as he described it, were attracted to two types of accommodation. The first being caravan parks and the second more affordable accommodation up to four stars.
Mr Borella believes that a large proportion of the caravan market now bypass Broome due to lack of accommodation and that adequate offsite arrangements could be made for caravans and boats if necessary as had been done with other developments.
The shortfall amounts to five bays and the respondent acknowledged that the provision of boat/trailer parking offsite could be considered by counsel.

Landscaping

Clause 4.17.2.6 of TPS 4 states:
"Landscaping for all development within the Tourist zone shall be provided and maintained abutting the boundary of all street frontages to a minimum depth of 3 metres from the boundary, and within side setback areas."
Clause 3(d) of Policy 4.1.10 states:
"•Landscaping for all development within the tourist zone shall be provided and maintained abutting the boundary of all street frontages to a minimum depth of 3 metres from the boundary, and within side setback areas.
…
•Council may require the developer to contribute to the cost of upgrading and maintaining the abutting road reserve. Elements may include planting, reticulation, footpaths, dual use paths, street lighting and street furniture."
Although cl 4.17.2.6 of TPS 4 states "shall be provided" it is noted that cl 5.4 of TPS 4 allows a relaxation of that requirement where the necessary conditions are met.
The respondent submitted that the inability to accommodate the 3 metre landscaping requirement on site was a symptom of overdevelopment on the site.
The applicant's architect, Mr Ricci, confirmed that he could achieve the landscape strip if he reduced the width of each apartment within the complex by approximately 200 millimetres. In closing the applicant submitted that this was an insignificant amount in terms of the considerably greater benefit to be achieved by landscaping the verge as the applicant had offered to do.
It is noted, however, that as per cl 3(d) of Policy 4.1.10 the applicant may be required to contribute to upgrading the verge in any event.

Wind/Breezeways

Limited evidence was submitted by both parties in respect of the prevailing winds and no expert evidence was presented meaning the Tribunal was left with little it could safely rely on.
Clause 2.4.1 of the LPS under the heading "Climate" states:
"…
The west, southwesterly and easterly winds during the year are significant for cooling purposes across the Peninsula in the high year round temperatures. Consequently this is an important consideration when locating and spacing urban form and open space across the Peninsular [sic]."
Where the prevailing wind comes from and when, is therefore important to ensure that developments are designed "not to impact negatively on the … amenity of the adjoining residents" (cl 3 of Policy 4.1.10).

Conclusion

It is clear, on considering all of the evidence, that in managing the development of Broome and in particular the Cable Beach area, the respondent has been careful to develop a set of planning tools that promote a particular Broome style to control the type of development that is allowed in the Tourist Zone and particularly the Cable Beach area. This is sensible and in line with orderly and proper planning.
In particular, cl 2.7.1 headed "Urban Form" in the LPS states:
"The physical development of the town has presented particular urban forms over the years. However it is the simple grid road system, wide road reserves, larger lot sizes, a spacious streetscape, interspersed with the natural environment, the landscaped environment and the architectural style of pitched roof, verandahs, lattice and colourbond building materials and low rise development which is generally the character of the community and which typifies Broome's unique style. This Broome style is generally favoured for reason of climate, heritage, aesthetics and quick construction."
and as stated earlier, cl 6.2.1 of the Structure Plan under the heading "Tourist" states:
"…
Development within this zone will reflect Council's criteria for determining 'tourist accommodation'. This will result in a high quality lowrise development that is responsive to the Broome environment and the traditional building and landscape character.
Accommodation densities have been determined in accordance with Council's current policy and tourist accommodation. A maximum accommodation density equivalent to R40 density code of the R Codes is proposed. This density was chosen as this enables one accommodation unit to be developed for every 250 square metres which allows a range of accommodation types to be catered for in the precinct."
and cl 6.7 of the Structure Plan under the heading "Built Form" states:
"The principles emulated in the Plan are to provide a scale of built form that is compatible with the North West, and in particular Broome. As such, the building bulk and height should be broken to maintain building placement in conjunction with the scale and form of buildings in Broome. To maintain the existing lowrise nature of buildings in Broome, it is recommended a twostorey height limit is appropriate for this Structure Plan area. Spaces between buildings is another characteristic that is encouraged to be responsive to the climate of Broome. Accordingly, large setbacks should be maintained with breezeways to enable movement of prevailing westerly and easterly breezes."
The current proposal before the Tribunal is for two buildings each of three storeys, with the 3rd floor units containing lofts and the buildings being connected by walkways between the second and third floors.
The footprint of the two buildings are 17.5 metres by 30.6 metres and 17.5 metres by 40.6 metres with a 6.3 metre break between the buildings and the maximum ridge height is 11.5 metres.
These are long, narrow buildings with large footprints.
It is accepted that the recommended footprint of 15 metres by 20 metres contained in the Architectural Design Guidelines in Appendix A of the CDP are not mandatory and are provided primarily as a guide and in any event are not to be applied inflexibly.
However, for all of the reasons contained in the respondent's various planning instruments, there are good planning imperatives for the respondent to attempt to regulate the built form within the tourist zone in an effort to maintain a style of low rise, open space development with sufficient breezeways.
The Tribunal is not satisfied on the evidence before it in the present case that there is sufficient justification to allow the development to exceed the recommended plot ratio in the manner proposed and the Tribunal is certainly not satisfied that the applicant has provided the facilities necessary to obtain the full 20% concession on plot ratio under cl 3(a) of Policy 4.1.10 or to be excused from providing a 3 metre wide landscape strip.
By the respondent's own admission the 3 metre wide landscape strip as required by cl 4.17.2.6 of TPS 4 and cl 3(d) of Policy 4.1.10 could be achieved by simply reducing the width of each apartment by 200 millimetres.
To say that in its place the applicant would landscape part or all of the verge, which the Tribunal accepts is large, but which pursuant to cl 3(d) of Policy 4.1.10 it may be required to do in any event, is not sufficient.
The applicant has not satisfied the Tribunal that the bulk and scale of the development will not adversely impact the amenity of the adjoining neighbours particularly in respect of the circulation of breezes which in the Broome climate is important.
The Tribunal finds that the development demonstrates an inadequate outcome in balancing the competing demands and in its present form it is considered that the building footprints are excessive and the development exceeds the recommended plot ratio by too large a margin.
The Tribunal does acknowledge the need for additional tourist accommodation in Broome, however, that of itself is not a reason to allow the development, particularly when sufficient landscaping, breezeways and a built form in keeping with the Broome style is not what is offered by the present proposal.
The Tribunal noted that Council at the end of its reasons for refusals stated:
"Council also stated that it would be prepared to favourably consider an application, which reduced the impact of the building bulk to allow for breeze circulation to adjoining sites and address the issue and provision of guest boats and caravans."
and the Tribunal can see some justification for granting some allowance in car parking.
In all the circumstances, therefore, the application for review is refused and the respondent's determination of 30 August 2007 is affirmed.

Orders

1.The application for review is refused.
2.The respondent's decision of 30 August 2007 is affirmed.

I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER