SCHLOFFER and CITY OF BAYSWATER
[2020] WASAT 122
•14 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SCHLOFFER and CITY OF BAYSWATER [2020] WASAT 122
MEMBER: MS M CONNOR, MEMBER
HEARD: 7 AND 8 JULY 2020
DELIVERED : 14 OCTOBER 2020
FILE NO/S: DR 178 of 2019
BETWEEN: JAMES SCHLOFFER
First Applicant
JAMIE BARRETT
Second Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning - Development - Application seeking to amend aspect of 'development approved' - Finished Floor Levels of basement, ground, upper and roof deck floors raised - Assessment of height of 'whole' of building - Building height - Wall height - Roof deck - Impact on amenity of adjoining properties - Views of significance - Building bulk - Compatibility with setting
Legislation:
City of Bayswater Local Planning Scheme No 24, cl 1.6, cl 3.6, cl 8.5.2.2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(w), cl 76(2), cl 77, cl 77(1)(c), cl 77(2)(a)
Planning and Development Act 2005 (WA), s 26, s 252(1), s 257B, s 257B(3)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 2.5.1, cl 5.1.3, cl 5.1.6, cl 7.3.1(a), Appendix 1
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr J Algeri |
| Second Applicant | : | Mr J Algeri |
| Respondent | : | Mr C Slarke |
Solicitors:
| First Applicant | : | Altus Planning |
| Second Applicant | : | Altus Planning |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Baker Investment Pty Ltd and City of Vincent [2016] WASAT 115
Christie and Town of East Fremantle [2010] WASAT 160
Ex parte Lord v City of Perth (2002) WASCA 254
Goyder and Walsh [2009] WASAT 108
Loxton and City of Fremantle [2015] WASAT 46
Moto Projects No.2 Pty Ltimited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
O'Donovan and Town of Cambridge [2008] WASAT 152
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Warden and Town of Mosman Park [2019] WASAT 88
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In December 2016, 3D Edge on behalf of James Schloffer and Jamie Barrett (applicants) applied to the City of Bayswater (respondent, Council or City) for approval to commence development for a three storey single house on Lot 503 (No 2) The Look, Maylands (Lot 503 or subject land).
The application to commence development was granted approval on 17 May 2017 subject to 10 conditions and five advice notes (development approved). Advice note 1 of that approval states as follows:
1.To activate the planning approval, the development/use subject of this approval must be substantially commenced within a period of two years of the date of this approval notice. If the development is not substantially commenced within this period, this approval shall lapse and be of no further effect. Where an approval has lapsed, no development/use shall be carried out without the further approval of the City having first been sought and obtained.[1]
[1] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 481-497.
A further application was made to the City on the 27 February 2019 seeking an extension of time to the development approved. The City subsequently granted a two year extension on 6 March 2019 (March 2019 approval).[2] The Tribunal also notes that this deadline has now been further extended by virtue of Schedule 4 of Clause 78H Notice of Exemption From Planning Requirements During State of Emergency Cause (as amended) to 17 May 2023.
[2] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 498-506.
Subsequent to the March 2019 approval, a further application seeking to amend aspects of the development approved was submitted to the respondent on 13 May 2019 (application to amend). Such an application is able to be made pursuant to cl 77 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).
The application to amend proposed to raise the whole of the building by 429 millimetres (five standard brick courses) to align the basement floor level with road level. The application also included other modifications to the basement floor area, upper floor pool area and roof deck area. The amendments sought involved increasing the approved boundary wall height on the north-west lot boundary from 6.0 metres to 6.43 metres and the approved building height from 7.0 metres to 7.43 metres.[3]
[3] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 1-31.
The Council, at its meeting of 20 August 2019, resolved to refuse the application to amend for the following reasons:
1The development is of excessive scale and bulk, not complying with the building height requirement of the Residential Design Codes Volume 1 and Design Guidelines – Lot 1 and Lot 12 No 68 Fourth Avenue East, Maylands WAPC Subdivision Reference Number 124855 Policy; resulting in undue impact on the amenity of adjacent properties, and access to views of significance.
2The roof deck does not comply with the visual privacy requirements of the Residential Design Codes Volume 1; resulting in direct overlooking of an outdoor living area of an adjacent dwelling.
3The development does not satisfactorily address the following factors set out in clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015:
'(m)compatibility of the development with its setting including the relationship of the development to development on adjoining and 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
…
(ii)the character of the locality;
(iii)social impacts of the development'; and
'(y)any submissions received on the application.'
4The development is contrary to orderly and properly (sic) planning, undermining the intent of the Design Guidelines Lot 1 and 12 No 6-8 Fourth Avenue East, Maylands WAPC Subdivision Reference Number 124855 by exceeding building height requirements and compromising access to views of significance within the estate guidelines area.'[4]
[4] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 98-120.
The applicants, on 6 September 2019, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.[5] The applicants seek an order that the respondent's decision be set aside and approval be granted to amend the development approved.
[5] The application for review was taken to have been commenced under cl 76(2) of Sch 2 of the Planning and Development (Local Planning Scheme Regulations 2015.
As part of the proceeding in this matter the parties engaged in mediation, which resulted in a further amended proposal being provided to the respondent. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider its decision in light of the further amended proposal.
The Council, at its meeting of 3 December 2019, reconsidered the matter and reaffirmed its previous decision for the same reasons as given on 20 August 2019, with the exception of reason 2 and a modification to reason 3 deleting '(ii) the character of the locality'.[6]
[6] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 32-33.
The matter proceeded to final hearing for adjudication by the Tribunal. It is agreed by the parties that the final iteration of the plans that are the subject of this review are marked as Exhibit 2A and 2B (amended development).
Subject land and surrounding locality
The subject land is more particularly described as Lot 503 on deposited plan 52647, being the whole of the land contained in Certificate of Title Volume 2661 Folio 549 and is 301m2 in area.
The established approved natural ground levels (NGL) for Lot 503 are 11.11 metres Australian Height Datum (AHD) for the majority of the lot, reducing to 9.26 metres AHD in the south-western quadrant.[7]
[7] Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 479 and 480.
The subject land, together with 12 other residential allotments, forms part of a residential estate, known as the 'Bardon Waterside Estate' (Estate). Currently, seven of the 13 lots have been developed, all containing two or three storey single houses and two other lots (Lot 501 and Lot 511) have valid planning approvals to construct three storey single houses.
Mr David Bruce Kaesehagen, an environmental scientist specialising in landscape visual assessment called on behalf the applicants, described the landscape character of the locality as follows:
The Look is part of the Swan River landscape a landscape comprised of a meandering river, a foreshore and land mass that varies in topography and contains vegetation and built form of varying intensity, colours, form and shapes. The Look has a southerly to south-westerly outlook to the Swan River, Optus Stadium Matagarup Bridge and Central Business District (CBD East Perth).[8]
The proposal
[8] Witness Statement of David Bruce Kaesehagen, dated 20 May 2020, (Exhibit 17) para 15.
The amended development proposes to amend the following aspects of the development approved: [9]
[9] Refer to Exhibit 2A & 2B, together with Respondent's section 24 bundle, dated 10 January 2020, (Exhibit 4) pages 486- 495.
1)raise the finished floor levels (FFL) of the building as follows:
(i)Basement floor plan -
• approved garage FL RL 8.19 metres
• amended garage FL RL 8.41 metres• approved basement FL RL 8.28 metres
• amended basement FL RL 8.45 metres(ii)Ground floor plan
• approved ground FL RL 11.11 metres
• amended ground FL RL 11.37 metres(iii)Upper floor plan
• approved balcony 2 FL RL 14.14 metres
• amended balcony 2 FL RL 14.40 metres• approved upper FL RL 14.19 metres
• amended Upper FL RL 12.45 metres• approved terrace FL RL 14.11 metres
• amended terrace FL RL 14.40 metres(iv)Roof deck plan
• approved roof deck FL RL 16.93 metres
• amended roof deck FL RL 17.28 metres2)increase maximum building height of the building from RL 18.11 metres to RL 18.28 metres;
3)increase the boundary wall height on the north-west boundary;
4)roof deck balustrading to be visually permeable above RL18.11 metres;
5)minor amendments to the basement and ground floor plan including extending the garage area; the incorporation a second store area; removal of ground floor entry from south-east elevation and replacement with ensuite and increased window size adjacent to the staircase on south-east elevation; and
6)minor amendments to street fence design (primarily adjacent to the south-east lot boundary.
Planning framework
The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Medium and High Density Residential' with a density coding of R50 under the City of Bayswater Local Planning Scheme No 24 (LPS 24 or Scheme). Schedule 2 - Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) have effect as part of LPS 24 due to the operation of s 257B of the PD Act. Further, to the extent of any inconsistency between a deemed provision with another provision of LPS 24, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[10]
[10] Section 257B(3) of the Planning and Development Act 2005 (WA).
Clause 1.6 of LPS 24 sets out the general objectives of the Scheme. The relevant objectives in relation to this matter include:
…
(b)to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof;
…
(g)to promote aesthetic control and design guidelines at all levels of land use and development;
…
(i)to protect coordinated development proposals from ad hoc inconsistent development proposals[.]
'Single House' is designated as 'P' in the Residential zone in Table No. 1 Zoning Table of the Scheme. 'P' means 'that the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme.
Clause 8.5.2.2 of the Scheme provides:
Unless otherwise provided in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
State Planning Policy 7.3 Residential Design Codes Volume 1 (Codes) is prepared under s 26 of the PD Act, as amended from time to time. Design element 5.1 Context (Design Element 5.1) of the Codes is of particular import in this review, particularly cl 5.1.3 Lot boundary setback and cl 5.1.6 Building height.
The relevant objectives of Design Element 5.1 are:
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
(b)To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale[.]
(c)To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.
…
(e)To 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[.]
Clause 7.3.1(a) of the Codes provides that local planning policies may contain provisions that amend or replace certain specified deemedtocomply provisions of the Codes, contingent on the amendments or replacements being consistent with the relevant design principle. Relevantly, the deemed-to-comply provisions relating to lot boundary setback (cl 5.1.3 C3.2-3.3) and building height (cl 5.1.6) are identified in cl 7.3.1(a) of the Codes as provisions that may be amended or replaced.
The City has adopted Design Guidelines Lot 1 & 12 No 6-8 Fourth Avenue East, Maylands WAPC Subdivision Reference Number 124855 Policy (Design Guidelines) as a local planning policy that contains provisions that amend the deemed-to-comply provisions relating to lot boundary setback and building height.[11] There is no dispute between the parties that the revised application does not meet the relevant requirements of the Design Guidelines and therefore is to be assessed against the corresponding design principles of the Codes.
[11] The Design Guidelines were adopted by the Council in 2005 and although they have subsequently been amended as late as 2016 they reference, and the terminology used, originates from the 2002 version of the Codes.
Clause 3.6 of LPS 24, which specifies the matters to be considered in determining an application for development approval, has been effectively replaced by cl 67 of the deemed provisions.[12] The relevant matters in cl 67 of the deemed provisions to which the Tribunal is to have due regard to in determining this application are:
[12] Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] - [47].
•the aims and provisions of the Scheme (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning policy for the Scheme area (subclause (g);
•the compatibility of the development within its setting (subclause (m));
•the amenity of the locality (subclause (n));
•the history of the site where the development is to be located (subclause (w)); and
•any submissions received on the application (subclause (y)).
Application of cl 77 of deemed provisions
This application for review relates to an application made under s 77(1)(c) of the deemed provisions (s 77(1)(c)), which provides as follows:
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following
…
(c) to amend an aspect of the development approved which, if amended, would not substantially change the development approved[.]
As correctly observed by Mr Slarke, the respondent's representative, there is a jurisdictional threshold question that needs to be determined when considering applications instigated under cl 77(1)(c), that being, whether the proposed modifications would result in a substantial change to the development approved.
In Baker Investment Pty Ltd and City of Vincent [2016] WASAT 115 the Tribunal cited a number of New South Wales cases considered to be on point and concluded that in order to determine whether an application to amend 'would not substantially change the development approved' it is necessary to make a comparison between the development as proposed and the development as approved.[13] The Tribunal also made the following observation at [77]:
In planning cases, question of whether alterations 'substantially change' an 'aspect' of the original development will be highly fact specific, perhaps impressionistic to some degree but always require the exercise of 'planning judgment' in a relatively wide, rather than narrow, context, as indicated [in] the New South Wales cases.
[13] Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 per Mason P; Moto Projects No.2 Pty Ltimited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [56].
The respondent does not argue that this application would substantially change the development approved and the Tribunal is satisfied on the facts that this position is correct.
Pursuant to cl 77(2)(a) of the deemed provisions an application to amend the development approved is required to be dealt with as if it were an application for development approval.
The respondent submits that the comparison made between the development 'as proposed' and the development 'as approved' to determine the jurisdictional threshold question posed under cl 77(1)(c) should not be applied to the merits assessment of an application to amend. The respondent submits that a merits assessment of the application to amend necessitates an assessment of the development as a whole, 'not the amendment in isolation by comparing it with what was previously approved' it is not a comparative exercise.[14]
[14] ts 15, 8 July 2020 (Mr Slarke).
The applicants submit that the decision-maker in considering an application for development approval is to have due regard to the history of the site where the development is to be located.[15] The applicants accept that a merits assessment of an application to amend is to be considered in the context of the development as a whole, but says that the fact that a development has been approved for the site and this application is an amendment to that application, is an element that needs to be given regard to in the consideration of this matter.
[15] Clause 67(w) of Sch 2 of Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Clause 77(1)(c) creates a separate power that provides for an application to amend an aspect of an approved development. The wording of the clause starts from the premise that there is a development approved. An assessment under cl 77(1)(c) must be something other than a full development application approval and will be dependent on the circumstances of each case, or else the clause would serve no purpose.
Importantly, in this case the application to amend the development approved seeks to raise the FFLs of the basement floor of the building from RL8.19 metres and RL8.28 metres to RL8.41 metres and RL8.45 metres respectively, with subsequent adjustments to the FFLs of the ground, upper and roof deck floors (ground and upper floors by 260 millimetres and roof deck by 350 millimetres). As a consequence of the floor level adjustments, the maximum height of the building increases from RL18.11 metres to RL18.28 metres. In addition, the height of the wall on the north-west boundary increases by approximately 260 millimetres adjacent to the upper level kitchen area and to the top of the wall adjacent to balcony 2. Furthermore, the height of the obscure screen that sits on top of the wall adjacent to balcony 2 has been increased by a further 200 millimetres, and as such, the height of the wall (inclusive of the obscure screen) adjacent to the balcony 2 equates to 6.99 metres. As a consequence of raising the floor levels of the whole of the building, aspects of the amended development do not meet the requirements of the Design Guidelines and trigger an assessment of the height of the whole of the building in light of the relevant design principles. Accordingly, the assessment of the amended development, in this instance, is not a comparative exercise.
Issues
The key issues in this matter, as generally identified by the parties are as follows:
i)Whether the proposed development demonstrates compliance with the design principles for building height (clause 5.1.6 P6) of the Codes;
ii)Whether the proposed development demonstrates compliance with the design principles for lot boundary setback (cl 5.1.3 P3.2) of the Codes;
iii)Will the proposed development be compatible with its setting, having regard to any impacts on neighbouring properties arising from:
a)building bulk and height;
b)interference with views; and
c)the roof deck.
iv)Will the proposed development have an adverse effect on the amenity of the locality having regard to any impact arising from:
a)building bulk and height;
b)interference with views; and
c)the roof deck.
The issues in this matter are interrelated and rather than addressing each issue separately, the Tribunal has considered the issues with reference to particular adjoining properties as identified by the parties.
Both the respondent and the applicants accept that as the amended development exceeds the 7 metre height requirement (as set out in category B of the Codes) the application is to be assessed against design principle cl 5.1.6 P6 of the Codes, which provides as follows:[16]
Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
•adequate access to direct sun into buildings and appurtenant open spaces;
•adequate daylight to major openings into habitable rooms; and
•access to views of significance.
[16] The Design Guidelines provide for building heights on Lot 501 to 504 (among others) to be ‘in accordance with Category B provisions' of the 2002 Codes. The Category B provisions in Table 3 as contained in the 2002 version of the Codes remains unchanged in the 2019 version of the Codes and specify the maximum building height to the top of an external wall for a building with a concealed roof is 7 metres.
Further, it is agreed that the wall built up to the north-west boundary of Lot 503 does not meet the requirements of cl 3.3.2 'Buildings on Boundary' as specified in the Design Guidelines as the boundary wall exceeds 6 metres in height and is set back less than 5.5 metres from the primary street. These exceedances trigger an assessment against design principle cl 5.1.3 P3.2 of the Codes, which provides as follows:
Buildings built up to boundaries (other than the street boundary) where this:
•makes more effective use of space for enhanced privacy for the occupants/s or outdoor living areas;
•does not compromise the design principle contained in clause 5.1.3 P3.1;
•does not have any adverse impact on the amenity of the adjoining property;
•ensures direct sun to major openings to habitable rooms and outdoor living areas for adjoining properties is not restricted; and
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
Clause 5.1.3 P3.1 of the Codes provides as follows:
Buildings set back from lot boundaries … so as to:
•reduce impacts of building bulk on adjoining properties;
•provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
•minimise the extent of overlooking and resultant loss of privacy on adjoining properties.
The term 'adjoining property' is defined in Appendix 1 Definitions of the Codes to essentially require that the development site share a common boundary with the adjoining property. In this matter, for the purposes of assessment, adjoining properties most certainly include Lot 502 and Lot 504. There is some question as to whether Lot 501 is captured by the definition of adjoining property, as it is not clear as to whether Lot 501 in fact shares a boundary, or a portion of any boundary with the subject land. The Tribunal does not consider it necessary, in this instance, to determine this question as the assessment undertaken by all the experts in these proceedings included Lot 501 in their assessments.
The Tribunal had the benefit of expert evidence from Mr Kaesehagen and Mr Benjamin Luke Laycock, a town planning consultant, called on behalf of the applicants; and Mr Matthew Newman, a Landscape Architect with 20 years' practical experience and Mr Hideyuki Shigeyoshi, a town planning consultant, called on behalf of the respondent. The Tribunal, together with representatives of the parties and their experts, also had the benefit of a view of the subject land, Lot 504 and Lot 502.
The Tribunal also received witness statements from three residents: Mr Christopher Bishop, joint owner and resident of No 4 The Look, Maylands (Lot 504); Ms Caroline Raines, joint owner of No 14 Fourth Avenue East, Maylands (Lot 501); and Mr Wayne Sissing, joint owner and resident of 12 Fourth Ave East, Maylands (Lot 502).
Mr Laycock and Mr Shigeyoshi (planning experts) agreed the maximum height of the building as RL18.28 metres, which equates to the maximum height of the building being 7.17 metres above that portion of the lot where NGL is 11.11 metres AHD and 9.02 metres above that portion of the lot where NGL is 9.26 metres AHD.
With respect to the boundary wall, Mr Laycock calculated the height for the portion of the wall that adjoins the upper floor kitchen as RL17.37 metres (or 6.26 metres above the NGL of 11.11 metres AHD) and for the portion of wall that extends to the undercroft garage area as 8.11 metres above the lower NGL of 9.26 metres AHD.[17] Mr Shigeyoshi expressed his calculations of the height of the boundary wall as follow:
… the proposal features an upper floor kitchen boundary wall measuring 6.37m to 8.11m and a Balcony 2 balustrade and screen height of 6.99m in lieu of 6.0m. The latter Balcony 2 and screen wall also seeks a primary street setback variation of 4.0m in lieu of 5.5m[.][18]
[17]Witness Statement of Mr Benjamin Luke Laycott dated 12 June 2020 (Exhibit 18) at para 83.
[18] Witness Statement of Mr Hideyuki Shigeyoshi dated 10 June 2020 (Exhibit 7) at para 46.
The respondent contends that the height of the development will create an adverse impact on the amenity of the adjoining properties, in particular, views of significance from Lots 501 and 502 will be adversely affected by the roof and/or roof deck of the development. Further, the respondent contends that the boundary wall, in combination with the obscure glass screening on top of the wall, will have an adverse impact on the amenity of Lot 504 by reason of its building bulk and by interfering with access to views of significance.
The planning experts agreed that the key issue in assessing building height in this case is primarily the impact of the development on the amenity of the adjoining properties, particularly in relation to access to views of significance.
Visual impact assessment
With agreement from Mr Kaesehagen and Mr Newman (visual assessment experts), Mr Bruce Brunton, the building designer for the project, produced a series of 3d images to be used for the purposes of the visual analysis by both visual assessment experts. The modelling by Mr Brunton involved using photographs and designated viewpoints from the existing balconies attached to the living areas (upper floor areas) of Lots 502 and 504 and from a midpoint on the upper floor balcony of the approved dwelling on Lot 501. The photographic points were agreed by visual assessment experts.[19]
[19] The photographic point/s for Lot 501, Lot 502, and Lot 504 are shown in Annexure 1 to the Witness Statement of Mr David Bruce Kaesehagen dated 20 May 2020 (Exhibit 22).
The 3d images generated from each of the designated viewing points showed:
•the base photographic background with some key markers;
•the same view with glass building envelopes placed over the lots on the river side of The Look, along with the Optus Stadium;
•the same view with the proposed built form on Lot 503 added;
•the same view again with a reddish glass building envelope superimposed, to indicate an alternative notional built form on Lot 503.[20]
[20] The 3d images are attached to the Witness statement of Mr Bruce Brunton dated 14 May 2020 (Exhibit16) Attachment BB1.
It was agreed by both visual assessment experts that there were limitations with the modelling but the images produced were the best representation of the impact to enable the visual analysis.
Mr Kaesehagen approached the visual assessment as a comparative analysis exercise that contrasted the amended development with the development approved in some instances and in others, compared the alternative notional built form against the amended development and thereby assessing the difference from a visual perspective. Mr Laycock also considers this approach to be appropriate and submits that the development approved 'essentially establishes a benchmark for the site in terms of a development form that has been assessed and considered appropriate by the [r]espondent'.[21]
[21] Amended Witness Statement of Benjamin Luke Laycock dated 12 June 2020 (Exhibit 18) at para 52.
Mr Newman's approach involved analysing the impact of the amended development on the existing views from Lot 502 and Lot 504 but making an allowance for the likely development of Lot 507 and Lot 509 in the future.
The visual assessment experts agreed that The Look development sits in a visual landscape context of high visual amenity and that the view of significance from Lots 502 and 504 is comprised of the Swan River, the Burswood Peninsula foreshore, Optus Stadium and the Matagarup Bridge. The assumed view of significance from the upper level balcony of the proposed dwelling on Lot 501 included the same features in a more open vista.
Lot 501
Ms Raines, in her witness statement asserts that the building height as proposed will have an adverse impact on the amenity of Lot 501 as the development will directly block views of significance. She was also concerned about the roof deck and the potential for large shade structures (such as large umbrellas) to be installed, which would give rise to additional obstruction to views of significance from Lot 501.
The visual assessment experts, in reviewing the approved plans for the dwelling on Lot 501, considered that the most appropriate view point from Lot 501 to assess was from the upper floor balcony, which is adjacent to the main living area.[22] In oral evidence, the visual assessment experts explained that an assessment of the view from the bedroom on the 'first floor' was not included in the visual assessment as a bedroom is considered an intimate space and visual assessments are undertaken from the main living area. Notwithstanding, Mr Newman did consider the view from the bedroom and gave the following oral evidence in respect to his assessment:
The majority of the glass space in that bedroom faces the park itself, the tree and turf area. There is a smaller window on the wall facing the river and my assessment of the view from that window would be that you would need to stand at the window turn to the left to have your view impacted on by the roof on Lot 503. [23]
[22] Respondent's supplement section 24 bundle of documents dated 26 March 2020 (Exhibit 5) Tab 2 Plan A201b
[23] ts 7 July 2020 at 3:07 3:07:44 (Mr Newman).
Both visual assessment experts agree that there will be no visual impact on the view of significance from the upper floor balcony of Lot 501 through the development of the proposed dwelling on Lot 503.
Lot 502
Mr Sissing, in his witness statement, expressed concerns about the height of the building and the roof deck, which he considers will have a significant impact on the views of significance experienced from Lot 502. He asserts that the proposed roof deck is intrusive, introduces the potential for overlooking and will have an adverse amenity impact on adjoining properties beyond what was reasonably intended by the Design Guidelines. He is also concerned that the outdoor entertaining area will obscure views from Lot 502 and the people and activities on the roof deck will be an unwelcome impost and distraction.
The visual assessment experts in their joint witness statement agreed that the amended development on Lot 503 will have a negligible impact on the view of significance from Lot 502. In oral evidence, it was acknowledged by the visual assessment experts that there are a number of material changes to components in the view of significance, such as 'a small loss of water' view and a 'reduced view of vegetation on Bardon Park'. Although, in their opinion when considered in the context of the totality of the view, the change to the view of significance is considered to be negligible. However, both visual assessment experts agree that the colour of the roofing material will make the proposed roof more or less prominent in the view from the balcony of Lot 502. In order to minimise the prominence and glare of the roof, it was suggested that if the development was to be approved that a condition be imposed limiting the colour of the roof to darker or more neutral colours.
Mr Laycock, in assessing the amended development against the relevant design principles also considers a comparative analysis of the development approved (a compliant slightly lesser building height (0.17m less) and different balustrade treatment on the roof deck) with the amended development appropriate given that the development approved could be acted upon prior to 17 May 2023.[24] He agrees with the conclusions of visual assessment experts that the amended development will result in a negligible impact on the view of significance from Lot 502 and contends that the building height of the amended development demonstrates compliance with cl 5.1.6 P6 of the Codes.
[24] Amended Witness Statement of Benjamin Luke Laycock dated 12 June 2020 (Exhibit 18) at para 70.
Mr Shigeyoshi, in his witness statement, acknowledges the view of the visual assessment experts, however, he maintains that the 'building height (including the roof deck) and the prominence of the roof (including its colour) in the foreground view, will nevertheless adversely affect Lot 502'.[25]
[25] Statement of Evidence of Hideyuki Shigeyoshi dated 10 June 2020 (Exhibit 7) at para 34.
Regarding activity on the roof deck and its impact on the viewing experience, both visual assessment experts agree that activity on the roof deck has the potential to draw the viewer's eye from the view of significance as it is human instinct to be attracted to other people but once that instinct had been satisfied the eye would move away to something that would give a greater sense of amenity and that the viewer would focus on the natural elements featuring in the view of significance, as these elements would give them a greater sense of wellbeing.
Mr Shigeyoshi is particularly concerned with the use of the roof deck area and the potential for additional structures to be erected within the space. He submits that Lot 502 will suffer a loss of privacy because there will be a direct line of sight to and from the roof deck on Lot 503 and the balcony area and family room on Lot 502. He accepts that the frequency of use of the roof deck will influence the degree of impact on the peaceful use and enjoyment of the balcony and family room of Lot 502.
Mr Laycock accepts that the roof deck, for the purposes of the Codes, is an 'active habitable space' but considers its characteristics to be atypical in so far as it is exposed to the elements and access to the roof deck is gained via external stairs from the upper floor terrace and not from another habitable space. In his view, the roof deck is unlikely to be used frequently or for extended periods of time as the principal outdoor living areas (the terrace and balcony on the upper floor) will be utilised by the residents and their guests to capture the views of significance on a more regular basis. In his assessment he did consider the placement of objects on the roof deck but concluded that small tables and chairs may be placed on the roof deck on occasions but that the height of such object would be unlikely to exceed 0.77 metres in height and therefore will not be visible above the solid wall portion of the balustrade. As for structures used or placed on the roof deck that may impede on a neighbour's access to views, he concludes that such structures are likely to require a separate planning approval and should not inform an assessment of the proposal under cl 5.1.6 P6 of the Codes.
Lot 504
Mr Bishop, in his witness statement, expressed concern about the impact of the boundary wall, in combination with the obscure glass screen on top of the wall, which he maintains will increase the building bulk on the boundary as it is directly adjacent to the upper floor balcony on Lot 504 and will significantly interfere with highly prized views to the south from that balcony. He contends that the amended development will have a negative impact on the enjoyment of the primary (and only) outdoor dining/living area of Lot 504, particularly as the floor level of balcony 2 on Lot 503 will be 210 millimetres above the floor level of the upper floor balcony on Lot 504 creating a sense of being 'looked down upon from the adjoining balcony'.[26]
[26] Witness statement of Mr Christopher Bishop dated 18 May 2020 (Exhibit 8) at para 15.
Mr Kaesehagen described the current view from the balcony of the dwelling on Lot 504 as follows:
Foreground view the foreground view includes built form associated with the development of The Look enclave particularly houses fronting the foreshore (Lots 505 509). Lot 507 is currently vacant but for visual modelling purposes it is assumed as developed. A dominant view from the balcony of Lot 504 is of Bardon Park (image not taken) which includes a visual attractive contoured parkland comprised of lawns, trees and shrubs. The view to the Swan River and foreshore is from a southeasterly direction across Lot 503 and between and above Lots 509 and 510 and is a filtered view through the foreshore trees.
The midground view also includes the Swan River associated foreground extending from the foreground view. Built form includes tall apartments and office buildings protruding out of the tops of extensive foreshore vegetation. The midground view also includes the Optus Stadium and Matagarup Bridge. Built form comprised of tall office and apartment buildings associated with CBD and Burswood.[27]
[27] Witness statement of Mr David Bruce Kaesehagen dated 20 May 2020 (Exhibit 17) at paras 41 and 42.
There are a number of vantage points from the upper floor balcony on Lot 504. It is the south-easterly view across Lot 503 that will be impacted by the proposed development. It was agreed by the visual assessment experts that the view of the multi-level buildings, including the Crown Towers, and the filtered views to the Swan River through the trees looking down The Look will be lost from viewpoints 1 and 2 as a consequence of the amended development and that these views are valued by Lot 504.[28] It was also noted that iconic views of the Optus Stadium and Matagarup Bridge are not visually impacted by the amended development.
[28] Appendix 1 of Witness Statement of David Bruce Kaesehagen dated 20 May 2020 (Exhibit 22) – Plan 2.0.
It was further agreed that the loss of view of the multi-level buildings and the filtered views of the Swan River is a material change that would adversely impact on the view of significance from the upper floor balcony on Lot 504.
However, Mr Kaesehagen considers that the view across Lot 503 will be lost under both the approved development and the amended development and that the visual impact is the same in both scenarios. In his opinion, the amended development does not impact on access to views of significance to Lot 504. Mr Laycock also shares this view and considers that the amended development 'will not unduly block [Lot 540's] access to views of significance'.[29]
[29] Amended Witness Statement of Benjamin Luke Laycock dated 12 June 2020 (Exhibit 18) at para 55.
Mr Newman held the opinion that the views from Lot 504 that will be lost or reduced as a consequence of the amended development on Lot 503 amounts to a significant loss as these views are highly valued and will have an adverse impact on the amenity of Lot 504.
Mr Shigeyoshi considers the cumulative impact of the height of the boundary wall (inclusive of the obscure glass screening), the floor level disparity between the balconies on the two lots and the reduced primary street setback of the building on Lot 503 will significantly increase the building bulk on Lot 504 and interrupt views of significance of the Swan River and the Burswood Peninsula from the upper floor balcony of Lot 504. He submits that as a consequence of the primary street setback and the height of the boundary wall the amended development will have an adverse impact on the amenity of Lot 504 and as such, does not demonstrate compliance with the design principles.
Mr Laycock accepts that the proposed boundary wall will be visible through and extends above the existing glass balustrade to the upper floor balcony on Lot 504 and that this may result in some sense of increased enclosure on that side of the balcony. However, he submits that as the balcony remains unenclosed on two sides and contains a large unroofed section the openness currently experienced is maintained, and as such, he does not consider the height of the boundary wall will adversely affect the use and enjoyment of the upper floor balcony on Lot 504.
Tribunal's considerations
As the Tribunal has concluded earlier in these reasons, the merits assessment of this case is not a comparative analysis of the amended development against the approved development for two reasons. Firstly, the amended development seeks to raise the FFLs of the whole building between 170 millimetres and 350 millimetres. One of the resultant consequences is that portions of the roof and the balustrade to the roof deck exceeds the height requirement of Design Guidelines by 170 millimetres but the effects are greater, as can be observed from the disparity between the FFLs of Lot 503 and Lot 504; the increase wall height of the boundary wall adjacent to Lot 504 and the raising of the FL of the roof deck by 350 millimetres.[30]
[30] Front Elevations - Lots 503 & 504 Drwg No:SAT.2 Rev 1 (Exhibit 2).
Secondly, the amended development triggers an assessment of the development against the design principles of the Codes, whereas the development approved was assessed as a compliant application. The difference between the deemed-to-comply requirements and the amended development is not relevant. As the Tribunal has previously articulated, '[t]he exceedance of the development with the deemedtocomply requirement is not an appropriate measure for assessing whether the development satisfied the relevant objective(s) of the Codes, and demonstrates compliance with the design principles'.[31] However, this approach does not mean that the fact that a compliant development has been approved is any irrelevant consideration in this case as cl 67(w) of the deemed provisions provides for regard to be had to the history of the site.
[31] Loxton and City of Fremantle [2015] WASAT 46 at [29].
The applicants also relied on evidence that sought to compare the amended development against 'alternative built form envelope[s]', which according to Mr Brunton are based on a combination of various statutory planning controls and assumptions. The Tribunal considers these images to be an irrelevant consideration for two reasons. Firstly, the alternative development building envelope 3d images prepared by Mr Brunton are hypothetical alternatives that in the course of the final hearing were shown to be flawed as the modelling was premised on a NGL of 11.11 metres AHD and did not take into account the NLG of 9.26 metres AHD. Secondly, according to the case law referred to in Warden and Town of Mosman Park [2019] WASAT 88 at [43]-[48], the comparison of the effects of the amended development with hypothetical alternatives is an irrelevant factor to which the Tribunal must not have regard.[32]
[32] Christie and Town of East Fremantle [2010] WASAT 160; Ex parte Lord v City of Perth (2002) WASCA 254; Goyder and Walsh [2009] WASAT 108; O'Donovan and Town of Cambridge [2008] WASAT 152; ReCity of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243.
So turning to the assessment of the application against the design principles of the Codes, the Tribunal finds that the amended development does not demonstrate compliance with the relevant design principles.
The two aspects of the amended development where the exercise of judgment is required under the Codes relates to Design Element 5.1, in particular, the building height and the lot boundary setback. In the exercising of judgment, the decision-maker is to consider the merits of the proposal having regard to the objective(s) of the design element and balancing these with the consideration of the design principle(s).[33]
[33] Clause 2.5.1 of the Codes.
A key consideration in the relevant design principles, in this case, is that the building does not have any, or creates no, adverse impact on the amenity of the adjoining property/properties. Clearly, the landscape character of The Look is a valued natural feature that has shaped the subdivision design of the Estate and preparation of the Design Guidelines to inform the community's expectation for the locality. Mr Kaesehagen says the Estate 'sits in a visual landscape context of high visual amenity' and describes the views of significance from the Estate as 'a view of high scenic quality'. Undoubtedly, views in this locality are an important part of any amenity consideration. The Tribunal accepts Mr Laycock's description of the amenity of the locality, which is as follows:[34]
… the amenity of the area can be described as medium density residential estate, boarded by parklands and fronting the Swan River. The estate comprises of two and three-storey single storey dwellings that have been progressively constructed over past ten (10) or so years in a contemporary style[.]
In terms of the estate more specifically, the south-west orientation of the lots, the fall of the land towards the river foreshore and the approved design lot levels emanating from the subdivision is such that the allotments can possibly gain views of the Swan River, the CBD, Optus Stadium, Matagarup Bridge and/or Bardon Park. The possibility of these views form part of the amenity enjoyed by the residents of The Look and it is commonplace that the built form outcomes seek to capture and retain such view, where possible.
[34] Amended Witness Statement of Benjamin Luke Laycock dated 12 June 2020 paras 45 and 46.
As to the degree of impact the amended development will have on the amenity of Lot 501, the Tribunal accepts the evidence of the visual assessment experts and finds that amenity of Lot 501 will not be adversely affected by the height of the amended development.
The same cannot be said for Lot 502. Whilst the Tribunal accepts the evidence of the visual assessment experts that the amended development will have a negligible impact on the view of significance from Lot 502, it is evident from the 3d images and the visual experts agree that there is a material change in the view to the south-west from Lot 502, which arises from the roof and roof deck. Although the amended development for the most part maintains access to views of significance in the context of the whole view, the building height of the amended development will have a material impact on the view from Lot 502 and that impact will be an adverse one. The Tribunal is particularly troubled by the roof deck and the intrusion likely to be derived from the activity and use of this area as it is in direct line of sight from the upper floor balcony and living area on Lot 502. The cumulative impacts of the building height and the roof deck will adversely impact the amenity of Lot 502 and as such, the Tribunal finds that the amended development does not demonstrate compliance with cl 5.1.6 P6 and is inconsistent with the objectives of Design Element 5.1 of the Codes and therefore, not capable of approval under cl 8.5.2.2 of LPS 24. Furthermore, on balancing the range of considerations set out in cl 67 of the deemed provisions (which includes the history of the site), the Tribunal considers that the overall impact of the amended development to be unreasonable as it will considerably diminish the amenity of Lot 502, and as such, the amended development does not warrant approval.
Regarding the degree of impact of the amended development on the amenity of Lot 504, where there is a divergence in the evidence of the visual assessment experts the Tribunal prefers the evidence of Mr Newman and Mr Shigeyoshi as they did not approach the task as a comparative analysis of the amended development with the development approved, although the Tribunal acknowledges that views across Lot 503 from Lot 504 will be affected to some degree by development on Lot 503. The Tribunal considers the combination of the height of the boundary wall (inclusive of the obscure screen), the increased FFL of the upper floor level of the amended development together with, the reduced setback to the primary street to be an aspect of the amended development that is not responsive to, and incongruent with the built form on Lot 504. The overall impact of the boundary wall will adversely affect the amenity of Lot 504 in terms of both building bulk and visual amenity and therefore does not demonstrate compliance with cl 5.1.3 P3.2 and is inconsistent with the objectives of Design Element 5.1 of the Codes, and as such, not capable of approval under cl 8.5.22 of LPS 24. Furthermore, on balancing the range of considerations set out in cl 67 of the deemed provisions (which includes the history of the site), the Tribunal considers that this aspect of the design of the amended development is not compatible with its setting as it does not respond sympathetically with the built form on Lot 504 and the resultant building bulk will significantly diminish the amenity of Lot 504. This aspect of the amended development does not warrant approval.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
14 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SCHLOFFER and CITY OF BAYSWATER [2020] WASAT 122 (S)
MEMBER: MS M CONNOR, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 OCTOBER 2020
FILE NO/S: DR 178 of 2019
BETWEEN: JAMES SCHLOFFER
First Applicant
JAMIE BARRETT
Second Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Practice and procedures - Costs - Planning review proceedings - Development application - Application seeking to amend aspects of 'development approved' - Adjournment of final hearing - Applicants seek costs for the applicants' consultants' fees relating to preparation of additional or revised evidence and additional submissions commencing from adjournment of final hearing
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 27(3), s 30, s 87, s 87(1), s 87(2), s 87(4)(b), s 89
Result:
Application for costs against respondent allowed in part
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | Altus Planning |
| Second Applicant | : | Altus Planning |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
James Schloffer and Jamie Barrett (applicants) sought review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) of the determination of the City of Bayswater (respondent) on 20 August 2019 to refuse an application to amend aspects of the development approved for a three storey single house (amended development) on No 2 The Look, Maylands (Lot 503).
The matter proceeded to final hearing (hearing) on 26 February 2020. At the commencement of the hearing the Tribunal raised the following two concerns with respect to the documents and evidence filed by the respondent.
Firstly, the respondent sought to agitate issues and contentions not set out in its Statement of Issues, Facts and Contentions (SIFC). The respondent's expert planning witness, Mr Hideyuki Shigeyoshi, raised concerns and expressed opinions in relation to the impact of the boundary wall on No 4 The Look, Maylands (Lot 504) and the impact of the amended development on views of significance enjoyed by No 14 Fourth Avenue, Maylands (Lot 501) and Lot 504. The Tribunal noted that the respondent had failed to seek leave of the Tribunal to amend its SFIC to reflect the issues raised by Mr Shigeyoshi in his witness statement.
Secondly, the witness statements of the land owners of Lots 504 and 501, filed by the respondent, included material of an expert nature in relation to the impacts of the amended development on views of significance from those properties.
The respondent acknowledged the difficulties raised by the Tribunal and indicated a desire to amend its SIFC to include the impacts of the amended development on Lots 504 and 501; amend the resident witness statements; and to submit expert evidence, most likely from a landscape architect, in regards to the impact of the amended development on views of significance on Lot 501, Lot 502 and Lot 504. In order for this to be undertaken an adjournment of the hearing was sought and granted.
An application for costs pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) was made by applicants on 13 March 2020. The applicants seek an order that the respondent pay all the costs of the applicants' consultants' fees relating to the preparation of additional or revised evidence and additional submissions commencing from the adjournment of the hearing of 26 February 2020 up until the conclusion of the final hearing held on 7 and 8 July 2020.[35] The quantum of cost sought to be recovered is unknown as the applicants proposed to submit an itemised bill of costs at the conclusion of the final hearing.
Applicants' case
[35] This includes the full costs of the landscape architect.
The applicants initially contended that the respondent:
1)did not use its best endeavours to assist the Tribunal with evidence that would allow it to make the correct and preferable decision;[36]
2)did not genuinely attempt to enable and assist the decision-maker to make a decision on its merits; [37]and
3)did not conduct itself in a manner that enabled the Tribunal 'to act with as little formality and technicality as practicable and to minimise the cost to parties'.[38]
[36] Section 30 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
[37] Section 87(4)(b) of the SAT Act.
[38] Section 9(b) of the SAT Act.
In their submissions in reply, the applicants accept that s 87(4)(b) of the SAT Act relates to whether the decision-maker in the first instance genuinely attempted to make a decision on the merits with respect to the reviewable decision not to any subsequent conduct and as such, did not press this argument.
The applicants argue that as a consequence of the respondent's action, 'they will need to bear additional, unforeseen costs because of a failure of the respondent to prepare documents and evidence for the hearing in an appropriate and satisfactory manner' and that cost of an extended and prolonged hearing should not be borne by the applicants.[39]
[39] Applicants' Costs Application dated 13 March 2020 para 36.
More specifically, the applicants argue that costs, as sought, should be awarded in their favour for the following three reasons.
Firstly, the respondent failed to seek leave of the Tribunal to amend its SIFC to include additional issues identified by Mr Shigeyoshi in his witness statement. The applicants' representative submits that this failure caused prejudice to the applicants as their planning expert did not have the opportunity to address these additional matters in his written evidence and would therefore only have the opportunity to deal with them in examination-in-chief and cross-examination.
Secondly, the respondent attempted to adduce evidence from resident witnesses that purported to be expert in nature and that this was one of the reasons for the Tribunal adjourning the hearing. The applicants submit that the potential conflict was raised at the directions hearing on 14 February 2020 and dismissed by the respondent. Further, the applicants submit that the respondent's agent should have been alive to the conflict and should have vetted the content of the evidence. In support of its position the applicants cite Melvista Park Pty Ltd and Western Australian Planning Commission [2009] WASAT 52 at [2] and [13] and Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48].
Thirdly, the applicants contend that if it were not for the above failings of the respondent the hearing would not have been adjourned and the applicants would not now be in the position of having to adduce specialist expert evidence on the issue of impacts on views of significance, as the confined nature of the matters as identified in the respondent's SIFC was capable of being dealt with by planning evidence.
Respondent's case
The respondent rejects the applicants' claim for the costs sought, or any costs at all.
The respondent accepts that in the exercise of discretion under s 87(2) of the SAT Act, the Tribunal is able to consider the extent to which the respondent had complied with s 30 of the SAT Act, which states:
In a proceeding for the review of a reviewable decision, the best endeavours of the decision-maker are to be used to assist the Tribunal to make its decision on the review.
However, the respondent submits that the exercise of discretion under s 87(2) of the SAT Act should be approached more broadly, from the perspective of whether it is fair and reasonable in all the circumstances that the discretion should be exercised in the applicants' favour.[40]
[40] Respondent's response to applicants' Costs Application dated 30 March 2020 para 6.
Although the respondent accepts that the evidence contained in the witness statement of Mr Shigeyoshi extends beyond the matters raised in the respondent's SIFC, it submits that it was not unreasonable or inappropriate for Mr Shigeyoshi to raise those issues. The respondent says that Mr Shigeyoshi's evidence will assist the Tribunal to produce the correct and preferable decision and is therefore, entirely consistent with the respondent's duty under s 30 of the SAT Act.
The respondent also accepts that leave to amend the respondent's SIFC so as to squarely raise those additional matters ought to have been sought in advance of the hearing but submits that there has been no denial of procedural fairness as the defect has been cured by the adjournment of the hearing and the subsequent programming orders.[41]
[41] Respondent's response to applicants' Costs Application dated 30 March 2020 para 12.
The respondent further argues that the applicants were aware of the matters raised in Mr Shigeyoshi's witness statement on or around 10 February 2020 and raised them at the directions hearing held on 14 February 2020 but did not seek an adjournment of the hearing. Rather, the applicants sought to press on with the hearing and therefore, the applicants should not be entitled to any costs associated with preparing for and attending the hearing on 26 February 2020.
The respondent argues that both parties are incurring additional costs flowing from the adjournment of the hearing and contends that those additional costs do not flow from any unreasonable conduct of the respondent but rather from a function of the Tribunal requiring additional material from both parties in order to properly consider the merits of the review.
In response to the argument about the residents' witness statements, the respondent accepts that Ms Raines and Dr Marsh of Lot 501 cannot give impartial evidence in the nature of expert opinion evidence given their interest in the proceeding as affected neighbours and that some of the material in the witness statements of the neighbours at Lot 502 and 504 is in the nature of opinion evidence of an expert nature.[42] However, the respondent submits that the inclusion of such evidence is not a proper basis for a costs claim as the applicants were 'entitled to apply at the hearing to have any offending material deleted from the witness statement, or to submit that it should be given little or no weight'.[43]
[42] Respondent's response to applicants' Costs Application dated 30 March 2020 paras 16 and 22.
[43] Respondent's Response to applicants' Costs Application dated 30 March 2020 para 18.
Further, the respondent contends that it was not the inclusion of expert evidence in the residents' witness statements which gave rise to the adjournment of the hearing but rather, the absence of adequate impartial expert evidence from both parties relating to the impact of the amended development on the views of significance of all potentially affected neighbouring properties.
In response to the applicants' argument about the engagement of further experts, the respondent submits that there is no substance to this argument for the following reasons. Firstly, the Tribunal will be assisted by expert evidence from landscape architects with respect to the impact of the amended development on views of significance. Secondly, the applicants are not under any obligation to engage a landscape architect. Thirdly, any costs of engaging a landscape architect do not flow from any unreasonable conduct of the respondent but from the applicants choosing to provide expert evidence that will be of assistance to the Tribunal. Lastly, the choice to adduce expert evidence from landscape architects to address a relevant consideration is not antithetical to the statutory objectives of s 9 of the SAT Act.[44]
[44] Respondent's Response to applicants' Costs Application dated 30 March 2020 para 29.
The respondent contends that all costs incurred by the applicants arising from the adjournment of the hearing are costs incurred as a necessary consequence of the applicants choosing to address the consideration relevant to the merits of the review and as such, those costs cannot reasonably be laid at the feet of the respondent.
Applicable legislation and principles
The SAT Act confers discretion on the Tribunal to award costs. The relevant provisions are set out below:
87. Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
(a)whether the party (in bringing or conducting the proceeding before the decision maker in which the decision under review was made) genuinely attempted to enable and assist the decision maker to make a decision on its merits;
(b)whether the party (being the decision maker) genuinely attempted to make a decision on its merits[.]
The Court of Appeal in Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) gave consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred on the Tribunal by s 87(2) of the SAT Act.
As Murphy JA at [50] said in Questdale (Martin CJ and Corboy J agreeing):
… the presumptive position or starting point under s 87 (1) of SAT Act [is] that each party is to bear its own costs.
The Tribunal in Spartalis and City of Stirling [2017] WASAT 125 (Spartalis) highlighted the relevant principles found to apply when considering a costs application:
1)The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48];
2)Although not expressly stated in s 87(2) of the SAT Act that the power is to be exercised if it is fair and reasonable in all the circumstances to do so, the 'judicial nature' of the exercise of the power and the scheme of the SAT Act supports that legislative intention; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [49];
3)The onus is on the party seeking an order in their favour to persuade the Tribunal that an order should be made; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [51];
4)All parties to proceedings before the Tribunal are taken to be aware of the statutory objectives of the Tribunal set out in s 9 of the SAT Act; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54];
5)Following on from point four above, the Tribunal needs to consider whether the other party's conduct in the proceeding has interfered with the Tribunal's ability to satisfy its statutory objectives of ensuring that the proceeding is determined fairly and in accordance with the substantial merits of the case, to act speedily and with as little formality and technicality as is practicable and in a way which minimises the costs of the parties; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].
The Spartalis decision at [19] - [20] went on to set out the principles to be applied by the Tribunal in dealing with cost applications:
Therefore although the starting position is that each party bears its own costs, the Tribunal has a clear discretion to award costs in an appropriate matter. The Tribunal in its consideration needs to determine if it is fair and reasonable for a party to be reimbursed for costs incurred, not simply because that party has been ultimately successful, but by considering the other party's conduct particularly whether that conduct has impaired the Tribunal's ability to meet its statutory objectives of dealing with matters speedily and cost effectively.
In addition, s 87(4) of the SAT Act identifies matters to which the Tribunal is to have regard in proceedings arising in its review jurisdiction when exercising its discretion. In particular s 87(4)(b) of the SAT Act, requires the Tribunal to consider whether the original decision-maker has genuinely attempted to make a decision on its merits. It is also relevant when considering this issue, the stage of the proceeding at which the original decision-maker makes any such genuine consideration.
Section 89 of the SAT Act concerns the assessment of the amount of costs where an order for costs is made by the Tribunal, and states as follows:
If the Tribunal makes an order under this Division for the payment of costs and does not fix the amount of costs, that amount is to be assess or settled in accordance with the rules.
An order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67]. The Tribunal must be satisfied that the costs claimed are reasonable and not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
In Panegyres v Medical Board of Australia [2020] WASCA 58, Vaughan JA provided the following guidance on the minimum amount of information required by the Tribunal to ensure it is in a position to evaluate and assess a claim as to cost:
… At the least this requires that the Tribunal be appropriately informed as to the work done and time taken as is claimed for and the rates which are said to apply to that work. The detail required in this respect is a matter for the Tribunal. It may take the form of an affidavit attaching the tax invoices as charged. Alternatively, the Tribunal may consider it appropriate to require a short form bill of costs[.]
Consideration of the application for costs
The Tribunal, in Snook and Western Australian Planning Commission [2012] WASAT 38 at [32] observed as follows:
The rules of natural justice, or procedural fairness as they are often called, require each party in court or tribunal proceedings to have the opportunity to both know the case that it is required to meet, and to properly and fully present its case. The making of orders identifying issues in proceedings, or the making of orders requiring the parties to identify the issues they wish to raise in a proceeding, by means of a statement of issues, facts and contentions, achieves the objective of procedural fairness, both to ensure that parties are aware of the case they have to meet and that they can fully present the case that they wish to.
The respondent's SIFC filed with the Tribunal on 10 January 2020, identified three issues, in essence, relating to the building height of the amended development and its impact on the amenity of Lot 502. Mr Shigeyoshi, in his witness statement filed on 10 February 2020, addressed the issues and contentions identified in the respondent's SFIC but also raised concerns and expressed opinions about the impacts of the amended development on the amenity of Lot 501 and Lot 504.[45] Further, two of the three resident witness statements filed by the respondent raised concerns about the impact of the amended development on Lot 501 and Lot 504.[46] Some of the material sought to be adduced by the residents contained opinion evidence of an expert nature.
[45] Statement of Evidence of Hideyuki Shigeyoshi dated 10 February 2020 at paras 22 – 24, 27, 31 and 32.
[46] Statement of Evidence of Christopher Bishop and Marcia Barclay dated 5 February 2020 and Statement of Evidence of Caroline Raines and Dr Andrew J Marsh dated 7 February 2020.
Clearly the respondent was seeking to agitate issues and contentions not set out in its SFIC. It is not unusual for an expert in preparing his or her witness statement to identify an issue not raised by the parties and leave subsequently sought to amend the parties' SIFC in the proceeding. Mr Shigeyoshi's consideration of matters beyond the respondent's SIFC was appropriate and assisted the Tribunal in coming to the correct and preferable decision in this proceeding. The fault lies with the respondent failing to seek leave to amend its SIFC.
It is evident from the evidence filed by the applicants that they were unaware that the respondent was seeking to widen the breadth of the dispute to include considerations relating to the impact of the amended development on the amenity of Lot 501 and Lot 504. Further, the applicants at a directions hearing held on 14 February 2020 expressed disquiet about the expert evidence sought to be adduced by the resident witnesses. Clearly, the applicants were unaware of the case it had to meet and was denied procedural fairness by the approach taken by the respondent.
The Tribunal at the commencement of the hearing on 26 February 2020 invited submissions from the parties in regard to these matters. The respondent informed the Tribunal that it wished to proceed to agitate the issue in respect to the amenity impacts of the amended development on Lot 501 and Lot 504 and accepted that the witness statements of the residents included material of an expert nature. In order to rectify the difficulties with the respondent's case, an adjournment of the hearing was sought.
The applicants' representative expressed concern about the respondent's conduct in the proceeding and the prejudice to his clients but indicated a preparedness to continue with the hearing as he considered that any prejudice could be addressed through examination-in-chief of Mr Laycock and cross-examination of Mr Shigeyoshi.
The Tribunal was not convinced that on the evidence, or more aptly, the lack of expert evidence in regard to the impact of the amended development on Lot 501 and Lot 504, that the respondent's case could be fully presented if the hearing continued. The Tribunal also considered the issues sought to be agitated by the respondent to be relevant considerations in the determination of this matter and that both parties should be afforded the opportunity to present expert evidence on this issue and not dealt with extemporaneously. The Tribunal also expressed concern that the applicants had not submitted a south-west elevation plan showing the relationship between the amended development and the dwelling on Lot 504 as part of the application, particularly as a south-west elevation plan had formed part of the materials used in the assessment of the 'development approved'.
The Tribunal acknowledges that the respondent's representative at the relevant time was not legally qualified, however, this does not fully excuse the failure of the representative to seek leave to amend its SIFC to accord with the issues sought to be agitated as planning consultancies are often engaged by parties as representatives in town planning matters before the Tribunal and such, should be fully aware of the Tribunal's practices and the importance of affording procedural fairness to the opposing party.
It is the Tribunal's view that this is a case where it is appropriate to exercise the discretion to order the respondent to meet the applicants' costs thrown away by reason of the adjournment of the hearing on 26 February 2020. Costs awarded should be limited to the costs of the applicants' representative for the whole day and the costs incurred for Mr Laycock's attendance on the day. The costs should not include any preparation time for the hearing on 26 February 2020 as the Tribunal does not consider this time to be wasted as it was preparation for the final hearing which ultimately proceeded in July 2020.
As to the applicants' claim for costs of the applicants' consultants' fees relating to the preparation of additional or revised evidence and additional submissions commencing from the adjournment of the hearing of 26 February 2020 up to the conclusion of the final hearing held on 7 and 8 July 2020, the Tribunal does not consider that the conduct of the respondent warrants an award for the costs sought by the applicants for the following reasons.
Firstly, the additional issues raised by the respondent were relevant considerations in the determination of this matter and needed to be addressed by the parties in order for the Tribunal to reach the correct and preferable decision. Any costs arising from additional or revised evidence and additional submissions addressing these issues did not flow from any conduct of the respondent but from the applicants' endeavours to advance the substantial merits of their case. Secondly, pursuant to s 27(3) of the SAT ACT 'the reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision' and as the Tribunal articulated at the hearing, notwithstanding the respondent's position, the Tribunal was alive to the issues and required the parties to adequately address the additional issues to be able to make the correct and preferable decision. Thirdly, the engagement of landscape architects by the parties to address the issues relating to views of significance greatly assisted the Tribunal in making its determination but the choice to provide that expert evidence was a decision for each of the parties to make in the advancement of their case.
Costs as awarded will need to be assessed if not agreed. That process should be dealt with as speedily and inexpensively as possible. The parties are encouraged to agree the costs if possible rather than prolong the matter and incur further cost. If agreement cannot be reached within 21 days of the delivery of these reasons, the applicants are to lodge with the Tribunal an itemised bill of their costs as outlined in [41]. An appointment will then be made for the parties to attend before a member of the Tribunal who will assess the costs and determine the amount to be paid.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for costs against the respondent is allowed in part.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the respondent must pay to the applicants the following costs associated with the hearing held on 26 February 2020:
(i)the applicants' representative's costs for the whole day; and
(ii)the applicants' planning expert's costs for attendance on the day.
3.If agreement is not reached within 21 days of the delivery of these reasons, the applicants are to file and serve an itemised bill of those costs as set out in Order 2 above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
30 OCTOBER 2020
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