Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel - [2022] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SHARON PROPERTY PTY LTD -v- THE PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL [2022] WASC 332
CORAM:   SOLOMON J
HEARD:   1 & 2 DECEMBER 2021
DELIVERED          :   30 SEPTEMBER 2022
PUBLISHED           :   30 SEPTEMBER 2022
FILE NO/S:   GDA 9 of 2021
BETWEEN:   SHARON PROPERTY PTY LTD
Appellant
AND
THE PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Failure to exercise jurisdiction - Failure to engage with expert evidence - Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) -Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) - Failure to afford procedural fairness - Interface between Noise Regulations and cl 67(2)(n) of the Deemed Provisions - Community noise under Noise Regulations - Application of cl 67(2)(s) and (t) of the Deemed Provisions - Appeal on error of law - Questions of law and questions applicable to an appeal on the question of law

Legislation:

Environmental Protection Act 1986 (WA), s 3(3), s 79, s 123

Environmental Protection (Noise) Regulations 1997 (WA), reg 2, reg 5, reg 7, reg 8, sch 1, pt C
Planning and Development Act 2005 (WA), pt 14, s 256, s 256(5), s 257B
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 18
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), pt C, item 4, sch 2, reg 5(2), reg 7, reg 8, reg 10, reg 16, reg 16(1), reg 16(3), cl 67(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 77, s 77(2), s 105(1), s 105(2)

Town of Claremont Local Planning Scheme No. 3, cl 14(3)(d)

Result:

Leave to appeal declined
Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	C S Bydder & C Ide

Solicitors:

Appellant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Camp v Legal Practitioners Complaints Committee [2007] WASC 309
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Greenslade v Hiew [2022] WASCA 47
Kapinkoff Nominees Pty Ltd v Director of Liquor Licensing [2010] WASC 345
Panegyres v Medical Board of Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
Singh v Minister for Home Affairs (2019) 267 FCR 200
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

SOLOMON J:

Introduction

This is an appeal regarding the refusal to approve a development application for a child care centre in Swanbourne. It is advanced by way of an appeal from the decision of the State Administrative Tribunal (Tribunal). The Tribunal affirmed the decision of the Metro Inner North-West Joint Development Assessment Panel (the respondent) to refuse approval for the development of the proposed child care centre on Lots 18 (No. 164) and 19 (No. 162) Alfred Road, Swanbourne (Development).

The Development

The following background is taken from the unchallenged findings of the Tribunal.
The Development is proposed to be located on the corner of Alfred Road and Butler Avenue in the Town of Claremont, covering 1,849 m² in area over two freehold lots.
The Development is to accommodate, at any one time, a maximum of 90 children, aged between 6 months and 8 years old, and 18 staff members, operating Monday to Friday between the hours of 7.00 am and 6.00 pm.
The built form of the Development is to have two storeys, with the ground floor covering an area of 324 m²and the second storey covering an area of 291 m². Outdoors, the ground floor play area is proposed to amount to 462 m², providing various play areas delineated by fencing, for differing age groups.
The Development also provides for 27 car bays on site, 17 of which will be allocated to staff, one being an ACROD bay and nine being allocated to visitors, primarily being utilised by parents and caregivers dropping off and picking up children between the hours of 7.00 am and 9.00 am and 4.00 pm and 6.00 pm.
An important feature of the location of the Development is it that it is situated on the corner of Alfred Road and Butler Avenue. Alfred Road is a major road carrying approximately 11,647 vehicles per day and is categorised as a District Distributor A road. In contrast, Butler Avenue is a tree lined cul-de-sac with residential homes that do not have front boundary fences. Butler Road thus has a very distinct residential character. The land on which the Development is to be located directly abuts two parcels of land zoned residential, including, number 4 Butler Avenue on the southern boundary. It is this location of the Development in a relatively tranquil residential setting, generating issues relating to amenity that constituted the principal focus of the respondent and the Tribunal.

Procedural history and appeal

On 12 April 2019, the Rowe Group (on behalf of Sharon Property Pty Ltd) (the appellant), lodged the development application regarding the Development with the Town of Claremont. Under pt 11A of the Planning and Development Act 2005 (WA) and the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), the development application was assessed by the respondent. On 12 July 2019, the respondent refused the application.
Under pt 14 of the Planning and Development Act and reg 18 of the Planning and Development (Development Assessment Panels) Regulations, the appellant sought a review by the Tribunal of the respondent's decision to refuse the development application. The Tribunal heard the review application over five days between 8 October and 17 December 2020. The Tribunal published its decision on 7 May 2021, dismissing the application for review and affirming the respondent's decision to refuse the Development.
A party to a proceeding in the State Administrative Tribunal may appeal from a decision of the Tribunal, but only if the court to which the appeal lies, grants leave.[1] Such an appeal can only be brought on a question of law.[2] When leave is sought it is necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal.[3] In Centex Australasia Pty Ltd v Commissioner for Consumer Protection, the Court of Appeal ((Martin CJ, Newnes JA and Beech J) explained (with citations omitted)):
There is no constraint upon the ambit of an appeal from the Tribunal to the court in this case. However, the appeal to this court only lies with leave, which will be granted if, in all the circumstances, it is in the interests of justice. Although there are no rigid or exhaustive guidelines governing the grant of leave, generally the applicant for leave must show that there is sufficient doubt to justify the grant of leave and that allowing the error to go uncorrected would impose substantial injustice. The latter requirement will be more readily satisfied where the order under appeal is final.[4]
[1] State Administrative Tribunal Act 2004 (WA), s 105(1) ('SAT Act').
[2] SAT Act s 105(2).
[3] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27].
[4] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
There is no doubt here, that an uncorrected error would cause substantial injustice to the appellant. It follows that in this case, the outcome of the application for leave turns critically upon the merits of the grounds of appeal.[5]
The Tribunal's reasons
[5] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [106]; Also see Panegyres v Medical Board of Australia [2020] WASCA 58 [227] (Panegyres).
In its reasons for decision, the Tribunal set out the background in some detail, describing the Development and the locality, including the road network and the existing day care centres.
In explaining the applicable planning framework, the Tribunal identified the various relevant planning instruments, and in particular, the applicable local planning scheme, the Town of Claremont Local Planning Scheme No. 3 (LPS 3). The land on which the Development is to be located is zoned 'Residential R20' under the LPS 3. The Development is categorised as a 'Day Care Centre' under the LPS 3, which is identified as an 'SA' use in the 'Residential zone' in Table 1 ‑ Land Use Table.
Clause 14(3)(d) of the LPS 3 relevantly provides that the use class 'SA':
Means that the land shall not be used for the purpose indicated but that in exceptional cases the Council may specially approve of such use where:

(i) The applicant has given notice of the development proposed to be carried out by:
(1) Advertising particulars thereof in a newspaper circulating in the area in which the land is located at least once after the land use application has been lodged with the Council;

(2)Placing a notice or notices specifying particulars of the proposed development and the purpose for which the land is to be used in a prominent position or positions on the land so that the same are visible and readable from every street to which the land has frontage;

…
(vii)the Council has considered all submissions made with respect to the proposed use and is satisfied that use, the activities to be carried on which are connected with or incidental to that use and any building to be erected on the land will not have any adverse or detrimental effect on the residents or of the amenity of or the properties in the locality.

The Tribunal identified the issues that it considered arose for determination in the following terms:
1.The correct classification of the Proposed Development under the Town of Claremont Local Planning Scheme No 3 (LPS 3).
2.Whether the Proposed Development warrants approval with regard to:
(a)noise;
(b)traffic (including safety);
(c) car parking, including access and egress arrangements;
(d) visual amenity;
(e) compatibility; and
(f) community need.
The Tribunal then referred to and set out the applicability of the 'Deemed Provisions'.[6] These were central to the Tribunal's review and remain so in this appeal. They will be explained more fully below. At this point it suffices to observe that those provisions require account to be taken of a broad range of matters. In particular, it requires due regard to be had to the impact of the Development on the amenity of the locality, including specific aspects of that impact, which will be explained.
[6] Planning and Development (Local Planning Schemes) Regulations 2015, sch 2 (Deemed Provisions).
The Tribunal ultimately decided that the cumulative impacts on the amenity of the locality arising especially from the noise and traffic that are likely to be generated from the Development and the appearance of the car park hardstand, were such that the application should be refused. The Tribunal set out its reasoning at some length, in a decision of almost 400 paragraphs over 84 pages.

The appeal

The appellant appeals against the decision of the Tribunal on six grounds, some of which contain a number of sub-grounds. Grounds 4 and 5 were substantially amended less than two weeks before the hearing, after the filing of written submissions.
It is convenient to set out the amended grounds of appeal in full:
1.The Tribunal erred in law:
(a)by mis-describing at [108] the Appellant's submission, in finding that the proposed development is to be regarded as 'educational' simply because the Child Welfare (Care Centres) Regulations 1968 (WA) had been repealed, when the Appellant had submitted that the evidence supported a finding that the noise emissions likely to be emitted from the proposed development would be caused by recreational and educational activities from premises occupied for educational purposes, within the meaning of that expression in Schedule 2 of the Environmental Protection (Noise) Regulations 1977 (WA) ('the Noise Regulations'), and therefore constituted 'community noise' under Regulation 16 of the Noise Regulations, which exempted it from any need to model the likely future impact of noise emissions from the proposed development, by reason of Regulation 7 of the Noise Regulations;
(b)by finding at [125] to [133] that the use classification of the proposed development under the Town of Claremont's Local Planning Scheme 3 ('LPS 3') was material to the proper construction of the Noise Regulations; and
(c)failing to find that the activities of the proposed development were either or both 'recreational' or 'educational', and the premises were 'occupied for educational purposes', within the meaning of those expressions in Schedule 2 of the Noise Regulations such that the likely noise emissions for the proposed development were deemed by law to be objectively reasonable.
2.The Tribunal erred in law in finding at [129] that the issue of 'community noise' was 'somewhat moot' and of an 'academic nature', when the issue with which the Tribunal was required to engage was whether, if the likely noise emissions from the proposed development constituted 'community noise' under the Noise Regulations, they were therefore considered to be reasonable emissions, in order to objectively assess their amenity impacts.
3.The Tribunal erred in law by:
(a)finding in substance at [134] - [142] that even if the noise emissions from the proposed development constituted 'community noise' within the meaning of that expression in the Noise Regulations, or even if modelling of predicted likely future noise emissions from the proposed development was undertaken by reference to the assigned levels under the Noise Regulations, some unspecified further assessment of the acceptability of such noise emissions 'in a planning sense' was required;
(b)finding that the concept of 'amenity' as a relevant consideration for the purpose of clause 67(n) of Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 ('the Deemed Provisions') necessarily required consideration of noise emissions 'in a planning sense' as requiring some unspecified manner of further assessment of acceptability, as if noise emissions constituted something other than environmental impacts, the acceptability of which has been expressed by Parliament in the Environmental Protection Act1986 (WA) and the Noise Regulations; and
(c)failing to include reasoning which logically explained the content of the phrase 'in a planning sense', and to identify the specific objective principles by which the acceptability of likely noise emissions should be assessed in any such sense.
4.The Tribunal erred in law by failing to examine and consider all of the evidence and submissions that were relevant to undertaking a proper determination of the issue of the assumed or likely sound power level generated by children at the proposed development, for the purposes of having due regard to the matters referred to in cl 67(2) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations, which denied the Appellant procedural fairness and/or constituted a failure to exercise its jurisdiction.
Particulars of evidence and submissions
The tribunal failed to examine and consider, at least, the following evidence and submissions, that was relevant to making a proper determination of the likely or assumed sound power level generated by children at the proposed development:
(a)The witness statement of Mr Reynolds, including his curriculum vitae.
(b)The evidence of Mr Reynolds and Mr Warpenius in the Joint Statement of Expert Witnesses, dated 23 September 2020, on pages 13 and 14, concerning their reasons for using particular assumed sound power levels.
(c)The appellant's written opening submissions, [42].
(d)The evidence of Mr Reynolds and Mr Warpenius, about sound power levels, at T381 to T392, T405 to T406, T409 to T412, and T466 to T472.
(e)The evidence of Mr Warpenious (sic) concerning his inclusion of newspaper articles in his witness statement, at T462 to T466.
(f)The appellant's written closing submissions, at [42(b)], [43(a)], [65] to [69], and [78], and the oral submissions, at T680
(g)The respondent's written closing submissions, at [79] to [84].
(h)The Association of Australian Acoustical Consultants Guideline for Child Care Acoustic Assessment (Version 3.0).
5.The Tribunal erred in law by:
(a)finding that '[o]ver time … the expected delay time turning right on Alfred Road is likely to double' and that '[i]t is that context which informs the impacts that might be reasonably expected arising from the Proposed Development, but also Alfred Road, in the short to medium term' [268], when there was no evidence to support that finding;
(b)taking into account, as a relevant consideration, traffic safety 'as an aspect of cl 67(2)(s) of the [Planning and Development (Local Planning Schemes) Regulations 2015 (WA)]'. [387];
(c)failing to engage with, by not having due regard to, the probable effect of the amount of traffic likely to be generated by the proposes (sic) development on traffic safety, as required by cl 67(2)(t) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
6.The Tribunal erred in law at [321] in describing relevant considerations as 'requirements' when clauses 67(s) and (t) of Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) do not 'require' any standard or matter to be met.

Noise

The first four grounds absorbed the bulk of the appellant's written and oral submissions. Those four grounds concern, in various ways, the predicted noise that will be generated by the Development, and in particular, the noise that will be generated by the people (primarily children playing outdoors) who will utilise the Development.
A consideration of the predicted noise and its impact on the amenity of the locality was a central focus of the Tribunal's decision. The appellant submitted that the controversy in relation to noise, while not the sole issue, was a critical and determinative aspect of the Tribunal's decision. I accept that is a fair and accurate characterisation of the Tribunal's decision.
Before addressing the Tribunal's consideration of the noise issue, it is first necessary to outline some background regarding the issue of 'noise' in a broader statutory context as well as the expert evidence before the Tribunal in respect of noise.

Noise - the Environmental Protection Act and the Noise Regulations

Noise is an issue that has regulatory significance well beyond the planning sphere. Independently of issues that may arise with development applications under the Planning and Development Act and local planning schemes, s 79 of the Environmental Protection Act 1986 (WA) (EP Act) provides:
A person who on any premises uses or causes or allows to be used any equipment in such a way as to cause or allow it to emit, or otherwise emits or causes or allows to be emitted, unreasonable noise from those premises commits an offence.
That provision plainly invites enquiry as to what is meant by 'unreasonable noise'. Section 3(3) of the EP Act provides:
For the purposes of this Act, noise is to be taken to be unreasonable if -
(a) it is emitted, or the equipment emitting it is used, in contravention of -
(i) this Act; or
(ii) any subsidiary legislation made under this Act; or
(iii) any requirement or permission (by whatever name called) made or given by or under this Act;
or
(b) having regard to the nature and duration of the noise emissions, the frequency of similar noise emissions from the same source (or a source under the control of the same person or persons) and the time of day at which the noise is emitted, the noise unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person; or
(c) it is prescribed to be unreasonable for the purposes of this Act.

As is apparent from that definition, noise may be 'unreasonable noise' for the purposes of s 79 of the EP Act if it contravenes, or is so deemed by, subsidiary legislation. It is therefore necessary to direct attention to the relevant subsidiary legislation.
Section 123 of the EP Act empowers the making of regulations, inter alia, that are necessary or convenient for giving effect to the purposes of that Act. One set of regulations so promulgated is the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). Regulation 7 of the Noise Regulations provides that noise emitted from any premises must not cause or significantly contribute to a level of noise that exceeds the 'assigned level' of noise set out in reg 8. Regulation 8 incudes a table setting out assigned levels for different types of premises receiving the noise. One type of premises listed in the table is a 'noise sensitive premises', which by reason of reg 2 and sch 1 pt C to the Noise Regulations, includes a residential home. That means, in effect, that by reason of reg 7 it is not permissible for a premises to emit noise that will be received at a residential home above the assigned levels stipulated in the table in reg 8. In addition, reg 5 provides that noise emitted in contravention of the standard prescribed by reg 8 is taken to be 'unreasonable'.
It follows that noise received at the residential homes neighbouring the Development in excess of the assigned level in reg 8 (in the absence of some exemption) would be 'unreasonable noise' and an offence under s 79 of the EP Act.

Noise - expert evidence

The Tribunal was presented with competing expert evidence from two sound or acoustic experts; Mr Reynolds for the appellant, and Mr Warpenius for the respondent.
Mr Reynolds produced a report dated 16 July 2020. That report included a brief description of Mr Reynolds' qualifications and experience, which presents as a promotional biographical note, rather than a formal curriculum vitae. It indicates that Mr Reynolds completed a Bachelor of Engineering at the University of Western Australia in 1984, commenced work in acoustics in the early 1990s, and has accumulated over 25 years' experience as an acoustic consultant. His experience in a 'vast variety of projects' includes child care centres.[7] The document lists ten specific matters in which Mr Reynolds was involved, which it describes as 'interesting projects'.[8] They do not include any child care centres.
[7] Witness Statement of Tim Reynolds (16 July 2020), 13.
[8] Witness Statement of Tim Reynolds (16 July 2020), 14.
In his report, Mr Reynolds explained that the purpose of his engagement was to assess the noise that would be received at residences neighbouring the Development and for that purpose he undertook an assessment of predicted noise emissions from the proposed child care centre. The assessment deals broadly with two sources of noise; 'outdoor play' which is the noise of children within the outdoor play area and 'mechanical services' which is noise from cars including closing of car doors and car engine start-ups.
Mr Reynolds' assessment was ultimately directed to an analysis of whether the noise predicted to be emitted from the Development would exceed the assigned noise levels prescribed by reg 8 of the Noise Regulations. Mr Reynolds explained that his modelling of noise propagation from the Development was carried out using an environmental noise modelling computer program, SoundPlan. The calculations of Mr Reynolds were based on identified 'sound power' levels which he set out in a table.
Sound power levels, and noise levels generally, are measured in decibels (expressed as 'dB'), which Mr Warpenius explained was a 'unit of measurement used to express sound level', and that 'we typically perceive a 10 dB increasing sound as a doubling of the loudness of that sound'.[9]
[9] Witness Statement of Martii Warpenius (31 August 2020), 27.
Relevantly, Mr Reynolds adopted the sound power level for 'children playing' as 83 dB (per 10 children).[10] Mr Reynolds then calculated the predicted noise levels, setting them out in a table contrasting the measurements with the assigned levels under reg 8 of the Noise Regulations, for each of 'outdoor play' and 'mechanical services'. The measurements reflect Mr Reynolds' conclusion that the noise emissions from the Development, with the proposed noise mitigation, will not exceed the relevant assigned levels under reg 8 of the Noise Regulations.
[10] Witness Statement of Tim Reynolds (16 July 2020), 22.
Mr Warpenius produced a responsive report dated 31 August 2020. That report set out Mr Warpenius's qualifications and experience and also attached what appeared to be a promotional biographical note. Mr Warpenius holds a Bachelor of Mechanical Engineering with First Class Honours and a Master of Engineering Science and has 34 years' experience as an acoustic consultant. He too set out some project experience, which included a number of child care centres. From 2011 ‑ 2013, Mr Warpenius was the chairman of the Association of Australian Acoustical Consultants. In his report, Mr Warpenius stated that he had reviewed Mr Reynolds' assessment and conducted his own assessment of forecast noise emission from the Development. He too assessed the predicted noise generated by children in the outdoor play area and from vehicles in the carpark area. Mr Warpenius's assessment was also directed to the question of whether the noise generated will exceed the assigned levels prescribed by reg 8 of the Noise Regulations.
Mr Warpenius noted Mr Reynolds' adoption of a sound power level of 83 dB for children playing outdoors for 10 children. Mr Warpenius stated that in his experience the noise from children will regularly exceed 83 dB and depending on the age, will reach 88 dB.
Mr Warpenius then made reference to the 'AAAC Guidelines'. As that document assumed some importance in this appeal, I digress to explain that document in summary form. The reference to the AAAC Guidelines is a reference to a publication of the Association of Australian Acoustical Consultants. The AAAC describes itself as a not-for-profit peak body representing professionals who are involved in delivering acoustic solutions to a wide range of clients and the community.[11] The AAAC produces various guidelines which are developed with input from AAAC members. One of them is the Guideline for Child Care Centre Acoustic Assessment. This is the document referred to by the parties, the experts and the Tribunal as the AAAC Guidelines. Senior counsel for the appellant referred me to the introduction which usefully explains:
This guideline is advisory in nature and is not a statutory document, but provides guidance in relation to the assessment and management of noise associated with child care centres. The AAAC recommend the use of this guideline, to inform its decision-making on the environmental regulation and management of noise from child care centres. It sets out feasible and reasonable noise management measures which should be considered and a process for predicting noise levels and determining achievable statutory noise limits for development consents.
[11] Association of Australasian Acoustical Consultants, About the AAAC <
Mr Warpenius noted that the AAAC Guidelines nominate 84 - 90 dB for the noise generated by 10 children playing. On that basis, Mr Warpenius contended that the adoption of a sound power level of 88 dB was 'entirely consistent with the AAAC levels' and that 90 dB was 'foreseeable'.
Mr Warpenius expressed the view that the measure of 83 dB adopted by Mr Reynolds may be achieved but it would be 'a rare event'. Mr Warpenius undertook the same modelling process as Mr Reynolds, using the SoundPlan program and sound power levels. That is, he set out the relevant sound power levels in a table and then, using those levels, undertook the modelling to forecast the noise emissions from the Development. The assessed forecast noise emissions of Mr Warpenius, adopting his preferred sound power level, were significantly higher than those of Mr Reynolds and exceeded the assigned noise levels under reg 8 of the Noise Regulations. According to Mr Warpenius, this was particularly acute at the neighbouring property at 160B Alfred Road. Mr Warpenius stated that this would represent a significant and severe degradation of amenity to a neighbour who built a two-storey building on that lot. The forecast noise emissions at the other neighbouring properties would also exceed the assigned levels under the Noise Regulations and would result in a reduction in amenity.
Mr Warpenius's assessment in relation to car park noise from vehicles, showed, in table form, that the assigned levels under the Noise Regulations would be exceeded in respect of some points of the neighbouring properties (but not otherwise).
Mr Warpenius concluded that the overall noise impact from children playing outdoors would regularly exceed the assigned levels under reg 8 of the Noise Regulations, and the noise from vehicles would also exceed the assigned level albeit, it appears, to a lesser extent.
The two acoustic experts conferred and prepared a Joint Statement of Expert Witnesses dated 23 September 2020. The Joint Statement dealt with a range of topics identified as 'Issues'. The relevant issue was Issue 3 which was titled '[n]oise generated by children'.
In respect of Issue 3, the Joint Statement set out matters about which the two experts agreed and matters about which they disagreed.
In respect of the former, the experts agreed on the circumstances which would constitute the 'worst case scenario' in respect of noise generated by children playing outdoors at the Development. That worst case scenario appears to involve 50 children playing outdoors in different spaces within the Development in groups of 20 (aged 3-5), 15 (aged 2-3) and 15 (aged 0-2). In that worst case scenario, the sound power levels were higher than each expert had assessed in their respective reports, which were not based on a 'worst case scenario'. Based on that worst case scenario, Mr Warpenius assessed the sound power level as 93 dB and Mr Reynolds assessed the sound power level as 90 dB. Depending on whether Mr Warpenius's sound power level or Mr Reynolds' sound power level was adopted, the difference is the forecast noise would be an increase of 3-5 dB or a decrease in 3-5 dB. As will be explained, the Tribunal's focus was understandably not directed to the worst case scenario but rather was concerned with the measurements assessed by each expert in his individual report.
In respect of the matters on which the two experts disagreed regarding Issue 3, the Joint Statement set out the different assessments of the two experts as reflected in their respective reports regarding the sound power levels for children playing outside.
In addition, the Joint Statement contains some description of the competing contentions. Mr Warpenius noted that he based his sound power levels on his experience with previous measurements. Mr Warpenius stated that he had been assessing child care noise for 30 years beginning in 1991. On the basis of his experience in measuring noise, he considered that the sound power level of 83 dB adopted by Mr Reynolds was not common and, the noise of children would regularly exceed that level.
Mr Warpenius explained that the AAAC Guidelines were first published in 2008 and updated in 2013. He pointed out that Mr Reynolds' firm was a member firm of the AAAC and was provided with them before they were finalised. Mr Warpenius also referred to two other published guidelines, in addition to the AAAC Guidelines.
Mr Reynolds explained that he had used his sound power level of 83 dB for over 15 years and commenced doing so prior to the publication of the AAAC Guidelines and has used that measurement when assessing over 50 child care centres. Mr Reynolds noted that the additional published materials relied upon by Mr Warpenius were only draft documents. Mr Reynolds also stated that he 'has not had a client come back after the child care centre is operating to say that they have had a problem with noise from children playing outdoors'.
In relation to the noise from the car park, the Joint Statement recorded, at Issue 9, that the noise 'can comply with the assigned noise levels… and thus, could be acceptable'.[12]
[12] Joint Statement of Expert Witnesses (23 September 2020), 9.
The evidence relating to the sound power levels and the AAAC Guidelines was not limited to the individual reports of the experts and the Joint Statement of Expert Witnesses produced by Mr Warpenius and Mr Reynolds. Both experts gave oral evidence in respect of those matters in the course of the hearing, including in cross-examination.

Noise - the Tribunal's reasons

The Tribunal dealt with the expert evidence in relation to noise from [160] of its reasons. It found that each witness was a qualified and experienced acoustic expert.
The Tribunal recorded that each expert provided an assessment of whether he thought that the Noise Regulations would be exceeded. The Tribunal recorded that Mr Reynolds considered that the assigned levels in the Noise Regulations would not be exceeded[13] and that Mr Warpenius considered that the assigned levels in the Noise Regulations would be exceeded.[14]
[13] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [161] - [162].
[14] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [163] - [164].
At [165] of its reasons, the Tribunal set out the assumptions which underpinned the experts' modelling. Significantly, after setting out those assumptions, the Tribunal made the following observation (at [166]):
Before we turn to address some of the modelling issues that were in contest between the acoustic experts, we note here that we do not regard the assumptions that underpin this modelling as conservative. In the context where the Proposed Development is to be located on residential land and in almost a purely residential locality, we would ordinarily expect a more conservative set of assumptions to have been established.
From [171], the Tribunal dealt with the principal disagreements in the modelling of the acoustic experts under the heading 'Differences in the acoustic modelling assumptions'. The Tribunal identified three such differences; sound power levels, point versus plane modelling, and length of modelling period, dealing with each in turn.
The Tribunal dealt first with sound power levels and explained that the level of noise of children playing modelled by each expert was based on a measure expressed as a 'sound power level'. The Tribunal first observed the common ground between the experts in relation to the worst case scenario referred to at [43] above. The Tribunal then put that scenario to one side and dealt with the competing assessments of the two experts. The Tribunal set out the differing measurements of Mr Reynolds and Mr Warpenius in respect of the sound power levels each expert adopted.
Having set out the competing views in respect of the sound power levels of children playing, the Tribunal stated (at [178] ‑ [183]):
Both Mr Reynolds and Mr Warpenius have been involved in countless assessments of the noise impacts arising from child care centres.
As stated, Mr Reynolds has relied on his assumption of 83 dB(A) for over 15 years. His assumptions predate the AAAC Guidelines which were first released in 2008.
Mr Warpenius has been assessing child care centres for 30 years and relies on the data outlined in the AAAC Guidelines which was, as outlined, introduced in 2008 and updated in 2013.
Once adjusted to the L_A10measurement, Mr Warpenius (sic) modelling is consistent with, albeit slightly lower than, the AAAC Guidelines.
While we are not in any way critical of Mr Reynolds, on the question of sound power level, we prefer the evidence of Mr Warpenius. His approach is consistent with the independent guidelines prepared by acoustic consultants across Australia and New Zealand.
We also consider that, in assessing noise generated from young children, a conservative approach is warranted in this instance having regard to the zoning and location of the Land. It is also the case that, despite the best efforts of staff, young children will be young children and noise will be generated.
The Tribunal then dealt with the other two matters of contention. From [184] ‑ [188] the Tribunal dealt with the difference between the noise experts in relation to 'point' versus 'plane' modelling. In respect of that debate, the Tribunal at [187], accepted the submission of the appellant that 'each of the assumptions made by the acoustic experts, in relation to either a point or a plane source, may have merit in the context of their evidence as a whole'. The Tribunal, in effect, thus accepted the appellant's contention that the opinion of both experts had merit, neither could be rejected and that issue could therefore not sway the outcome. The appellant characterised the Tribunal's assessment of that debate as 'neutral', that is, it was not determinative of, or even influential in, the Tribunal's determination.
From [189], the Tribunal turned to the point of contention between the experts about the length of the modelling period. Mr Reynolds adopted a one hour period and Mr Warpenius adopted a 15 minute period. At [192], the Tribunal concluded that '[n]o criticism can be made of Mr Reynolds in this regard'. The Tribunal then considered and rejected the criticisms of Mr Warpenius's 15-minute modelling advanced by the appellant, concluding at [194] and [196] that:
Much like town planning evidence, it seems to us that acoustic evidence is an art that is based on education, training and experience. In its practice, it is a profession that involves a number of evaluative judgments. The ability to make and justify those evaluative judgments often comes from training, observation and experience. In this regard, we note Mr Warpenius's considerable experience in advising local governments on acoustic and compliance issues: ts 442 - 443, 22 October 2020.
We do not accept the applicant's criticisms of Mr Warpenious' (sic) approach to his representative period. We consider it was reasonable to adopt an assessment period of 15 minutes on the basis that the nature of the emitted noise, children playing, is such that it is likely to be repeated and replicated over time.
The Tribunal therefore concluded that although the experts utilised different representative assessment periods, the rationale for each expert's approach was well founded.[15] This aspect of the debate was therefore also not determinative. Senior counsel for the appellant somewhat pejoratively described this as the Tribunal having 'dodged' the issue 'by not deciding that it was going to be of any moment' and the issue had no material effect on the outcome.[16]
[15] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [190] - [191].
[16] Transcript, Sharon Property Pty Ltd v The Presiding Member of the Metro Inner-North Joint Development Assessment Panel, Supreme Court of Western Australia, 1 December 2021, 36 - 37.
From [201], the Tribunal returned to the issue of the forecast noise of children playing outdoors, and specifically its impact on the two closest adjoining properties. The Tribunal characterised this as 'the crucial issue'. The Tribunal set out the tables from each expert's report setting out the noise forecast to be received at the two closest properties, 160B Alfred Road and 4 Butler Avenue. The Tribunal then made fairly brief reference to the positions of each expert, principally about the impact arising from the particular proposed design of the neighbouring properties. In respect of Mr Warpenius's evidence, at [209] the Tribunal also observed:
Mr Warpenius indicated that traffic noise is typically more tolerated by listeners than other types of noise, and particularly the noise of children, which is a noise to which the human ear through evolution is particularly attuned. Mr Warpenius considers that the noise of children is more 'prominent' than traffic noise, even where they are at the same decibel level

The Tribunal concluded its section on Mr Reynolds evidence with the following comment at [214]:
We must say that Mr Reynold's approach to his noise evidence in this matter is to be commended. We consider he offers his opinions fearlessly and consistent with an expert's obligations. He is no mere advocate for his client. Although, as we will shortly come to, we do not accept all of his evidence in this matter, we appreciate his candour.
The Tribunal then set out its 'findings on noise'. The Tribunal preferred the modelling of Mr Warpenius over that of Mr Reynolds. The nub of the Tribunal's reasoning in that respect was set out at [215], [218], [221] ‑ [225] and again at [228], as follows:
The noise issues in this matter have been difficult for us to unravel. We have before us two experts who are well qualified and who each offered reasonable opinions and justifications for these noise issues. While this case does not turn only on noise, noise is no doubt an important consideration. We have carefully considered and reflected on the noise issues that arise.
… both Mr Warpenius and Mr Reynolds are both very well qualified acoustic experts and, as we indicated at [214], we have expressly acknowledged Mr Reynolds as being a commendable independent expert witness.
… ultimately we have found that we favour Mr Warpenius's opinions. We consider that the noise emitted from the Proposed Development is likely to correspond with that mapped in Figures 2 and 3 in Attachment C to Mr Warpenius's witness statement and as set out at [203] and [204] above.
We have reached that conclusion primarily because we consider that the sound power level assumed by Mr Warpenius is to be favoured over that assumed by Mr Reynolds. We favour Mr Warpenius's view because it aligns with the AAAC Guidelines. As the respondent also submitted in its closing, Mr Warpenius (sic) findings closely match the AAAC Guidelines: Respondent's closing submissions at para 82. The AAAC Guidelines are independent assessment of the likely noise profile of children at child care centres such as the Proposed Development.
…
While Mr Reynolds has used the same assumption for sound power level (of 83 dB) for 15 years, we prefer the approach of Mr Warpenius which takes account of the AAAC Guidelines which have been prepared and revised in that time.
…
We also consider that, in this instance, the assumptions which underpin the noise modelling should be somewhat conservative. The Land is not commercial land and is not in close proximity to any form of activity centre. The Land sits squarely with a residential area. Regardless of whether the Proposed Development is said to be 'educational', it is ultimately a commercial operation as well.
…
In such a context, the noise modelling should adopt a conservative approach. On sites in and around activity centres or existing schools, a different approach may be appropriate. But in this residential context, we favour modelling assumptions which are conservative but reasonable. We favour Mr Warpenius's assumption on sound power levels. That starting point washes over all the conclusions that each of the experts reach in relation to noise.
…
We note Mr Hotchkin's challenge to many aspects of Mr Warpenius evidence, especially his assessment period and his point modelling, we do not agree that his evidence can be reasonably attacked on these fronts. We would say the same for Mr Reynolds. The difference in opinions between the two reflect the different approaches adopted. As we explained, in this instance, we prefer Mr Warpenius evidence because we consider his assumption on the likely sound power level to be more reasonable and accurate.

Grounds of appeal

Turning to the grounds of appeal, senior counsel for the appellant began with Ground 4 and I shall adopt the same course in these reasons.

Ground 4

Ground 4 concerns the competing expert evidence of Mr Reynolds and Mr Warpenius. In effect, the appellant challenges the Tribunal's preference for Mr Warpenius's conclusions over those of Mr Reynolds. That of course, does not of itself give rise to an appellable question of law. Rather, the appellant complains that the Tribunal failed to examine the relevant evidence and to resolve an issue critical to the resolution of the dispute regarding the impact of the noise. It is alleged that the Tribunal thereby failed to exercise its jurisdiction and/or failed to afford the appellant procedural fairness. In support of that ground, in its amended notice of appeal, the appellant particularised a long list of matters setting out 'at least' those matters which it contended, the Tribunal had failed to examine and consider. The list is broad and lengthy and included for example, the whole of the witness statement of the appellant's expert Mr Reynolds (Particular (a)).
In its written submissions, the appellant advanced the following propositions in support of Ground 4:
a.Mr Warpenius and Mr Reynolds gave conflicting evidence about the appropriateness of using the AAAC Guidelines; [79]
b.The preference for Mr Warpenius's evidence was fundamental to the Tribunal's conclusions; [75] - [76]
c.The Tribunal's preference for Mr Warpenius's evidence was because Mr Warpenius's levels were more reasonable and accurate, and that conclusion was 'entirely based' on the fact that his sound power levels were more consistent or aligned with the AAAC Guidelines and was not based upon any credibility findings. [74], [77]
In broad terms, the appellant complained that the Tribunal simply adopted the expert that most closely aligned to the ACCC Guidelines, without engaging with the evidence and submissions in respect of the debate concerning the adoption of the appropriate sound power levels, including Mr Reynolds' reasons for using his own levels rather than those contained in the AAAC Guidelines.
The appellant argued in its written submissions that it was 'plainly necessary' for the Tribunal 'to have decided which evidence it preferred' in order to resolve the dispute, and it was accordingly 'necessary for the [Tribunal] to make credibility findings about each of the expert witness' (sic).[17] The appellant further contended that the Tribunal was 'required' to assess Mr Reynolds' evidence about the AAAC Guidelines. The Tribunal was also required to 'engage' with the appellant's submissions that the evidence of Mr Warpenius should be rejected entirely because he did not conduct himself as an independent expert, which the Tribunal failed to do because it mischaracterised those submissions. In a form of catch-all conclusion, the appellant's written submissions contended that the Tribunal's 'failure to examine all of the relevant evidence, and to properly resolve an issue that was critical to its ultimate resolution of the important consideration of noise impact, denied the appellant procedural fairness and constituted a failure to exercise jurisdiction'.[18]
[17] Appellant's Written Submissions [79] - [80].
[18] Appellant's Written Submissions [84].
In oral submissions, senior counsel for the appellant reiterated that the consistency between Mr Warpenius's evidence and the AAAC Guidelines was 'the only rationale that was adopted' by the Tribunal for its preference for Mr Warpenius's evidence.[19]
[19] ts 1 December 2021, 42.
In respect of the alleged failure to give consideration to the evidence, senior counsel drew the court's attention to the particulars set out in the appellant's amended Ground 4, which I have set out at [63] above. In the course of his oral presentation, senior counsel for the appellant pointed particularly to certain overarching aspects of Mr Reynolds' evidence which, it was said, the Tribunal had failed to consider.
One aspect was that Mr Reynolds favoured the adoption of a lesser 'sound power level'.[20] That is a reference to Mr Reynolds' adoption of a lower sound power level than that adopted by Mr Warpenius for the purpose of modelling the predicted noise levels likely to be emitted from the Development.
[20] ts 1 December 2021, 32.
A second and closely related aspect was Mr Reynolds' reasoning for departing from the AAAC Guidelines.[21] In the context of that second aspect, senior counsel contended that had the Tribunal properly engaged in the debate about the applicability of the AAAC Guidelines, the criticism advanced of Mr Warpenius before the Tribunal ought to have 'loomed larger' in the Tribunal's consideration of that issue.[22]
[21] ts 1 December 2021, 35.
[22] ts 1 December 2021, 42.
These two aspects were closely related because Mr Reynolds' disinclination to use the AAAC Guidelines was based on the outcome of his own preferred sound power levels for modelling the noise.
Broadly speaking, the appellant complained that the substantive debate reflected in the evidence was not dealt with by the Tribunal. It was contended that the Tribunal did not engage with the substantive reasons for the difference in sound power levels and the reason that Mr Reynolds did not adopt the AAAC Guidelines. Rather, those matters were side-stepped, and the Tribunal simply adopted Mr Warpenius's position because it was more consistent with the AAAC Guidelines. The appellant argued that the Tribunal thereby failed to engage with the substantive aspects of the evidence of the expert witnesses and thus failed to afford procedural fairness or exercise its jurisdiction.
The appellant contended that the Tribunal erred because:
[t]he way in which, ultimately, the Tribunal approached this task, was to say, well, we've got two experts, both of whom are credible, largely credible, but we are going to go with one because it is consistent with these guidelines. And that's the only rationale that was adopted. Had they been attuned to the need to choose between, or the possibility of a need to choose between the two of them about the issue of whether it was appropriate to be consistent with the AAAC, then further engagement with the appellant's submissions about credibility, would have been required.[23]
[23] ts 1 December 2021, 42.
The appellant also contended that as the Tribunal expressly found Mr Reynolds to be credible, and as he advanced criticisms of Mr Warpenius's reliance on the AAAC Guidelines, the Tribunal was required to engage expressly with those criticisms and arrive at principled reasons as to why the evidence was not accepted.[24]
[24] ts 1 December 2021, 49 - 50.
It is convenient at this point to make some additional observations regarding the appellant's contention that the Tribunal failed to engage with important aspects of Mr Reynolds' evidence. I turn first to the contention that the Tribunal failed to engage with the overarching aspects; the evidence regarding sound power levels and the AAAC Guidelines.
As noted above, from [201] the Tribunal returned to the 'crucial issue' of the noise levels, and in particular, the noise levels that would be received on adjoining properties. The competing opinions in terms of predicted noise levels of the two experts were set out by the Tribunal in table form at [203] and the Tribunal then gave an overview of the two experts' findings. From [210] - [214], the Tribunal dealt with the evidence of Mr Reynolds in relation to noise levels.
The Tribunal then set out its conclusions from [215] ‑ [238], which I have set out above.
Ultimately, the Tribunal reached its finding at [238]:
In this instance, the Proposed Development will, we find, likely exceed the assigned levels in the Noise Regulations at both 160B Alfred Road and also 4 Butler Avenue. Regardless of whether that is community noise, in our view it would constitute unreasonable noise in an amenity sense for the purposes of cl 67(2)(n) of the Deemed Provisions.
In its concluding comments under the heading 'Amenity considerations', having observed that the impact of the Development on the amenity of locality is a 'central issue', the Tribunal made the following remarks at [373] and [381]:
For the reasons we set out at [221] and [222] we accept the evidence of Mr Warpenius that the noise emitted by the Proposed Development is likely to exceed the assigned levels set out in the Noise Regulations. Regardless of whether that noise is 'community noise' for the purposes of the Noise Regulations, that level of noise will be unreasonable in a planning sense, particularly on 160B Alfred Road and 4 Butler Avenue.
[t]he amenity impacts arising from the Proposed Development are unacceptable in our view. We say 'unacceptable' because of the range of impacts that arise and will need to be managed (to the extent that they can be managed). The noise impacts of the Proposed Development on the two closest dwellings (160B Alfred Road and 4 Butler Avenue) will be significant.
I turn then to the specific evidence which the appellant set out in its particulars to Ground 4 and which it contended the Tribunal failed to engage with. The first particular was the whole of the witness statement of Mr Reynolds. That contention is an unhelpful overreach. Senior counsel for the appellant explained that it was included as a particular because it contained Mr Reynolds' curriculum vitae and his methodology.[25] What aspect of those matters was the subject of the Tribunal's failure, and how it would have impacted upon the outcome of the hearing independently of the other aspects of Mr Reynolds' evidence said to have been avoided, was not the subject of any detailed submission.
[25] ts 1 December 2021, 43.
The appellant then directed attention to pages 13 and 14 of the Joint Report of the expert witnesses. In that part of the Joint Report, Mr Warpenius supported his position by reference to other published noise guidelines. The Joint Report goes on to refer to both experts' considerable years of experience with child care centres and then records Mr Reynolds' criticism of Mr Warpenius's reliance on other guidelines because Mr Reynolds contended they were drafts, a point which is then addressed by Mr Warpenius.
The appellant complains that this aspect of Mr Reynold's critique of Mr Warpenius's was not referred to, or engaged with, by the Tribunal.[26]
[26] ts 1 December 2021, 44.
The next aspect of the appellant's case which it is alleged the Tribunal failed to deal with is a single paragraph in the appellant's opening written submissions before the Tribunal. There was some confusion about which particular paragraph, but it appeared ultimately to be [41] (although the appellant's particulars to its Amended Grounds of Appeal refer to [42]). That paragraph states:
Mr Warpenius criticises Mr Reynolds for not referring to certain guidelines. Each of the WA Guidelines are quite old (2007 and 2016) and never attracted sufficient industry support to move beyond being merely a 'draft'. Further, the AAAC Guidelines for Day Care Centres do not dictate that a point model is to be preferred to a plane model, but leaves the choice to depend upon the realistic nature of the activity to be modelled.
To the extent that this paragraph is concerned with the subject of the appellant's complaints under Ground 4, it is in substance the same criticism advanced by Mr Reynolds in the Joint Report that was the subject of the previous particular I have referred to above, that is, that those additional guidelines were only drafts.
The appellant then directed attention to passages of transcript of the oral examination of the experts in which these matters were dealt with. In particular, Mr Reynolds was asked why he disagreed with the noise levels in the AAAC Guidelines. Mr Reynolds explained that he thought they were too high based on his own experience of measurements he had undertaken on child care centres.[27] Mr Reynolds then gave evidence that the Guidelines were 'mainly produced to help AAAC members in NSW'.[28] In answer to further questions, Mr Reynolds gave evidence that the Guidelines have 'some relevance' and that he might consider them in his next child care application but they did not persuade him to change his analysis of this particular application.
[27] Transcript, Sharon Property Pty Ltd v Presiding Member of the Metro Inner-North Joint Development Assessment Panel, State Administrative Tribunal, 21 October 2020, 387 - 388.
[28] ts 21 October 2020, 390.
The appellant then referred to questions asked of Mr Reynolds by the appellant's own counsel.[29] That evidence related to Mr Reynolds' many years of experience in assessing child care centres, although I should observe that the evidence clarified that Mr Reynolds' experience was in relation to the assessment of predicted sound levels, not measurements of actual sound levels.
[29] ts 21 October 2020, 405 - 406.
The appellant then drew attention to Mr Reynolds' evidence about the utility or efficacy of the AAAC Guidelines. That evidence included Mr Reynolds' acceptance of propositions that the AAAC Guidelines lack some utility, are 'generic', and needed to be treated with a degree of caution.[30]
[30] ts 21 October 2020, 412.
The appellant then referred to the cross-examination of Mr Reynolds by the respondent's counsel. The appellant directed particular attention to Mr Reynolds' explanation as why he did not adopt the AAAC Guidelines. Mr Reynolds' evidence was that it was because he continued to prefer the methodology and measurements he had developed from over 10 years ago and the method he adopted to account for different noise levels for various age groups.
I observe in passing that it is perhaps unsurprising that the Tribunal was not persuaded by the evidence I have referred to above to prefer the sound power measurements of Mr Reynolds over those of Mr Warpenius.
The evidence of Mr Reynolds that was directed to the limited utility or efficacy of the AAAC Guidelines largely consisted of the expert, Mr Reynolds, answering simply 'yes' to a series of lengthy and technical propositions put to him by the appellant's own counsel. It is unnecessary to explain why evidence of that nature is unhelpful and unpersuasive.
The outcome of the cross-examination by the respondent's counsel was that Mr Reynolds' methodology appeared to be based upon the measurements taken of a single child care centre more than 10 years ago. Mr Reynolds' evidence of his measurement of actual child care noise was in respect of one child care centre in Melville 'quite a few years ago'.[31]
[31] ts 21 October 2020, 406.
From that evidence, Mr Reynolds' own report and the Joint Expert Report, it was apparent that Mr Reynolds adopted a particular sound power level on the basis of his measurements at a child care centre in Melville some 15 years ago, prior to the publication of the AAAC Guidelines. Mr Reynolds continued to utilise that methodology after the publication of the AAAC Guidelines. In addition to the AAAC Guidelines providing for different sound power levels than those deployed by Mr Reynolds, the AAAC Guidelines include different levels for children of different ages, whereas Mr Reynolds used a uniform level for all ages, and in cross-examination he justified that on the basis that 'you don't know which kids are going to be where in the outdoor play area'.[32] I observe in that regard, as was pointed out by the respondent, there was indeed data about when different age groups would be out at different times.
[32] Transcript, Sharon Property Pty Ltd v Presiding Member of the Metro Inner-North Joint Development Assessment Panel, State Administrative Tribunal, 22 October 2020, 468.
Senior counsel for the appellant fairly pointed out that the issue on appeal is not the quality or cogency of that evidence, but rather, what the appellant characterised as a wholescale failure of the Tribunal to engage with that evidence at all. The Tribunal did not explain that it rejected Mr Reynolds' evidence because it was not persuaded by it for particular reasons. On the contrary, the appellant contends that the Tribunal commended Mr Reynolds for his evidence but did not engage with its substance and simply preferred the evidence of Mr Warpenius solely because it was consistent with the AAAC Guidelines while ignoring the debate about whether that itself, was justified.

Legal principles

Before discussing further whether the Tribunal failed in the manner asserted by the appellant, it is first appropriate to identify what it is that the Tribunal was required to do, and the basis upon which an appeal lies against that which the Tribunal has done.
Section 27 of the SAT Act sets out the nature of the review proceeding undertaken by the Tribunal. The review decision is a hearing de novo and its purpose is to produce the correct and preferable decision upon the review. The Tribunal was required to put itself in the position of the respondent and exercise the same statutory discretion afresh on the evidence presented to it, which was not confined by the evidence provided to the respondent.
In undertaking that de novo hearing, s 9 of the SAT Act mandates the following objectives for the Tribunal:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)make appropriate use of the knowledge and experience of Tribunal members.
Section 77(2) of the SAT Act provides:
Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
Under s 105(2), an appeal against the decision of the Tribunal is limited to a question of law. The question of law must be identified with precision.[33] There is no error of law in making a wrong finding of fact.[34] A question of mixed law and fact is not a question of law.[35]
[33] See Panegyres [219]; Commissioner for Consumer Protection v Carey [2014] WASCA 7 [165]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [73].
[34] Panegyres [251].
[35] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [53].
In respect of the Tribunal's obligation under s 77(2), Jenkins J observed in Camp v Legal Practitioners Complaints Committee (with citations omitted):
The Act does not elaborate on the requirement to give reasons in respect to questions of law affecting a decision. Therefore, I assume that the common law principles apply. That is, the reasons must be sufficient to give effect to the right to seek leave to appeal on a question of law. If the basis for the decision is not apparent, the losing party is unable to identify an error of law. It is essential that the reasons adequately disclose the intellectual processes that have resulted in the decision.
Where a party is unable to appeal on questions of fact, it will not be so important for the Tribunal to disclose its intellectual processes that have led to its findings of fact. However, where, as in this case, there is a right to seek leave to appeal on a question of law, it is necessary for the Tribunal to disclose the legal principles which it has applied to the facts it has found.[36]
[36] Camp v Legal Practitioners Complaints Committee [2007] WASC 309 [56] - [57].
The appellant's submission was that the Tribunal's failure to deal with the aspects of the debate between the experts in respect of noise power levels and the AAAC Guidelines was such as to deny it procedural fairness or so to amount to a failure to exercise jurisdiction. In support of that submission, the appellant relied on the observations of Hayne J (with whom McHugh and Gummow JJ agreed) in Waterways Authority v Fitzgibbon (with citations omitted):
Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.[37]
[37] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [129] - [130] (Waterways).
The issues the subject of a High Court decision in Waterways and the judgment of Hayne J concerned two interrelated issues. One is the failure to give adequate reasons and the other is the failure to engage, grapple with or give consideration to the evidence and submissions advanced in the hearing. The latter may manifest as a failure to exercise jurisdiction or a failure to afford procedural fairness, or both.
As the Court of Appeal observed in Greenslade v Hiew, the judgment of Hayne J clarifies the distinction between a complaint about the adequacy of reasons on the one hand, and on the other, a complaint about inadequate (or any) consideration of the evidence or submissions advanced by one or both of the parties.[38] The Court of Appeal explained the necessity to identify which complaint is advanced, and to understand that an asserted failure to examine material relevant to an issue, is a complaint of error in fact finding, as distinct from a failure in the adequacy of the reasons.
[38] Greenslade v Hiew [2022] WASCA 47 [45].
The error of the type asserted here by the appellant is an error, not in the factual finding itself, but an error in fact finding, that is, in the process or methodology of fact finding. It may be accepted that such an error can amount to an error of law even though it relates to a finding of fact. For example, a finding of fact in respect of a matter for which there was no evidence at all, is an error of law. Similarly, findings by the Tribunal which arise from a failure properly to consider or grapple with the relevant evidence may amount to the type of error of law asserted here by the appellant; manifesting as a failure to exercise jurisdiction or a failure to afford procedural fairness.
The principles in relation to errors of this nature were comprehensively reviewed and considered by the Court of Appeal in New South Wales in Alexandria Landfill Pty Ltd v Transport for NSW.[39] In that matter, the Court of Appeal considered an appeal against a decision of the Land and Environment Court of NSW (LEC) in respect of the valuation payable for compensation arising out of a compulsory acquisition. Under the relevant legislation an appeal was only available on a question of law. The landowner advanced nine grounds of appeal. The first two grounds were the primary focus of the appellant landowner.[40] Those grounds were:
(1)A constructive failure to exercise jurisdiction; and
(2)A failure to provide any, or adequate reasons.[41]
[39] Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 (Alexandria Landfill).
[40] Alexandria Landfill [4].
[41] Alexandria Landfill [2].
The appeal essentially challenged the market value of the acquired land arrived at by the LEC. An important feature of the contest was a discounted cash flow which was deployed to assess the value of the land. Two competing experts gave evidence about the discounted cash flow before the LEC, and in particular, the underlying discount rate adopted in that analysis.
The grounds of appeal in respect of the asserted failure to exercise jurisdiction included:
(1)A failure to make any critical assessment of the respondent's case and a failure to consider or determine aspects of the appellant's criticism of the respondent's case;
(2)A failure to examine and engage with the substance of the experts competing opinions for the purpose of forming the court's own assessment; and
(3)A failure to determine the appellant's claims on a critical review of the contested evidence including a failure to refer to documentary and lay evidence of the appellant.[42]
[42] Alexandria Landfill [5].
At the primary hearing, the LEC accepted the discount rate of the respondent's expert. The appellant complained of the LEC's failure to engage with the competing expert evidence and submissions.[43] The LEC set out the respective positions at some length. However, the reasons were 'long on recitation of the parties' submissions, but very short on resolving the issues'.[44] The appellant complained that the LEC rejected the appellant's expert and then accepted the respondent's expert 'in a sense by default'. The appellant contended that there was no critical analysis underlying the acceptance of the respondent's opinion.[45] The appellant complained that there was no reasoning process evident to understand the preference which was given to the respondent's expert opinion and no suggestion that significant underlying contested issues had been engaged with.[46]
[43] Alexandria Landfill [392].
[44] Alexandria Landfill [395].
[45] Alexandria Landfill [394].
[46] Alexandria Landfill [398].
All three judges on appeal, Basten, Macfarlan and Leeming JJA rejected the appellant's contentions, each with a somewhat different emphasis.
Basten JA explained the interrelationship between the two types of legal error; constructive failure to exercise jurisdiction and a failure to give adequate reasons, as follows (with citations omitted):
The premise underlying a 'constructive' failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved. By contrast, a failure to give adequate reasons implies that the relevant issues have been identified, addressed and resolved, but the reasons for reaching the conclusion have not been adequately expressed.
Despite the conceptual difference between the two complaints, they are related in a practical way. Because there is no means of interrogating a judge as to his or her intellectual processes, evidence that issues were not addressed can usually only be demonstrated by reference to the reasons. Thus, on the assumption that the judge addressed in the reasons all material matters, the absence of reference to a particular matter may allow the inference that it was not addressed and determined.[47]
[47] Alexandria Landfill [6] - [7].
Basten JA then reviewed and set out the principles in respect of each type of error. In comments that bear some parallels with this matter, Basten JA explained that the statutory function of the LEC was to arrive at a valuation which was an evaluative factual exercise, limited by the requirements of procedural fairness.[48] The LEC was not confined by the evidence and arguments raised by either party about the discounted cash flow.
[48] Alexandria Landfill [39].
Basten JA assessed the contention of a failure to engage with relevant parts of the appellant's case at a general (or 'global') level and at a specific level. In the course of his reasons for rejecting the appeal, his Honour observed:
While it is true that the evidence of each party appears to have engaged in detail with the assumptions and positions of the other party, including through the use of extensive joint conferencing between the various experts, it did not follow that the judge was required, in indicating his preferred approach, to address all aspects of the evidence which he did not accept.[49]
[49] Alexandria Landfill [73].
Macfarlan JA distilled a number of principles from a review of the cases. That review appeared to be more directed to the adequacy of reasons, but is nevertheless relevant to a complaint that a court or tribunal failed to engage with relevant evidence and submissions. In that review, Macfarlan JA referred to another decision of the NSW Court of Appeal, observing:
In Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 there was an appeal from the Workers' Compensation Court of New South Wales limited to errors 'in point of law or in relation to the admission or rejection of any evidence'. Mahoney JA (who together with McHugh JA formed the majority) stated that:
In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion (at 271C-D).
His Honour also stated that 'it will ordinarily be sufficient if … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted' (at 273E).
McHugh JA observed:
In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough (at 281A-C).[50]
[50] Alexandria Landfill [302] - [304].
Relevantly, other principles which Macfarlan JA distilled from a review of the authorities included the statutory requirement that proceedings before the LEC be determined with as little formality and technicality as possible, and the necessity to take a pragmatic and functional approach to the issues. His Honour observed:
Fourthly, s 38(1) of the LEC Act directs that proceedings such as the present are to be determined with as little 'formality and technicality' as possible (see [295] above). This provision gives added reason to apply in the present context judicial statements indicating that, at least where appeals are available only on questions of law, a statement of the 'broad outline and constituent facts of the reasoning' suffices (Soulemezis at [303] above) and that 'a failure to state the basis of even a crucial finding of fact, if it involves no legal standard' will not ordinarily vitiate the judgment (Soulemezis at [304] above). As McHugh JA said in Soulemezis, it is sufficient if the judgment 'reveals the ground for, although not the detailed reasoning' supporting findings of fact (see [305] above).
Fifthly, case authorities confirm that 'a pragmatic and functional approach' is to be taken in considering whether the duty of a primary judge to give reasons has been discharged (see Resource Pacific at [310] above). As RMS submitted, economy of expression is a virtue and not a vice (see [292] above).
Seventhly, it is sufficient in many cases, depending on the issues involved, for the primary judge's reasons to be implicit in his or her judgment rather than explicit (see Soulemezis and Resource Pacificat [302] - [305] and [311] above).[51]
[51] Alexandria Landfill [320] - [321]; [323].
Leeming JA dealt more directly with the appellant's complaint that there was a failure by the primary judge to engage with the substance of the competing evidence and submissions.[52]
[52] Alexandria Landfill [392].
Leeming JA was indeed somewhat critical of the primary judge's failure to engage in the reasoning of the relevant contentious issues.[53] However, his Honour concluded:
Nonetheless, there was a determination of those two key inputs. The appellant is dissatisfied that the former is not higher and the latter is not lower. But that is not enough. More is required in order that there not merely be an alleged error of fact which is outside the limited grant of appellate jurisdiction to this Court. This was, I infer, why the appellant contended that the primary judge had not merely erred in fact, but had failed to 'grapple' with the submissions.[54]
[53] Alexandria Landfill [396].
[54] Alexandria Landfill [396].
Speaking more generally of a failure to engage or 'grapple' with the substance of a party's case, Leeming JA explained:
However, as has been explained, including in Bunnings Group Ltd v Borg [2014] NSWCA 240 at [36], Coote v Kelly [2013] NSWCA 357 at [39] and Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [124], what is being inferred in such cases is a failure in the process of fact finding. As McColl JA explained in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:
Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.
That echoed Hayne J's reasoning in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]:
[b]ecause the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.
This in turn picks up what was said about findings being made without 'a consideration of the real strength of the body of evidence [the losing party] presented': State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 at 321 and indeed, more concisely, the obligation upon an appellate court to undertake a 'real review' of the evidence: Fox v Percy[2003] HCA 22; (2003) 214 CLR 118 at [25]; Robinson Helicopter Co Inc v McDermott[2016] HCA 22; 90 ALJR 679 at [43].
Where an appeal is confined to questions of law, the considerations summarised above — which are directed to the resolution of competing issues of fact — do not directly arise. While I accept that some errors in the fact finding process may amount to errors of law (actual bias is an example), I also think that one cannot safely transplant the principles applicable to an appeal by way of rehearing to appeals confined to questions of law.
True it is that it has been said, in a passage which has been often applied, that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28]. But that is in the context of an appeal by way of rehearing to this Court from the District Court or a Division of the Supreme Court.
On rare occasions, these principles have sought to be invoked in applications for judicial review. One example may be seen in Laing O'Rourke Australia Construction Pty Ltd v H&M Engineering and Construction Pty Ltd [2010] NSWSC 818 at [34]. But it was emphasised that the court's review must not slide into the merits: Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd(2018) 98 NSWLR 712; [2018] NSWCA 276 at [24]–[25]; see also Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [23]. The same point was made, in the context of an appeal confined to a question of law brought pursuant to s 57 of the Land and Environment Court Act 1979 (NSW), in Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411 at [18].
It follows that the appellant's submissions insofar as they complain of failing to engage with the evidence and submissions are outside the scope of an appeal confined to questions of law. In reaching that conclusion, I am conscious that the fact/law distinction is scarcely a crisp one. The High Court's statement in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394 that 'no satisfactory test of universal application has yet been formulated' is to be understood not merely of the failure hitherto to do so, but as an acknowledgement of the impossibility of the task. Even so, the limitation imposed by s 57 of the Land and Environment Court Act must be given work to do, and I am satisfied that on its proper construction, the complaints advanced by the appellant do not give rise to legal error.
Ultimately the appellant's submissions, faced with the task of falling within an appeal limited to questions of law, sought to transmute deficiencies in factual findings into deficiencies in the process of making findings or recording reasons. I am unpersuaded that the appellant can in that fashion make out legal error, as opposed to factual error.[55]

Nor is that conclusion unique to the planning context. Other legislative regimes call for the exercise of discretion by reference to consideration of planning notions such as amenity. For example, consideration of local amenity is commonly required in the exercise of the discretion to make a decision in the 'public interest' in the context of liquor licensing. The fact that planning approval has been granted by a local authority in respect of a proposed development and the amenity requirements of that legislative regime have been met, does not abrogate the ability or indeed the requirement that the licensing authority consider issues of amenity afresh in the particular context of the liquor industry; see, for example Kapinkoff Nominees Pty Ltd v Director of Liquor Licensing.[71]
[71] Kapinkoff Nominees Pty Ltd v Director of Liquor Licensing [2010] WASC 345 [60].
The appellant directs particular criticism at the Tribunal's reasoning that even if the noise does not offend the Noise Regulations because it is 'community noise', it may still be unacceptable in a 'planning sense'. The Tribunal in its reason adopts that term, relevantly, at [98], [135], [136], [327] and [373]. The appellant contends that the Tribunal failed to explain what it meant by 'planning sense' and that in context, the term is devoid of any substance. I do not accept that criticism. In my view, from [229] - [238], the Tribunal explains quite adequately what it meant.

Ground 5

Ground 5 advanced three grounds of appeal in relation to the Tribunal's consideration and conclusion regarding the impact of traffic to be caused by the Development.
The assessment of the impact of the Development on traffic arises also, relevantly, under the Deemed Provisions of the local planning scheme under cl 67(2). The relevant subclauses, (s) and (t) provide:
67(2)In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application -
…
(s)the adequacy of -
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
The Tribunal heard from five traffic experts, Messrs Levey, Veal and Bordbar for the applicant and Messrs Symmons and Patterson for the respondent. In addition, a firm called 'Cardno' produced a report on instruction from local residents. The traffic experts conferred on 10 September 2020 and produced a Joint Statement on 21 September 2020.
The experts disagreed on whether it should be assumed that the traffic on Alfred Road would increase over time. The respondent's experts considered that an assumption should be adopted that as time goes on, Alfred Road will carry more traffic. At [254] - [256], the Tribunal recorded:
Mr Symmons considers that, in considering the traffic issues that arise, one should assume that as time goes on Alfred Road will carry more traffic than it currently does. Mr Patterson thinks a growth factor should be applied for two reasons. First, on account of the increased housing densities being progressed north of Alfred Road (which is already occurring). Second, Main Roads WA is forecasting that traffic will increase on Alfred Road. This is due to there being limited alternative east-west routes available in the local network and the fact that Stirling Highway is nearing capacity: Exhibit 22 at para 2.5.1.
Mr Patterson agreed with Mr Symmons that assessing traffic issues assuming a positive growth factor was appropriate as a sensitivity test. Mr Patterson's modelling assumed a 10% increase in traffic on Alfred Road: Exhibit 22 at para 2.5.2.
The critical point that Mr Patterson makes (Exhibit 17 at para 62) is that the level of service for the performance of the intersection between Butler Avenue and Alfred Road will drop to an 'E' level of service (equating to 37 seconds of delay per vehicle). Based on Mr Levey's analysis (Exhibit 11, Tables 4 and 5) the existing level of service for the intersection is 'D' in the morning peak (equating to a delay of 25.2 seconds of delay per vehicle) and 'C' in the afternoon peak (equating to a delay of 21.8 seconds per vehicle).
At the Tribunal hearing, Mr Patterson was cross-examined at some length about his adoption of 10% growth for the purpose of his analysis. That questioning related both to the figure of 10% and the period of 10 years in which Mr Patterson assumed that growth would take place.
Mr Patterson explained that there was uncertainty about the timing of future growth but on the basis of his experience he considered that adopting a figure of 1% growth per year was appropriate which gave a figure of 10% over 5 to 10 years.[72] Mr Patterson said that this assumption was reasonable when one looks at growth across the broader network. Mr Patterson accepted that the figure involved an element of arbitrariness but it was based on work undertaken for various local governments and Main Roads. When pressed further, Mr Patterson reiterated that the validity of the assumption is based on experience in many projects for local government and Main Roads.[73]
[72] ts 21 October 2020, 292 - 296.
[73] ts 21 October 2020, 293.
At [261], the Tribunal reached the following conclusions:
Having regard to the context of Alfred Road, we consider that it is reasonable and prudent to allow for an increase in traffic using Alfred Road over time. While we accept that any figure has an 'arbitrary nature to it' (ts 187, 20 October 2020) we consider, for the reasons outlined by Mr Patterson that an assumption of some increased traffic is reasonable, in particular in the light of the increase in densities that are planned for localities in and around the Land. However, the rate at which surrounding densities (and therefore associated traffic) will increase is, we accept, ultimately speculative.
Put simply, the Tribunal accepted the respondent's evidence that allowance should be made for an increase in traffic along Alfred Road over time. At [268], the Tribunal concluded:
Over time, based on Mr Patterson's analysis of the data presented by the applicants, the expected delay time turning right on Alfred Road is likely to double. It is that context which informs the impacts that might be reasonably expected arising from the Proposed Development, but also Alfred Road, in the short to medium term.
The Tribunal's conclusion that the delay time associated with turning right onto Alfred Road is likely to double, appears to be based on the analysis of Mr Patterson set out by the Tribunal at [256] and above at [191]. It follows that the finding of a doubling of delay time rests on Mr Patterson's assumption that the traffic will increase by 10% over the next 5-10 years.
Immediately following its conclusion at [268] regarding the doubling of delay time, the Tribunal went on to discuss the problems likely to arise from the Development when a right-hand turn is made leaving the Development and turning right onto Alfred Road from the intersection with Butler Avenue. That discussion and analysis occupied paras [269] - [300]. The Tribunal then went on to discuss the crash risks arising from more traffic exiting Butler Avenue,[74] and the issues arising from the proposed car park associated with the Development.[75]
[74] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [301] - [303].
[75] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [304] - [314].
From [315], the Tribunal set out its consideration and conclusion of the traffic issues as required by cl 67(2)(s) and (t). At [319], the Tribunal found that the traffic issues in respect of the intersection of Alfred Road and Butler Avenue would be 'problematic'. At [320], the Tribunal set out nine reasons for the finding that the Development would be 'problematic' in that regard.
At [321], the Tribunal concluded, in effect, that the aggregate impact of all those issues were such that the factors to be considered under cl 67(2)(s) and (t) of the Deemed Provisions, were an obstacle to the approval of the Development.
Turning to the first limb of Ground 5, the appellant complains that there was no evidentiary foundation for the Tribunal's conclusion at [268], because the assumption of 10% growth by Mr Patterson was an arbitrary adoption of a 10% figure in order to undertake a sensitivity analysis. The 10% was not based on evidence of any such prospective growth. Moreover, the appellant directed attention to the Tribunal's words at [268], that the finding of the doubling of delay time is the context, which 'informs the impacts that might be reasonably expected arising from the Development, but also Alfred Road, in the short to medium term'. The appellant thus argued that the Tribunal's assessment of the traffic amenity issue, was premised on, or infected by a finding for which there was no evidentiary foundation.
I do not accept the contention of the appellant for the following reasons.
First, as the appellant accepts, it is not sufficient for the evidence relating to a 10% increase in traffic volume to be weak or flimsy. In order to constitute an appellable question of law, there must be no evidence at all upon which the Tribunal could have come to that finding. In my view, the expert evidence of Mr Patterson, including the evidence I have referred to above during cross-examination, provided an adequate foundation basis for the Tribunal's finding. Mr Patterson's analysis was based on considerable experience with traffic measurements carried out for local governments and Main Roads. This was a sufficient foundation, particularly for a specialist tribunal constituted by members with significant planning expertise.
Secondly and in any event, in my view on a fair reading of the Tribunal's reasons as a whole, the Tribunal in its ultimate conclusion did not place particular emphasis on the precise figure of 10% or the doubling of waiting time. Indeed, the Tribunal in its own reasons at [261] drew attention to the arbitrary and speculative nature of the 10% figure. In my view, the Tribunal's conclusions in relation to traffic and amenity did not therefore rest on the estimate of future growth at 10%. Rather, the critical finding was that traffic would continue to grow as time unfolded over the next 5 to 10 years and this, to one degree or another, would have unacceptable amenity impacts in the manner that the Tribunal outlined.
It is of course correct that at [268], the Tribunal stated that the finding about the doubling of delay time was the context which informed the impacts arising from the Development. However, in my view, read fairly as a whole those words do not warrant the level of significance attributed to them by the appellant. In context, they appear to relate to the discussion that immediately follows regarding the right-hand turn from Butler Avenue onto Alfred Road.
It is noteworthy that in the Tribunal's consideration of the issues from [315], the finding of a doubling of delay time and the figure of 10% increase in traffic growth, does not appear at all. Rather, the Tribunal refers in general terms to 'the increase in traffic' and that the right hand turn into Alfred Road will be 'exacerbated' by the Development. In its conclusionary evaluation toward the end of the judgment, the Tribunal concluded, again in general terms, that, 'the Proposed Development will impact on the amenity of the residents of Butler Avenue in that it will increase, to a significant extent, the time taken to turn right onto Alfred Road, especially during the peak period'.[76] Read fairly, the Tribunal's conclusions relating to traffic and amenity do not depend upon a particular finding of a 10% increase in traffic or a doubling of the waiting time of the right-hand turn into Alfred Road.
[76] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [374].
The second limb of Ground 5 asserts that the Tribunal erred as a matter of law by taking into account traffic safety in its consideration under cl 67(2)(s). The appellant drew its complaint primarily from [387] of the Tribunal's reasons which states:
As we have explained at [315] traffic safety arises as an aspect of cl 67(2)(s) of the Deemed Provisions. We reiterate and rely on our findings at [320] in reaching our view that, while are there existing traffic issues in terms of access into, and egress from, Butler Avenue, we are concerned about the extent to which these issues will be exacerbated by the Proposed Development.
As set out above, cl 67(2)(s) does not refer expressly to 'traffic safety', but rather refers to the adequacy of means of access to an egress from the Development. In contrast, cl 67(2)(t) refers to the amount of traffic and the effect on traffic flow and safety.
It may be accepted that [387] of the Tribunal's reasons to which the appellant draws attention, is at best unclear, and more likely, poorly or mistakenly worded. It may be that the Tribunal intended to refer to [316] (not [315]) and to cl 67(2)(t) (not cl 67(2)(s)). However, I do not accept that the Tribunal committed a legal error in its substantive consideration.
I do not accept that the consideration of traffic safety is necessarily excluded from a consideration of the adequacy of access to and egress from a property the subject of a development application. In any event, the relevant issue is not whether the Tribunal was permitted to consider traffic safety under a particular subclause as distinct from a different subclause of cl 67. The relevant issue is whether as part of its consideration of the amenity issues under cl 67(2), the Tribunal was permitted to consider traffic safety. The answer to that question is obvious. The Tribunal was not only permitted but was required to consider traffic safety.
The third and final limb of Ground 5 relates to the Tribunal's consideration of issues under cl 67(2)(t), which refers to 'the amount of traffic likely to be generated by the [D]evelopment, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety'.
The appellant submitted that cl 67(2)(t) required the Tribunal to make findings about the amount of traffic likely to be generated by the Development, so as to assess the probable effect of traffic safety. The appellant submitted that although the Tribunal in its reasons made a number of findings in respect of traffic safety, it did not have 'due regard' to the amount of traffic likely to be generated by the Development and therefore did not have due regard to the 'probable effect' on traffic safety. Although the Tribunal found that there was an increased risk of a crash with the right-hand turn into Alfred Road, that risk was unquantified and did not emanate from or have regard to the matter stipulated by cl 67(2)(t), i.e., the 'traffic likely to be generated by the development' and 'the probable effect on traffic flow and safety'.
In its written submissions, the appellant drew attention to the Tribunal's conclusion at [303] of its reasons:
We agree with Mr Patterson that, as a matter of logic, the more cars making a right hand turn from Butler Avenue, having regard to the existing situation at the intersection, inevitably leads to an increased risk of a severe right-angle crash. We will return to discuss this issue further at [320(g)].
At [320(g)] the Tribunal found:
[w]e also accept Mr Patterson's view that the right hand turn increases the exposure to a right hand crash which, at moderate speeds, can be catastrophic.
The appellant then framed the ground in the following way: the Tribunal's conclusion that an increase in the traffic turning right onto Alfred Road would lead to an increased risk of a crash, may be logical, but it was not a finding about the 'probable effect on traffic safety of the amount of traffic likely to be generated by the Development', and therefore was not a proper evaluation of the matters required to be considered by cl 67(2)(t). The Tribunal was required to do more than identify the existence of an increased risk; it was required to have regard to the degree of any increase in risk. Senior counsel for the appellant summarised the contention in oral submissions: 'an increased risk is one thing; the degree of the increase is another thing. And it's the degree of the increase that's relevant and relevant to the question of the probable effect on traffic safety'.[77]
[77] ts 1 December 2021, 64.
I do not accept this aspect of Ground 5. To commit legal error, as explained earlier in these reasons, would require the Tribunal to have failed to exercise its lawful duty to consider the matters mandated by cl 67(2)(t). As a matter of substance, the Tribunal, in my view, plainly considered those matters from [242] onwards. The Tribunal made findings about the significant impact on the traffic likely to be generated by the development and the probable effect on traffic flow and safety, including at [247], [269], [303], [320], [331], [332] and [333]. There is no prescribed formula to identify degrees of impact mandated by the subclause.
With respect, the appellant's approach takes an overly legalistic approach to the cl 67(2)(t) and zealously scours the Tribunal's reasons to identify some disconformity with the literal text of the regulation. The approach lacks the pragmatic and common-sense approach urged by the authorities in a review of the decision of a specialist tribunal. Such an approach risks inspiring the attendance at all such reviews of statisticians and actuarial consultants, laden with logarithms and layered spreadsheets to ensure that the degree of impact is quantified by some means. It invites the triumph of high-tech sophistry over sensible human evaluation.

Ground 6

Ground 6 relates to [321] of the Tribunal's reasons, that is, the conclusionary paragraph of the Tribunal's consideration of the impact on amenity arising from 'traffic issues' under cl 67(2)(s) and (t). The paragraph states:
These issues, taken together, are of concern and indicate to us that, from a traffic and car parking perspective, the Proposed Development does not satisfy the requirements of cl 67(2)(s) and cl 67(2)(t) of the Deemed Provisions.
The appellant submits that describing the considerations in cl 67(2) as 'requirements' to be satisfied is an error because those subclauses do not require any standard or matter to be met. The chapeau of cl 67(2) provides that the considerations set out in the subclauses are matters in respect of which the relevant authority is 'to have due regard …to the extent that, in the opinion of the [relevant authority], those matters are relevant to the development the subject of the application'. That wording does not elevate the considerations to matters that are 'required' to be considered and satisfied as a precondition to the approval of an application. Rather, they are matters to which the relevant authority is required to have regard.
In my view, this ground too suffers from an over-zealous quest for error by seizing on infelicity of expression rather than substance. Read fairly and as a whole, the Tribunal did not approach the factors in cl 67 in the manner asserted by the appellant.
This is sufficiently evident from the Tribunal's conclusionary remarks when it undertook its evaluative consideration under the heading '[t]he exercise of planning discretion':
Pursuant to cl 67(2) of the Deemed Provisions, we are required to give 'due regard' to the relevant factors that inform the exercise of discretion. It is also the case that we are required to have 'due regard' to 'relevant planning considerations' including any State planning policy which may affect the subject matter of the application: s 241(1)(a) PD Act. The term 'relevant planning considerations' is plainly one of 'broad import': Zampatti v Western Australian Planning Commission [2010] WASCA 149, (2010) 176 LGERA 150 at [12] (Kenneth Martin J).
In the context of the PD Act, the term 'due regard' has been interpreted to mean that we must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 at [46] (Martino J).[78]
[78] Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [349] - [350].

It is plain that the Tribunal understood that it was undertaking a discretionary evaluative exercise in which it took account of, and paid due regard to, these factors, rather than regarding them as requirements that prescribed a standard to be satisfied as preconditions to approval. I therefore do not accept Ground 6.

Conclusion

As I have not accepted any of the appellant's grounds of appeal, I decline to grant leave to appeal and I accordingly dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
30 SEPTEMBER 2022