SMITH and CITY OF BELMONT - [2014] WASAT 97

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SMITH and CITY OF BELMONT [2014] WASAT 97

MEMBER: MS R MOORE (MEMBER)

HEARD: 9 JULY 2014

DELIVERED : 4 AUGUST 2014

PUBLISHED : 7 AUGUST 2014

FILE NO/S: DR 112 of 2014

BETWEEN: SARAH SMITH
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Town planning Refusal of development application Multiple dwellings Whether discretion should be exercised pursuant to cl 5.3.2 of Local Planning Scheme 15 to permit development of R20 site at a density of R30 Whether proposed development is contrary to State Planning Policy 5.1 Land Use Planning in the Vicinity of Perth Airport Whether proposed development will have an adverse effect on character or amenity of locality Whether draft planning proposals are 'seriouslyentertained planning proposals'.

Legislation:

City of Belmont Local Planning Scheme No 15, cl 1.4, cl 1.6, cl 5.2.2, cl 5.3, cl 5.3.2, cl 5.3.2(2), cl 9.4.2, cl 10.2, cl 10.2(c), cl 10.2(b), Pt 4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26(1), s 252(1)

Result:

Application for review allowed
Development approval granted

Summary of Tribunal's decision:

This matter involved the refusal of a development application for the demolition of an existing single dwelling and the construction of six multiple dwellings on a site on the corner of Bowkett Street and Grand Parade in Redcliffe. The City of Belmont Local Planning Scheme No 15contained a clause providing for a residential density bonus to R30 for R20 coded corner lots. The subject site had a residential density code of R20 and was within the 20 to 25 Australian Noise Exposure Forecast contour for Perth Airport. The City of Belmont was concerned that the density bonus was intended to provide for sensitive residential infill in the form of two single or two grouped dwellings, not six multiple dwellings as proposed. The Tribunal determined that the proposed multiple dwelling development would not have an adverse impact on the character or amenity of the locality, nor would approval of the proposal undermine the aims of the City of Belmont Local Housing Strategy by eroding the perceived or actual amenity of the area, particularly when compared to a permissible two storey grouped dwelling development. Two draft planning proposals were found by the Tribunal to not be 'seriouslyentertained planning proposals', as they were neither certain in content nor imminent in time frame. The application for review was allowed and development approval granted subject to conditions.

Category: B

Representation:

Counsel:

Applicant: Mr J Algeri (Acting as Agent)
Respondent: Mr C Slarke

Solicitors:

Applicant: Algeri Planning & Appeals (Town Planners)
Respondent: McLeods

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

Nichols v Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Ms Sarah Smith (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Belmont (City or respondent) made on 25 March 2014 to refuse development approval for the demolition of an existing dwelling and the construction of six multiple dwellings at No 1 (Lot 94) Bowkett Street, Redcliffe (site or subject site).

Site and locality

The subject site is a corner lot with frontages to both Bowkett Street and Grand Parade. It is irregular in shape with a total site area of approximately 741m² and currently contains a single storey dwelling.
The site is situated directly opposite a large public open space and is approximately 135 metres from both the Belmay Primary School and a local commercial centre. It is also located within the 2025 Australian Noise Exposure Forecast (ANEF) contour.
The Tribunal had the benefit of a view of the site and the surrounding area in the company of the parties at the conclusion of the hearing.

Proposed development

The proposed development is the demolition of the existing single storey dwelling and the construction of six multiple dwellings on the subject site. The proposed multiple dwellings are to be housed within two separate two storey buildings. There are two dwellings on the ground floor, a common drying area, six stores, six car parking bays (one per unit) plus two visitor car parking bays. Vehicular access is via a 5 metre wide crossover from Bowkett Street.
Each dwelling consists of two bedrooms, an open plan kitchen/dining/living area, two bathrooms, a laundry, and either a private balcony or, in the case of the two units on the ground floor, a private courtyard space. The internal 'living' area of each dwelling varies in size from 61m² to 63m², with a total plot ratio area of 371m².

Planning framework

The subject site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential, with a density coding of R20, under the City of Belmont Local Planning Scheme No 15 (LPS 15 or Scheme).
Clause 1.4 of LPS 15 states that the Scheme is to be read in conjunction with the City's Local Planning Strategy. The City's Local Housing Strategy forms part of the Local Planning Strategy.
Clause 1.6 of LPS 15 includes the following relevant Scheme aims:
…
(b)to ensure there is a sufficient supply of serviced and suitable land for housing, employment, commercial activities, community facilities, recreation and open space;
(c)to provide for housing choice and variety in neighbourhoods with a community identity and high levels of amenity;
Clause 2.1 of LPS 15 states that determinations of the local government under the Scheme are to be consistent with the Local Planning Strategy, except where inconsistent with the Scheme.
Clause 4.2 of LPS 15 sets out the objectives of the zones and relevantly provides the following for the Residential zone:
The purpose and intent of the Residential Zone is to increase the population base of the City of Belmont by permitting a mix of single housing and other housing types to reflect household composition and thereby increase the resident population.
This development application is for six multiple dwellings. According to the Zoning Table contained in Pt 4 of LPS 15, a multiple dwelling is a 'D' use in a Residential zone. A 'D' use means that the use is not permitted unless the local government has exercised its discretion by granting planning approval, and in considering a 'D' use, the local government is to have regard to the matters set out in cl 10.2 of LPS 15.
Clause 10.2 of LPS 15 provides the matters that the local government, and the Tribunal on review, is to have due regard to when considering an application for planning approval. Relevant to this review are the following matters:
(a)the aims and provisions of the Scheme and any other relevant town planning schemes operation within the Scheme are (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c)any approved statement of planning policy of the Commission;
…
(e)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
(f)any Local Planning Policy …
…
(i)the compatibility of a use or development with its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety[.]
Clause 5.2.2 of LPS 15 states that unless otherwise provided for in the Scheme, the residential development of land is to conform with the provisions of the Residential Design Codes (2013). (Clause 5.2.3 of LPS 15 states that the Codes density applicable to the land within the Scheme area is to be determined by reference to the Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map. The Codes density applicable to this site is R20.
Clause 5.3 of LPS 15 sets out the special application of the Codes and includes at cl 5.3.2(2) the following Residential zone special application:
The City may permit the development, or support the subdivision of an existing flexible-coded or R20-coded corner lot to a maximum density of R30 provided:
(a)All existing improvements which in the opinion of the City is:
(i)of low quality or incapable of being upgraded to a standard commensurate with new development; or
(ii)is poorly sited and fails to maximise opportunities in relation to proposed lot boundaries;
are demolished.
(b)The lot has frontage to two constructed roads; and
(c)The created lots are not of an irregular shape or can demonstrate that a dwelling can be accommodated on any new lot.
Also relevant to this matter are the following Western Australian Planning Commission State Planning Policies:
•State Planning Policy 3.1 Residential Design Codes (2013) (Codes)
•State Planning Policy 5.1 Land Use Planning in the Vicinity of Perth Airport (SPP 5.1).

Council decision

The proposed development was advertised in accordance with cl 9.4.2 of LPS 15 to nearby landowners and occupiers. A total of 12 submissions were received in response, 10 objecting to the proposal and two expressing no objection. The objectors raised the following key concerns:
•limited onsite car parking;
•the character and intensity of the proposed development is inconsistent with the low density character of the area; and
•the proposed development sets an undesirable precedent for similar development in the future.
A planning officer's report was prepared for consideration by the City's councillors at its meeting held on 25 March 2014. The report recommended refusal of the proposed development. The City resolved to refuse the development application for the following reasons:
1.The proposal does not satisfy cl 10.2(a) of LPS 15 as it is inconsistent with the aims of the Scheme, and the intent of the Local Housing Strategy vision for low density R20 coded areas.
2.The proposal does not satisfy cl 10.2(e) of LPS 15 as it is contrary to the intent of State Planning Policy 5.1 which seeks to limit the density of development in the 20-25 Australian Noise Exposure Forecast (ANEF) area.
3.The proposal detracts from the low density residential character of the locality, contrary to the requirement to preserve the amenity of the locality under cl 10.2(n) of LPS 15.
4.The proposed development will create an undesirable relationship to development on adjoining land under cl 10.2(o) of LPS 15.
5.Approval of the application would set an undesirable precedent for Residential R20 area within the City of Belmont.

Issues

The following three issues were identified by the parties for determination in this review:
1)Whether discretion should be exercised pursuant to cl 5.3.2(2) of LPS 15 to permit the development of the site at a density of R30.
2)Whether the proposed development is contrary to SPP 5.1.
3)Whether the proposed development will have an adverse effect on the character or amenity of the locality.
There is some overlap between these issues, as will be seen in the following discussions. Also, the parties made submissions regarding the status of two draft planning proposals. The first is a proposal to amend cl 5.3.2(2) of LPS 15 by adding the words 'For R20 coded corner lots Multiple Dwellings are not permitted'. The second includes a proposal to amend the Codes in regard to the calculation of the number of multiple dwellings that can be built at R30 and lower density codes.
Both parties presented expert planning evidence: Mr Stephen Walker, a town planner, gave evidence on behalf of the applicant, and Ms Juliette Hammah, also a town planner, gave evidence on behalf of the respondent.

Issue 1: Whether discretion should be exercised pursuant to cl 5.3.2(2) of LPS 15 to permit the development of the site at a density of R30

Clause 5.3 of LPS 15 provides for special application of the Codes and includes at cl 5.3.2(2) the following special application for the Residential zone:
The City may permit the development, or support the subdivision of an existing flexible-coded or R20-coded corner lot to a maximum density of R30 provided:
(a)All existing improvements which in the opinion of the City is:
(i)of low quality or incapable of being upgraded to a standard commensurate with new development; or
(ii)is poorly sited and fails to maximise opportunities in relation to proposed lot boundaries;
are demolished.
(b)The lot has frontage to two constructed roads; and
(c)The created lots are not of an irregular shape or can demonstrate that a dwelling can be accommodated on any new lot.
It was agreed by the planning experts that the proposed development conforms to the Codes if an R30 density coding is applied to the site. Where the experts and the parties disagreed was in terms of whether it is appropriate to exercise planning discretion in this case to approve an R30 multiple dwelling development on the site.
Mr Joe Algeri, a planning consultant representing the applicant in these proceedings, contended that the proposed multiple dwelling development satisfied (a), (b) and (c) of cl 5.3.2(2) of LPS 15, and therefore discretion should be exercised by the Tribunal to approve the proposal on this site. Mr Slarke, a planning lawyer representing the respondent, accepted that the proposed development satisfies the preconditions in cl 5.3.2(2) of LPS 15, but argued that discretion should not be exercised to allow the proposed multiple dwelling development at an R30 density on this site.
It was Mr Slarke's contention that the density bonus in cl 5.3.2(2) of LPS 15 was never intended to allow for the development of corner lots with this number of multiple dwellings. Given the planning framework at the time, the City expected that corner lots of this size in R20 zoned areas would be developed with either two single or grouped dwellings, not six multiple dwellings. He submitted that when this clause was introduced into the City's Scheme, the Codes at the time required a minimum and average site area for multiple dwellings, limiting the number of multiple dwellings that could be constructed on a site of this size. Mr Slarke contended that the intent of cl 5.3.2(2) of LPS 15 was to provide a mechanism for sensitive infill development in R20 coded areas, and corner lots were seen as an appropriate location as the two street frontages allowed for dual street access (as opposed to a battleaxe subdivision).
It was explained to the Tribunal that prior to November 2010, under the 2008 Codes, development of multiple dwellings at an R30 density was based on a minimum site area of 333m² per dwelling. The 2010 Codes replaced the minimum site area calculation with a maximum plot ratio provision that limited the plot ratio area of the site rather than the number of dwellings per site. The most recent 2013 Codes have the same relevant provisions which, at a density of R30, allow a maximum plot ratio area of 0.5 of the total site area. In this case, the subject site has a total site area of 741m² and if developed at a density of R30, this allows for a maximum plot ratio area of 370.5m² rather than a set number of dwellings.
Mr Algeri acknowledged that LPS 15 was drafted prior to the relevant changes to both the 2010 Codes and the 2013 Codes, but referred to clause 8.2.3 of the City's Housing Strategy Report which he says promotes a variety of dwelling types, such as aged, dependent and single bedroom dwellings, in order to increase housing choice and affordability within close proximity to commercial centres. He also referred to clause 8.2.4 of the Housing Strategy Report which states that the R30 density bonus for corner lots in R20 areas should be retained because it provides for 'medium density within low density areas and aims to add a variety of housing density and form within the low density area', and that development on corner lots has the opportunity to address both street frontages reducing the impact in the R20 areas.
Mr Slarke argued that the Housing Strategy, LPS 15, and the LPS 15 Scheme Report do not contemplate multiple dwellings on corner lots under the R30 density bonus available under cl 5.3.2(2) of LPS 15. Notwithstanding this, the planning experts agreed that these documents do not explicitly exclude or prohibit multiple dwelling development on corner lots either.
It was Mr Slarke's contention that the density bonus to R30 permissible under cl 5.3.2(2) of LPS 15 combined with the provisions of the 2013 Codes applicable to multiple dwellings in R30 coded areas 'produces an unintended and inappropriate planning consequence' because of the potential for development on corner lots in low density areas at a higher 'effective density' than R30. He argued that this proposal has an 'effective density' of R80, as six, two bedroom dwellings and eight onsite car parking bays are proposed on a site that would otherwise only accommodate either two single dwellings or two grouped dwellings at an R30 density. He contended that the potential effects of higher density development include adverse impacts on the character and amenity of the low density locality through built form, traffic and parking demand.
Mr Algeri disagreed with this, and stated that the 2010 Codes and the 2013 Codes moved away from the minimum site area requirements for multiple dwellings replacing them with plot ratio restrictions, giving more flexibility for multiple dwellings in R30 and above coded areas. He argued that while the number of dwellings on the site may be greater, they are generally of a smaller size than single or grouped dwellings.
It was Ms Hammah's opinion that the proposed six multiple dwelling development 'equates to an effective density of approximately R80' which was historically considered to be high density and is at odds with the R20 density coding of the site and surrounding locality. Mr Walker disagreed, and referred to the other provisions for R80 density development which include a maximum allowable building height of 12 metres (in lieu of 6 metres for R30 development) and an allowable plot ratio of 1:1 (in lieu of 0.5 for R30 development).
The Tribunal is not swayed by the respondent's argument that the proposal has an 'effective density' of R80 because of the number of multiple dwellings proposed. The development satisfies the 2013 Codes provisions for multiple dwelling development in R30 density coded areas and therefore has a density of R30 (not R80). As discussed earlier, the number of dwellings is no longer a basis on which to calculate multiple dwellings at R30 or above density Codes. The built form for multiple dwellings is limited by, among other things, plot ratio and height provisions. This is not to say that there are not legitimate concerns regarding adverse amenity impacts of multiple dwellings on the character and amenity of the area. These are discussed in issue 3 below.

The proposal is for multiple dwellings which are a 'D' use under the Scheme and, as such, the Tribunal is to have due regard to the matters set out in cl 10.2 of LPS 15. These matters include the aims of the Scheme, which provide for a choice and variety of housing in neighbourhoods with a community identity and high levels of amenity, and the objectives of the Residential zone, of which one is to increase the population by permitting a mix of single housing and other housing types.
Clause 1.6 of LPS 15 states that the Scheme is to be read in conjunction with the City's Local Planning Strategy. The Local Planning Strategy includes the Housing Strategy. Ms Hammah referred to the 'Executive Summary' of the Housing Strategy which identifies a feature of the strategy as 'the pursuit of increased densities' as the City's average household size had declined from 2.3 persons per dwelling in 2001, to 2.2 persons in 2006 which was a nationwide trend due to changing family/household characteristics. The summary continues as follows:
However, it remains the City's objective to retain and encourage families with children, within the City. This will support the range of primary and secondary education facilities within the Local Government. Consequently the provision of lower densities is also being maintained within select areas of the Local Government, primarily around education facilities.
Ms Hammah was of the opinion that this site was not an appropriate location for multiple dwellings because it was the intent of the Housing Strategy that areas within a pedshed of 400 metres of schools should be maintained for family capable housing. It was Ms Hammah's evidence that the R30 density bonus on corner lots in R20 coded areas was intended to provide for either two single or two grouped dwellings, not six multiple dwellings. Allowing multiple dwellings on these lots would have a detrimental effect on the area by reducing the amenity for families who did not want to live next to multiple dwellings, and may result in less affordable properties available for families. Ms Hammah said that the City encourages multiple dwellings in other areas of the City but that the R20 coded areas (as opposed to other areas with split coding) were specifically planned under the Housing Strategy for families. According to Ms Hammah, family housing was typically a single house or grouped dwelling on a lot large enough to provide private outdoor space suitable for children to play in.
Mr Walker disagreed with Ms Hammah's view that the proposed multiple dwellings were not suitable for families, as he was of the view that families come in all sizes, and each proposed dwelling provided private outdoor space in the form of either a balcony or a ground level courtyard. He did not believe approving this proposal would be a poor planning outcome, as it satisfied the objectives of LPS 15 and the Housing Strategy by providing a variety of housing types and, to the untrained eye, the built form was indistinguishable from two grouped dwellings, particularly as this proposal was in the form of two separate buildings.
Mr Algeri referred to an aerial photograph of the area surrounding the site and contended that the locality does not consist of single dwellings on large lots with traditional backyards. He pointed out various grouped dwelling developments and battleaxe developments within 100 metres of the subject site.
Ms Hammah confirmed that some of these developments were approved under previous Scheme provisions which have since been changed as the City found they were losing population, not increasing it; hence the R20 coding of the area. She also said that while some of the redeveloped lots appeared to have a large proportion of the site area covered by roof the roofed area may include outdoor living space in the form of an 'alfresco' area.
The Tribunal had the benefit of a view of the site in the company of the parties and the planning experts at the conclusion of the hearing. The residential development in the locality consists of single storey dwellings on a range of lot sizes. As seen from the aerial photograph referred to earlier, the dwelling types range from single dwellings on larger lots to larger grouped dwelling developments, and include battleaxe development and a more recent grouped dwelling development on a corner lot. The site is located opposite a large public open space and within 150 metres of the Belmay Primary School and a small local commercial centre. The Tribunal agrees with Mr Algeri's contention that this area is not characterised by single dwellings on similar sized lots with a traditional front and rear yard. It is more accurately described as a mix of older single storey dwellings on original sized lots and more recently subdivided smaller lots containing single storey grouped or single dwellings. The Tribunal finds that the proposed multiple dwellings will not have a negative impact on the existing character of the locality given the variety of dwelling type and lot size that currently exists.
The Tribunal is also of the view that approval of the proposed multiple dwellings will not undermine the aims of the Local Planning Strategy, in particular the aim of the Local Housing Strategy to encourage families with children into the City. While the Tribunal notes Ms Hammah's opinion that families with children are attracted to single or grouped dwellings on single lots with a backyard suitable for children to play in, the Tribunal prefers the evidence of Mr Walker that families, even those with children, come in all sizes and have various spatial requirements. This, combined with the location of the site opposite a large area of public open space, and the finding that the area is not characterised solely with single dwellings on similar sized lots, leads the Tribunal to the view that the provisions of the Local Housing Strategy are not in this case sufficient reason to not exercise discretion under cl 5.3.2(2) of LPS 15 to approve the proposal.
Obviously in exercising that discretion there are other matters set out in cl 10.2 of LPS 15 that the Tribunal is to have due regard to. These include:
…
(i)the compatibility of a use or development with its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety[.]
Of primary concern for the respondent is the impact of the number of dwellings and the built form of the development on the character and amenity of the locality. These concerns, including traffic and safety, are discussed further in issue 3.
Clause 10.2(c) of LPS 15 refers to any approved statement of planning policy of the Western Australia Planning Commission (Commission). The two planning policies relevant to this review are the 2013 Codes and SPP 5.1. Issue 2 discusses the relevant provisions of SPP 5.1.

Issue 2: Whether the proposed development is contrary to SPP 5.1

The objectives of SPP 5.1 are as follows:
•[to] protect Perth Airport from unreasonable encroachment by incompatible (noise-sensitive) development, to provide for its ongoing development and operation; and
•[to] minimise the impact of airport operations on existing and future communities with reference to aircraft noise.
The system of aircraft noise measurement used in Australia for evaluating land use compatibility is the ANEF system. The subject site is located within the 20 (350,000) to 25 ANEF (350,000) noise exposure zone in the vicinity of Perth Airport.
Clause 4.3 of SPP 5.1 deals with areas between 20 (350,000), and 25 ANEF (350,000) and at clause 4.3.1, states that zoning and associated development control provisions should take into account consideration of the level of noise exposure forecast for the area and the building site acceptability for the particular noise exposure zone as identified in Appendix 1. Appendix 1 of SPP 5.1 identifies 'house, home unit, flat' building types as 'conditionally acceptable' within a 20 to 25 ANEF zone and refers to Note 2. Note 2 of Appendix 1 states that some people may find the land within a 20 to 25 ANEF zone not compatible with residential or educational uses and that authorities may consider it appropriate to incorporate noise control features in the construction of residences or schools.
Clause 4.3.2 of SPP 5.1 addresses residential density within a 20 to 25 ANEF area and states the following:
Where land is zoned for residential purposes, or to permit residential development, the maximum dwelling density should generally be limited to R20, except where
•there is a strategic need for more consolidated development,
•a higher density coding is desirable to facilitate redevelopment or infill development of an existing residential area, and,
•there is some other public interest reason which justifies the need for higher density coding.
In this case, the respondent contended that the proposal is contrary to clause 4.3.2 of SPP 5.1 as it is residential development at a density of R30, not R20.
It was Ms Hammah's evidence that the proposal does not fall under one of the exceptions identified in clause 4.3.2 of SPP 5.1 above. She was of the view that there is no strategic need for more consolidated development, particularly as the City's research shows that: 1,670 grouped dwellings can potentially be developed at the R30 density on R20 zoned corner lots; the intent of the local planning framework is to limit development to a density of R20 rather than facilitate infill development; and there is no public interest reason justifying the need for a higher density coding. She was also of the opinion that the effective density of the proposal is R80, which is a considerably higher density than either R20 or R30.
Mr Walker was of the opinion that the proposal is consistent with SPP 5.1 because permitting development at an R30 density on a limited number of properties does not alter the fact that the bulk of the locality is generally limited to R20. Further, the potential for R30 development to occur on corner lots in accordance with cl 5.3.2(2) of LPS 15 is consistent with the exceptions listed in clause 4.3.2 of SPP 5.1.
The Tribunal prefers the evidence of Mr Walker and finds that the proposed development at a density of R30 is not contrary to the provisions of clause 4.3.2 of SPP 5.1. The Tribunal has evidence before it that cl 5.3.2(2) of LPS 15 was introduced in order to facilitate infill development in existing low density residential areas as a result of strategic planning by the City. As Mr Algeri contended, the City allows for R30 development to be approved on corner lots in R20 zoned areas and this proposal is for an R30 development, notwithstanding it is in the form of multiple dwellings rather than grouped dwellings. The Tribunal is not swayed by the argument regarding an 'effective density' of R80 as put forward by Mr Slarke and Ms Hammah for the reasons expressed above.
It is therefore appropriate to consider clause 4.3.4 of SPP 5.1 which states the following in relation to development within a 20 to 25 ANEF area:
(1)Development may be approved, provided it is consistent with the zoning and density coding of the land under the operative town planning scheme.
(2)In the case of development which is subject to discretionary control under an operative town planning scheme (as provided for under clause 4.3.1), the impact of aircraft noise on the users or occupiers of the development should be taken into consideration in the determination of applications, and where relevant, in the imposition of conditions of approval.
(3)Where no density coding is prescribed for Residential zoned land, the maximum density should generally be limited to R20, except as provided for in relation to the application of residential density controls under clause 4.3.2.
With reference to clause 4.3.4(2) of SPP 5.1 above, there is discretion under cl 5.3.2(2) of LPS 15 to approve an R30 development on the subject site. It is therefore appropriate to consider the impact of aircraft noise on the occupiers of the proposed development when considering whether to exercise that discretion.
The applicant submitted an Aircraft Noise Assessment dated 19 December 2013, prepared by EcoAcoustics Pty Ltd, in support of the development application. This assessment concluded that the development is required to achieve the construction methods contained in Table 4.1 of the report and recommended that an advice note be provided as per Appendix 4 of SPP 5.1.
The respondent did not put forward any acoustic evidence refuting the conclusions in this report.
The Tribunal therefore finds that the proposed development is not contrary to SPP 5.1.

Issue 3: Whether the proposed development will have an adverse effect on the character or amenity of the locality

Mr Slarke contended that the character and amenity of the locality would be adversely affected through a combination of the built form, scale and intensity of development, traffic generation and parking requirements of the development.
Mr Algeri disagreed with this and argued that the proposal is in many respects indistinguishable from a two storey grouped dwelling development which would be permissible at R30, and is therefore consistent with the desired future amenity and variety of development sought under cl 8.2.4 of the Housing Strategy. He did not agree that there would be any measurable negative amenity impacts as a result of the proposal's traffic and parking demand, particularly as the development complied with the deemedtocomply provisions for parking in the 2013 Codes.
A Traffic Engineering Review, prepared by Move Consultants and dated 17 December 2013, was provided by the applicant in support of the development application. The review involved an assessment of the movement network impacts associated with the proposal, including internal vehicular traffic circulation, the operation of the crossover and the traffic impacts on the external road network. The review forecast a maximum of 36 to 48 vehicle trips per day resulting from the development. It concluded that the sitegenerated traffic can be accommodated within the existing practical road capacities of the local road network with no local road improvements and minimal impact on the anticipated future operations at the proposed crossover. The review also found that there is sufficient sight distance at the site connection to the property for inbound and outbound vehicles. The respondent did not contest the conclusions of the traffic assessment review but did contend that the provision of only one car parking bay per dwelling (plus two visitor's bays) was insufficient and would lead to onstreet parking which would have an adverse impact on the character and amenity of the area.
With regard to built form, it was Ms Hammah's evidence that the form of development would be readily identifiable as different to two grouped dwellings because of the multiple separate dwelling entrances, increased number of external staircases and numerous balconies. When asked by the Tribunal about the need for the development to address both street frontages, she said that the City approves grouped dwellings that address only one street frontage.
While the locality is characterised by single storey low density single residential development and includes grouped dwelling development, the Tribunal notes that a permissible development on this site includes two, two storey grouped dwellings at a density of R30. It is therefore appropriate when considering the impact of the proposal on the character and amenity of the locality to consider the impact of multiple dwellings compared to R30 compliant two storey single or grouped dwellings.
Ms Hammah was of the view that allowing multiple dwellings on corner lots would incrementally erode the area by eroding the 'perceived amenity' of adjoining lots. The Tribunal is not convinced by the argument that there will be a loss of 'perceived amenity' and was not presented with evidence regarding loss of amenity in terms of overlooking, overshadowing or reduced setbacks of the proposal. The evidence was that in these aspects the proposed multiple dwellings were similar in built form to permissible two storey single or grouped dwellings.
The Tribunal agrees with the applicant and finds that the proposal will not have a significant adverse impact on the character or amenity of the locality. The Tribunal is not of the view that the proposal will be indistinguishable from a permissible grouped dwelling development, but is also not of the view that the distinguishing factors such as increased number of balconies, and increased number of external staircases and entrances, will have a detrimental impact on the character or amenity of the locality. Balconies are an appropriate response to the location of the site opposite a large public open space and provide street surveillance. The stores and individual car parking bays are located within the main built form and are not readily visible from the street. While there may be onstreet car parking as a result of the development, this may occur with single and grouped dwellings, and the Tribunal notes that the proposal is consistent with the deemed-to-comply car parking provisions of the Codes.

Conclusion

In conclusion, the Tribunal has determined that the proposed development is not contrary to SPP 5.1, nor will it have an adverse impact on the character or amenity of the locality.
In terms of whether discretion should be exercised pursuant to cl 5.3.2(2) of LPS 15 to approve the development of the site at a density of R30, the Tribunal has had regard to the matters set out in cl 10.2 of LPS 15. These include: the aims and provisions of the Scheme; the Codes and other State planning policies; the compatibility of a use or development with its setting; the preservation of the amenity of the locality; the relationship of the proposal to development on adjoining land or other land in the locality including but not limited to the likely effect of the height, bulk, scale, orientation and appearance of the proposal; the adequacy of the proposed means of access to and egress from the site; and the amount of traffic likely to be generated by the proposal and the probable effect on traffic flow and safety. Having considered these matters in the light of the contentions made by the parties and the evidence of the planning experts, the Tribunal finds that discretion should be exercised pursuant to cl 5.3.2(2) of LPS 15 to approve the proposal.
These findings of themselves would normally be determinative of the matter but, as noted earlier, there are two draft planning proposals that may be relevant to the determination of this matter. The City has initiated LPS 15 Amendment No 4, and the Department of Planning has proposed amendments to the 2013 Codes in relation to multiple dwellings. These planning proposals were not considered by either party to be 'seriouslyentertained planning proposals' at the time the City refused the development proposal the subject of this review.

Proposed LPS 15 Amendment No 4

The City has initiated LPS 15 Amendment No 4 in order to amend cl 5.3.2(2) of LPS 15 by adding the words 'For R20 coded corner lots Multiple Dwellings are not permitted'. The Commission gave consent for the amendment to be advertised on 9 June 2014 but advised the City that:
a.although the WAPC has given its consent for the amendment to be advertised for public submissions, this is not necessarily an indication that it will recommend final approval of the amendment to the Minister for Planning; and
b.accordingly, the Council should not rely on an assumption that the amendment will be finalised in its current form, or at all, when considering development applications for corner lots within the City.

The advertising period for comments on this amendment closes on 12 August 2014 and the amendment proposal is scheduled to be considered further at the City's Council meeting on 26 August 2014.
Neither party argued that LPS 15 Amendment No 4 is a seriouslyentertained planning proposal, but Mr Slarke submitted that it is not necessary for the Tribunal to determine whether it is a seriously entertained planning proposal or not, as cl 10.2(b) of LPS 15 requires the Tribunal to have due regard to 'the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, which has been granted consent for public submissions to be sought'.
The Tribunal agrees with Mr Slarke that the Tribunal is to have due regard to the proposed LPS 15 Amendment No 4 in accordance with cl 10.2 of LPS 15, but notes that it is one of a number of matters that the Tribunal is to have due regard to in its consideration of the development application the subject of this review. And as such, the weight to be given it is similar to the weight to be given to the other relevant matters listed in cl 10.2 of LPS 15.

Proposed amendments to 2013 Codes

According to a report prepared by the Department of Planning for consideration at the Commission's Statutory Planning Committee (SPC) meeting held on 27 May 2014, the relevant proposed amendments to the 2013 Codes will limit the number of multiple dwellings on a lot by imposing site area and open space requirements for multiple dwellings in areas coded R10 to R35, while the plot ratio control would continue to apply to areas coded R40 and above. The report states that the proposed amendments remove existing multiple dwelling incentives and will reduce provision in R30 and R35 coded areas, with more substantial dwelling densification intended and facilitated in R40 and higher coded areas. The report also states that concerns raised by some local governments regarding the effect of the current 2013 Codes multiple dwelling provisions relate mainly to residential areas coded R30 and R35 comprising predominantly single or grouped dwellings.
Unconfirmed minutes of the SPC meeting held on 27 May 2014 record that the SPC resolved to recommend that the Commission resolve to endorse the proposed amendments and to seek the approval of the Minister for Planning to prepare the proposed amendments in accordance with s 26(1) of the PD Act
Mr Slarke submitted that the proposed amendments to the 2013 Codes are evidence that the City's proposed LPS 15 Amendment No 4 is reasonable and a relevant consideration in this matter, as the proposed amendments are consistent with the City's position that changes made to the 2010 Codes provisions for multiple dwellings in R30 coded areas and above have had unintended planning consequences. He also submitted that the proposed Codes amendments are a 'seriouslyentertained planning proposal', and there is a strong likelihood that they will be adopted because some of the members of the SPC are also members of the Commission. Mr Slarke referred the Tribunal to Nichols v Western Australian Planning Commission [2005] WASAT 40 and argued that the Tribunal should take into account the consistency of the two draft instruments and give considerable weight to them, particularly when considered together.
Mr Algeri submitted that the proposed Codes amendments are merely a 'formalised thoughtbubble' by the Commission and are yet to be given consent to advertise by the Minister for Planning under s 26(1) of the PD Act.
The Tribunal agrees with Mr Algeri that the proposed amendments to the 2013 Codes are not a seriouslyentertained planning proposal at this time. An email from Mr Paul Ellenbroek from the Department of Planning states that the next step is for the Commission to consider comments from key stakeholders in order to establish whether the proposals will proceed and, if so, whether they will be amended. While the proposed Codes amendments, if approved in their current form, may apply to proposals such as this, at this time they are neither certain in content nor imminent in time frame.
Further, the Tribunal does not agree that more weight should be given to LPS 15 Amendment No 4 because of the proposed changes to the 2013 Codes. The changes to the Codes are not considered to be a seriouslyentertained planning proposal at this stage and while the officer's comments in the report refer to concerns by some local governments regarding the effect of the 2013 Codes multiple dwelling provisions in R30 and R35 coded residential areas, it also refers to addressing 'perceived negative neighbourhood amenity impacts'. The Tribunal is of the view that the weight to be given to the proposed LPS 15 Amendment No 4 is similar to the weight to be given to the other relevant matters listed in cl 10.2 of LPS 15.
In this case, the Tribunal is of the view that the proposed LPS 15 Amendment No 4 is not sufficient reason to not exercise discretion under cl 5.3.2(2) of the Scheme to approve the proposal. The Tribunal has considered the proposal with regard to the matters set out in cl 10.2 of LPS 15 including, specifically, its impact on the character and amenity of the locality and found that it will not have a significant adverse impact on the character or amenity of the locality, nor will it incrementally erode the 'perceived amenity' of adjoining lots.
At this time the Tribunal does not consider that proposed amendments to the City's Scheme or proposed amendments to the 2013 Codes have advanced to a stage sufficient to be considered 'seriouslyentertained planning proposals'. Even having considered the proposed amendment to cl 5.3.2(2) of LPS 15 as required under cl 10.2(b) of LPS 15, the Tribunal has found that the proposed development warrants approval.
It follows that the application for review should be allowed and the decision of the City to refuse development approval be set aside and substituted by a decision to grant development approval with conditions.

Conditions

The respondent provided the Tribunal with draft 'without prejudice' planning conditions to be placed on a development approval should the Tribunal find that the application warranted approval. The applicant objected to conditions 3 and 5 which related to the landscaping and reticulation of the verge; condition 17 which related to fences and walls in the front setback; and condition 21(b) which specified the wording of a notification to be placed on title regarding noise exposure levels.
There was discussion about the disputed conditions during the hearing. Having considered the arguments put forward by both parties, the Tribunal has finds that all conditions as proposed by the respondent are appropriate and will form part of the conditions of planning approval with the exception of the requirement to provide irrigation to the street verge. The Tribunal did not feel the circumstances of this case were such that a condition requiring the provision of irrigation to the street verge was required.

Orders

For the reasons above the Tribunal made the following orders on 4 August 2014:
1.The application for review is allowed.
2.The decision of the City of Belmont made on 25 March 2014 to refuse development approval for the demolition of an existing dwelling and the construction of six multiple dwellings at No 1 (Lot 94) Bowkett Street, Redcliffe, is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(i)The development plans, as dated marked and stamped 'City of Belmont Planning Consent Granted Subject To The Conditions of Planning Approval', together with any requirements and annotations detailed thereon by the City, are the plans approved as part of this application and shall form part of the planning approval issued.
(ii)All existing buildings and structures on the lot, including soakwells, leach drains, septic tanks and waste water disposal systems, shall be removed and the land levelled.
(iii)A landscaping plan for the subject development site and street verge is to be prepared and submitted to the City for approval within three months of the date of this approval.
(iv)Prior to occupation or use of the development, landscaping is to be installed and thereafter maintained in accordance with the approved landscaping plan for the duration of the approved development to the satisfaction of the City's Manager Parks and Environment. The plants are to be nurtured until they reach their typical mature dimensions, and shall thereafter be maintained at those mature dimensions unless Council approves otherwise in writing.
(v)No existing turf, irrigation or street trees located in the road verge abutting or adjacent to the subject may be damaged or removed during the course of the development, unless separately approved in writing by the City.
(vi)The owner/applicant shall arrange for the City's Parks Technical Officer to undertake an inspection and appraisal of the existing street tree(s) within the verge prior to the commencement of site and/or development works. The City's Parks Technical Officer may require tree protection measures to be implemented, or may require the verge tree/s to be removed and replaced in accordance with the City's Street Tree Strategy. Any requirement imposed by the City's Parks Technical Officer shall be implemented by the owner/applicant to the satisfaction of the City's Manager Parks & Environment.
(vii)If during the course of the development any existing turf and/or irrigation in the verge is damaged or destroyed (other than with the approval of the City), the owner/applicant shall:
(a)repair, reinstate or replace the item in accordance with any written direction of the City's Manager Parks and Environment;
and
(b)thereafter maintain the item for a period of 12 months, to the satisfaction of the City's Manager Parks and Environment.
(viii)If during the course of the development any existing street tree is damaged or destroyed, the City may repair or replace the street tree. In that event the owner/applicant shall:
(a)be responsible for any costs associated with repair or replacement; and
(b)thereafter maintain the street tree for a period of 12 months, to the satisfaction of the City's Manager Parks and Environment.
(ix)Prior to occupation or use of the development, vehicle parking, manoeuvring and circulation areas shall be designed, constructed, sealed, drained, line marked and kerbed in accordance with:
(a)The approval plan (8 spaces);
(b)Schedule 11 of City of Belmont Local Planning scheme No. 15; and
(c)Council's engineering requirements and design guidelines.
(x)The areas must be sealed in concrete or brick paving in accordance with the City of Belmont specifications, unless otherwise approved by the City's Director Technical Services. All parking bays must be clearly line marked.
(xi)The two (2) visitor car parking bays are to be constructed and maintained in accordance with the City's engineering requirements and design guidelines to the satisfaction of the City's Director Technical Services. The bays must be individually marked on site as 'Visitor Bays' and made available for use by visitors at all times.
(xii)Prior to occupation of the development, a minimum of two (2) bicycle bays for residents and one (1) bicycle bay for visitors are to be installed and maintained for the life of the development to the specifications contained within the City's Supplementary Planning Guidelines for End of Trip Facilities, to the satisfaction of the City's TravelSmart Officer.
(xiii)All access ways, parking areas and hard stand areas shall be maintained in accordance with the City's engineering requirements and design guidelines.
(xiv)Prior to occupation or use of the development, the owner/applicant shall, after having obtained written approval from the City's Technical Services (Technical Services Clearance Application), construct a vehicle crossover in accordance with the approved plans and Council's engineering specifications to the satisfaction of the City's Manager Projects and Development.
(xv)Vehicle crossovers are to be designed to achieve a minimum clearance of 1.5 metres from any existing street tree that is to be retained, to the satisfaction of the City's Manager Parks and Environment.
(xvi)Prior to occupation or use of the development, the redundant crossover to Grand Parade, shall be removed and the verge and kerb reinstated in accordance with the City's Technical Specifications, to the satisfaction of the City's Manager Projects and Development.
(xvii)All stormwater from roofed and paved areas shall be collected and disposed of on-site in accordance with the City of Belmont's engineering and design guidelines.
(xviii)Units 1 and 4 shall be modified such that access to the outdoor living area is gained directly from a habitable room to comply with Clause 6.3.1 C1 of the Residential Design Codes to the satisfaction of the City's Director Community and Statutory Services, Manager Planning Services or Coordinator Planning Services.
(xix)Any fences/walls in the front setback of the property are to comply with the provisions of the Residential Design Codes which require front walls and fences to be visually permeable:
(a)1.2 metres above natural ground level within the primary street setback area;
and
(b)0.75 metres above natural ground level within 1.5 metres of the intersection of a driveway and a public street or where two streets intersect.
(xx)All fencing visible from the street or an internal access way shall be constructed in:
(a)brick and visually permeable timber; or
(b)brick and visually permeable wrought iron; or
(c)other materials which match the units and which are acceptable to the City's Director Community and Statutory Services, Manager Planning Services or Coordinator Planning Services.
(xxi)No services, such as air conditioners or water heaters shall be visible from the street.
(xxii)All clothes drying devices and clothes drying areas shall be located and positioned so as not to be visible from the street or a public place.
(xxiii)A notification under Section 70A of the Transfer of Land Act 1893 is to registered on the Certificate of Title of the land the subject of the proposed development as the owner's cost prior lodgement of an application for a building permit top notify owners and prospective purchasers of the land that:
(a)the land is located in the 20-25 ANEF area as identified on the Australian Noise Exposure Forecast Plan of the 2004 State Planning Policy 5.1 Land Use Planning in the Vicinity of Perth Airport produced by the Western Australian Planning Commission; and
(b)noise exposure levels are likely to increase in the future as a result of increase in numbers of aircraft using the airport, changes in aircraft type of other operational changes.

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER