SPG CAPITAL FUND 5 PTY LTD and PRESIDING MEMBER OF METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL - [2023] WASAT 100

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   SPG CAPITAL FUND 5 PTY LTD and PRESIDING MEMBER OF METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL [2023] WASAT 100
MEMBER:   DR S WILLEY, SENIOR MEMBER
MS R LAVERY, MEMBER

HEARD:   20 AND 21 FEBRUARY 2023, 18 AND 19 APRIL 2023 AND 8 - 10 MAY 2023
DELIVERED          :   25 OCTOBER 2023
FILE NO/S:   DR 79 of 2022
BETWEEN:   SPG CAPITAL FUND 5 PTY LTD
Applicant
AND
PRESIDING MEMBER OF METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning - Development - Mixed use development - Building height - Good design - Amenity - Internal amenity - Streetscape - Character

Legislation:

City of Nedlands Local Planning Scheme No 3, Sch 1, cl 9, cl 16(2), cl 18(2), cl 25(1), s 25(2), cl 26
City of Nedlands Local Planning Strategy, Pt 5, c l 4.1, cl 5.8
City of Nedlands Town Planning Scheme No 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 2, Sch 2, cl 1, cl 67(2), cl 67(2)(b)
Planning and Development Act 2005 (WA), s 241(1), s 241(1)(a)
State Administrative Tribunal Act 2004 (WA), s 30
State Planning Policy 7.3 - Residential Design Codes Volume 2, Pt 2, cl 1.2.2
Strata Titles Act 1985 (WA)

Result:

Respondent's decision affirmed
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr P McQueen & Ms I Mosole
Respondent	:	Ms C Ide & Mr Z Clifford

Solicitors:

Applicant	:	Lavan
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Adamco Developments v Monash CC [2004] VCAT 2359
Barana (St Kilda) Investments Pty Ltd v Port Phillip CC [2016] VCAT 1510
Bestry Property Group Ltd and WAPC [2019] WASAT 15; (2019) 96 SR (WA) 311
NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410
Planarc Pty Ltd v Frankston CC (Red Dot) [2006] VCAT 682; (2006) 145 LGERA 433
Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46; [2004] 16 VPR 8
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Taranto v Glen Eira CC [2015] VCAT 1904
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Ware and City of Melville [2021] WASAT 64
WAT385 Developer Pty Ltd v Stonnington CC [2023] VCAT 672
WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414
Zampatti v Western Australian Planning Commission [2010] WASCA 149; 176 LGERA 150

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for development approval by SPG Capital Fund 5 Pty Ltd (Applicant) for a four-storey mixed use development comprising three multiple dwellings, a ground-floor consulting room, associated car parking and landscaping (Proposed Development) on Lot 2 (No 43) Esplanade, Nedlands (Subject Land).
The Presiding Member of the Metro Inner North Joint Development Assessment Panel (Respondent) refused the Proposed Development on 1 April 2022. The central issues in this matter are building height and context, design and amenity (both internal and in the context of the public realm).
For the following reasons, we find that the Proposed Development does not warrant approval in the exercise of discretion. The correct and preferable decision is to affirm the Respondent's decision to refuse the Proposed Development.

Jurisdiction

This matter arises in the Tribunal's review jurisdiction. Our role is to make the correct and preferable decision as to whether the Proposed Development should be approved.
The decision as to whether to approve the Proposed Development is therefore discretionary. Regardless of whether the Proposed Development meets, or not, any or all of the relevant considerations set out in the applicable planning framework, there remains a residual discretion that may be exercised to grant approval if we find that it is the correct and preferable decision to do so.

Background facts

The following facts are not contested. We therefore find as follows.

The Subject Land and locality

The Subject Land:
(a)is zoned 'Residential' with a density coding of R60 under the City of Nedlands Local Planning Scheme No. 3 (Scheme or LPS 3) and 'Urban' in the Metropolitan Region Scheme;
(b)is located in the suburb of Nedlands within the street block bound by Esplanade to the south-east, Broadway to the north-east, The Avenue to the north-west, and Bessell Avenue to the south-west (the street block);
(c)is oriented on a north-west/south-east alignment and has an area of 1007m²; a north-eastern side boundary with a length of 49.71 metres, a south‑western side boundary of 50.45 metres, rear boundary of 20.12 metres and frontage to Esplanade of 20.14 metres;
(d)is generally flat with a maximum change in ground level of 0.37 metres between the 2 metre and 3 metre AHD;[1]
(e)contains a two-storey single house, six large trees and shrubbery located at the rear; and
(f)adjoins:
(i)Lot 2 (No 45) Esplanade (45 Esplanade) at its southern side boundary. 45 Esplanade is zoned Residential with a density code of R40 and contains a single storey single house built circa 1963 which was renovated circa 2013;
(ii)Lot 4 (No 41) Esplanade (41 Esplanade) at its northern side boundary. 41 Esplanade is zoned Residential R60 and contains a two-storey single house, built circa 1980; and
(iii)Lot 22 (No 44) The Avenue (44 The Avenue) at its rear boundary. 44 The Avenue is zoned Residential R60 and contains a single storey single house.
[1] AHD is a reference to the Australian Height Datum.
The street block:
(a)consists predominantly of one storey and two-storey single houses on large lots with lot areas generally 1000m² with significant areas of private open space, reflective of the R10 density coding under the previous City of Nedlands Town Planning Scheme No.2 (TPS 2) which applied until 16 April 2019;
(b)includes housing stock that is a mix of older 1980's houses, and newer builds and renovations constructed between 2000 and the present-day, where dwellings are typically oriented to the street, with entries, verandas and windows providing passive surveillance of the street;
(c)is not characterised by a predominant or typical architectural style;
(d)includes a six-storey mixed use development at 35 Esplanade (the Steve's development), on the corner of Esplanade and Broadway which was constructed circa 2007. Under TPS 2 this site was zoned Special Use and was subject to the special development controls. Under LPS 3, Steve's development has a residential density code of R‑AC3; and
(e)includes Esplanade which:
(i)faces Reserve 22527, known as Charles Court Reserve, which adjoins the Swan River; and
(ii)on the zoned land, has a streetscape characterised by large front yards and mature greenery.

Proposed Development

The Proposed Development comprises:
(a)a four-storey mixed use development with an overall height of 13.9 metres;
(b)three multiple dwellings (each with 3 bedrooms and 3 bathrooms) above a consulting room (63m²) at the ground level;
(c)13 car parking bays (10 residential car parking bays, 2 visitor bays and 1 car parking bay for commercial use);
(d)187m² of landscaping, including 149.4m² of deep soil landscaping; and
(e)ground-floor services such as bin storage areas and parcel collection areas.

Procedural history

The Proposed Development was lodged with the City of Nedlands (City or Council) on 6 December 2021. It was advertised and amended plans were then put forward. The Proposed Development was ultimately refused by the Metro Inner-North Joint Development Assessment Panel (MINJDAP) on 1 April 2022 for the following reasons:
1.The proposed bulk and scale of the development is inconsistent with the existing context and intended future character of the local area. The height of the proposal would alter future built form and character beyond that contemplated by the current density coding, thereby setting the built form of future development prior to implementation of a strategy or desired controls.
2.The development does not provide any transition to the adjoining R40 coding in relation to height, setbacks, bulk, nor building separation.
3.The proposal is not of a high-quality design outcome, to justify the height and bulk proposed. The building is not cohesively designed so that all façades present the same level of architectural detail as the street elevation. Further, the amenity of the apartments is compromised by a reliance on screening and minor openings, and an undesirable outlook to the car parking garage.
4.The overprovision of car parking, and the design of the car parking space, results in a detrimental impact on the quality of the deep soil areas and the amenity of the apartments. The application proposes car parking in a semi-detached, boundary‑to‑boundary garage, which is not integrated into the design nor finished to the same standard as the rest of the building. The garage is not adequately designed or landscaped to provide an appealing visual outlook when viewed from the dwellings.
5.The deep soil and landscape design does not compliment the proposed built form and site planning. The location of the parking garage compromises the quality of the rear deep soil zone and limits the ability for the deep soil to be integrated into the building and throughout the site. Were the car parking provision to be decreased, this would allow for better integration of the existing Norfolk Pine and landscaping design throughout the whole site and may present an opportunity to retain further existing trees on site.
The Applicant lodged a review of the MINJDAP's decision. Further amended plans were proposed which resulted in the Proposed Development being reconfigured. It is unnecessary to set out in detail the amendments undertaken to the plans, save to say that they did not convert the Proposed Development into, in effect, a new proposal.
In terms of dimensions, the Proposed Development:
(a)is four storeys with an overall building height of 13.9 metres;
(b)is setback between 9.7 metres and 12.7 metres from Esplanade;
(c)achieves a minimum side setback of 3.7 metres to the boundary with 45 Esplanade and 2.5 metres to the boundary with 41 Esplanade;
(d)achieves an average setback to 44 The Avenue of 4.4 metres;
(e)has a boundary wall of 12.4 metres in length and 3.7 metres height to the adjoining 45 Esplanade and 23.5 metres in length and 3.5 metres height to adjoining 41 Esplanade; and
(f)includes 14.84% of the Subject Land as deep soil area.

Applicable planning framework

LPS 3

The Subject Land is zoned Residential R60 in LPS 3. The aims of LPS 3 include, relevantly:[2]
(a)Protect and enhance local character and amenity;
(b)Respect the community vision for the development of the district; and
(c)Achieve quality residential built form outcomes for the growing population[.]
[2] LPS 3, cl 9.
The objectives of the Residential zone are:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses which are compatible with and complementary to residential development.
•To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.[3]
[3] LPS 3, cl 16(2).
Residential is a 'P' permitted use in the Residential zone, provided the use complies with the relevant development standards and requirements of the Scheme.[4] Consulting Rooms are an 'A' use,[5] meaning the use is not permitted unless the local government has exercised discretion by granting development approval after giving notice in accordance with the deemed provisions.[6]
[4] LPS 3, cl 18(2).
[5] LPS 3, cl 18(2).
[6] The 'deemed provisions' being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Clause 25(1) of the Scheme provides that '[t]he R-Codes, modified as set out in cl 26, are to be read as part of this Scheme'. Clause 26 of the Scheme does not relevantly modify the R-Codes in terms of any of the issues for determination in this review.
Clause 67(2) of the deemed provisions provides that, in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The relevant matters relating to the Proposed Development are:
(a)the aims and provisions of LPS 3;
(b)the requirements of orderly and proper planning;
(c)any approved State planning policy;
…
(fa)any local planning strategy for this Scheme endorsed by the Western Australian Planning Commission (WAPC);
…
(m)the compatibility of the proposed development with its setting;
(n)the amenity of the locality including amongst other matters, the character of the locality;
…
(u)the availability and adequacy of the proposed development for access to public transport and access by older people and people with disability;
…
Further, Sch 1 to LPS 3 includes provisions which are supplemental to the deemed provisions, including cl 67(2):
(zc)any advice of the Design Review Panel.
In addition to cl 67(2), on review the Tribunal is also required to have regard to 'relevant planning considerations' by reason of s 241(1) of the Planning and Development Act 2005 (WA) (PD Act) which includes any State planning policy that affects the subject matter of the application.[7] The phrase 'relevant planning considerations' is plainly a term of broad import.[8]

Local Planning Strategy

[7] PD Act, s 241(1)(a).

[8] Zampatti v Western Australian Planning Commission [2010] WASCA 149; 176 LGERA 150 (Kenneth Martin J).

The City of Nedlands Local Planning Strategy (the LP Strategy) was endorsed by the WAPC on 26 September 2017 and 'sets out the long‑term strategic direction for land use and development within the City of Nedlands' and 'provides the framework and direction to ultimately support the operation of [LPS 3] and gives the rationale and context for its content'.
Part 5 of the LP Strategy sets out the City's intentions. In relation to Population and Housing, the intention is to:
… facilitate potential realisation of the specified housing targets through a strategic approach that aims to conserve and enhance the quality of the City of Nedlands' existing attractive residential neighbourhoods. Strongly encourage development of a considerable number of additional dwelling units of a diverse nature within the targeted infill areas.
The strategies to promote this intention that are relevant to the Proposed Development include inter alia:
…
•Develop appropriate Transition Zones of predominately residential development adjacent to Urban Growth Areas to realise the conscious effort to maintain separation from existing high quality low density residential areas.
…
•Facilitate greater diversity, specifically higher density multiple and grouped dwelling developments in targeted infill areas to provide a diverse range of dwelling types to accommodate changes in population trends.
…
•Maintain established residential urban areas to ensure the retention of the existing residential character and lot configurations.
In relation to urban design, character and heritage, the LP Strategy's intention is to:[9]
Retain and enhance the character and streetscape of the City's existing residential areas whilst promoting best practice urban design principles in targeted infill areas. Maintaining and enhancing high quality streetscapes will be of the utmost importance to decision making, and developments will need to respond to the unique character of each precinct.
[9] LP Strategy, cl 5.8.
The strategies identified to achieve this are as follows:
•Ensure the Local Planning Scheme and other development controls are in place to retain and enhance the existing character of each identified precinct.
•Develop mechanisms to promote and/or incentivise best practice urban design outcomes in areas experiencing change and in areas of transition (for example, between precincts, corner sites, different densities/land uses, targeted infill areas etc).
•Within Urban Growth Areas and Transition Zones provide opportunities for City lead investment into improvement of the public realm.
•Further understand the elements that contribute to streetscapes to inform consistent statutory control[.]
The Subject Land is within the area depicted on the Strategy Map as First Transition zone, adjacent to the Broadway Urban Growth Area.[10]
[10] LP Strategy, page 9.
The LP Strategy provides the following explanatory note for Transition Zones:
Transition Zones:
Transition Zones will exist immediately adjacent to Urban Growth Areas for the purposes of creating a buffer between high intensity and low intensity development. This buffer will visually smooth the differences in built form (e.g., height, bulk etc.) and help mitigate any conflict between non-compatible land uses.
It is expected the Transition Zones will contain mostly residential developments of multiple dwellings (apartments) and grouped dwellings (townhouses and similar). Some small scale non-residential uses may still be appropriate.[11]
[11] LP Strategy, cl 4.1.
Section 5.9 of the LP Strategy contains precinct specific strategies. The Subject Land is located within the Dalkeith Precinct which provides:
Retain and enhance the character and streetscape of the existing residential areas, in order to protect the established character of this precinct.

State Planning Policies

State Planning Policy 7.0: Design of the built environment

State Planning Policy 7.0: Design of the Built Environment (SPP 7.0) is intended to be used to inform and guide landowners, proponents and their designers; reviewers, referral agencies and assessors to achieve good design outcomes for the built environment. The policy provides design guidance on a variety of built form elements.
Schedule 1 to SPP 7.0 sets out 10 design principles. The following design principles are of particular relevance to the Proposed Development:
Principle 1 – Context and character.
Principle 3 – Built form and scale.
Principle 6 – Amenity.

State Planning Policy 7.3: Residential Design Codes Volume 2 - Apartments

State Planning Policy 7.3: Residential Design Codes Volume 2 – Apartments (R-Codes Vol 2) applies to multiple dwellings in areas coded R40 and above. That is to say, it applies to the Proposed Development. As stated, the R-Codes Vol 2 are to be read as part of the Scheme.[12]
[12] LPS 3, cl 25(2).
The R-Codes Vol 2 are a performance-based policy:
… Applications for development approval need to demonstrate that the design achieves the objectives of each design element. While addressing the Acceptable Outcomes is likely to achieve the Objectives, they are not a deemed-to-comply pathway and the proposal will be assessed in context of the entire design solution to ensure the Objectives are achieved. Proposals may also satisfy the Objectives via alternative means or solutions.[13]
[13] Exhibit 2, page 837.
Table 2.1 of R-Codes Vol 2 provides default development standards which apply in the absence of properly adopted local planning instruments. The table below[14] summarises Acceptable Outcomes for the following and compares the Proposal to those development standards:
[14] Respondent's SIFC dated 30 September 2022, para 49.
·Element 2.2 – Building Height;
·Element 2.3 – Street Setbacks;
·Element 2.4 – Side and Rear Setbacks; and
·Element 2.5 – Plot Ratio.

Development Standard R60 Proposed development

Building height (storeys) 3³ 4

Boundary wall height (storeys)

*Boundary wall only permitted on one boundary, and shall not exceed 2/3 length.
1 1

Minimum primary and secondary street setbacks 2m Less than 2m.

Minimum side setbacks 3m Does not meet the minimum for storeys 2, 3 and 4 on the Southern side, and does not comply with the average for four storeys.
Otherwise compliant.

Minimum rear setbacks 3m Compliant.

Average side setback where building length exceeds 16m 3.5m Does not comply for the fourth storey on the southern side. Otherwise compliant.

Plot ratio 0.8 0.9

Element 2.2 – Building height

The intent of Element 2.2 building height states:
The apparent height of new development shall be appropriate to the streetscape and desired character of the area and shall not adversely impact the amenity of adjoining properties. Building height is one of the factors that define building envelopes. In this policy it is expressed in storeys relative to natural ground level. Building height limits guide the intended scale of streetscapes and manage impacts between development and neighbours in terms of solar access, wind, and visual privacy.
Default building height limits for all development covered under this policy are defined by the Primary Controls in Table 2.1. Table 2.1 also includes provisions and guidance for boundary wall height limits to moderate the most direct effect of height on neighbours.
Height limits may be varied through local planning instruments in response to local character and context. Applicants must therefore address height provisions in applicable local planning instruments, where these differ to the default requirements of Table 2.1.
The element objectives for building height relevant to the Proposed Development is:
O 2.2.1The height of development responds to the desired future scale and character of the street and local area, including existing buildings that are unlikely to change.
O 2.2.2 The height of buildings within a development responds to changes in topography.
O 2.2.3 Development incorporates articulated roof design and/or roof top communal open space where appropriate.
O 2.2.4 The height of development recognises the need for daylight and solar access to adjoining and nearby residential development, communal open space and in some cases, public spaces.
The Acceptable Outcome for building height requires development to comply with the building height limit set out in Table 2.1. Under Table 2.1 the height limit for the development site is 3 storeys (with an indicative building height of 12 metres pursuant to Table 2.2).

Element 2.5 – Plot Ratio

The element objective for Element 2.5 Plot ratio is:
O 2.5.1The overall bulk and scale of development is appropriate for the existing or planned character of the area.
The Acceptable Outcome for Element 2.5 Plot ratio as set out in Table 2.1, is 0.8 which equates to 805.4m² for the Land. The proposal has a plot ratio of 0.9 or 927.6m².

Element 2.4 - Side and Rear Setbacks

The intent of Element 2.4 side and rear setbacks relevant to the Proposal includes the following:
Respecting the shared boundary is fundamental to being a 'good neighbour'. The relationship of built form to the property boundary must be carefully considered to balance the needs of new development with maintaining the amenity of adjacent sites.
The side and rear setbacks are factors that define building envelopes expressed as a minimum distance in metres between the building and the cadastral site boundary. Side and rear setback areas can also moderate the extent of built form so that useable land can be provided for open space, courtyards, driveways, stormwater runoff management, tree planting and landscaping[.]
The relevant element objectives for Element 2.4 side and rear setbacks are as follows:
O 2.4.1Building boundary setbacks provide for adequate separation between neighbouring properties.
O 2.4.2Building boundary setbacks are consistent with the existing streetscape pattern or the desired streetscape character.
…
O 2.4.4The setback of development from side and rear boundaries provides a transition between sites with different land uses or intensity of development.
The Acceptable Outcomes for Element 2.4 side and rear setbacks include:
A 2.4.1Development complies with the side and rear setbacks set out in Table 2.1, except where:
(a)modified by the local planning framework, in which case development complies with the side and rear setbacks set out in the applicable local planning instrument.
AND /OR
(b)a greater setback is required to address 3.5 Visual privacy.
A 2.4.2 Development is setback from the boundary in order to achieve the Objectives outlined in 2.7 Building separation, 3.3 Tree canopy and deep soil areas, 3.5 Visual privacy and 4.1 Solar and daylight access.
The side and rear setbacks applicable to the Proposed Development are provided for in Table 2.1. The minimum side and rear setback should be 3 metres and an average side setback of 3.5 metres where building length exceeds 16 metres.
The Proposed Development is compliant with the minimum and average setbacks requirements under Table 2.1 for the south side boundary (adjoining R40) and the rear boundary. However, the first, second and third floors are set back from the northern side boundary (adjoining R60) 2.5 metres. The fourth floor achieves an average setback of 3.3 metres to the northern side boundary.
Table 2.1 permits a boundary wall to one boundary provided its length does not exceed two thirds of the length of the boundary, being 33.1 metres of the northern boundary or 33.6 metres on the southern boundary and that it is only for one storey. The ground floor of the Proposed Development includes a boundary wall of 23.5 metres to the northern side boundary (adjoining R60) and 12.4 metres to the southern side boundary (adjoining R40).
The side and rear setbacks of the Proposed Development are set in the table below:

Boundary North side setback (adjoining R60) South side setback (adjoining R40)
Rear setback (adjoining

R60)

Table 2.1 Acceptable Outcome minimum average minimum average minimum

3.0m 3.5m 3.0m 3.5m 3m

Ground floor 3.0m
NA (23.5m

boundary wall)

5.2m +

Nil

NA (12.4m

boundary wall)
3.8m

Second storey 2.5m 3.5m 3.0m 3.7m 14.0m

Third storey 2.5m 3.5m 3.0m 3.7m 14.0m

Fourth storey 2.5m 3.3m 4.5m 5.3m 14.0m
(non-compliant setbacks are underlined)[15]

Element 3.5 - Visual privacy

[15] Respondent's SIFC dated 30 September 2022, page 20, para 65.

The intent of Element 3.5 Visual privacy includes the following:
… Resolving visual privacy issues involves consideration of the views to and from an apartment, between apartments within a development, between a development and neighbouring properties, and the potential for overlooking of communal or private outdoor spaces. Addressing these issues through the effective separation and orientation of buildings and the considered placement and orientation of rooms and windows reduces the need for excessive screening. The separation and orientation of buildings may also benefit neighbourhood character through the retention of view corridors, open space and landscaping, as well as reducing the perceived bulk and scale of development.
The element objective for Element 3.5 Visual privacy states:
O 3.5.1The orientation and design of buildings, windows and balconies minimises direct overlooking of habitable rooms and private outdoor living areas within the site and of neighbouring properties, while maintaining daylight and solar access, ventilation and the external outlook of habitable rooms.
The relevant Acceptable Outcomes for Element 3.5 Visual privacy include:
A 3.5.1Visual privacy setbacks to side and rear boundaries are provided in accordance with Table 3.5.
A 3.5.2Balconies are unscreened for at least 25 per cent of their perimeter (including edges abutting a building).
…
A 3.5.4Windows and balconies are sited, oriented, offset or articulated to restrict direct overlooking, without excessive reliance on high sill levels or permanent screening of windows and balconies.
Where the adjoining site is coded R50 or lower, Table 3.5 requires the cone of vision from unscreened private outdoor spaces to be setback 7.5 metres from the adjoining side boundary. Where the adjoining site is coded higher than R50 the setback is 6 metres. The master bedroom balcony, cinema balcony and drying court are screened on all floors and all the balconies and windows on the sides of the proposal are also screened or utilise highlight windows.

Element 3.9 – Car and Bicycle Parking

The intent of Element 3.9 Car and bicycle parking provides:
Car parking within apartment buildings can have a significant impact on site planning, landscape and building design. It requires careful consideration in the design phase to ensure that car parking provided does not detract from the overall design intent or the intended character of the streetscape.
Car parking can account for significant land-take at the expense of landscaping and open space. Car parking areas can also have negative environmental impacts such as heat gain from solar absorption, glare and stormwater contamination. Reducing on-site parking requirements can mitigate these impacts and may also encourage greater use of alternative transport modes to the private vehicle. On the other hand residents expect adequate, safe and accessible car parking and the local community should not be adversely impacted by on-street parking associated with development.
The design process must balance these requirements to provide sufficient parking that is well integrated into the overall design of the development and does not detract from the streetscape.
The relevant element objectives are for Element 3.9 Car and bicycle parking are:
…
O 3.9.2Car parking provision is appropriate to the location, with reduced provision possible in areas that are highly walkable and/or have good public transport or cycle networks and/or are close to employment centres.
…
O 3.9.4The design and location of car parking minimises negative visual and environmental impacts on amenity and the streetscape.
The Acceptable Outcomes for Element 3.9 car and bicycle parking include:
…
A 3.9.2Parking is provided for cars and motorcycles in accordance with Table 3.9.
A 3.9.3Maximum parking provision does not exceed double the minimum number of bays specified in Table 3.9.
…
A 3.9.5Car parking areas are not located within the street setback and are not visually prominent from the street.
…
A 3.9.8Parking shade structures, where used, integrate with and complement the overall building design and site aesthetics and have a low reflectance to avoid glare into apartments[.]
The residential car bays for the Proposed Development are accommodated in the garage area located on the ground level. Two visitor car parking bays for both commercial and residential purposes are in the front setback area. A commercial bay is located adjacent to the fire stairs.
The number of parking bays required by Table 3.9 Parking ratio, and the number of parking bays provided by the Proposed Development, are set out in the table below:[16]
[16] Respondent's SIFC dated 30 September 2022, page 22, para 76.

Parking types Required bays Proposed bays

Car Parking¹ 2+ bedroom dwellings 3.75 10

Visitor car 1 bay 2 (shared with commercial)

1. calculations of parking ratios are required to be rounded up to the next whole number

The provision of residential car bays exceeds double the minimum number of car bays required by Table 3.9 and the car parking structure is clad with a flat sheet metal roofing which is reflective and is visible from the rear bedrooms of all upper storeys.
During the course of the hearing, the WAPC announced the imminent and certain, but deferred, implementation of the new R-Codes Volume 1 (Volume 1 2023) which includes multiple dwellings at codings of R30R60. If the matter was determined prior to 1 September 2023, when Volume 1 2023 was to commence, the Tribunal would have to determine what weight is to be given to the not yet commenced, but imminent and certain, new Volume 1 2023. However, if the matter was determined post‑1 September 2023, the matter will be determined only under Volume 1 2023.
As events transpired, on 9 August 2023 the Minister for Planning requested the WAPC delay the commencement of Volume 1 2023. Furthermore, he requested that the WAPC 'undertake further amendments to retain current policy provisions for R30 and R40 coded development'.
On 24 August 2023, the Respondent advised the Tribunal that WAPC estimates that the process to revise Volume 1 2023 was anticipated to take 6 months. No doubt following that will be further public consultation and consideration by key stakeholders.
It follows that the precise content of Volume 1 2023 can no longer be regarded as being either certain or imminent. For this reason, while it may remain as a relevant consideration, as an aspect of orderly and proper planning for the purposes of cl 67(2)(b) of the deemed provisions, we do not give Volume 1 2023 any weight in these proceedings.

Local planning policies

City of Nedlands Local Planning Policy 3.2: Waste Management Guidelines

Clauses 9.2 and 9.3(f) of Appendix 1 Waste Management Guidelines of the City's Local Planning Policy 3.2: Waste Management (LPP 3.2) requires that mixed use development provide separate residential and commercial bin stores.
The Proposed Development provides an 18.75m² residential bin storeroom on the ground floor and a 1m² unenclosed bin area adjacent the commercial car parking bay.

Local Planning Policy 5.10: Broadway Precinct

Clause 1.2.2 of the R-Codes Vol 2 provides that all of the Acceptable Outcomes for Part 2 of Volume 2 may be amended or replaced by a local planning policy (LPP) and/or local development plan, adopted by the Local Government, where it is consistent with the Element Objectives.
In respect of the above, Local Planning Policy 5.10: Broadway Precinct (LPP 5.10) has been prepared in accordance with Pt 2 of the deemed provisions.
Public consultation for LPP 5.10 commenced 15 August 2022 and concluded 25 September 2022. The City of Nedlands (City) resolved to adopt the elements of the LPP 5.10 that did not require the approval of the WAPC on 28 March 2023.
The LPP 5.10 defines the precinct as being land adjoining the western boundary of Broadway from Stirling Highway to Esplanade. The Subject Land is within the Broadway Precinct. Relevantly, for the purposes of the Proposed Development, the amendments adopted by the Council not requiring WAPC approval include height and street setback.
The objectives of the LPP 5.10 are:[17]
[17] LPP 5.10, cl 3.2.
1.Define the desired future character of the Broadway Precinct in context with its zoning, density coding and in consideration of its function within the UWA-QEII Specialised Activity Centre.
2.Ensure that new development contributes to the desired future character of the Broadway Precinct, while respecting and reflecting existing character.
3.Provide appropriate built form transitions between areas of higher density and areas of lower density.
4.Facilitate housing diversity appropriate to the needs of the local community, and to encourage a permanent population, ageing in place, and more housing for students and hospital staff.
5.Facilitate high-quality development which maximises residential amenity and liveability.
6.Maintain and enhance the leafy green landscape character of the Broadway Precinct, promoting growth of urban forest through tree canopies in yard spaces and setbacks, and tree canopies along the roads.
7.Optimise energy and water efficiency and water efficiency of new developments through sustainable building design.
8.Reduce reliance on private vehicles and encourage alternate modes of transport.
The Subject Land is within the R60 portion of the Residential sub‑precinct. The existing character statement for the Residential sub‑precinct is provided at cl 5.1.1:
The Residential sub-precinct is dominated by one to two-storey single residential dwellings on lots with large areas of open space, reflective of the R10-R20 density coding under the previous Planning Scheme (TPS 2). Streetscapes are generally characterised by large front yards with well-kept, green, domestic gardens. Established trees within front yards and on verges create a shady, attractive pedestrian environment. Streetscapes are predominantly detached in nature, though some side boundary walls can be found throughout this subprecinct. Dwellings are oriented to the street, with entries, verandahs and windows providing passive surveillance of the street[.]
The desired future character statement for the Residential subprecinct of the LPP 5.10 is provided at cl 5.1.2:
The Residential sub-precinct will provide for a diversity of dwelling types and configurations, accommodating a range of household types. New developments will perform an important role in transitioning from the high-density urban environment, expected along Stirling Highway and Broadway, towards the lower density Residential R10 and R12.5 areas to the south and west[.]
Primary Controls for the R40 portion of the Residential sub-precinct of the LPP 5.10 are provided at cl 5.1.3:
R40 – The R40 portion of the sub-precinct is located at the southern end of the Broadway Precinct, bound by The Avenue, Bessell Avenue, Esplanade and R60 lots to the north-east. This sub-precinct will provide a transition from the remainder of the Broadway Precinct to the riverfronting areas of R10 to the west[.]
Primary Controls for the R60 portion of the Residential sub-precinct of the LPP 5.10 are provided at cl 5.1.3:
R60 - The R60 portion of the sub-precinct is the largest within the Broadway Precinct, stretching from Cooper Street in the north to Esplanade in the south. This sub-precinct provides an important transition between the higher density areas of R160 and R-AC3 to the east, and the established residential areas coded R10 and R12.5 to the west.
With regard to multiple dwellings in the R60 coding, cl 5.1.3 provides for a maximum of height of three storeys with a maximum overall building height of 12 metres, which is subject to indicative building heights outlined in Table 2.2 of R-Codes Vol 2 and is inclusive of rooftop articulation.
The Acceptable Outcomes which are proposed to replace and/or augment those in Pat 2 of the R-Codes Vol 2 for Multiple Dwellings within the R60 coded land within the Residential Sub-Precinct, are, relatively, as follows:[18]
[18] Respondent's Statement of Issues Facts and Contentions (Exhibit 1), para 91 includes a table that generally reflects the standards in the LPP 5.10 as detailed in Applicant's s 24 Bundle of documents (Exhibit 14), pages 21 and 22.

AO Primary Control Acceptable Outcome

AO 2.1 Building height Maximum 3 storeys ¹

AO 2.2 Primary street setback² Cooper St, Clark St, Edward St, Hillway and Esplanade Kingsway

Minimum 6m Minimum 5m

AO 2.3 Secondary street setback Minimum 1.5m

AO 2.4

Side setbacks⁴

Minimum 3m

AO 2.5

Rear setback^4,7

Average 4m

AO 2.6 Boundary walls^4,5,6
Maximum 1 storey (3.5m) in height

-    Maximum two-thirds the length of the lot boundary

-    Located a minimum of 3m behind the primary street setback

-    May be built up to one lot boundary only OR May be built up to two lot boundaries, where a minimum 20% of the site area is provided as deep soil area

1

Maximum overall building height of 12m, inclusive of rooftop articulation.

2

Minimum street setback may be reduced by up to 2m provided that the area of any building, including a garage encroaching into the setback area, is compensated for by at least an equal area of open space that is located between the setback line and line drawn parallel to it at twice the setback distance.

3

A nil setback to a communal street or internal driveway may be considered where a deep soil area is provided elsewhere within the communal street setback area.

4

Boundary setbacks will also be determined by provisions for building separation, deep soil areas and visual privacy within R-Codes Vol. 1, Vol. 2 and this LPP, and building separation provisions of the National Construction Codes.

5

Walls may be built up to a lot boundary, where it abuts an existing or simultaneously constructed wall of equal or greater proportions

6

Where the subject site and an affected adjoining site are subject to different density codes, the length and height of any boundary wall on the boundary between them is determined by reference to the lower density code.

7

8.5m wall or concealed roof height, 10m pitched roof height.

8

For the purpose of assessing average setbacks, lot boundary walls and patios are to be included.

As at the date of judgment, so far as we are aware, the relevant aspects of LPP 5.10 that modify Pt 2 of the R-Codes Vol 2 have not been approved by the WAPC. The operative elements of the policy, being those which do not require WAPC approval, includes the following objectives:
…
5.Facilitate high-quality development which maximises residential amenity and liveability.
6.Maintain and enhance the leafy green landscape character of the Broadway Precinct, promoting growth of urban forest through tree canopies in yard spaces and setbacks, and tree canopies along the roads[.][19]
[19] LPP 5.10, cl 3.2(6).
In terms of the desired future character for the Broadway Precinct, it involves the maintenance and enhancement of the residential area's leafy streetscapes.[20]
[20] LPP 5.10, cl 3.3.
For completeness, we should add that we do not accept the Applicant's argument that because the WAPC has not yet endorsed aspects of LPP 5.10, it, in its entirety, has no effect. While cl 4(3A) of the deemed provisions provides that a local government should not proceed with a policy that requires WAPC approval to amend the RCodes, until that approval is obtained, LPP 5.10, by its terms, makes it clear as to which aspects do not yet have effect.
Part 2 of the deemed provisions authorises local governments to prepare local planning policies for their municipal district. There is nothing in the City's approach that would lead to a conclusion that the entirety of LPP 5.10 must be held in abeyance pending the WAPC's approval, even those aspects which did not require WAPC approval. In any event, the decision we have reached does not rely on the development standards provided for in LPP 5.10.

Issues for determination

The ultimate issue is whether the Proposed Development should be approved in the exercise of discretion. The parties did not agree on the precise formulation of the issues to be determined, but there was considerable overlap between the respective submissions.
In our view, the key issues in this proceeding are building height, bulk and scale, compatibility, design quality, amenity, the question of transition and internal amenity.
Whilst agitated throughout the final hearing, we find that the question of car parking, outside of the question of how this informs the design, is not a matter upon which our decision turns. That is to say, we would not, in this case at least, refuse the Proposed Development on the basis of what the Respondent submits is excessive car parking. We make the same comment, and finding, in relation to landscaping and the proposed 'zen gardens' and also the quality of the minor balconies. In our view, car parking, the amenity of the minor balconies and the proposed landscape arrangements are not the issues on which this case turns.
For this reason, we consider the issues to be determined should be framed as follows:
Whether the Proposed Development should be approved, having regard to the question of:
(1)height, bulk and scale, compatibility and transition as well as amenity, in the light of the applicable planning framework; and
(2) internal amenity.

Evidence

This matter consumed seven hearing days and included a large volume of documentary evidence. We also heard from the witnesses listed below.

Applicant

The Applicant called:
(a)Mr Geoffrey Warn, architect;
(b)Mr Malcolm Mackay, architect and urban designer;
(c)Ms Bianca Sandri, town planner; and
(d)Mr Ben Doyle, town planner.

Respondent

The Respondent called:
(e)Ms Emma Williamson, architect; and
(f)Ms Amanda Butterworth, town planner.

Overview of the parties' cases

Applicant's case

The Applicant's case is that the Proposed Development warrants approval in the exercise of discretion. In the context of the debate about height, bulk and scale – which was a key focus of the hearing – the Applicant submits that the height of the Proposed Development is compatible with its setting in the context of the discretion that is available to the Tribunal.
The Applicant also stresses that discretion needs to be guided by the planning principles embodied in the applicable framework (namely LPS 3 and R-Codes Vol 2). There is no mandate to strictly adhere to those principles if there is a cogent reason not to.[21]
[21] Bestry Property Group Ltd and WAPC [2019] WASAT 15; (2019) 96 SR (WA) 311 at [99].
The Applicant submits that the Proposed Development is a considered development that compliments the adjoining R40 coded property (No 41 Esplanade) and the overall context of the streetscape. It is compatible with its setting when considering the likely future amenity of the locality. That likely future amenity includes the redevelopment of sites north and south of the Subject Land which will comprise a built form similar to that contemplated by the Proposed Development.
In the context of the streetscape – which represents decades of incremental development – the additional height of 1.9 metres is negligible and the Tribunal nevertheless has the discretion to approve the height sought. Likewise, the amenity impact is minor and does not warrant refusal of the Proposed Development.
Building height should not be viewed as a stand-alone consideration. Rather, the policy instruments (namely SPP 7.0) require a holistic consideration of the building mass in the context of the planned future amenity and character of the locality. The height and number of proposed storeys are not reasonable grounds to conclude that the Proposed Development is inconsistent with the desired future character of the street block.
The locality is in transition towards higher densities and the likely future amenity of the locality will be significantly different as there is an expectation that the R60 coded properties will develop consistent with that density.
On the question of bulk and scale, the Applicant submits that the Proposed Development has been carefully curated to ensure there are no visual privacy impacts on adjoining properties and has been tiered so as to conceal the fourth storey from the street perspective to mitigate the perception of bulk and scale. The Applicant submits a similar design outcome was considered acceptable in Ware v City of Melville.[22] The impact is an inevitable consequence of development consistent with the R60 coding of the Subject Land in the context of the current R10 density of development.

Respondent's case

[22] Ware and City of Melville [2021] WASAT 64.

The Respondent submits that this is the first of the recently rezoned R60 properties in the immediate locality to seek development approval. As the first development to proceed, it will set a precedent for future development in the locality.
On the question of height, the Respondent submits that the Proposed Development is inconsistent with the number of storeys contemplated in Table 2.1 of the R-Codes Vol 2 which provides for three storey development, not four. Furthermore, the height proposed (at 13.9 metres) exceeds the height of 12 metres provided for in Table 2.1. It is also inconsistent with the LPP 5.10 for R60 coded multiple dwellings, which is a relevant consideration for the purposes of cl 67(2) of the deemed provisions.
The Respondent submits that the height of the Proposed Development:
(a)is inconsistent with the desired future scale and character of the street and local area, including existing buildings that are unlikely to change, and incompatible with its setting, and thereby inconsistent with:
(i)Element Objectives of Element 2.2 – Building Height of SPP 7.3; of R-Codes Vol 2;
(ii)cl 67(2)(m) and (n) of the deemed provisions;
(iii)the objectives of the residential zone at cl 16(2) of LPS 3;
(iv)Principle 1 Context and Character and Principle 3 Built form and scale of SPP 7.0;
(b)would not retain and enhance the character of the Dalkeith Precinct as identified in cl 5.9.12 the Local Planning Strategy; and
(c)fails to provide an appropriate transition from:
(i)R60 coded land to the adjacent R40 coded to the south; and
(ii)the high density urban environment towards the lower density R10 and R12.5 areas as contemplated by the LP Strategy and the [LPP 5.10].
On the question of bulk and scale, the Respondent submits that the Proposed Development is inconsistent with the plot ratio contemplated in Table 2.1 of the R-Codes Vol 2 for R60 coded land (the plot ratio being 0.9 (927.6m²) rather than 0.8 (805.4m²) an exceedance of 122.2m² or 15%). The overall bulk and scale of the Proposed Development is not appropriate for the existing, nor planned, character of the area and is therefore inconsistent with Element Objective O2.5.1 of Element 2.5 of the R-Codes Vol 2.
The Proposed Development includes a 2.5 metre side setback for the northern side at storeys 2, 3 and 4 which is inconsistent with the minimum side setbacks for R60 of 3 metres provided for in Table 2.1. The average setback for the fourth floor is 3.3 metres, in lieu of 3.5 metres.
In order to prevent overlooking neighbouring properties, there is heavy reliance on high sill levels or permanent screening of windows or balconies along the sides of the Proposed Development, which is inconsistent with A 3.5.4 for Element 3.5 Visual Privacy. The amenity of these habitable rooms in terms of outlook is thereby compromised and, as a result, the Element Objective for visual privacy (O 3.5.1) is not achieved. It is also inconsistent with Principle 6 (Amenity) of SPP 7.0.
The plot ratio and side setbacks of the Proposed Development, and the mechanisms employed to avoid unacceptable overlooking, together indicate that the design, bulk and scale of the building is not appropriate in its context.

Overview of the expert evidence

The question of design lies at the heart of this case. We had the benefit of experts, both in the field of architecture and design, as well as town planning. In this case, the Tribunal was generally well served by these experts.
However, in his closing, Mr McQueen, counsel for the Applicant, submitted that Ms Butterworth failed in her duty as an expert and did not give independent, reasoned and objective evidence, but instead became, in effect, an advocate for the Respondent. We accept this criticism of Ms Butterworth on some topics. For example, there was some general evidence as to whether the dwellings on Esplanade were substantial. Ms Butterworth refused to agree that all the dwellings around the Subject Land were substantial.
In our view, consistent with Mr McQueen's propositions, it was obvious that all the dwellings on Esplanade are, when viewed relatively and objectively, substantial. They are all large, or very large, dwellings on what are, comparatively, very large lots. That is so even though some of these dwellings are plainly more substantial, and superior, than others.
However, we also find that it would be unfair to suggest that characterisation tainted all Ms Butterworth's evidence. Despite her dogged approach at times, there were some issues where Ms Butterworth gave thoughtful and insightful evidence, consistent with her obligations. For example, as we will come to, we accept her evidence on the question of transition and internal amenity.
Nevertheless, we consider it is worth reminding experts that it is not their role, when giving expert evidence, to simply attempt to support their client's position. Rather, their role is more of a trusted advisor to the Tribunal on issues that they are entitled to express an opinion.
It is also worth pointing out that witnesses who are called by respondent planning authorities, along with the general obligations that attach to any expert witness; should also be mindful that s 30 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) obligates decisionmakers to use best endeavours to assist the Tribunal to make its decision on the review. There is nothing in the language of s 30 which would indicate that obligation does not attach to experts called by a decision-maker.
For this reason, while respondent witnesses are, of course, entitled to be careful, even punctilious, those who see it is as their duty to try and point out any possible fault with a proposed development, no matter how minor or inconsequential, or to stubbornly refuse to agree with any proposition put to them by opposing counsel, no matter how reasonable, are unlikely to meet these obligations.

Issue 1: design, height, compatibility and context

Ultimately, we find that the question of design quality of the Proposed Development in this case was best answered by the design experts. We make no criticism of any expert, but we were particularly well assisted by Ms Williamson, for the Respondent, and Mr Warn, for the Applicant. Without intending to criticise, Mr Mackay often tended to agree with Mr Warn but did offer his own opinions on some design issues.
Ms Williamson and Mr Warn were both balanced and reasonable. Moreover, in large part, they were in agreement with each other. Their difference in opinion was, in effect, that Mr Warn considered that the design of the Proposed Development was 'of significant quality enough' as to justify 'the request for additional height'.[23] Likewise, Mr Mackay considered that the design was acceptable such as to warrant approval. Ms Williamson disagreed.
[23] ts 518, 8 May 2023.
As we will come to explain, we agree with Ms Williamson who, we find, was an impressive witness. She was, at once, candid, balanced, fair, but firm in her view that the Proposed Development failed in some key design aspects.

Building height

In large part, this case is about building height. The height of the Proposed Development exceeds the notional building heights set out in Table 2.1 of the R-Codes Vol 2. That leads to two related issues which the Tribunal must determine.
The first is whether the 'increased' height (of 1.9 metres) is acceptable in this context.
The second is whether that height, in the context of the overall design, enables an appropriate transition between adjoining R40 and R60 developments.
At the outset, it is appropriate to observe that this locality has been identified for change, indeed significant change, in the planning framework. There will be a higher built form as sites are designed and developed in accordance with this new framework. The point being that increased building heights are to be expected on the street block. Indeed, no one in this case suggested otherwise.
It is also the case that the R-Codes Vol 2 does not prescribe a maximum height limit. While the acceptable outcome for R60 coded land is 12 metres (three storeys), buildings which are 'good design' (that is, they satisfy the various element objectives set out in the R-Codes Vol 2) may be approved at heights greater than 12 metres. Indeed, the R-Codes Vol 2 provide that 'good design results in an environment that performs well for all users and the broader community'.[24]
[24] Respondent's s 24 Bundle, page 835.
Building height, quite naturally, can be a particularly sensitive issue for local communities where the planning framework identifies a need for greater housing diversity.
The situation that now confronts the inner and middle ring suburbs of Perth is not new nor is it novel. In WAT385 Developer Pty Ltd v Stonnington CC,[25] the Victorian Civil and Administrative Tribunal (VCAT) described new housing developments in inner Melbourne as a 'battle'. There are similar 'battles' over new housing developments taking place in inner-city locations across Australia's largest cities.
[25] WAT385 Developer Pty Ltd v Stonnington CC [2023] VCAT 672 [1].
On one side of this battle are the planning frameworks that identify areas where additional housing is proposed to both increase the volume and diversity of housing. On the other side are the communities who rightly love their local neighbourhood and want to see it protected.
The experience of these battles played out elsewhere tends to suggest that in areas where increased densities are likely to lead to a higher built form, it is important to be mindful that it is to be expected that that new built form will be visible. We say this because it is apparent that, at times, the fact that new development will be visible above that which exists will be of concern to some in the community.
In Rowcliffe Pty Ltd v Stonnington,[26] the VCAT was dealing with a proposed development up to six levels, the upper points of which would be visible from distances exceeding 100 metres. That level of visibility was of concern to some in the community. The VCAT rejected the idea that the visibility of new built form, of itself, was the relevant test as to the acceptability of the proposed development. It stated:
If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment.[27]
[26] Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46; [2004] 16 VPR 8 (Rowcliffe).
[27] Rowcliffe,[54].
We agree. The test for what constitutes good design cannot reduce to a question of mere visibility. Likewise, in areas where the planning framework envisages changes in the diversity of housing, it is important that the full range of applicable policy levers are given adequate consideration.
In NJJJKT Pty Ltd v Whitehorse CC (NJJJKT),[28] the VCAT stated that it is important to not let State level policies that require greater urban consolidation to be treated as, or reduced to, in effect, white noise. In this regard, the VCAT stated:
12.Informed participants in the planning approval process recognise that strategies in relation to urban consolidation, diversity and affordability are equally important to strategies in relation to neighbourhood character. However, it is my concern that because neighbourhood character is inherently site specific and local in its application then neighbourhood character considerations dominate the debate about particular projects while consolidation diversity and affordability are reduced to a background hum in our thinking.
13.It is very evident that at this particular time in the history of our city we have both a housing crisis, essentially a crisis of affordability and a population growing at a rate greater than anticipated by Melbourne 2030. The causes of the current housing affordability crisis are highly complex, and are not solely related to housing supply, or more particularly the role of the planning system in affecting the supply of new housing. Nevertheless, it is the case that the planning system has failed to deliver urban consolidation, and the supply of diverse and affordable housing to meet the needs of our growing population.
14.I think there needs to be a greater emphasis on the importance of metropolitan policies in relation to urban consolidation, housing diversity, and affordability. I do not say that neighbourhood character is of less importance, rather I say that in each decision consolidation diversity and affordability need to be at the forefront of our thinking, and not merely a background hum.
[28] NJJJKT Pty Ltd v Whitehorse CC [2008] VCAT 1410.

In Western Australia, it may be said that these issues are largely overcome by cl 67(2) of the deemed provisions, which set out a prescriptive range of state and local considerations that must be given 'due regard' in the exercise of planning discretion. Nevertheless, when dealing with proposals for infill housing in areas identified for such development, we agree with NJJJKT that, while local and neighbourhood issues must always be prominent considerations, so too is the need for urban consolidation and housing diversity.
Even so, Sch 1 to SPP 7.0 directs attention to 10 design principles which, together, inform the question of good design. In this instance, the question of whether the Proposed Development constitutes good design is the lodestar by which it falls to be evaluated. No matter how pressing the question of providing housing diversity is, under this framework, in the context of the design elements set out in the R-Codes Vol 2, only 'good design' warrants approval.
Ultimately, as we have explained, after carefully considering the Proposed Development in its context, against the backdrop of the applicable planning framework, we are not satisfied that the height of the Proposed Development constitutes good design in two critical respects.

The Proposed Development will adversely impact streetscape and amenity

We are concerned about the issue of building height and its impact on the amenity[29] of the streetscape and, in particular, Charles Court Reserve. The fact that the building height exceeds the indicative heights in Table 2.1 is no reason, of itself, to refuse the Proposed Development. However, we are not satisfied that the Proposed Development meets O2.2.1, which is in the following terms:
O2.2.1The height of the development responds to the desired future character of the street and local area, including existing buildings that are unlikely to change.
[29] 'Amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. In terms of how amenity is to be evaluated, see Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, 304; Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 [21] (Barker P).
Properly construed, O2.2.1 requires a proposed development to give attention to, to respect and ultimately accord with, the desired future character of the street and the locality, including buildings that are unlikely to change.
Here, the entire street block was up coded in LPS 3 to R60 (for the four closest lots to the Steve's development) and R40 for the remainder of the street block. South of Bessell Avenue is the R10 coding which typifies much of the residential hinterland of this locality.
For that reason, it is not possible to conclude, with any certainty, that any of the buildings within the street block are unlikely to change. The reality is that any of the lots in question could be redeveloped at any time. However, we agree with Ms Williamson that the immediate redevelopment of 37, 39, 47 and 49 Esplanade appears to be unlikely. This is because the dwellings are only recently completed and/or are otherwise very substantial. In fact, the only sites that front Esplanade that, in our view, can be said to be immediately ripe for redevelopment are the three contiguous lots: the Subject Land which is between 41 Esplanade and 43 Esplanade.
We also agree with Ms Williamson that looking back to Esplanade from Charles Court Reserve, it is apparent that the street block together with the broader Nedlands locality is very well treed. The topography is such that the development along Esplanade sits below a treed ridgeline backdrop of mature vegetation up until the Steve's development. Having stood with the parties on Charles Court Reserve close to the pedestrian path adjacent the Swan River, we appreciated the significance of this view. The 'leafy' nature of Nedlands is very apparent from this perspective. Mr Mackay helpfully describes this perspective back towards Esplanade as a 'montage of vegetation and buildings'.[30] The Subject Land itself includes a large Norfolk Pine that is to be retained which forms part of that background 'montage'.
[30] ts 490, 8 May 2023.
Mr Warn agrees that Nedlands is a leafy suburb, but not at Esplanade which he says contains 'virtually no trees'.[31] Mr Warn's observation of the absence of trees on both the verge of Esplanade and Charles Court Reserve, at least as it fronts the street block, is plainly correct. Mr Warn also considered if maintaining the view to the vegetated ridgeline was important, it could have been written into LPS 3 as a relevant consideration.[32] Mr Mackay described the whole issue of topography as a 'furphy in this context'.[33]
[31] ts 489, 8 May 2023.
[32] ts 484, 8 May 2023.
[33] ts 485, 8 May 2023.
We agree with Ms Williamson that part of the character of Nedlands is as a 'leafy, large-tree vegetated suburb'.[34] We find this is not an accident nor is it unimportant. It is reflected in the 'natural environment vision' in the LP Strategy which sets out that Nedlands is to have 'leafy' gardens, streets and parks. Likewise, the LPP 5.10 states that one of the area's defining attributes are 'open, leafy streetscapes'. As we have stated, we find that the view from Charles Court Reserve back towards Esplanade reflects and reinforces this vegetated, leafy character. In our view, it is an important aspect of the amenity of Charles Court Reserve. As a result, it is plainly in the interests of orderly and proper planning that steps be taken to ensure this aspect of the character of Nedlands is retained, even in circumstances where urban infill is to be introduced.
[34] ts 478, 8 May 2023.
We also agree with Ms Williamson that the view line to this vegetated ridgeline visually connects Charles Court Reserve with the suburb of Nedlands.[35] We find that the Proposed Development would largely obscure that view from Charles Court Reserve over the Subject Land, whereas a lower height would largely, but plainly not entirely, maintain it. In this context, and for this reason, we find that the 'increased height' cannot be considered negligible or inconsequential as submitted by the Applicant. Rather, we find it will have planning consequences in the form of diminished amenity from Charles Court Reserve and, to a lesser extent, Esplanade.
[35] See for example the photographs on page 69 of Exhibit 14.
Furthermore, Ms Williamson considers that if height 'increases' (above the indicative heights in Table 2.1 of the R-Codes Vol 2) were permitted on the street block, that overall visual connection back to the character of Nedlands may be lost or at least substantially diminished. In that way, Ms Williamson considers the Proposed Development will establish an adverse planning precedent. Ms Williamson states:
… So if the subject site was to go up by one level beyond the 12 metres, and if the neighbouring R40 sites were to go up another level to 12 metres, although it's not indicated on the diagram, I think it's easy for us to all imagine what the implications of that are; that you would not see even the small pieces of vegetation popping up above those developments.[36]
[36] ts 481, 8 May 2023.
Of course, while the question of possible precedent (or adverse planning outcome) does arise, that is, of itself, not an answer as to whether the Proposed Development should be approved on its merits. Adverse planning precedent is not often a stand-alone reason for refusal where a development is otherwise regarded as meritorious.
In any event, leaving aside any wider impacts, the Proposed Development will disrupt what we find to be quite a significant view that is presently enjoyed from Charles Court Reserve back towards Nedlands.
Coming back to O 2.2.1, we are not satisfied this design element has been met in terms of the desired future scale and character. This is because we find the height of the Proposed Development will significantly disrupt an existing view to a vegetated ridgeline which reflects and reinforces the character and amenity of Nedlands, and which gives it its sense of place.
While this view line is not specifically referenced in LPS 3, there is nothing in the planning framework which suggests that the aspect of the viewshed was to be traded away or sacrificed when the street block was rezoned. Indeed, it seems that the anticipated scale of built form on the street block was intended to preserve it. Ms Williamson considers this is reasonably implied through the density codes, including the stepping down of these codes away from the Steve's development. We agree.
We say this because Charles Court Reserve is plainly a prominent locality within Nedlands. It forms a continuous foreshore reserve stretching from Matilda Bay. So much is evident from the site view we attended with the parties at the commencement of the final hearing. It hosts sporting clubs, contains multiple playing fields, a skate-park and play equipment. It has footpaths where people walk to enjoy not only the riverine environment, but also the character of Nedlands.
We find the loss of this aspect of the view over the Subject Land would erode the amenity of the locality in not an insignificant sense. The Proposed Development simply punches too high up into the existing viewshed that is enjoyed from Charles Court Reserve. If the Proposed Development were seen as a catalyst or a justification for further developments in the street block to be approved over the notional heights provided for in Table 2.1 of the R‑Codes Vol 2, we agree with Ms Williamson and find that the cumulative impact of the loss of this visual connection would be suboptimal and not in the public interest.
We stress, as was explained in Rowcliffe, this is not a question of mere visibility of the Proposed Development. Rather, it is a question of the impact of the height of the Proposed Development, particularly the 'additional' 1.9 metres, on the viewshed back to Nedlands from Charles Court Reserve and on the Esplanade streetscape.
In addition to the impact on views from Charles Court Reserve, there is a further aspect of the height of the Proposed Development – which arises under O2.2.1 – that warrants discussion; being its role as a transition point between R40 and R60 coded land. We turn next to that issue.

The Proposed Development does not effectively transition

The issue of transition was addressed by the architects and the town planners. The Subject Land is coded R60 but adjoins an R40 coded site (being 45 Esplanade). As is obvious, the question of building height, together with the related issues of scale, bulk and mass, are integral to the question of transition.
The question of transition is really an assessment of the proposed built form in its context which then informs the issue of desired future character.
Ms Williamson considers this to be the key issue in this case. Along with the question of the view to the vegetated ridgeline, we agree. She would like to see what she describes as a 'smooth transition' away from the Steve's development to the R10 land south of Bessell Avenue.[37]
[37] ts 478 - 488, 8 May 2023.
Mr Mackay said the following on the question of transition:
… What I would argue is that it doesn't all have to – if it were like a ski slope were it all starts, I think, at one end and goes down to nothing at the other end, that you can have a bit of jaggedyness in the transition and I would argue that's actually a good thing. But the built form doesn't need to express the coding. The coding is just a planning tool. We don't walk around looking for R40 buildings or R80 buildings or R160 buildings. We look for good architecture.[38]
[38] ts 491, 8 May 2023.
Mr Warn is of the view that using the R‑Codes Vol 2 as an instrument to, in effect, 'terrace' development is very difficult.[39] This is because the Subject Land could be redeveloped as a two-storey single house. The same observation could be made of any of the R60 or R40 coded blocks. In this regard, we agree with Mr Warn.
[39] ts 495, 8 May 2023.
While it can be accepted that a smooth transition away from the Steve's development may be the desired built form envisaged by the stepping down of the density codes, we rather suspect that that idealised form of transition exists only in the dreams of strategic planners.
In any event, we are not satisfied that the Proposed Development handles the transition that the planning framework expects of it. The reality is, the only sensible interpretation of O2.2.1, as it applies to the Subject Land, is that the desired future character is for a discernible stepping down between R60 and R40 development at this point of the street block.
We agree with Ms Williamson that the density codes broadly suggest a 'continuing diminution of height' away from the Steve's development.[40] That, of itself, tends to suggest that the Subject Land would be the 'least' developed of the R60 blocks on Esplanade.
[40] ts 493, 8 May 2023.
Ms Butterworth does not consider that the Proposed Development handles the transition to the adjoining R40 site well. She explained:
So I don't consider that that provides an appropriate transition to that adjoining R40 site given the height and, also, the length of that particular architectural horizontal banding. It's not a minor feature in – you know, it's of – it's of significant length. I consider that the bulk and – that will present bulk and scale to that neighbouring property. It doesn't appropriately transition to the R40 and, therefore, doesn't meet the design principles in regard to building height and setbacks, lot boundary setbacks, sorry.[41]
[41] ts 275, 18 April 2023.
Mr Doyle considers that it is the role of the entire street block to carry the transition between the Steve's development and the R10 development south of Bessell Avenue.[42] Ms Sandri agrees with Mr Doyle. We agree with that line of reasoning to an extent. That is to say, we agree that each of the lots along Esplanade to Bessell Avenue has a role to play in that transition.
[42] ts 293, 18 April 2023.
However, we also find that the Subject Land, together with 41 Esplanade, have the most important roles in that transition, as it is at this point where the two densities meet.
In our view, the Proposed Development attempts to, in effect, shift the responsibility of handling that transition to other lots. The Proposed Development reads as a four-storey development when viewed from Esplanade and the more distant Charles Court Reserve, even with an increased set back and darker colour palette at the upper level.
While it is no doubt the case that it is possible to transition within a site, we find that the Proposed Development does not do this, at least effectively. We note that the Subject Land has a frontage of only 20.14 metres. In our view, it is not a straight-forward design task to manage a transition on a lot of this width, particularly with an 'additional' storey being proposed beyond that envisaged in Table 2.1 of the R-Codes Vol 2.
We also agree with Mr Warn that an attempt has been made to handle the transition by placing the driveway on the boundary adjacent to the R40 coded land (41 Esplanade) and therefore the building masses more at the R60 boundary (45 Esplanade). There is also an increased setback from the R40 coded land at the fourth storey to try to lessen its presence at its upper level.
Even so, we find that the Proposed Development does not involve any stepping down. It does not transition within its boundaries but, as we have explained above, carries, and we find, falls to be interpreted, as a four‑storey development that has a slightly increased setback (of 4.5 metres) from the south-western boundary at the upper level. In this regard, we agree with the concerns as to transition expressed by Ms Butterworth and Ms Williamson.
It follows that so far as the question of transition is concerned, which is an aspect of context to which O2.2.1 is directed, we find that this aspect of the Proposed Development does not constitute good design because it does not reflect, nor does it accord with, the desired future character of the streetscape of Esplanade.
We therefore find that O2.2.1 is not met in relation to the question of transition between the R60 and R40 coded land. That is to say, we are not satisfied that the height of the Proposed Development responds to the desired future scale and character of Esplanade.

Issue 2: Internal amenity

A necessary consequence of infill development is the need for planning authorities to give greater attention to the question of internal amenity. Elsewhere it has been noted that internal amenity is 'an important consideration' in a planning assessment and can, of course, be a basis on which a proposed development warrants refusal.[43]
[43] See for example WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414 at [130] – [149]; Barana (St Kilda) Investments Pty Ltd v Port Phillip CC [2016] VCAT 1510 at [59] – [70].
Internal amenity is a consideration that, almost exclusively, arises in proposals for group and/or multiple dwellings, often, as is the case here, in the context of a mixed-use development.
This is because, unlike with single houses, the development proposed in the context of grouped, and especially multiple, dwellings, as is proposed here, is unlikely to be used and enjoyed by the proponent of the development. That is to say, multiple dwellings, at least in general terms, are built to be sold and consequently occupied by others. For this reason, it simply cannot be assumed that the question of internal amenity has been considered as fulsomely, nor as critically, as where a proposed dwelling is to be occupied by the proponent for development.
Furthermore, unlike a single house, the capacity to later alter multiple dwellings if issues like internal amenity ultimately prove to be an issue, are simply not realistic. This is due to the inherent difficulties with the ownership and governance arrangements that attach to lots in a strata scheme established under the Strata Titles Act 1985 (WA). Our point being that, practically speaking, the opportunity to properly consider the question of internal amenity arises only once. In our view, this reality should steadfastly be borne in mind by decision‑makers.
The Proposed Development raises a number of issues with respect to the question of internal amenity.
To the extent that the Proposed Development faces Esplanade, the internal amenity enjoyed within these rooms (the kitchen, dining and living areas) is plainly not an issue. These rooms will have an uninterrupted view of the Charles Court Reserve and, beyond that, the riverine environment. Indeed, we find that the amenity enjoyed in these areas will be, without exaggeration, difficult to surpass.
However, we find that the fact that these rooms enjoy what may be regarded as an exceptional amenity is no reason, in our view, to gloss over, or look past, what we regard as significant internal amenity issues in each of the bedrooms, in particular bedroom 2.
In saying that, we accept that in large, more complex developments, there may be, on occasion, a need for some design compromises which may result in an internal amenity for some habitable rooms being less than ideal. At some level, such outcomes can, on rare occasions, be tolerated in a small number of instances in the context of a complex design response, having regard to the need to deliver affordable infill housing in line with broader policy initiatives.
However, this is not such an occasion. The Proposed Development is a four-storey design for three multiple dwellings on a large, regular shaped, flat lot, in circumstances where it is the first lot on Esplanade to seek to benefit from the density coding increases that were delivered upon the approval of LPS 3. Aside from the Applicant's apparent desire for a fourth level, we do not consider this to be a challenging design scenario. Nor can we discern any particular impetus, evident from the planning framework, to absolutely maximise the development potential of the Subject Land.

For these reasons, we find that no major or significant design 'concessions' on internal amenity should reasonably be given in the exercise of discretion.
The internal amenity in the bedrooms and, to a lesser extent, the theatre is less than ideal in a number of respects. The horizontal banding is a design feature which adds to the visual presentation of the Proposed Development at the first and second floors.[44] The design experts agreed the banding adds architectural interest.
[44] Although the Applicant ultimately proposed to remove the horizontal banding to address any concerns with its impact as well as questions of maintenance and functionality: ts 540, 8 May 2023.
However, while it adds architectural interest, the horizontal banding is problematic in that it serves to narrow, significantly, the visual outlook from the bedrooms. At the first and second floors, the banding is a feature that both rises from below, and falls from above, with the effect being that the horizontal view corridor that remains is only 1.371 metres wide at each of these levels. That is to say, the banding has the effect that the view line from bedroom 2 reduces to a horizontal plane only 1.371 metres wide.
This is not so much of an issue for bedroom 3 by reason of the placement of the ensuite and the fact that it also has an outlook to the rear. Likewise, the master bedroom enjoys views to the rear but will have the banding at the north-east elevation. However, the banding, we find, contributes to a significant amenity issue for bedroom 2 which enjoys its only outlook to the south-west.
Along with the horizontal banding, the Proposed Development employs obscured windows extensively at its south-west elevation. This design response is directed to Element 3.5 of the R Codes Vol 2. Table 3.5 provides that for sites coded R50 or lower for the first four storeys, a privacy setback of 4.5 metres to a major opening in a bedroom should be provided. Compliance with the requirements of Table 3.5 meet the acceptable outcome for Element 3.5. The extensive use of permanent screening at this elevation is contrary to A3.5.4.
Here, the setback from the boundary with 41 Esplanade is 3 metres at the first and second floors and is 4.5 metres at the upper level. Hence, the use of the design solution of banding and obscure glass to manage the issue of visual privacy at the first and second floors.
However, the combination of the banding and the use of obscure glass at this elevation results in a very poor outcome for bedroom 2 from an internal amenity viewpoint. The overall result is, we find, a very poor amenity outcome for bedroom 2 at the first and second floors.
This is reflected in the evidence of the design experts. Ms Williamson explained that:
Well, I have a particular concern around bedroom 2 having obscure glazing and not having a clear view from that bedroom. I think it's a very poor quality ...[45]
…
I think it's a core amenity outcome. I don't subscribe to the view that because the living and dining room/kitchen has the – with the front – you know, uninterrupted spectacular views that there should be lesser amenity to the other habitable spaces. And I think that the R-Codes are clear in their requirement for people to have clear views from their – from habitable rooms – from windows. So – yes. I think it's a poor outcome. Not good design.[46]
[45] ts 535, 8 May 2023.
[46] ts 543, 8 May 2023.
Mr Warn stated:
… I do admit that bedroom 2 could be improved but I don't think it's reduced amenity is of such concern, given there are three bedrooms – of such concern that [it should result in refusal of] the project.[47]
It's probably the least – one of the least successful parts of the project. But given that's one of three or four bedrooms, could easily be a study. May not necessarily be of a concern that we're discussing. And it could be improved. But I don't think it's of that significance that warrants nonapproval of the project.[48]
[47] ts 577, 8 May 2023.
[48] ts 543, 8 May 2023.
Mr Mackay stated:
I would agree it's not the – it's not the ideal solution. It's always preferable to have windows that you can – you can look out of. And you don't have to stand on a box to – to look out. I'm sort of of the view along Mr Warn that it's in the context of a minor bedroom; it's less of an issue[.][49]
[49] ts 543, 8 May 2023.
The planners also gave evidence on the question of internal amenity, in particular bedroom 2. Ms Sandri considers:
… bedroom 2 is still a large bedroom, it still has an ensuite, it still has a walk-in robe, it still has very good amenity. It still does have an outlook based on the conditions that are being – and I refer to bedroom 2 for apartments 1 and 2 and specifically looking at page 19 of the bundle. Depending on what conditions are applied, if its unobscured above 1.6 metres, you will still have an outlook upwards. If they're openable, you still allow for ventilation, there will still be sunlight and daylight …
… So therefore, there is still a degree of amenity that is afforded to the cinema and bedroom 2, but it's important that, you know, we're benchmarking against what type of amenity here because this apartment offers exceptional amenity. Yes, it's accepted bedroom 2 and the cinema don't have the same exceptional amenity as the other rooms, but it certainly has good amenity as well.[50]
[50] ts 163 - 164, 21 February 2023.
Ms Butterworth's evidence was as follows:
In my view point does that provide an external outlook, a satisfactory external outlook, in my view point that's still important that those – that bedroom 2 does provide an outlook and that outlook is very limited. So therefore, in my view point, it doesn't meet that element objective.[51]
[51] ts 170, 21 February 2023.
We do not agree with Ms Sandri that the amenity in bedroom 2 is 'good'. In addition, like Ms Williamson and Ms Butterworth, we disagree with the notion that just because there might be 'spectacular' views available from the front elevation, that somehow means that the amenity of the bedrooms, even the 'minor bedrooms', can be glossed over as no longer being of any real consequence. In the context of the Proposed Development, which proposes only three apartments to be sold, plainly, at the luxury end of the real estate market, we are somewhat surprised by the views of both Mr Warn and Mr Mackay that it's just a 'minor bedroom' and therefore such a poor amenity outcome can be rationalised or justified.
In our view, that is not how the R‑Codes Vol 2 is to be read and applied. We can see nothing in the R‑Codes Vol 2 that would support an opinion that the amenity in different habitable rooms can, in effect, be traded off against each other.
In Planarc Pty Ltd v Frankston CC,[52] the VCAT, by reference to the earlier decision of Adamco Developments v Monash CC,[53] made the following comments on the need for a baseline standard of internal amenity which we agree:
45As a general proposition, we accept that residents living in mixed-use areas must expect a different level of amenity to those living in a purely residential area. It would be nonsense to think otherwise. We do not, however, consider that this should bring about outcomes where developments can be designed with an understanding that the level of on-site amenity able to be enjoyed by future residents is compromised unreasonably on the basis that this is just part and parcel of living in a mixed use environment. Rather, we think that whilst it must be reasonably anticipated that amenity will be affected by off-site features such as overlooking and shading from commercial buildings, traffic, noise etc, the design response must still seek to respond positively to such constraints with a view toward enhancing the amenity of future residents.
46We are of the view that buildings and ancillary features including landscaping and car parking areas should be designed and sited in an integrated fashion with the objective of maximising liveability so as to respond positively to amenity impacts arising from offsite sources instead of giving in to such impacts.
47We do not agree with submissions put to us that future residents, in choosing to live in such locations, "know what they're getting" as justification for compromised levels of amenity arising from the proposal itself. The same could be said in any environment, yet this does not justify a departure from the principle that an acceptable bottom line standard of amenity must always be achieved. We say this having regard to the emphasis on planning objectives which encourage development outcomes that enhance liveability and promote high standards of urban design - themes which permeate Melbourne 2030, the State Planning Policy Framework including cl 16.02.
[52] Planarc Pty Ltd v Frankston CC (Red Dot) [2006] VCAT 682; (2006) 145 LGERA 433 at [47].
[53] Adamco Developments v Monash CC [2004] VCAT 2359.
When we contemplate the amenity of being in bedroom 2, we can only repeat what the VCAT said in Taranto v Glen Eira CC, that the combination of the banding and the use of the obscured glass 'would be akin to living within a plastic milk bottle'.[54]
[54] Taranto v Glen Eira CC [2015] VCAT 1904 at [21].
In 2023, that amenity outcome, in this particular context, can hardly be regarded as acceptable. We say this noting that concerns about the cost of housing that may legitimately be said to justify some design compromises or concessions elsewhere, can hardly be said to apply to the Proposed Development.
Before we conclude on this issue, there was some discussion that a condition could alleviate the concerns with bedroom 2 by the window being screened to a height of 1.6 metres to allow upward views and, at the same time, to prevent overlooking. In this context, we find that such an outcome is unacceptable and does not constitute good design. Furthermore, the Applicant also proposed to discard the horizontal banding. In our view, it is simply not good practice to seek to include what are quite fundamental changes to the design of the Proposed Development, on the run.
Accordingly, we find that the Proposed Development does not satisfy O3.5.1 by reason of the failure to provide natural daylight and an acceptable external outlook from bedroom 2 at both the first and second floors.

Disposition

Ultimately, this is a discretionary decision as to whether the Proposed Development warrants approval. The R-Codes Vol 2 is a performance‑based policy whereby proponents for development need to demonstrate that the design achieves the objectives of each design element. Washing over that are the 10 principles of good design that emanate from SPP 7.0.
For the reasons we have explained, we are not satisfied that the Proposed Development satisfies O2.2.1 in that the proposed building height will interrupt what, we find, is a significant view of the vegetated ridgeline back to Nedlands which is available from Charles Court Reserve. We find the 'additional' 1.9 metres would significantly erode this view, including of the large Norfolk Pine on the Subject Land that is proposed to be retained.
Furthermore, we are not satisfied that the Proposed Development – at its proposed height – adequately performs its role in the transition in built form away from the Steve's development. Rather, we find that the Proposed Development seeks to absolutely maximise its development yield and to, in effect, pass on the burden of the required transition in built form onto other lots on Esplanade to resolve. In our view, the Subject Land has a key role to play in that transition which cannot be avoided or passed on by simply being the first in line to redevelop.
The final concern is the internal amenity of the bedrooms, in particular bedroom 2, at both the first and second floors. We find the internal amenity that will be provided to bedroom 2 to be poor such that it cannot be said that O3.5.1 has been satisfied.
Our separate findings on each of these issues is such that the Proposed Development ought not be approved. Considered together in an overall sense, they weigh overwhelming against approval.
For this reason, it is unnecessary for us to travel further into the remaining issues in contest in relation to internal amenity, namely the theatre room and the functionality of the minor balconies. However, as we have stated, we find that these issues were unlikely to be of such consequence that they would, of themselves, warrant refusal. Likewise, as we have stated, the question of the ground floor 'zen gardens' is not the issue on which this case turns.
The case was really an argument about building height. The Applicant's case was that the Proposed Development was of sufficient design quality to warrant approval. Ultimately, having regard to the applicable planning framework, and in particular the R-Codes Vol 2 and SPP 7.0, we disagree. We agree with the Respondent that the Proposed Development should not be approved in the exercise of discretion.
The Proposed Development fails primarily because, on account of its height, it is not sufficiently sensitive to its context in terms of the views from the street but also Charles Court Reserve and also its role in the planned transition in development away from Steve's development to the R10 hinterland from Bessell Avenue.
Having found that the Proposed Development does not satisfy O2.2.1 and O3.5.1 of the R-Codes Vol 2, which constitute two fundamental design issues in this context, we consider there is no reasonable basis on which the discretion should nevertheless be exercised in favour of the Applicant.
In addition, the internal amenity for bedroom 2 at the first and second floors is, we find, unacceptable.
Accordingly, the correct and preferable decision is to affirm the Respondent's decision and dismiss the application for review.

Orders

The Tribunal orders:
1.The decision of the Respondent is affirmed.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
25 OCTOBER 2023

*Development Standard*	*R60*	*Proposed development*
Building height (storeys)	3³	4
Boundary wall height (storeys) *Boundary wall only permitted on one boundary, and shall not exceed 2/3 length.	1	1
Minimum primary and secondary street setbacks	2m	Less than 2m.
Minimum side setbacks	3m	Does not meet the minimum for storeys 2, 3 and 4 on the Southern side, and does not comply with the average for four storeys. Otherwise compliant.
Minimum rear setbacks	3m	Compliant.
Average side setback where building length exceeds 16m	3.5m	Does not comply for the fourth storey on the southern side. Otherwise compliant.
Plot ratio	0.8	0.9

Boundary	North side setback (adjoining R60)		South side setback (adjoining R40)		Rear setback (adjoining R60)
Table 2.1 Acceptable Outcome	minimum	average	minimum	average	minimum
Table 2.1 Acceptable Outcome	3.0m	3.5m	3.0m	3.5m	3m
Ground floor	3.0m	NA (23.5m boundary wall)	5.2m + Nil	NA (12.4m boundary wall)	3.8m
Second storey	2.5m	3.5m	3.0m	3.7m	14.0m
Third storey	2.5m	3.5m	3.0m	3.7m	14.0m
Fourth storey	2.5m	3.3m	4.5m	5.3m	14.0m

*Parking types*		*Required bays*	*Proposed bays*
Car Parking¹	2+ bedroom dwellings	3.75	10
Car Parking¹	Visitor car	1 bay	2 (shared with commercial)
1. calculations of parking ratios are required to be rounded up to the next whole number

AO	Primary Control	Acceptable Outcome
AO 2.1	Building height	Maximum 3 storeys ¹
AO 2.2	Primary street setback²	Cooper St, Clark St, Edward St, Hillway and Esplanade	Kingsway
		Minimum 6m	Minimum 5m
AO 2.3	Secondary street setback	Minimum 1.5m
AO 2.4	Side setbacks⁴	Minimum 3m
AO 2.5	Rear setback^4,7	Average 4m
AO 2.6	Boundary walls^4,5,6	Maximum 1 storey (3.5m) in height - Maximum two-thirds the length of the lot boundary - Located a minimum of 3m behind the primary street setback - May be built up to one lot boundary only OR May be built up to two lot boundaries, where a minimum 20% of the site area is provided as deep soil area

1	Maximum overall building height of 12m, inclusive of rooftop articulation.
2	Minimum street setback may be reduced by up to 2m provided that the area of any building, including a garage encroaching into the setback area, is compensated for by at least an equal area of open space that is located between the setback line and line drawn parallel to it at twice the setback distance.
3	A nil setback to a communal street or internal driveway may be considered where a deep soil area is provided elsewhere within the communal street setback area.
4	Boundary setbacks will also be determined by provisions for building separation, deep soil areas and visual privacy within R-Codes Vol. 1, Vol. 2 and this LPP, and building separation provisions of the National Construction Codes.
5	Walls may be built up to a lot boundary, where it abuts an existing or simultaneously constructed wall of equal or greater proportions
6	Where the subject site and an affected adjoining site are subject to different density codes, the length and height of any boundary wall on the boundary between them is determined by reference to the lower density code.
7	8.5m wall or concealed roof height, 10m pitched roof height.
8	For the purpose of assessing average setbacks, lot boundary walls and patios are to be included.