Su and City Of Canning - [2011] WASAT 34

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SU and CITY OF CANNING [2011] WASAT 34

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 18 FEBRUARY 2011

DELIVERED : 1 MARCH 2011

FILE NO/S: DR 402 of 2010

BETWEEN: PING SU
Applicant
AND
CITY OF CANNING
Respondent

Catchwords:

Town planning Development application Dwelling Grouped dwelling Residential building Student accommodation Use not listed Permanent occupancy Temporary occupancy Usual place of abode Considerable period of time Close proximity to a university campus Discretionary approval Local Planning Policy Amenity Orderly and proper planning Residential Planning Codes Car parking Dual coding Boarding house Renting premises on a room by room basis It is for the planning authority to determine the proposal's land use Number of bedrooms and bathrooms Designed to be used for the purpose of Whether the proposal was correctly described as grouped dwellings, residential buildings or a use not listed Whether the proposal, if correctly described as residential buildings, complied with the planning framework Whether the proposal, if correctly described as grouped dwellings, complied with the planning framework

Legislation:

City of Canning Town Planning Scheme No 40, cl 2.2.4, cl 2.3.6.2, cl 2.3.8, cl 2.3.8.1, cl 2.3.8.2, cl 2.7.12, cl 5.4.1.2, cl 5.4.1.5
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R Canterino and Mr Q Lau (Acting as Agents)
Respondent: Mr D McLeod

Solicitors:

Applicant: N/A
Respondent: McLeods Barristers & Solicitors

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

Hope and Joondalup [2007] WASAT 8
Pearce and City of Wanneroo [2010] WASAT 77

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of the applicant's proposal of two grouped dwellings at No 37 (Lot 10) Lord Street, Bentley.
The site was located in close proximity to the campus of the Curtin University of Technology. The respondent argued that the proposed buildings were not grouped dwellings and that the proposal would be used for student accommodation.
Three issues arose for determination by the Tribunal. The issues were:
•whether the proposal was correctly described as grouped dwellings, residential buildings or a use not listed;
•whether the proposal, if correctly described as residential buildings, complied with the planning framework; and
•whether the proposal, if correctly described as grouped dwellings, complied with the planning framework.
On the first issue, the Tribunal found that the proposal could not be properly described as grouped dwellings. The Tribunal also found that, although the proposal could be described as student accommodation, the use was not unlisted because it could reasonably be described by reference to residential buildings. Finally, on this issue, the Tribunal found that the proposal was properly described as residential buildings.
On the second issue, the Tribunal determined that the proposal, when correctly defined as residential buildings, did not comply with the planning framework. The proposal did not comply with the car parking requirements for residential buildings, and it did not comply with the intended land use and density for the Bunning sub-precinct of the local planning policy.
On the third issue, the Tribunal determined that, even if the proposal could be described as grouped dwellings, approval should not be granted. Grouped dwellings were an 'AA' use that required discretionary approval. There are various matters that must be considered in the exercise of discretion. In consideration of those matters, the Tribunal found that discretion should not be used to approve the proposed buildings for various reasons, including inconsistency with the requirements of the local planning policy for the subprecinct of Bunning and the proposal's adverse impact on the amenity of the locality.
Because of the findings on the first two issues, it was not strictly necessary to determine the third issue. However, because of the considerable evidence and argument on this issue, the Tribunal felt it was appropriate to address it. As a consequence of determining the third issue, it results that if the Tribunal was wrong on the first and/or the second issues, the application for review would still fail, based on the third issue alone.

Introduction

These proceedings involve an application brought by Ms Ping Su (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Canning (City, Council or respondent) made on 9 November 2010 to refuse development approval for two grouped dwellings at No 37 (Lot 10) Lord Street, Bentley (site).
The application for development approval was lodged with the City on 17 May 2010. The development was described as 'two single storey Grouped Dwellings of Brick & Tile with attached Garage(s)'. The drawings for Unit 1 showed various rooms including four bedrooms, a guest room and a study. The drawings for Unit 2 showed various rooms including four bedrooms, a nursery and a study. The report submitted to Council for consideration on 14 September 2010 described the proposal as 'two, six bedroom grouped dwellings'.
The report recommended approval with various conditions. Significantly, the first two conditions included a requirement that occupancy be restricted to no more than six unrelated persons and also a requirement that the occupancy restriction be endorsed on the titles. The Council resolved that:
the item be held over to the next Council meeting for further clarification on the rooms shown on the submitted plan and review of the particular issues raised.
A revised report was prepared for the Council meeting on 9 November 2010. This report included the following comment:
… Discussions have been held with Summit Homes on behalf of the property owner and it is clear that the intent is that all of the above mentioned rooms [six in each grouped dwelling] will be used as bedrooms. …
The report writer determined that the two larger bedrooms in each grouped dwelling could 'only be classified as double bedrooms (i.e. two bed spaces). As each of the proposed dwellings is capable of accommodating up to [eight] people, they cannot be defined as being a dwelling'. While acknowledging the possibility that the larger bedrooms may be occupied by individuals rather than couples, the recommendation was to refuse the proposal on the basis that it was two residential buildings rather than two grouped dwellings.
If the proposal was correctly described as two residential buildings rather than two grouped dwellings, then significantly different planning requirements applied to the proposal. The Council determined that the proposal was for two residential buildings and refused the application.

Site and locality

The site has a roughly rectangular shape with a street frontage of just over 17 metres, a rear boundary of almost 25 metres, side boundaries of approximately 45 metres and an area of 934 square metres. The site contains an existing single storey dwelling. The two adjoining side properties also contain single storey dwellings.
The site falls approximately 2 metres from the front to the rear.
The site is located approximately one kilometre east of Curtin University of Technology (university). Canning College is located between the site and the university.

Planning framework

The site is zoned Urban Residential R17.5/R30 under the City's Town Planning Scheme No 40 (TPS 40 or Scheme). Under Table 3 Zoning Table of TPS 40, the use proposed in the development application, grouped dwellings, is an 'AA' use. Similarly, the use contended by the City in its report and decision, residential buildings, is an 'AA' use. An 'AA' use is a use not permitted unless approval is granted by Council.
During the hearing, the respondent argued that the proposed use was best described as student accommodation, which is a list not listed in the Scheme. Clause 2.2.4 'Uses Not Listed' provides as follows:
If a particular use is not mentioned in the list of use classes in the Zoning Table or is not included by reference in the definition of any of the use classes in the Zoning Table, such use shall be deemed to be a prohibited use.
However, if the proposal is properly described as either grouped dwellings or residential buildings, then both use classes, as 'AA' uses, require Council's discretionary approval.
Clause 2.3.6.2 of the Scheme describes the process for assessing 'AA' uses:
"AA" Uses - The Council in exercising its discretion as to the approval or refusal of an application for Development Approval, shall have regard to the provisions of subclause 2.3.8.
Clause 2.3.8 of the Scheme is headed 'Matters to be Considered when Council Exercises Discretion'. Clause 2.3.8.1 requires that Council shall have regard to the following:
(a)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b)any relevant submissions by the applicant; and
(c)any planning policy adopted in accordance with Clause 2.7.12.
Clause 2.3.8.2 and cl 2.3.8.3 of the Scheme provides that, in addition to matters that it must consider, it may have regard to various matters including:
•any previous decision made by the Council in circumstances which are sufficiently similar for the previous decision to be relevant as a precedent, provided that the Council shall not be bound by such precedent;
•the nature of the proposed use and its relationship to the use of other land within the locality;
•any other matter which in the opinion of the Council is relevant; and
•the parking facilities available or proposed and the likely requirements for parking arising from the proposed development.
Clause 5.4.1.2 of TPS 40 states:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes.
The Tribunal notes the Codes referred to are correctly described as the Residential Design Codes of Western Australia (2010) (R Codes).
Clause 5.4.1.5 of the Scheme provided that, where a site has dual coding and the proposal does not exceed two dwellings, the lower code shall prevail as the maximum permissible residential density for any land within the residential zones unless the site has access to reticulated sewerage. The site is sewered and consequently the R30 provisions of the R Codes may be applied to this proposal.
Parking requirements in the residential zones are described in Table 5 of TPS 40, which requires the minimum parking for grouped dwellings to be in accordance with the R Codes and parking for residential buildings to be negotiated with Council. Parking is a significant element of this application and specific requirements are discussed in detail later in these reasons.
Three relevant definitions are 'grouped dwelling', 'dwelling' and 'residential building'. Only the latter term is defined in TPS 40. The other two definitions are defined in Appendix 1 of the R Codes.
Dwelling
A building or a portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family.
Grouped dwelling
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, … and includes a dwelling on a survey strata with common property.
Residential building
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
•temporarily by two or more persons; or
•permanently by seven or more persons, who do not comprise a single family, but does not include a hospital or sanitorium, a prison, a hotel, a motel or a residential school.
There is one directly relevant local planning policy: Local Planning Policy Bentley (West) Precinct Plan (LPP or Precinct Policy) which was adopted pursuant to cl 2.7.12 of TPS 40 on 12 May 2009. The LPP consists of two subprecincts: Education and Technology Accommodation sub-precinct, which is generally on the west of the precinct and closest to the university; and the Bunning Park subprecinct which contains the review site. Clause 5.2 of the LPP describes the following provisions for the Bunning Park sub-precinct.
(a)Role and Function
The purpose of this Sub[-]Precinct is to provide for predominantly low[]rise detached dwellings that conserve and enhance the established residential character through maintenance of privacy and amenity, with limited opportunities for residential[-]based employment and leisure pursuits.
The planning intent for land in this Sub[-]Precinct is to:
(i)Retain the established lower medium residential area that meets the needs of predominantly couple and family households.
(ii)Allow for limited range of home[-]based business activities where the scale and intensity of activity maintains a high level of residential amenity desired in this local area.
(b)Land Use
The predominant use is for residential dwellings, with opportunities for home[-]based occupations. "Residential Buildings" are not Preferred uses in this sub[-]precinct.
(c)Residential Density
This Sub[-]Precinct is to be a lower medium density residential area (R17.5/R30), comprising detached and semi[-]detached single dwellings with some opportunities for grouped dwellings in certain locations. Housing in this Sub[-]Precinct is generally intended for the accommodation of:
(i)Established households, with and without dependant children; and
(ii)Newly establishing households, with young dependant children.
Clause 4 of the LPP describes parking requirements for residential buildings in the precinct.
Development falling within the use class of "Residential Building" shall provide on-site parking at the minimum rate of 0.5 parking bays per bedroom or 0.5 parking bays per bed space, which ever [sic] is the greater.

Proposed development

The proposed development consists of two separate dwellings. The front dwelling (Unit 1) contains three bedrooms, a study, a nursery, a guest room, three bathrooms, a laundry, a kitchen, a dining area, a family area, a double garage and an external storeroom. There is an external courtyard of approximately 6 metres by 7 metres with an area of 42 square metres. In addition, the courtyard area extends with an additional useable area of over 8.5 metres reducing in width from 4 metres to 2.1 metres.
Although only three rooms are described as bedrooms, the study, guestroom and nursery all contain robes and have the potential to be used as bedrooms. The study and the guestroom share a bathroom. Bedroom 2 and bedroom 3 share a second bathroom. Bedroom 1 and the nursery share a third bathroom. The first two aforementioned bathrooms are accessible from the communal areas of the dwelling.
The second dwelling (Unit 2) comprises four bedrooms, a study, a nursery, three bathrooms, a laundry, a kitchen, a dining area, a family area, a double garage and an external storeroom. There is an external courtyard of approximately 6 metres by 7 metres with an area of 43 square metres. In addition, the courtyard area extends with an additional useable area over 10 metres long with a minimum width of 3.5 metres.
Although only four rooms are described as bedrooms, the study and the nursery both contain robes and have the potential to be used as bedrooms. The study and bedrooms 2, 3 and 4 share two bathrooms which are accessible from the communal areas of the dwelling. Bedroom 1 and the nursery share a third bathroom.
A notable characteristic of the proposal is the extensive external paving and minimal garden space.
The development application form submitted to the respondent together with the drawings described the proposal as 'Two single storey grouped dwellings of brick and tile with attached garage(s)'.

Council's decision

The report to the Council meeting of 14 September 2010 indicates that Council advertised the development to two adjoining neighbours and one rear neighbour. There were two submissions of 'no objection' and no response from one side neighbour. The report described the proposal as 'Proposed Two Grouped Dwellings at …'. After deferring a decision in September 2010, the Council considered the application at its meeting on 9 November 2010.
Although the application had not changed, the report to the November 2010 meeting of Council described the proposal as 'Proposed Two Residential Buildings at …'. The Council resolved to refuse the proposed two residential dwellings. The actual notice of refusal was modified slightly by deleting the reference to residential buildings and instead referred to the refusal of the application for the following reasons:
(i)The proposal does not meet the requirements of [c]lause 2.3.8.1 of the City of Canning Town Planning Scheme No. 40 as the proposal is not in the interests of orderly and proper planning.
(ii)The proposal does not meet the parking requirements of Table 5 "Residential Land Use Parking Requirements" of the City of Canning Town Planning Scheme No. 40 and clause 4 "Residential Building Parking" of [the] Council's Local Planning Policy Bentley (West) Precinct Plan.

The issues

In the respondent's statement of issues, facts and contentions, the following five issues were proposed.
1)Whether the development will be used for student accommodation.
2)Whether the development should be treated as a residential building as defined in the R Codes.
3)Whether adequate parking is provided for the number of people the dwellings are designed to accommodate.
4)Whether the type of accommodation provided by the development will give rise to unacceptable amenity and social impacts.
5)Whether the development is consistent with the respondent's LPP.
The applicant rejected the respondent's five issues 'as they are not of relevance to the use class proposed by the development application for two single storey grouped dwellings'.
After considering the submissions on issues and matters that arose out of the hearing, the Tribunal finds the following three issues arise for determination in this review:
1)Whether the proposal is correctly described as grouped dwellings, residential buildings or a use not listed.
2)Whether the proposal, if correctly described as residential buildings, complies with the planning framework.
3)Whether the proposal, if correctly described as grouped dwellings, complies with the planning framework.
The Tribunal will address each issue in turn.
Due to the limited nature of the applicant's case (discussed immediately below), it is presented before any of the issues and applies to all issues. The respondent's case is complex and is appropriately considered in the context of each issue.

The applicant's case

The applicant did not have any witnesses and did not submit any evidence. It was necessary to construct the applicant's case from the original application, the statement of issues, facts and contentions and the bundle of documents, together with opening and closing arguments made by the applicant's agents during the hearing. Also relevant was the applicant's agent's discussion during the hearing on draft 'without prejudice' conditions submitted by the respondent and the agent's crossexamination of the respondent's witnesses.

In essence, the applicant's case is very simple and may explain why the applicant decided not to engage any witnesses or to submit any evidence.
The applicant's case is as follows:
•the application is for grouped dwellings;
•the proposed grouped dwellings comply with the planning framework;
•the proposal is consistent with other grouped dwellings recently approved by the respondent in the locality (the applicant's bundle of documents included copies of letters of approval and plans of five separate projects proposing a pair of grouped dwellings, all approved in 2009 and 2010);
•the report prepared by Council's planners confirms that the proposed grouped dwellings comply with the planning framework;
•the councillors have ignored their expert planners' advice and have made assertions about the use of the proposed grouped dwellings;
•the assertions are false there is no basis for the assertions;
•even if there was a basis, the assertions cannot be proved in advance of the use of the buildings;
•the applicant is aware of the distinction between grouped dwellings and residential buildings and is prepared to accept conditions, as proposed by the Council's planners, which limit use to grouped dwellings and record the limitation by notice on the title; and
•the proposal is for grouped dwellings; the applicant intends that they will be used as grouped dwellings and they are designed as grouped dwellings. Therefore, there is no basis to reclassify the proposal and refuse the proposal.

Whether the proposal is correctly described as grouped dwellings, residential buildings or a use not listed

One of the key arguments submitted by the respondent was that this proposal can only properly be assessed in the context of the locality. The major context is the close proximity of the site to the university; the large number of overseas students attending the university; and the consequent pressure for existing and new housing stock to accommodate students. Two arguments followed from this, both supported by evidence discussed in more detail below. Firstly, if the proposal was located on an identical site but far removed from the university campus, the proposal would be acceptable. Secondly, it is unlikely that a similar design would be proposed for a site far removed from the university campus, because the design of the dwellings contains unusual characteristics that only relate to the proposal's context: close proximity to the university campus with a design that specifically facilitates accommodation for students.
The respondent submitted a substantial amount of evidence describing the loss of amenity in the locality resulting from student accommodation. The major problem was inadequate parking. Other problems included a general downgrading of the area resulting from poor property and garden maintenance and various issues relating to rubbish.
The Tribunal heard evidence from five neighbours (Ms Hinshaw, Ms Indaimo, Mr Jones, Mr Prickett and Ms Walker) who live in close proximity to the site and in the Bunning subprecinct of the LPP area. All five witnesses were longtime residents in their existing houses in the locality. They were all middleaged to elderly and all referred in their own individual way to problems with parking, poor property/garden maintenance and rubbish associated with student housing. The Tribunal found all witnesses to be credible and accepts that there has been a substantial loss of amenity resulting from student accommodation in the locality in the last few years. Most of the witnesses specifically mentioned their problem was not with students. For example, one of the witnesses provides boarding for two students. It became apparent, while listening to the evidence of the residential witnesses, that the problem was not students as individuals but rather the amenity problems resulting from excessive numbers of them being accommodated in individual dwellings. Some of the witnesses referred to undercroft garages being converted into rooms to accommodate students. Most referred to the extensive rubbish problem between semesters, when new students move in and the furniture of former student occupants was placed on the verge. The evidence was supported by photographs. Reference was also made to rubbish bins being left on the verge rather than being taken into the property after collection day. All five witnesses complained strongly about the difficulties resulting from large numbers of cars being parked on the roads and verges during semesters and especially at night during semesters. Mrs Indaimo noted that, to assist students, the university provides a courtesy bus which operates every half hour with a bus stop outside No 14 Lord Street, Bentley.
The evidence of the five local residential witnesses was supported by Mr Kevin Jefferies, who is Executive: Property Assets and Economic Development, at the City. Mr Jefferies described an extensive recent history of complaints to Council, including, in November 2009, a petition with 88 signatures, 'raising concern in relation to the proliferation of Lodging and Boarding house type accommodation'.
The number of complaints led to community forums to discuss the amenity problems associated with student accommodation. These forums were held in July 2009 and December 2009,with a further public meeting dealing with the problem on 10 December 2010.
Mr Jefferies provided evidence relating to student accommodation. He explained the proximity of the locality to the university campus and referred to the university's apparent focus on 'providing education opportunities for overseas students. That creates a need for accommodation on or close to the campus.' Mr Jefferies explained:
There is nothing inherently wrong with students residing in a residential area. The problems arise from the fact that houses which might be otherwise designed to accommodate a family are tending to accommodate six to eight students living independently, and quite often rooms in houses are let individually to students. The houses are then used for all intents and purposes as blocks of flats by students who have no common concern about the upkeep of gardens, parking problems in the street, and other issues associated with amenity.
To demonstrate the significance of the problem of student accommodation in the locality, Mr Jefferies referred to research he conducted on the realestate.com.au website on 14 January 2011:
… That search showed the properties in Bentley where rooms are leased to couples or where bunk-beds or two single beds in the same room are shown or advertised for student accommodation. The results of the search are Document 12 in the s.24 Bundle [of documents].
The search disclosed that there were 60 properties in all[,] available for lease in the whole of Western Australia, with five or more bedrooms, and of those 60, 41 were located in Bentley.
The evidence submitted included extracts of advertised listings; typical listings advertised individual rooms for rent at figures in the range of $135 - $170 for singles and $200 per week for a couple.
In response to the complaints of residents, the Council carried out research to compare occupancy characteristics in Bentley with other suburbs and also to examine some properties in Bentley. The report to Council indicates the property inspections were ineffective because they were carried out during the summer semester break but nevertheless revealed some properties with apparent breaches, including unauthorised internal works and possible occupancy in excess of six unrelated persons. The report noted that some properties with six unrelated persons complied with the occupancy limits and provision of two car parking bays but nevertheless had parking problems because the actual number of cars exceeded the number of car parking bays.
Although the property inspections were not successful in terms of providing accurate occupancy figures because the hearing date was during the semester break, the evidence on occupancy from the research component of the report was significant. Using census figures from the Australian Bureau of Statistics for 2001 and 2006, a direct comparison was made between two residential suburbs: Bentley (close to the university) and Willetton (not close to the university). The main finding was that, while in Willetton the number of four, five and six person households was decreasing, the numbers were reversed in Bentley, showing an increase in the number of four, five and six person households. The respondent argued the increase in Bentley resulted from the demand for student accommodation.
Finally, Mr Jefferies explained actions being taken to address the amenity issues. In addition to rigorous assessment of new development applications, the Council is in the process of establishing an enforcement division, and to deal with the rubbish problem, it now aligns its verge collections in Bentley with the semester breaks.
Based on the evidence, the Tribunal accepts that there are significant amenity problems associated with student accommodation in the locality.
The question then remains whether there is any association between the proposal and the issue of student accommodation and, if so, what is the correct classification of the proposal. Before addressing the question of whether student accommodation is an unlisted use, it is necessary to consider whether the proposal is designed for, or intended for, the accommodation of students.
The Tribunal heard evidence from Mr Peter Goff, an expert town planner who appeared on behalf of the respondent. Mr Goff provided evidence to support his expert opinion that the proposal was designed for student accommodation and could not be properly classified as grouped dwellings.
After examining the plans for both proposed dwellings, Mr Goff argued that they are clearly designed as six bedroom dwellings and that, not only do the two rooms shown as 'study' contain robes, but the design layout pairs them with a bedroom to share a bathroom. He compared the proposed dwellings with 'The Astor', a four bedroom home design by Summit Homes:
I have difficulty accepting that the proposed buildings are designed for family occupancy. They each contain six rooms readily capable of being used as bedrooms and therefore able to accommodate large families. Yet, the provision of space / facilities for families is minimal. The kitchen / dining / family areas are relatively modest. There is no games room, lounge[room] or home theatre and no al fresco structure.
In comparing bedroom sizes Mr Goff noted that both buildings contained at least two large bedrooms capable of accommodating two persons each. He argued the realistic potential occupancy of both buildings was seven to eight persons. He therefore concluded that the buildings could not be classified as dwellings because they were not designed to accommodate families and were designed to accommodate in excess of six unrelated persons in contravention of the definition of a dwelling.
Mr Goff expressed the opinion that the only appropriate classification of the proposal within the existing planning framework was as a residential building. He noted that:
The current definition of "Residential Building" first appeared in the version of the R Codes [g]azetted on 4 October 2002. Prior to that, a "Residential Building" was more commonly defined in terms [of] "a building, other than a dwelling house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith and the expression includes a hostel, an hotel designed primarily for residential purposes and a residential club".
Mr Goff observed that:
In my experience, such activities as "Boarding Houses" were generally regarded as "Residential Buildings". Boarding houses involved leasing accommodation on a bedroom by bedroom basis but, the circumstances of such facilities differ from the subject proposal inasmuch as there is resident management providing a level of service and responsibility for [the] premises['] operation and maintenance.
In the subject case, it seems likely that bedrooms will be let individually to students with no resident management. This arrangement is tantamount to the provision of six "mini-flats" in each building.
During the hearing, Mr Goff confirmed that there is no definition for boarding house within the R Codes or the respondent's TPS 40. Therefore, of the available definitions within the planning framework, he argued the proposal was clearly a residential building rather than a grouped dwelling. However, he appeared uncomfortable with the classification of residential building and indicated there may not be an appropriate definition for the proposed use.
In my opinion, the current definition of "Residential Building" is notable for describing what a ["]Residential Building["] is not[,] rather than what it is. As a consequence, there is little guidance regarding what a "Residential Building" looks like and how it is intended to function.
Where a house in the suburbs is leased to a person or a couple (usually young) and they effectively sub-let a bedroom or bedrooms to friends / acquaintances, there remains a head tenant with overall responsibility … The subject circumstances are quite different and tantamount to six underserviced dwellings in each building.
By referring to his earlier evidence, Mr Goff concluded:
In my opinion, the proposed buildings are designed for student accommodation to be provided by renting the premises on a bedroom by bedroom basis. …
It is also my opinion that the definition of "Residential Building" is vague, tending to define the use by what it is not[,] rather than what it is. I don't believe that "Residential Buildings" were defined in anticipation of the style of development proposed in this case which can lead to significant amenity issues. In my view, each building is proposed to comprise six mini - flats which are not fully self-contained and each could be described as six separate dwellings.
It is therefore my opinion that the proposal cannot be characterised as "two Grouped Dwellings" and is either two "Residential Buildings" or "Twelve Dwellings".
Having listened to all the evidence, the respondent. in closing, argued that the evidence was against the proposal being classified as grouped dwellings and that the best case for the applicant was classifying the proposal as residential buildings, an 'AA' use. However, the respondent argued that, based on the evidence, the correct classification of the proposal is as a 'use not listed'. Therefore, the proposal is deemed as a prohibited use by TPS 40.
Against all this evidence is the applicant's simple but fundamental argument that the proposal is designed as grouped dwellings and is intended to be used as grouped dwellings.
In normal circumstances in a different locality without close proximity to a university campus, it would be easy to accept the proposal as grouped dwellings despite their unusual design. However, as this Tribunal found in Pearce and City of Wanneroo [2010] WASAT 77 at [35]:
Having regard to the evidence as to what activity is, in reality, proposed by a development application, it is for the planning authority to characterise the proposed land use and then determine the application on its planning merits. …
The Tribunal agrees with the evidence of Mr Goff that the design of the proposed buildings strongly suggests an intention to facilitate student accommodation. The reasons for this finding include:
•Each building contains six bedrooms or rooms with the clear intention of use as a bedroom. The Tribunal includes the study in both buildings as a potential bedroom because of the inclusion of robes and the pairing of each study with a bedroom to share a bathroom.
•Each building contains an unusually high number of bathrooms in proportion to the dwelling size: three bathrooms in each dwelling.
•In both buildings, each bathroom is shared by two bedrooms (or potential bedrooms).
•The living spaces are unusually small in ratio to the number of bedrooms.
•The extensive use of paving with no designed al fresco areas suggests a focus on low maintenance rather than providing quality external living areas for families.
With six realistic potential bedrooms and with each building having at least one large bedroom (15 square metres), the potential accommodation is at least for seven persons. The evidence of Mr Goff referred to 'The Astor', a Summit Homes home, which was shown with double beds in rooms of around 12 square metres. In addition to the main bedroom, Unit 1 has two rooms in excess of 12 square metres with a potential occupancy of nine persons.
The evidence of Mr Jefferies included copies of advertisements of rooms to lease with photographs of twin beds and bunk beds in bedrooms and evidence of dual rates for rooms: one rate for singles and one rate for doubles.
The applicant stated the intention of agreeing to limit occupancy to six persons for each dwelling. However, the threshold between a dwelling and a residential building is more complicated than merely determining whether the number of occupants exceeds six, if they do not comprise a single family.
The beginning of the definition of 'residential building' states, in part, that it is:
A building … being used or intended, adapted or designed to be used for the purpose of human habitation:
•temporarily by two or more persons; or
•permanently by seven or more persons …
The applicant has focussed on the words 'being used or intended … to be used'. However, the use of the word 'designed' provides a different interpretation where the definition becomes:
A residential building is a building designed to be used permanently by seven or more persons who do not comprise a single family.
The evidence of Mr Jefferies demonstrated that the number of dwellings with four, five and six dwellings was increasing in Bentley whereas that trend was reversed elsewhere in the City. When researching rooms to let, Mr Jefferies found that 67% of all five bedroom (or more) properties available for lease in all Western Australia were located in one suburb: Bentley. Furthermore, his evidence indicated that bedrooms let to individuals were typically advertised for around $150 per week per room.
Based on the evidence, the Tribunal finds that both buildings are designed to accommodate seven or more persons and therefore cannot be classified as dwellings.
The question remains whether they are residential buildings or a use not listed.
Clause 2.2.4 of TPS 40 requires that:
If a particular use is not mentioned in the list of use classes in the Zoning Table or is not included by reference in the definition of any of the use classes in the Zoning Table, such use shall be deemed to be a prohibited use.
Student accommodation is not defined in the planning framework as a particular type of land use. There is an argument (not made by the applicant but presumably would have been made if the applicant had submitted evidence) that student accommodation is included by reference to dwellings: accommodation for six or less unrelated persons or, alternatively, seven or more unrelated persons in the case of residential buildings. Had the applicant addressed this issue, the applicant would no doubt have argued that there is no basis to separate students from other sectors of society that may form a group of unrelated persons sharing accommodation.
However, the respondent's evidence indicates that student accommodation may be treated as a separate use class arising out of the particular amenity issues related to the nature of student accommodation.
Mr Goff argued that the nature of the leasing arrangements made student accommodation different from dwellings and residential buildings. The R Codes and TPS 40 are silent on this matter. The Tribunal agrees with Mr Goff that letting out individual rooms without a head tenant or an onsite manager may result in amenity issues such as behaviour, noise, rubbish and uncontrolled parking. Nevertheless, the R Codes do not require head tenants or onsite managers and are silent on the matter of letting arrangements. That is not a basis to classify student accommodation as a separate class.

There is also a question relating to the nature of permanence. The evidence of Mr Jefferies demonstrated a need to question whether students were permanent residents. There was evidence to indicate that, at the end of each semester, the Council needs to provide a verge collection to remove belongings, including mattresses of students, as their rooms become vacant. Mr Jefferies also stated that attempts to record the amenity issues relating to student housing during vacations was ineffective, because students return home or travel in the semester breaks. This Tribunal examined the question of 'permanent place of residence' in Hope and Joondalup [2007] WASAT 8. The Tribunal, at [19] [23], noted that 'residential' has been taken to mean the usual place of abode on a permanent basis or for a considerable period of time. Without defining 'considerable period of time', the Tribunal found that up to 60 days was not a 'considerable period of time'. Furthermore, the Tribunal, at [23], distinguished the ordinary meaning, including 'considerable period of time', from the meaning in the planning framework, which requires permanence. In this case, there was sufficient evidence for the Tribunal to accept the respondent's argument that the proposed buildings would be let on a semester basis. Although this may approach a considerable period of time, it is not permanent as required in the definition of 'dwelling'.
Therefore, the Tribunal finds that the likely use of the buildings, based on the design and the pattern of occupancy in the locality, is that at least some rooms will be let on a non-permanent basis. Hence, the buildings cannot be defined as dwellings.
This finding is supported by the evidence that described how the amenity problems vary with time: increasing during university semesters and decreasing during semester breaks.
However, this finding does not automatically lead to a 'use not listed'. A residential building may provide permanent habitation for seven or more persons, or temporary accommodation for two or more persons. The definition does not provide an upper limit on the number of permanent or temporary residents.
Despite the particular amenity problems arising out of student accommodation in the area, the Tribunal finds that student accommodation is not a 'use not listed', because the use may be defined, by reference, to residential buildings.
In summary therefore, the Tribunal finds that the proposal is not properly described as grouped dwellings. The Tribunal also finds that, although the proposal may be described as student accommodation, the use is not unlisted, because it may be reasonably described by reference to residential buildings. Finally on this issue, the Tribunal finds that the proposal is properly described as residential buildings for the various reasons described above.

Whether the proposal, if correctly described as residential buildings, complies with the planning framework

The Scheme and the R Codes are generally silent on specific provisions for residential buildings. The most relevant requirement is parking requirements as defined in Table 5 of TPS 40 but even that is vague and is described as 'to be negotiated with Council'. It is therefore necessary to refer to the LPP which has been adopted under the provisions of TPS 40.
The LPP specifically divides the precinct into two subprecincts: one that facilitates student accommodation and one (the Bunning subprecinct) that specifically states that residential buildings are not a preferred use. The LPP is absolutely clear on this and on several occasions makes statements such as:
The planning intent for land in this Sub[-]Precinct is to:
(i)Retain the established lower medium residential area that meets the needs of predominantly couple and family households.
And under the heading 'Land Use':
The predominant use is for residential dwellings, with opportunities for home[-]based occupations. "Residential Buildings" are not Preferred uses in this sub[-]precinct.
And under the heading 'Residential Density':
This Sub[-]Precinct is to be a lower medium density residential area (R17.5/R30), comprising detached and semi[-]detached single dwellings with some opportunities for grouped dwellings in certain locations. Housing in this Sub[-]Precinct is generally intended for the accommodation of:
(i)Established households, with and without dependant children; and
(ii)Newly establishing households, with young dependant children.
By contrast, the planning intent for the Education & Technology Accommodation sub-precinct is to:
facilitate the establishment of a medium density residential area that meets the needs of a variety of household types, with emphasis on providing student and aged persons accommodation.
The LPP was adopted in October 2009. The evidence of Mr Jefferies was that the LPP was one of the responses of the Council to the concerns of residents about loss of amenity in Bentley. It is unambiguous. The proposal is, for reasons described earlier, two residential buildings. The proposal is clearly inappropriate in the subprecinct of Bunning. The nature of the design of the buildings is contrary to the preferred land use of buildings designed for couples and family households. The proposed buildings have a disproportionate number of bedrooms and bathrooms in relation to the limited living areas and there is no indication that the external living spaces have been designed with families in mind.
Furthermore, the LPP requires parking for residential buildings at the rate of 0.5 parking bays per bedroom or 0.5 parking bays per bedspace, whichever is the greater. The evidence of all the witnesses was that car parking is a major amenity issue in the Bunning subprecinct, with the housing being used to provide accommodation for students having inadequate onsite parking.
The proposed buildings only provide two car parking bays each in dwellings that are designed to accommodate at least seven persons, leading to a requirement of at least 3.5 car parking bays per dwelling. On the basis of car parking alone, the proposal as residential buildings does not comply with the planning framework.
The Tribunal notes that the evidence indicated that the parking problem is limited to semesters. This lends weight to the temporary nature of a portion of the student housing. A dwelling, by definition, cannot provide temporary accommodation and the matter of car parking adds weight to the earlier finding that the proposal is for residential buildings.
The proposal as residential buildings is an 'AA' use subject to discretionary approval by the Council. Clause 2.3.8.1 of TPS 40 requires that Council shall have regard to any planning policy adopted in accordance with cl 2.7.12 of the Scheme. For the reasons described above and having regard to the LPP for the precinct, it would be inconsistent with orderly and proper planning to approve the proposal. Similarly, cl 2.3.8.2 of the Scheme provides that, when exercising discretion, Council may have regard to the nature of the proposed use and its relationship to the use of other land within the locality. For the reasons discussed above, the proposed use will have an adverse relationship to the residential use of other land in the locality of the Bunning subprecinct and therefore should not be approved.
The Tribunal finds that the proposal, when correctly defined as residential buildings, does not comply with the planning framework. The proposal does not comply with the car parking requirements for residential buildings and it does not comply with the intended land use and density for the Bunning subprecinct of the LPP.

Whether the proposal, if correctly described as grouped dwellings, complies with the planning framework

In light of the Tribunal's finding in relation to the first and second issue, the third issue does not strictly arise for determination. However, because there was considerable evidence and argument on the third issue, the Tribunal will address this issue.
A grouped dwelling is not a permitted use in this zone. If the findings of the Tribunal on the previous issues are wrong and the proposal is exactly as the applicant described two grouped dwellings then the proposal is an 'AA' use that is subject to the discretionary approval of Council.
Clause 2.3.8 of the Scheme deals with 'Matters to be Considered when Council Exercises Discretion'. Clause 2.3.8.1 of TPS 40 requires that Council shall have regard to the following:
(a) interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b) any relevant submissions by the applicant; and
(c) any planning policy adopted in accordance with Clause 2.7.12.
The Tribunal will consider these matters in reverse order.
Firstly, the proposed use as a grouped dwelling is inconsistent with the LPP. Even if the proposal is treated as grouped dwellings, the planning objective for the Bunning subprecinct is to conserve and enhance the established residential character and to provide for the needs of predominantly couples and family households. The evidence discussed previously demonstrates that the proposed dwellings are not designed with families in mind; the excessive number of bedrooms and bathrooms with relatively small internal living areas and poor external living areas are unlikely to meet the needs of a family. The design caters for the rental market and, based on the evidence of Mr Jefferies, most likely the student rental market. Even if the occupancy is permanent and even if occupancy is limited to six persons not comprising a family, the proposal will not meet the LPP requirements of the Bunning subprecinct because the evidence strongly indicates the residential character of the area will be diminished due to excessive car parking and poor property maintenance.
Secondly, with reference to relevant submissions of the applicant, there are reasonable concerns about the proposed land use, even if it is treated as grouped dwellings. The evidence of Mr Jefferies referred to discussions between the applicant and Council officers after the Council deferred a decision on the first application in order to clarify issues arising relating to land use. The report to Council after the deferral stated:
… Discussions have been held with Summit Homes on behalf of the property owner and it is clear that the intent is that all of the above mentioned rooms will be used as bedrooms. …
This led the Council to reasonably conclude that each proposed dwelling would provide six effective bedrooms. During the hearing, although the applicant did not provide any witnesses or evidence, it was clear that the applicant was aware that the threshold between dwellings and residential buildings was six persons. Based on the evidence and relevant submissions of the applicant to Council, it is reasonable to conclude that, even if the buildings are grouped dwellings, they will be occupied by six persons and, based on the evidence of Mr Jefferies and Mr Goff, most likely aimed at the student market with the buildings let on a room by room basis. There was no evidence from the applicant to contradict this conclusion. Indeed, Mr Lau, in making closing arguments for the applicant, noted that the LPP does not ban grouped dwellings, and argued that, even if the nurseries, study and guestroom are used as bedrooms, there is still no basis to support the assumption that the dwellings will be occupied by more than six students.
Thirdly, the proposal, even if treated as grouped dwellings, cannot be approved having regard to the interests of orderly and proper planning and the preservation of the amenity of the locality. For reasons discussed at length above, the high demand for student housing in the locality and the design of the buildings makes it likely that, even if the current owner has no intention of letting rooms to students, such letting is likely to occur because of the market pressures identified in the evidence of Mr Jefferies. The evidence clearly demonstrates an existing adverse impact on the amenity of the locality due to excessive numbers of students being accommodated on properties where the car parking bays provided do not match the actual need, and where rented properties in general have a lower standard of amenity in terms of maintenance of gardens and verges, removal of rubbish and bins. Parking has been provided in accordance with the R Codes' requirements for grouped dwellings. However, Table 5 of TPS 40 describes parking 'as per [the] R-Codes' as the '[m]inimum [p]arking [p]rovision' (Tribunal emphasis). As grouped dwellings, these particular buildings have the potential to accommodate six students in each building. Two car parking bays for six student occupants and their visitors will be inadequate. Approval of the proposal will inevitably result in more cars parked on the street, making an existing unacceptable situation worse.
It would be contrary to the principles of orderly and proper planning to approve two grouped dwellings that are likely to have a negative impact on the amenity of the locality and increase the problems of a situation which is already unacceptable to residents of the locality.
Clause 2.3.8.2 of TPS 40 provides that, in addition to matters that it must consider, it may have regard to various matters, including:
•any previous decision made by the Council in circumstances which are sufficiently similar for the previous decision to be relevant as a precedent, provided that the Council shall not be bound by such precedent; and
•the nature of the proposed use and its relationship to the use of other land within the locality.
In terms of previous decisions made by the Council, the respondent acknowledged during the hearing that the Council had issued approvals for similar proposals, including the five proposals shown in the applicant's bundle of documents, all approved in 2009 to 2010. However, the respondent argued that the approvals were now, or would become, part of the problem and that it has been embarrassed by some of the approvals because it assessed the applications by what was shown on the plans rather than the underlying purpose behind the plans. It has taken some time for the problem to become apparent and for the respondent to realise, for example, that a four bedroom proposal with a study and home theatre but with three bathrooms was, in reality, a proposal for six bedrooms with pairs of rooms (regardless of labels) sharing a bathroom.
In terms of the nature of the proposal and its relationship to the use of other land within the locality, this matter is fundamental to the question of whether to exercise discretion for this proposal. The matter has been discussed extensively above. In summary, even if the proposal is for two grouped dwellings with up to six occupants not forming part of a family, the nature of the proposed use will have an adverse impact on the amenity of residential properties in this locality, designed for and occupied by families and couples as identified in the LPP for the Bunning subprecinct.
Grouped dwellings are an 'AA' use and subject to the discretionary approval of Council. To comply with the requirements to be defined as dwellings, each building must accommodate a maximum of six permanent residents who do not comprise a single family. The unusual nature of the design (six rooms likely to be used as bedrooms with pairs of bedrooms each sharing a bathroom for a total of three bathrooms in each building; relatively small living spaces and external spaces that indicate no design consideration for the needs of families) leads to the reasonable conclusion that the proposed buildings will be occupied by the maximum number of residents.
When exercising consideration, the Council, and therefore the Tribunal, is required to give consideration to certain matters and may consider various other matters. The Tribunal found that, when considering those matters it is required to consider when exercising discretion, discretion should not be used to approve these buildings even if they could be described as grouped dwellings for the reasons described above, including inconsistency with the requirements of the LPP for the sub-precinct of Bunning and the proposal's adverse impact on the amenity of the locality.

Conclusion

The Tribunal was faced with an unusual situation where the applicant did not have any witnesses and did not submit any evidence. It was necessary to construct the applicant's case from submitted documents and the applicant's arguments during the hearing. On the other hand, the Tribunal had the benefit of evidence from five local residents, a senior executive from the City and an expert planner; all on behalf of the respondent.
Based on the evidence, including the nature of the design, the Tribunal determined that, despite the descriptions given to the rooms by the applicant, the proposal was correctly described as two residential buildings, each containing six bedrooms, three bathrooms, living areas that are relatively small in relationship to the number of bedrooms and bathrooms, a garage for two vehicles and minimal external areas that fail to demonstrate any design consideration for the needs of families. Also based on the evidence, including the close proximity of the site to the university campus, the Tribunal found that it was likely that the proposal would be used for student accommodation.
Three issues arose for determination by the Tribunal. The issues were:
•whether the proposal was correctly described as grouped dwellings, residential buildings or a use not listed;
•whether the proposal, if correctly described as residential buildings, complied with the planning framework; and
•whether the proposal, if correctly described as grouped dwellings, complied with the planning framework.
On the first issue, the Tribunal found that the proposal could not be properly described as grouped dwellings. The Tribunal also found that, although the proposal could be described as student accommodation, the use was not unlisted because it could reasonably be described by reference to residential buildings. Finally on this issue, the Tribunal found that the proposal was properly described as residential buildings.
On the second issue, the Tribunal determined that the proposal, when correctly defined as residential buildings, did not comply with the planning framework. The proposal did not comply with the car parking requirements for residential buildings, and it did not comply with the intended land use and density for the Bunning subprecinct of the LPP.
On the third issue, the Tribunal determined that, even if the proposal could be described as grouped dwellings, approval should not be granted. Grouped dwellings are an 'AA' use that requires discretionary approval. There are various matters that must be considered in the exercise of discretion. In consideration of those matters, the Tribunal found that discretion should not be used to approve the proposed buildings for various reasons, including inconsistency with the requirements of the LPP for the Bunning subprecinct and the proposal's adverse impact on the amenity of the locality.
Because of the findings on the first two issues, it was not strictly necessary to determine the third issue. However, because of the considerable evidence and argument on this issue, the Tribunal considered it was appropriate to address the issue. As a consequence of determining the third issue, it results that, if the Tribunal is wrong on the first and/or the second issue, the application for review still fails, based on the third issue alone.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 9 November 2010 to refuse development approval of the applicant's proposal of two grouped dwellings at No 37 (Lot 10) Lord Street, Bentley is affirmed.

I certify that this and the preceding [119] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER