The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel
[2018] WASAT 127
•26 NOVEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THE BETHANIE GROUP INC and PRESIDING MEMBER OF THE METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASAT 127
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
HEARD: 6 NOVEMBER 2018
DELIVERED : 26 NOVEMBER 2018
FILE NO/S: DR 176 of 2018
BETWEEN: THE BETHANIE GROUP INC
Applicant
AND
PRESIDING MEMBER OF THE METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Development application Aged care facility Nursing home Four storey (above basement) building with 176 resident rooms Proposed building located at zone/character interface between Private Institution zone, developed with institutional facilities, particularly residential aged care and retirement complexes, and Residential zone, developed with single and two storey houses Tribunal refused development application Whether Tribunal erred in law Whether Tribunal failed to give 'due regard' to relevant consideration being local planning policy Whether Tribunal misconstrued and incorrectly applied local development plan Whether Tribunal inflexibly applied local development plan Whether Tribunal took into account an irrelevant consideration being 'fear of potential overlooking' Whether decision of Tribunal manifestly unreasonable Words & phrases: 'building envelope', 'building footprint'
Legislation:
City of Stirling Local Planning Scheme No. 3, cl 4.2.10, cl 4.3, cl 4.3.2, cl 5.12, cl 6A.16.2
Interpretation Act 1984 (WA), s 32(2)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 7, reg 8, reg 18(2)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 79(1), reg 79(2), Sch 2 (deemed provisions), cl 1 ('amenity'), cl 3(5), cl 56(1), cl 67, cl 67(g), cl 67(h), cl 67(n)
Planning and Development Act 2005 (WA), s 171A(2), s 242, s 244, s 256(1), s 257B
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27(2)
State Planning Policy 3.1 Residential Design Codes, cl 6.4.1
Result:
Determination of Tribunal affirmed
Summary of Tribunal's decision:
The Bethanie Group Inc (Bethanie) sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Metro North-West Joint Development Assessment Panel to refuse development approval for the construction of a four storey (above basement) nursing home building for 176 residents.
The site is zoned 'Private Institution' under the City of Stirling Local Planning Scheme No. 3 (Scheme). The proposed nursing home building is to be located in the south-western part of the site where there was previously a retirement village. Other than one property to the immediate west of the south-western corner of the site (which is also zoned 'Private Institution' and comprises Bethanie's Day Therapy Centre), the properties to the immediate west of the site are zoned 'Residential' with a residential density coding of 'R20' under the Scheme and comprise single and two storey houses on residential lots with a typical area of around 700m2-750m2.
On 2 November 2010, the City of Stirling (Council) approved a detailed area plan (which is now deemed to be a local development plan) under the Scheme, comprising a series of plans drawn by architects on behalf of Bethanie entitled 'Bethanie on the Park - Carinya Village Redevelopment' (LDP). The LDP shows a '2 level aged care facility' building in the south-western part of the site where the four storey building proposed in the development application is to be located. On 24 May 2011, the Council adopted the Private Institution Design Guidelines (PI Guidelines) as a local planning policy under the Scheme. The PI Guidelines contain a building height provision stating that development shall be restricted to '... a maximum of four (4) storeys (12.0 metres wall height) above natural ground level' where located more than 10 metres from any residential lot or street boundary. The building proposed in the development application is located more than 10 metres from the common boundary with the adjoining residential properties.
Noting the inconsistency between the '2 level aged care facility' in the LDP and the building height control for a maximum of four storeys in the PI Guidelines, the Tribunal determined, for four reasons, that 'the specific provisions of the LDP should be accorded more substantive weight tha[n] the general provisions of the PI Guidelines' in the determination of the development application. In the course of determining an issue as to 'whether the proposed development has an adverse impact on the amenity of adjoining residential properties to the west by way of height, bulk and scale and potential for overlooking', the Tribunal found that it was 'generally accepted [by the architectural, urban design and planning expert witnesses] that there was potential for "lines of sight" from the proposed building to impact residences to the west'. The Tribunal determined that there is 'a real and genuine prospect that the apprehensions expressed in the objections of the residents of [the residential properties to the west in] Wareana Street [which included 'the potential impacts of overlooking on their garden and living areas'] are more likely than not to eventuate ...'.
Bethanie sought review by a judicial member of the determination of the Tribunal on the following five grounds:
The Tribunal erred in failing to give due regard to a relevant consideration, being the PI Guidelines.
The Tribunal erred in mischaracterising (that is, misconstruing) the legal function of the LDP and its role in the planning framework and thereafter incorrectly applied the LDP in assessing the proposal.
The Tribunal erred in inflexibly applying the LDP in its assessment of the development application.
The Tribunal erred in taking into account an irrelevant consideration, being fear of potential overlooking, in circumstances where that fear was not reasonably based in fact or supported by the evidence.
The reasons and decisions of the Tribunal were otherwise manifestly unreasonable.
In a review by a judicial member upon a matter involving a question of law, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Approaching the Tribunal's reasons for determination in this way, the judicial member determined that the Tribunal did not err in law in any of five respects alleged by Bethanie.
The LDP is fundamentally inconsistent with the PI Guidelines in relation to building height in the south-western part of the site. The judicial member determined that the Tribunal's process of reasoning in relation to the relative weight to be given to these inconsistent elements of the planning framework was logical and demonstrated that the Tribunal gave proper, genuine and realistic consideration to the building height provisions of the PI Guidelines in the determination of the development application. The judicial member also determined that the Tribunal did not misconstrue the legal function or incorrectly apply the LDP, because it is a statutory planning instrument having effect and function under the Scheme and indicates (only) two storey development in the relevant part of the site. The Tribunal also correctly recognised that the provisions of the LDP may be departed from where there is a cogent reason or sound basis for doing so and did not inflexibly apply the LDP in its assessment of the development application.
The judicial member also determined that the Tribunal did not take into account or make any finding in relation to amenity on the basis of 'fear of potential overlooking', but rather was satisfied, on the evidence, that the objectors' concerns about loss of privacy as a result of the development are well founded and that the proposed development is likely to result in adverse amenity impact in terms of loss of privacy, because of overlooking (through 'lines of sight') from nursing home residents' bedrooms and the end of a corridor on levels 2-4 into the rear gardens and living areas of adjoining residential properties. The judicial member determined that this finding was reasonably open on the evidence before the Tribunal.
The determination of the Tribunal was affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P McQueen & Mr A McGlue |
| Respondent | : | Ms CA Ide |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Anthony Hordern and Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 213 LGERA 96
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 22; (2007) 58 SR (WA) 320
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicotra and Town of Vincent [2008] WASAT 16
Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124
The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45
Thomas and Town of Cambridge [2013] WASAT 206
Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38
REASONS FOR DECISION:
Application for review by a judicial member
The Bethanie Group Inc (Bethanie) seeks review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Member Mr P de Villiers in a planning review proceeding (determination).
The planning review proceeding involved an application for review by Bethanie, under reg 18(2) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regs), of the decision of the Metro North-West Joint Development Assessment Panel (JDAP) to refuse Bethanie's application for development approval to construct a four storey (above basement) nursing home on part of Bethanie's land at No. 2 (Lot 14691) Plantation Street, Menora (site) (development). The site has an area of 5.26 hectares and is zoned 'Private Institution'[1] under the City of Stirling Local Planning Scheme No. 3 (LPS 3 or Scheme). The eastern half of the site contains an established retirement complex. The proposed development is to be located in the southwestern part of the site, which is currently vacant, but previously comprised a retirement village.
[1] The zone is variously referred to as 'Private Institution' (in the Zoning Table under cl 4.3) and 'Private Institutions' (in the heading to cl 4.2.10). Under s 32(2) of the Interpretation Act 1984 (WA), a heading to a clause does not form part of a written law. The correct name of the zone is 'Private Institution'.
The hearing of the application for review took place on 29-31 May 2018 and included a view of the site and locality. During the view, Member de Villiers and the parties' representatives visited residential properties in Wareana Street, Menora, the rear gardens and yards of which adjoin the western boundary of the site. Other than the eastern part of the property at No. 2 Wareana Street (on the corner of Wareana and Plantation Streets), which adjoins the south-western corner of the site and comprises Bethanie's Day Therapy Centre, there are five residential properties on Wareana Street adjoining the western boundary of the site. These five properties, the properties on the opposite, western side of Wareana Street and the properties further to the west and to the south-west of the site, diagonally across Plantation Street, are zoned 'Residential' with a residential density coding of 'R20' under the Scheme. The proposed nursing home building is to be located adjacent to the rear fences of No. 4 and No. 6 Wareana Street, although set back over 10 metres from the common boundary with those properties. The Tribunal received in evidence five witness statements and one submission (made under s 242 of the PD Act) from residents in Wareana Street in which the residents expressed concerns and objected to the proposed development on various grounds.
Following the conclusion of the hearing on 31 May 2018, the Tribunal reserved its decision. On 18 June 2018, Member de Villiers published detailed written reasons for decision in which he dismissed the application for review and affirmed the JDAP's decision to refuse development approval for the nursing home on the site: The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45 (Tribunal's reasons).
Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal when constituted without a legal qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Member de Villiers is not a legally qualified member as defined in s 3(1) of the SAT Act. Bethanie seeks review by a judicial member on five grounds which are set out at [46] below. It is common ground and the plainly the case that the grounds for review involve questions of law.
As the Tribunal said in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], in a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Reading the Tribunal's reasons for the determination in this way, in my view, for reasons which I give below, Member de Villiers did not err in law in any of the respects alleged by Bethanie. I will now refer to the Tribunal's reasons for determination and set out Bethanie's five grounds for review before addressing each ground in turn.
Tribunal's reasons for determination
After providing an introduction to the application for review, the Tribunal referred to the site and locality, the proposed development, the planning framework and the issues for determination, before discussing and making findings in relation to each of the two issues for determination in the review.
At [12], the Tribunal characterised the locality (in terms which are not challenged) as follows:
The locality comprises three distinct character areas:
•the 'private institutions area', which is developed with a range of institutional facilities, particularly residential aged care facilities and retirement complexes. This area corresponds to the land zoned Private Institution under City of Stirling Local Planning Scheme No 3 (LPS 3), which is in general terms bounded by Pinaster Street and Cone Place to the west, Yokine Reserve to the north, Alexander Drive to the east and Bradford Street to the south. The subject site is located in the northwest corner of this area;
•the 'residential area' immediately to the west and southwest of the subject site, characterised by single and two storey houses on residential lots with a typical area of around 700 750m². This area includes the houses fronting Wareana Street and Plantation Street; and
•Yokine Reserve, an area of regional open space immediately north of the subject site with large expanses of lawn, playing fields, car parking and trees.
At [13], the Tribunal described the proposed development (in terms which are not challenged) as follows:
The proposed development comprises an aged care facility contained within a four storey building with a basement carpark. The building is to be constructed around a central courtyard and includes the following components:
1)176 resident rooms with 44 rooms on each floor. The majority of rooms comprise studio rooms with the exception of four one bedroom rooms located on each floor;
2)resident amenities including dining rooms, lounges courtyards/alfresco areas, salon/wellness centres, therapy room, library, chapel/theatre and art room;
3)facilities including nurse stations and administration areas, kitchens and storerooms;
4)a cafe located on the ground floor in the southeast corner of the complex with an alfresco area facing Plantation Street;
5)a new shared entry to the site with a ramp to the basement parking area;
6)21 visitor car parking bays, two Australian Council for Rehabilitation of Disabled (ACROD) bays and one courier parking bay located at ground level; and
7)a basement containing 96 car parking bays, a staff room and access and plant rooms for services.
The Tribunal then set out the planning framework for the purposes of the review. At [14], the Tribunal referred to the 'Private Institution' zoning of the site under LPS 3 and set out the objectives of the zone stated in cl 4.2.10 of the Scheme as follows:
a)To provide for a range of privately owned community facilities, and uses that are incidental and ancillary to the provision of such facilities, which are compatible with surrounding development.
b)To ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area.
As the Tribunal said at [15], under cl 4.3 and the Zoning Table of the Scheme, the use class 'Nursing Home' is designated as a 'D' use in the Private Institution zone, meaning, under cl 4.3.2, that 'the use is not permitted unless the Council has exercised its discretion by granting planning approval'. Section 171A(2) of the PD Act and regs 6-8 of the DAP Regs now substitute the JDAP for the City of Stirling (City or Council) as the decision-maker in relation to a 'DAP application', including the development application in this case.
As the Tribunal observed at [16], cl 5.12 of LPS 3 requires that '[a]ll Development on land the subject of an adopted Detailed Area Plan is to comply with that Detailed Area Plan' (emphasis added). However, as the Tribunal also observed at [16], this requirement, which was inserted into LPS 3 on 24 March 2015, 'is affected by' cl 56(1) of the deemed provisions for local planning schemes incorporated into LPS 3 by s 257B of the PD Act and Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions), which came into force on 19 October 2015 under s 256(1) of the PD Act. This is because, as the Tribunal noted at [21], under reg 79(2) of the LPS Regs, a 'planning instrument' of a type referred to as a 'detailed area plan' 'is taken to be a planning instrument of the type' 'local development plan' and, under reg 79(1) of the LPS Regs, a detailed area plan made under the PD Act before 19 October 2015 'continues in force' as if it were a local development plan made under the PD Act in accordance with the LPS Regs, and because, as the Tribunal noted at [19], cl 56(1) of the deemed provisions states as follows:
A decision-maker for an application for development approval in an area that is covered by a local development plan that has been approved by the local government must have due regard to, but is not bound by, the local development plan when deciding the application.
(emphasis added)
As the Tribunal correctly held at [22] (in terms which are not challenged):
The requirement of cl 56(1) of Sch 2 of the LPS Regulations for the decisionmaker to have 'due regard to' the DAP (or LDP) when deciding a development application is inconsistent with the requirement of cl 5.12 of LPS 3 (that the development must 'comply with' the DAP (or LDP)). Therefore, to the extent that cl 5.12 of LPS 3 requires development to comply with the DAP (or LDP), it is of no effect: see Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [41] - [51]. It is to be noted that in this proceeding neither party sought to rely on cl 5.12 of LPS 3.
As the Tribunal observed at [23], on 2 November 2010, the Council approved a Detailed Area Plan (now deemed by reg 79(1) and reg 79(2) of the LPS Regs to be a Local Development Plan continuing in force as though it were made under the PD Act in accordance with the LPS Regs) for the site (LDP). The LDP comprises a series of plans drawn by architects for Bethanie in March 2009 entitled 'Bethanie on the Park - Carinya Village Redevelopment'. The LDP shows the location of an 'existing apartment building' and an 'existing communal facilities building' in the eastern part of the site and depicts eight new buildings, roadways and other facilities in the western part of the site. The Tribunal said the following in relation to the LDP at [24][25]:
24Essentially the LDP is directed at establishing parameters for the future development of the western two thirds of the subject site. The Overall Site Layout Plan indicates the distribution of eight buildings, four toward the rear boundary of the subject site (Buildings A, B, C and D), two facing Plantation Street centrally on the subject site (Buildings F and G) and a further building to the rear of these buildings centrally on the subject site (Building E). Finally, and importantly for the current review, a larger footprint building (Building H) is planned for the southwest corner of the subject site and identified as an aged care facility.
25The Overall Site Layout Plan designates building heights for each of the eight buildings. These heights vary from two to five levels. The buildings located centrally and towards the rear of the site (Buildings C, D and E) are identified as five levels. Building B, further west towards the rear boundary is identified as four levels while Building A in the northwest corner of the subject site is identified as two levels. The two buildings located centrally facing Plantation Street are identified as two levels (Building G) and three levels (Building F). The aged care facility in the southwest corner of the site (Building H) is identified as two levels.
Specifically, the 'Overall Site Layout Plan' in the LDP identifies and designates Building H as '2 level aged care facility' with these words superimposed on that building's footprint. The 'Roads and Car Parking Layout' plan indicates that the 'GFL' (that is, the ground floor level) of Building H is '25.25' metres Australian Height Datum (AHD). Furthermore, the 'Elevation and Section Outlines' plan in the LDP contains a crosssection through Building H (south/north crosssection 33) showing Building H as having a two storey built form with ground level at 25.25 metres AHD and the second level at 28.25 metres AHD. The Tribunal was, therefore, entirely correct in its statement at [25] that:
The aged care facility in the south-west corner of the site (Building H) is identified [in the LDP] as two levels.
The 'Master Plan', 'Overall Site Layout Plan', 'Site Building Layout Plan' and 'Roads and Car Parking Layout' plan also show the locations and AHD levels of the closest parts of the 'single residential sites' on Wareana Street adjoining the western boundary of the site.
The 'Master Plan' in the LDP depicting the footprint of Building H was reproduced by the Presiding Member of the JDAP at paragraph 71 of the respondent's statement of issues, facts and contentions (Exhibit 12) with the footprint of the four storey nursing home building proposed in the development application superimposed in red at the same scale. Bethanie does not dispute the correctness of the superimposition. This exercise shows that the proposed building (comprising four storeys) is in substantially the same location as Building H (comprising two storeys), although there are three sections of Building H which project closer to the western boundary (only two of which are opposite Wareana Street residential properties) than the building proposed in the development application and although Building H projects further to the north and further to the south (towards Plantation Street) than the building proposed in the development application.
As the Tribunal observed at [26]-[27], on 24 May 2011, the Council adopted 'a relevant local planning policy' ([27]) under the Scheme, namely the Private Institution Design Guidelines (PI Guidelines). As the Tribunal also observed at [27]:
The PI Guidelines contains building height standards which restrict development to two storeys above natural ground level adjacent to lot boundaries and a maximum of four storeys above natural ground level on the remainder of the site.
The full 'Building Height' provision of the PI Guidelines states as follows:
Building Height
•Development shall be restricted to two (2) storeys (6.0 metres wall height) above natural ground level within 10 metres of any residential lot or street boundaries in areas coded R50 or below and a maximum of four (4) storeys (12.0 metres wall height) above natural ground level on the remainder of the site;
•Where buildings over two (2) storeys above natural ground level are proposed, an application shall include justification which addresses the impact of the proposal having regard to matters such as amenity, overshadowing, wind impacts and building design, siting, bulk, materials, scale and colour;
•Where buildings over 6.0 metres in height are proposed:
a)An application requiring the approval of the Council under Clause 8.1 of the Scheme shall include information which addresses the impact of the proposal having regard to matters such as amenity, overshadowing, wind impacts and building design, siting, bulk, scale and colour.
b)Before the determination of an application requiring the approval of the Council under Clause 8.1 of the Scheme, the Council shall cause the provision of Clause 9.4 (advertising for public comment) of the Scheme to be invoked in respect of the application.
Note:The calculation of building heights shall be in accordance with Local Planning Policy 2.6 Residential Building Heights.
As the Tribunal observed at [27]:
… The PI Guidelines allow variations to its standards and requirements subject to satisfaction of its objectives. Those objectives are:
•To ensure that development does not adversely affect the amenity of surrounding properties;
•To encourage development that is sympathetic to the scale and bulk of surrounding properties;
•To ensure that the efficiency of the local transport network is not encumbered by development;
•To support the provision of viable and high quality retirement and aged care developments; and
•To ensure that development is well integrated with the surrounding community.
Finally, in relation to the planning framework, the Tribunal said the following at [28]:
Clause 67 of the LPS Regulations [deemed provisions] sets out matters to which local government, or the Tribunal on review, is to have due regard in considering an application for development approval. In this review the following matters are relevant to the development the subject of the application:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
(h)any structure plan, activity centre plan or local development plan that relates to the development;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)the history of the site where development is to be located;
…
(y)any submissions received on the application[.]
In their respective statements of issues, facts and contentions, the Presiding Member of the JDAP and Bethanie disagreed as to the formulation of the issues for determination in the review. After setting out the issues as formulated by each of the parties at [29]-[30], the Tribunal distilled two issues for determination in the proceeding at [32] (in terms which are not challenged) as follows:
Having heard from the parties the matter proceeded on the basis of the following issues:
1)having due regard to the applicable planning framework whether the height, bulk and scale of the proposed development is acceptable; and
2)whether the proposed development has an adverse impact on the amenity of adjoining residential properties to the west by way of height, bulk and scale and potential for overlooking.
The Tribunal then proceeded to discuss each of these issues in turn. It addressed the first issue at [34]-[68] and the second issue at [69]-[105] of its reasons.
At [34]-[47], the Tribunal reviewed the evidence of expert witnesses and submissions made by counsel on behalf of the parties in relation to the relative weight that should properly be accorded to the LDP and the PI Guidelines in assessing the development application.
At [36]-[37], the Tribunal referred to the evidence of Mr Ben Doyle, a town planning expert witness called by Bethanie, including that:
•'… the LDP should be afforded minimal weight in considering whether the application is acceptable in relation to height, bulk, scale, setbacks, visual privacy and overlooking'; and
•'… the planning framework contemplates four storey buildings in the private institutions area' and '... there are no locally-specific factors affecting the subject site and interface with adjoining residential properties that would demand a lesser building height than is contemplated by the [PI] Guidelines'.
At [38], the Tribunal referred to the evidence of Mr Malcolm Mackay, an urban design expert witness called by Bethanie, including that:
•'… the proposed development is clearly a far superior outcome than a comparable residential apartment building'; and
•the proposed development '[i]s of a scale and massing that is appropriate to its purpose and location on site'.
At [34], [35], [39] and [40], the Tribunal referred to submissions made by Mr P McQueen, counsel for Bethanie, as follows:
34The applicant in its opening addressed the LDP as follows:
It is not intended to prescribe development controls for a site which is with the greatest respect the way those opposing this development seek to have it treated. It's more a strategic document and deals with the placement of buildings on the site. It is not intended to be a development control provision.
(ts 12.18 pm, 29 May 2018)
35And further:
I do emphasise that we don't need to amend the LDP neither do we need to be rigidly adhering to it in order to have this proposal agreed.
(ts 12.18 pm, 29 May 2018)
39In closing the applicant returned to the question of the provisions of the LDP and the tension between those provisions and the provisions of the PI Guidelines as follows:
If you were to apply this to Mr Algeri's (the respondent's expert planner) approach there are two consequences. The first is he says the taller buildings are to be located in the centre of the site. If that were true the design guidelines would be otiose because there would be no opportunity to provide a four story building within 10.5 metres of the western boundary. Secondly if you use the LDP as the primary document against which to assess the proposal, and it's acknowledged that the variations require assessment against the objectives, you end up in what could be described as a tautological or to use Mr Doyle's language circular process of assessing variations against a document that precedes the guidelines and provides for different outcomes.
(ts 3.59 pm, 31 May 2018)
40In seeking to overcome this circular process the applicant submits:
… what we say is the most relevant, and most current, expression of the planning framework for this area which is the local planning policy dealing with the design guidelines[.]
(ts 11.50 am, 29 May 2018)
At [44], the Tribunal referred to the submission made by Ms CA Ide, counsel for the Presiding Member of the JDAP, that 'it is appropriate that in the circumstances of this application … significant weight is placed on the provisions of the LDP'.
At [45], the Tribunal observed that, '[i]n response [to Ms Ide's submission referred to in the preceding paragraph], the applicant submits that "it is legally incorrect to say 'significant weight' must be given to the LDP, as the Deemed Provisions confirm the requirement is only for due regard to be given to the LDP"'. I note, in passing, that this responsive submission on behalf of Bethanie was misconceived. The Presiding Member of the JDAP did not submit that significant weight 'must' be given to the LDP, but rather that it was appropriate to place significant weight on its provisions in the circumstances of this case. Furthermore, it is certainly not 'legally incorrect' to have made a finding of fact that 'significant weight' should be given, in the circumstances of a particular case, to relevant provisions of a planning instrument which the consent authority is required to give 'due regard' to. As Martino J held in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 213 LGERA 96 at [46], the requirement for a planning consent authority to give 'due regard' to a planning instrument or other matter for consideration requires that it be given 'proper, genuine and realistic consideration'. In giving proper, genuine and realistic consideration to the relevant provisions of a planning instrument or other matter for consideration, it is for the planning consent authority to determine what weight it is to give to provisions of the instrument or other consideration in the circumstances of the case, including what relative weight it is to give to a provision of the instrument which is inconsistent with a provision of another instrument to which due regard is also required to be given. However, it is evident from the Tribunal's further discussion of this issue that it was not lead into error by Bethanie's submission. At [46], the Tribunal referred to Martino J's decision in City of South Perth v ALH Group Property Holdings Pty Ltd at [46] and then said at [48] as follows:
The question that these submissions raise for the Tribunal in this review is the relative weight to be given to the LDP and the PI Guidelines.
For four reasons expressed at [49]-[57], the Tribunal concluded this discussion as follows at [58]:
For these reasons the Tribunal finds that the specific provisions of the LDP should be accorded more substantive weight that [sic] the general provisions of the PI Guidelines.
As the reasoning of the Tribunal at [49]-[58] is material to grounds 1-3 in this review, I will set out these paragraphs in full:
49In Nicotra and Town of Vincent [2008] WASAT 16 (Nicotra) the Tribunal was concerned that the applicant was looking to set aside the particular requirements of cl 20(4)(c) of Town of Vincent Town Planning Scheme No 1 with the general discretion available on a literal interpretation of cl 20(5). The Tribunal refered [sic] to Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320 which cites Anthony Hordern and Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7, where Gavan Duffy CJ and Dixon J held as follows:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
50In Nicotra, the Tribunal, at [69], held that 'the general principle is that a general provision in a town planning scheme is not sufficient to set aside particular requirements of the scheme'.
51The following statement of principle can be found in the judgment of Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678:
It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.
52While the circumstances of the current review are to be differentiated from those in the cases cited above which relate to statutory provisions the principle that general provisions are not to be relied upon to set aside more particular requirements is applicable.
53In this instance the LDP provides specific requirements for the subject site while the PI Guidelines apply to all Private Institution zones in the municipality of the City. More particularly, the LDP provides specific guidance for a site designated for aged care facilities while the PI Guidelines cover a range of discretionary used within the 'Private Institution' zone which could potentially include child care facilities, club premises, educational establishments, medical centres, offices and places of worship.
54In addition the applicant's contention that the LDP deals with the placement of buildings on the subject site and is not intended to be a development control provision should be addressed. This contention appears to be premised on a misconception that the LDP lacks detail which the PI Guidelines provide.
55In addition to specifying the location of buildings on the subject site, which the applicant concedes, the LDP includes the following provisions:
•the number of levels in each building;
•the number of apartments(or in the case of the aged care facility beds) in each building;
•the proposed floor levels for each building;
•setbacks from the boundaries;
•the distribution of open space and an assessment of [sic];
•building elevations (specifying Australian Height Datum (AHD) floor levels for all floors on each building);
•vehicular access (including preliminary engineering drawings);
•parking provisions (including both location and number of bays in each parking area); and
•a staging plan.
For these reasons the Tribunal rejects the contention of the applicant that the LDP lacks detail.
56Importantly, the land use provisions of the PI Guidelines specifically require that '[a]ll applications for development shall be accompanied by a Local Development Plan for the site'. There are exceptions to this requirement but they do not apply to the application the subject of this review.
57Finally, in regard to the 'tautology' or 'circular process' and the difficulty of reconciling the tensions between the provisions of the LDP and the PI Guidelines the report provided to the respondent at its meeting of the 2 November 2010, where the LDP was approved, explicitly dealt with the draft PI Guidelines (draft). While the Tribunal accepts the submission of the applicant that the draft was not, at that stage, a seriously considered planning instrument it clearly identified that 'Buildings over two (2) storeys (6.0 metres) shall have a setback of 10.0 metres'. Thus in approving the LDP the elected members of the Council were well aware of the proposed provisions of the then draft, and now endorsed, PI Guidelines.
58For these reasons the Tribunal finds that the specific provisions of the LDP should be accorded more substantive weight that the general provisions of the PI Guidelines.
At [61], the Tribunal made the following finding from its assessment of the LDP:
Thus in terms of the built form the Tribunal finds the clear planning principle enshrined in the LDP is that it locates 'the higher building elements centrally to the site and away from the lower density adjoining properties'.
The Tribunal concluded its analysis in relation to the issue of whether, having due regard to the applicable planning framework, the height, bulk and scale of the proposed development is acceptable, at [64]-[68] as follows:
64Given the explicit height provisions of the LDP, and the logic of the principle which underpins this provision, the Tribunal finds that the four storey height of the proposed development is not acceptable in terms of the specific height provisions of the LDP.
65In terms of the bulk the applicant submitted that the footprint of the proposed building was 25% to 30% smaller than the footprint for Building H in the LDP. However, given that the proposed building is four storeys, rather than the two proposed in the LDP, this represents an increase in the overall bulk (calculated as the total volume of the three dimensional building envelope) of 40% to 50% over that proposed in the LDP.
66In regard to the scale it was accepted by the expert witnesses called by both the parties that articulation can assist in mediating the impact of bulk. The footprint of Building H included in the LDP is actively articulated particularly on the Plantation Street and western edges. The footprint of the proposed building, however, while articulated on the Plantation Street edge has limited articulation on the western edge.
67In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 the Supreme Court at [180] and [182] as follows:
… at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality.
(Tribunal emphasis)
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
(Tribunal emphasis)
68For the reasons set out above the Tribunal finds that the four storey height, the increased bulk and the limited articulation on the western edge are not acceptable in terms of the explicit provisions of the LDP.
The Tribunal then turned to its assessment of the second issue for determination, that is whether the proposed development has an adverse impact on the amenity of adjoining residential properties to the west by way of height, bulk and scale and potential for overlooking. As in relation to the first issue for determination, the Tribunal at first referred to the evidence of witnesses relevant to this issue. At [69], the Tribunal referred to the evidence of resident objectors from Wareana Street and said that their concerns include:
the view that the proposed development was out of character with the suburb due to the proposed height, bulk and scale, the potential impacts of overlooking on their garden and living areas, and the fact that their expectations for the area were informed by the LDP and the proposal does not, in their view, comply with those provisions.
The Tribunal then referred to the expert evidence of Mr Doyle, Mr Mackay and Mr Steven Smyth, an architect called by Bethanie, and Mr Joe Algeri, a town planner called by the Presiding Member of the JDAP. The Tribunal observed as follows at [82]:
It was accepted by the architectural, urban design and planning experts that 'there is no direct overlooking of any of the adjoining residential properties to the west' (Joint WS paragraph 15).
The expert witnesses appear to have been mistakenly of the view, in relation to the impact of the development on visual privacy of adjoining residential properties, that the visual privacy provisions in cl 6.4.1 of State Planning Policy 3.1 Residential Design Codes (RCodes) are applicable in relation to the proposed development. However, as the Tribunal correctly determined at [86]:
While the visual privacy provisions of the R-Codes clearly provide some guidance in regard to potential impacts on visual privacy the proposed building is not a residential building.
At [75], the Tribunal referred to the evidence of Mr Algeri in relation to the potential visual privacy impacts of the proposed development as follows:
Mr Joe Algeri, the expert planner called by the respondent, argues that:
… using the R-Codes as a guide, the proposal would comply in terms of visual privacy and overlooking requirements. Nevertheless, I am concerned that there still might practically be an element of overlooking or at least a fear or perception of overlooking by the adjoining neighbours which should not be discounted.
(WS paragraph 79)
This perception or fear of overlooking is attributed by the overall height of the development in comparison to the adjoining low-density, single residential development …
(WS paragraph 80)
The Tribunal then referred to earlier Tribunal decisions concerning assessment of amenity and amenity impacts and to the decision of the Victorian Civil and Administrative Tribunal (VCAT) in Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124 at [56] (referred to by the Tribunal in Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38 at [76]) as follows:
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
(emphasis added)
At [83]-[84], the Tribunal referred to 'Overlooking Diagrams' prepared by Mr Smyth which were received in evidence (Exhibit 28 and Exhibit 28A) as follows:
83The Tribunal received in evidence 'Overlooking Diagrams' prepared by Mr Smyth. These established that should the relevant provisions of the State Planning Policy 3.1 Residential Design Codes (RCodes) be applied, and it was accepted these could provide guidance, the proposed building complied with the visual privacy provisions of the R-Codes.
84It was however generally accepted that there was potential for 'lines of sight' from the proposed building to impact residences to the west. These comprised oblique lines of sight from the resident's [sic] rooms and more direct lines of sight from the windows at the western end of the corridor on the first, second and third floors. The potential impacts of these lines of site predominantly affected the properties at No 4 and No 6 Wareana Street.
The Tribunal then concluded its discussion in relation to the potential impacts of the proposed development in terms of loss of privacy to adjoining residential properties at [86]-[88] as follows:
86While the visual privacy provisions of the R-Codes clearly provide some guidance in regard to potential impacts on visual privacy the proposed building is not a residential building.
87Given that the occupants are likely to spend more time in their rooms than those in residential premises would generally utilise upstairs bedrooms, the number of rooms involved, the fact that a number will be located on the upper two floors, and that the corridors will be used on a 24/7 basis the Tribunal finds that the impact of the lines of sight could reasonably be regarded as having a negative impact on the amenity of residential premises to the west, particularly No 4 and No 6 Wareana Street.
88There is in the Tribunal's view a real and genuine prospect that the apprehensions expressed in the objections of the residents of Wareana Street are more likely than not to eventuate (Telstra Corporation Limited and Shire of Murray [2009] WASAT 117 at [65]).
The analysis and conclusion at [86]-[88] are central to Bethanie's fourth ground of review.
The Tribunal then proceeded to consider the potential impact of the development in terms of bulk and scale, particularly as it would affect the residential properties in Wareana Street, most specifically in relation to No. 4 and No. 6 Wareana Street. In this discussion, the Tribunal recognised that '[l]ogically bulk and scale can be mediated by increased setbacks from a common boundary and the extent to which a proposed building is articulated' ([91]) and referred to the evidence of Mr Mackay and Mr Doyle in relation to how, in their opinions, the setback and articulation of the proposed building satisfactorily mitigates the bulk and scale of the four storey built form. However, the Tribunal determined that the setbacks and articulation proposed do not satisfactorily mitigate the bulk and scale of the proposal, for the following reasons at [94] and [96]:
94The proposed development, while set back over 10 metres, has an overall length of approximately 49.8 metres (measured from the northern end of the staircase to the southern end of the lounge) and a height of over 12 metres. In the context of the existing residential properties to the west the Tribunal finds that the setback of 10 metres does not resolve the incongruity of scale introduced by the proposed development.
96Articulation can potentially mediate the impacts of bulk and scale. However, while the proposed building is articulated the depth of the 'area of articulation' is approximately 1.55 metres (from the 10.65 metres set back of the parapet to the approximately 12.2 metres setback of the western window of the northern corridor). This level of articulation in the context of a four storey structure approximately 49.8 metres in length the Tribunal finds does not effectively mitigate the scale or bulk of the building or begin to address the extent of articulation advocated in the LDP.
The Tribunal acknowledged and accepted Bethanie's submission that in assessing amenity impacts of the proposed building, 'it was important to address likely future amenity as well as existing amenity' ([97]). This is correct, because the term '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' (emphasis added). However, the Tribunal determined at [99] that 'the bulk of a four storey structure almost 50 metres in length on its western edge with limited levels of articulation' would be 'incompatible … with the surrounding development' and, contrary to objective (b) of the Private Institution zone in cl 4.2.10 of the Scheme, 'would not protect either the existing or future of [sic] amenity of the area'.
Finally, the Tribunal acknowledged that the bulk and scale of built form can be mitigated by landscaping. However, in light of evidence of Mr Andrew Thomas, a landscape architect called by Bethanie, the Tribunal determined at [102] that, although the proposed landscaping (which would take 15 to 20 years to reach maturity) 'may in the longerterm provide limited screening', it:
… would not make any substantive contribution to mediating the bulk and scale of the proposed development when viewed from the rear gardens of the properties in Wareana Street, particularly No 4 and No 6.
The Tribunal then concluded its planning assessment of the proposed development at [106] as follows:
In this context the Tribunal finds that the proposed development does not comply with cl 67(m) and (n) of the LPS Regulations [deemed provisions] for the following reasons:
•There is a real and genuine prospect that the apprehensions expressed in the objections of Wareana Street residents are more likely than not to eventuate;
•The proposed setback from the western boundary does not resolve the incongruity of scale introduced by the proposed development;
•The level of articulation does not effectively mitigate the scale or bulk of the building;
•The proposed building is incompatible with the surrounding development and would not protect either the existing or future amenity of the area;
•The proposed landscaping would not make any substantive contribution to mediating the bulk and scale of the proposed development when viewed from the rear gardens of the properties in Wareana Street, particularly No 4 and No 6; and
•The proposal does not meet the reasonable expectations of the community, and more particularly the residents of Wareana Street, established by the planning framework.
For these reasons and the fact that the proposed development does not meet the objectives for the 'Private Institutions' [sic] zone set out in LPS 3 or the requirements of the LDP the proposal does not warrant support and the decision of the respondent should be affirmed.
Grounds for review
Bethanie seeks review of the Tribunal's determination by a judicial member on the following five grounds:
(1)The Tribunal erred in failing to give due regard to a relevant consideration, being the PI Guidelines.
(2)The Tribunal erred in mischaracterising (that is, misconstruing) the legal function of the LDP and its role in the planning framework and thereafter incorrectly applied the LDP in assessing the proposal.
(3)The Tribunal erred in inflexibly applying the LDP in its assessment of the development application.
(4)The Tribunal erred in taking into account an irrelevant consideration, being fear of potential overlooking, in circumstances where that fear was not reasonably based in fact or supported by the evidence.
(5)The reasons and decision of the Tribunal were otherwise manifestly unreasonable.
I will now address each of the grounds for review.
Ground 1 'The Tribunal erred in failing to give due regard to a relevant consideration, being the PI Guidelines'
Bethanie submits that, although Member de Villiers correctly observed at [28] that the Tribunal was required to give 'due regard' to various matters, including local planning policies, such as the PI Guidelines, and local development plans, such as the LDP, and correctly recognised at [46] that giving 'due regard' requires 'proper, genuine and realistic' consideration, he erred in law in incorrectly applying the statutory principle referred to in Anthony Hordern and Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and other authorities referred to at [49]-[51] of the Tribunal's reasons) and by failing, in fact, to give proper, genuine and realistic consideration to the provisions of the PI Guidelines in his assessment of the two issues for determination in the review. Bethanie submits that the Tribunal only gave 'due regard' to the LDP, and not to the PI Guidelines, because after determining at [58] that 'the specific provisions of the LDP should be accorded more substantive weight tha[n] the general provisions of the PI Guidelines', the Member did not again refer to the provisions of the PI Guidelines in the reasons for the determination. Furthermore, Bethanie submits that, had the PI Guidelines been properly taken into account by the Tribunal, '[i]ssue 1 would have been determined in favour of the [a]pplicant, because the development proposal is materially consistent with the PI Guidelines' (although the wall height of 14 metres would require a variation to the 12 metre wall height in the building height provisions of the PI Guidelines). Bethanie also submits that the failure by the Tribunal to give due regard to the PI Guidelines 'has … infected the reasoning and conclusions with respect to [i]ssue 2', because Member de Villiers assessed whether the proposed development has an adverse impact on the amenity of adjoining residential properties by reason of height, bulk and scale and potential for overlooking in the context of 'reasonable community expectations' ([105]) created by the LDP (and not the PI Guidelines, to which there was no reference in the assessment of issue 2).
In my view, the Tribunal did not err in law as alleged in terms of ground 1. As Bethanie concedes, Member de Villiers recognised that he was required to give 'due regard' to both the PI Guidelines and the LDP. This follows from cl 3(5), cl 56(1) and cl 67(g) and (h) of the deemed provisions. Clause 3(5) of the deemed provisions states as follows:
In making a determination under this Scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with this Scheme.
As indicated earlier, cl 56(1) of the deemed provisions states as follows:
A decision-maker for an application for development approval in an area that is covered by a local development plan that has been approved by the local government must have due regard to, but is not bound by, the local development plan when deciding the application.
Furthermore, as also indicated earlier, cl 67 of the deemed provisions states, in part, as follows:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
…
(g)any local planning policy for the Scheme area; [and]
(h)any … local development plan that relates to the development[.]
As Bethanie submits, an acknowledgment by a decision-maker of the existence of a relevant consideration (in this case, the PI Guidelines) and of their duty to give due regard to it, and even a statement by the decisionmaker that it has considered that matter, 'does not necessarily mean on the facts of [a] case that, in making the decision to approve the development, the [decision-maker] had due regard to [the consideration]' (to adopt to Martino J's words in City of South Perth v ALH Property Group Holdings Pty Ltd at [50]). A determination as to whether the Tribunal gave 'due regard', that is proper, genuine and realistic consideration, to the PI Guidelines in the determination of the development application involves an analysis of substance, rather than form.
As the Presiding Member of the JDAP submits, it is apparent from [27] of the Tribunal's reasons (see [18] and [20] above), which referred to the building height provisions and objectives of the PI Guidelines, and [34][58] of the Tribunal's reasons (see [24]-[31] above) that the Tribunal 'closely considered the provisions of the PI Guidelines, and it was aware of its contents and further, well understood the arguments made by the [a]pplicant in respect of them'. It is also apparent from the Tribunal's references to the submissions made on behalf of Bethanie at [39] and [40] (see [27] above) that the Tribunal understood that the PI Guidelines were approved by the Council more recently than the LDP and that the PI Guidelines contemplate buildings of four storeys (with a wall height of 12.0 metres) set back more than 10 metres from a residential lot boundary (and that the building proposed in the development application complies with this building height provision, other than in relation to wall height, as to which a variation could be exercised).
However, the LDP is fundamentally inconsistent with the PI Guidelines in relation to building height in the south-western part of the site. As indicated earlier, and as the Tribunal correctly found, the LDP identifies and designates the building in the south-western part of the site (Building H) as '2 level aged care facility'. Furthermore, as indicated earlier, the LDP clearly indicates that Building H has a two storey built form and contains very specific height levels for both the ground floor (25.25 metres AHD) and the second level (28.25 metres AHD) of Building H. Plainly, the LDP contemplates only two storey built form in the south-western part of the site. Given the fundamental inconsistency between the building height contemplated by the PI Guidelines (four storeys when there is setback of more than 10 metres from the common boundary with residential properties), on the one hand, and by the LDP (two storeys), on the other, for a building in the southwestern part of the site, and given that the Tribunal was required to give 'due regard' to each of these fundamentally inconsistent contemplations of building height, the Tribunal clearly had to determine, as it said at [48], 'the relative weight to be given to the LDP and the PI Guidelines'. Indeed, as the Tribunal said at [48], the parties' respective submissions in relation to the PI Guidelines and the LDP 'raise[d] for the Tribunal in this review' that very matter for determination.
The Tribunal ultimately determined, for four reasons, that 'the specific provisions of the LDP should be accorded more substantive weight tha[n] the general provisions of the PI Guidelines' (at [58]). Giving more weight to the LDP than the PI Guidelines does not mean giving no weight to the PI Guidelines. More fundamentally, in terms of the first ground for review, the Tribunal's careful and detailed analysis preceding this finding demonstrates that it did give proper, genuine and realistic consideration to the building height provisions of the PI Guidelines in its determination of the development application.
The Tribunal's first reason was that, whereas the LDP provides 'specific requirements for the subject site' and 'specific guidance for a site designated for aged care facilities', the PI Guidelines 'apply to all Private Institution zones in the municipality of the City' and apply to 'a range' of other land uses 'potentially includ[ing] child care facilities, club premises, educational establishments, medical centres, offices and places of worship' ([53]). The Tribunal was correct. Whereas the LDP contains site-specific provisions for development of the subject site for aged care purposes, the PI Guidelines apply to all land zoned 'Private Institution' under the Scheme and to development of a range of land uses.
The Tribunal's second reason was that it did not accept Bethanie's submission that the LDP only deals with the placement of buildings 'and is not intended to be a development control provision' ([54]). Bethanie has made essentially the same submission in support of ground 2 in the application for review by a judicial member. For reasons set out below in relation to ground 2, the Tribunal did not err in law by misconstruing the meaning and effect of the LDP. As discussed in relation to ground 2 below, although the LDP began its life as a strategic planning document prepared on behalf of Bethanie, in consequence of its approval by the Council, it is a statutory planning instrument having effect and function as part of the applicable planning framework, under cl 56(1) and cl 67(h) of the deemed provisions. Moreover, the LDP contains a building height provision indicating a building height of 2 storeys (with nominated floor levels) in the south-western part of the site, which is where the building proposed in the development application is to be located. Furthermore, the Tribunal found that there is a 'clear planning principle enshrined in the LDP … that it locates "the higher building elements centrally to the site and away from the lower density adjoining properties"' ([61]). This finding is not challenged and, in any case, was reasonably open having regard to the locations and nominated heights of Buildings A-H in the LDP. Furthermore, although the Tribunal did not expressly refer to this in its reasons, the 'clear planning principle' discerned by the Tribunal from the LDP is supported not only by the locations and nominated heights of Buildings A-H, but also by the depiction on several of the plans in the LDP of the closest points of the Wareana Street houses and the nomination of the height levels at those points. The planning principle discerned by the Tribunal from the LDP further indicates that it is not simply concerned with the placement of buildings on the site, but also with building height.
The third reason given by the Tribunal for according greater weight to the LDP than the PI Guidelines was that the PI Guidelines themselves require that all applications for development approval 'shall be accompanied by a Local Development Plan for the site' ([56]). The Tribunal's final reason for its finding as to relative weight was that, at the time when the Council approved the LDP, although it had not yet approved the PI Guidelines, 'the Council were well aware of the proposed provisions of the then draft, and now endorsed, PI Guidelines' ([57]).
As Ms Ide submits, the Tribunal's reasoning for its determination that 'the specific provisions of the LDP should be accorded more substantive weight tha[n] the general provisions of the PI Guidelines' ([58]) is both 'logical and well founded'. Furthermore, the Tribunal's process of reasoning, or as Ms Ide referred to it in oral submissions, 'the weighing exercise that the [T]ribunal undertook' (ts 48, 6 November 2018) demonstrates that the Tribunal did, indeed, give proper, genuine and realistic consideration to the building height provisions of the PI Guidelines in the determination of the development application.
For the four reasons the Tribunal gave, it decided to give greater weight to the provisions of the LDP than to the (inconsistent) provisions of the PI Guidelines. The Tribunal's approach and the outcome of that approach were both reasonably open. Furthermore, the fact that, after the Tribunal set out its four reasons and expressed its finding at [58] as to the relative weight to be given to the LDP over the PI Guidelines, it did not again refer to the provisions of the PI Guidelines in the reasons for the determination, does not indicate any legal error. As Ms Ide submits, it was open to the Member to construct his reasons such that 'he dealt with the conflict between the LDP and the [PI Guidelines] at the outset' (ts 48, 6 November 2018). As indicated earlier, the Member referred to the building height provisions of the PI Guidelines before expressing his reasoning for giving greater weight to the provisions of the LDP than to the (inconsistent) provisions of the PI Guidelines. As Ms Ide submits, 'it was not necessary for the [M]ember to repeat himself' later in the reasons (ts 48, 6 November 2018). Thus, having determined at [58] that greater weight should be given to the LDP than to the PI Guidelines, it was unnecessary for the Tribunal to make that finding again or even to refer to the PI Guidelines when it considered the second issue and found that 'reasonable community expectations' as to amenity impacts by reason of height, bulk and scale and potential for overlooking were created by the LDP.
Furthermore, contrary to Bethanie's submission, the Tribunal did not err in law by referring to the principle of statutory interpretation in Anthony Hordern and Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia. The Member was well aware that the principle of statutory interpretation referred to in that case (and applied by the Tribunal in Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 22; (2007) 58 SR (WA) 320 and Nicotra and Town of Vincent [2008] WASAT 16), that a specific provision of a planning scheme generally excludes the application of a general provision of the planning scheme, is 'to be differentiated' ([52]) (which I take to mean is distinguishable) in this case. However, the Member reasoned, by analogy, that in this case the specific requirements and guidance of the LDP should be given greater weight than the PI Guidelines which apply more generally to all land in the Private Institution zone and to a range of land uses capable of development in that zone. There was no error of law in this reasoning. Indeed, although the Member did not refer to it, this reasoning finds support in the text of the PI Guidelines, which states under 'Introduction' as follows:
Where this Policy is inconsistent with the provisions of a specific Policy or Guidelines applying to a particular site or area (e.g. Inglewood Town Centre Design Guidelines), the provisions of that specific Policy or Guidelines shall prevail.
Although the LDP is not entitled 'Guidelines', it serves an analogous statutory function under cl 56(1) and cl 67(h) of the deemed provisions. As the Member correctly recognised, the LDP provides 'specific guidance' in relation to what is 'a particular site'. The Member's reasoning is consistent with the introductory provision of the PI Guidelines.
The fact that the Tribunal referred only to the LDP (and not also to the PI Guidelines) in the context of determining 'reasonable community expectations' as to the amenity consequences of built form on the site for the adjoining residences to the west does not demonstrate any legal error on the part of the Tribunal. Having determined that greater weight is to be accorded to the LDP than to the PI Guidelines in relation to building height in the south-western part of the site, it logically follows that 'reasonable community expectations' of likely built form on the relevant part of the site would be informed by the LDP (rather than the PI Guidelines).
Finally, I accept Ms Ide's submission on behalf of the Presiding Member of the JDAP that Bethanie's 'real complaint in ground 1 is that the building height provisions contained in the PI Guidelines were not "applied" by the Tribunal' (original emphasis). However, having given 'due regard' to the PI Guidelines, it was open to the Tribunal to refuse the development application (in part) on the basis that the proposed development is inconsistent with the LDP and that no sound basis had been established on the evidence for departing from the planning principles in the LDP (see discussion of ground 3 at [76]-[80] below).
Ground 2 'The Tribunal erred in mischaracterising (that is, misconstruing) the legal function of the LDP and its role in the planning framework and incorrectly applied the LDP in assessing the proposal'
Bethanie submits that the Member misconstrued and misapplied the LDP, because:
The LDP is a strategic planning instrument and is not intended to impose development controls that are expected to be adhered to in all cases, especially in cases where a proposal does not strictly follow the LDP (that task is instead covered by the PI Guidelines).
Bethanie made essentially the same submission to Member de Villiers. Bethanie submits that the Member erred in law in not accepting this submission. Alternatively, Bethanie submits that, even if the LDP 'is construed as containing development controls to an extent', as the LDP was adopted prior to the PI Guidelines (and as the PI Guidelines have recently been modified on 26 April 2016, but remain, in the building height provisions, in essentially the same terms), the PI Guidelines 'effectively became the source of applicable development controls for a development on the [site] (at least for any proposals that depart from the strict vision contained within the LDP)'.
In my view, the Tribunal did not err in law in terms of ground 2. Certainly, it appears that the LDP commenced its life as a strategic planning document prepared on behalf of Bethanie. However, once approved by the Council, the LDP became a statutory planning instrument with effect and function as part of the applicable planning framework under the Scheme, now as provided in cl 56(1) and cl 67(h) of the deemed provisions. Furthermore, the Tribunal was correct in construing the LDP as containing 'specific requirements' and 'specific guidance' for the site in relation to built form, including building height, and that it indicates (only) two storey development in the relevant part of the site. Furthermore, as indicated earlier, it was open to the Tribunal to discern a planning principle in the LDP that higher building elements should be located centrally on the site and away from the adjoining low density residential properties in Wareana Street to the west. Of course, as the Member correctly recognised, the building height indicated in the LDP is in no way binding and may be departed from where there is a cogent reason (or as the Member said in the final paragraph [110] of the Tribunal's reasons, apparently adopting Pritchard J's words in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182], which the Member referred to and highlighted at [67], 'a sound basis') for doing so. The Member was not satisfied on the evidence before the Tribunal that there was a cogent reason or sound basis for departing from the two storey height for the aged care development in the south-western part of the site indicated in the LDP so as to approve a development which is double that height, particularly where the proposed building is 'approximately 49.8 metres in length … [and does not] begin to address the extent of articulation advocated in the LDP' ([96]).
Bethanie's alternative submission is also incorrect. Although the PI Guidelines postdate the LDP, it applies generally throughout the Private Institution zone (not just to the site) and to a number of potential land uses (not just aged care facility or nursing home). Furthermore, as the introductory provision of the PI Guidelines expressly states, where the PI Guidelines 'is inconsistent with the provisions of a specific Policy or Guidelines applying to a particular site or area … the provisions of that specific Policy or Guidelines shall prevail'. This provision is not limited to 'specific … Guidelines' adopted after the PI Guidelines.
Bethanie also submits in relation to ground 2 (as it did before the Member) that 'the LDP deals with the proposed future location [or, as the Member put it at [54], 'placement'] … of buildings on the [site] and otherwise lacks the level of detail ordinarily found in a planning instrument that contains development control provisions'. However, the LDP does much more than simply deal with the proposed future location or placement of buildings. Among other things, it specifically indicates (only) two storey development in the relevant part of the site.
Bethanie also submits in relation to ground 2 that the Tribunal erred in law because:
the LDP cannot answer the question of whether a building on the [site] that is set back from [sic] 10 metres or more from the western lot boundary (such as the proposal before the Tribunal in this matter) is an appropriate outcome, because the LDP does not address this scenario.
This submission is incorrect. Although Building H in the LDP has varying setbacks, including three projections (two of which are 4.5 metres from the western boundary), significantly, Building H comprises two storeys both within 10 metres of the common boundary with the residential properties to the west and more than 10 metres from the common boundary. Thus, the LDP does, indeed, 'answer the question of whether a building on the [site] that is set back … 10 metres or more from the western lot boundary' complies with its provisions. As the Tribunal found, it does not. Of course, as the Tribunal also acknowledged, the two storey height indicated in the LDP can be departed from where there is a cogent reason or sound basis for doing so. However, the Tribunal was not satisfied that a sound basis for departing from the planning principles in the LDP had been established on the evidence.
Finally, in relation to ground 2, Bethanie refers to cl 6A.16.2 of the Scheme, which sets out what a 'detailed area plan', such as the LDP, may include. Bethanie submits that cl 6A.16.2 of LPS 3:
… demonstrates that the primary purposes of a "detailed area plan", such as the LDP, is to act as a "masterplan" with respect to spatial considerations, for the purpose of a larger site that is likely to be the subject of multiple stages of development over time.
However, cl 6A.16.2 of the Scheme states that a detailed area plan 'may include details as to', among other things, '[b]uilding envelopes' (paragraph (b)) and '[t]he location, orientation and design of buildings and the space between buildings' (paragraph (g)). The LDP in this case contains details as to building envelopes and the design of buildings. I do not accept Bethanie's submission that, in this context, '"building envelopes" is simply referring to the proposed location of buildings on a given site'. If the intention were to restrict detailed area plans in the way Bethanie submits, paragraph (b) of cl 6A.16.2 of the Scheme would refer to 'building footprints', rather than 'building envelopes'. The terms 'building envelope' and 'building footprint' are commonly used in architecture and planning. The Dictionary of Architecture (James Stevens Curl, Oxford University Press, 1999) defines the term 'envelope' at page 230 as follows:
envelope. 1. Outer part of a building enclosing the interior volumes. 2. Light waterproof protective *cladding, e.g. glass and metal frames, protecting the structure, as in *curtain-walling. 3. In geometry, the covering of a solid with a thin pliable substance.
Thus, a 'building envelope' is three dimensional, whereas a 'building footprint' is two dimensional. A detailed area plan (local development plan) under the Scheme may, therefore, include details as to building heights, as well as placement of buildings, as both of these elements form part of a 'building envelope'. Finally, I note in passing that a submission made by Bethanie to Member de Villiers and the Member's response to that submission at [65] reflects a correct understanding of the contrasting meanings of the terms 'building footprint' and 'building envelope':
In terms of the bulk the applicant submitted that the footprint of the proposed building was 25% to 30% smaller than the footprint for Building H in the LDP. However, given that the proposed building is four storeys, rather than the two proposed in the LDP, this represents an increase in the overall bulk (calculated as the total volume of the three dimensional building envelope) of 40% to 50% over that proposed in the LDP.
(emphasis added)
Ground 3 'The Tribunal erred in inflexibly applying the LDP in its assessment of the development application'
Bethanie submits that the approach taken by the Member in applying the LDP to the development application in this case was 'tantamount to an inflexible application of policy, which itself amounts to an error of law'.
As Barker J held in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], although a policy adopted by a planning authority that is relevant to a planning application 'will be expected to guide the exercise of discretion … such a "policy" is not intended to replace the discretion of the [planning consent authority] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it'. As his Honour then held:
Notwithstanding this understanding, the relevant consideration in many applications is why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application. Good public administration demands no less an approach.
These principles apply equally to a local development plan adopted by the relevant local government to which due regard is required to be given by cl 56(1) and cl 67(h) of the deemed provisions. However, in my view, the Tribunal did not err in law as alleged in terms of ground 3. Indeed, although the Tribunal did not refer to Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission, it applied the principles stated by Barker J in that decision at [24]. Reading the Tribunal's reasons for determination as a whole, it is clear that its exercise of discretion as to whether to approve or refuse the development application was guided by the designation and indication of the two storey height of Building H in the LDP and the 'clear planning policy enshrined in the LDP' discerned by the Tribunal at [61], although the Tribunal also had regard to other merit findings adverse to the proposed development in the exercise of its discretion. These comprised a finding that the development is likely to result in a loss of privacy, because of overlooking (through 'lines of sight') from nursing home residents' bedrooms and the western end of a corridor on levels 2-4 of the proposed building into the gardens and living areas of adjoining residential properties ([86][88]) (see discussion of ground 4 at [87]-[97] below) and a finding that 'the bulk of a four storey structure almost 50 metres in length on its western edge with limited levels of articulation' would be 'incompatible … with the surrounding development and … would not protect either the existing or future … amenity of the area', contrary to objective (b) of the Privates Institution zone in cl 4.2.10 of LPS 3 ([99]).
Furthermore, insofar as the Tribunal was guided in the exercise of its discretion as to whether to approve or refuse the development application by the building height of Building H in the LDP, it is clear from the Tribunal's reasons that the LDP was not 'inflexibly applied regardless of the merits of the particular case'. Indeed, a large part of the Tribunal's reasons for decision was devoted to an analysis of evidence and submissions presented on behalf of Bethanie as to why the LDP should be departed from in terms of building height and the proposed four storey building approved, in the circumstances of the case. Thus, at [65], the Tribunal considered Bethanie's submission that, because the footprint of the proposed building is 25% to 30% smaller than the footprint of Building H in the LDP, the bulk of the development is acceptable. The Tribunal determined, however, that given the proposed building is four storeys, rather than the two storeys in the LDP, 'this represents an increase in the overall bulk (calculated as the total volume of the three dimensional building envelope) of 40% to 50% over that proposed in the LDP'.
At [66] and [95]-[96], the Tribunal considered the evidence and submissions put forward on behalf of Bethanie that the articulation in the proposed building sufficiently mitigates the bulk and scale of the proposed four storey building. However, the Tribunal determined at [96] that the 1.55 metre deep 'area of articulation' is not sufficient 'in the context of a four storey structure approximately 49.8 metres in length' to 'effectively mitigate the scale or bulk of the building or begin to address the extent of articulation advocated in the LDP'.
At [91]-[94], the Tribunal considered the evidence and submissions presented on behalf of Bethanie that the proposed setback of 10.65 metres from the western boundary of the site, which is 'more than double the 4.5 metres required by the LDP' is sufficient to effectively mitigate the bulk and scale of the building. However, the Tribunal determined that the setback proposed in the development (taken together with the limited articulation proposed) 'does not resolve the incongruity of scale introduced by the proposed development', because although the proposal involved a setback of over 10 metres, it 'has an overall length of approximately 49.8 metres … and a height of over 12 metres'.
Finally, at [100]-[102], the Tribunal considered whether the height, bulk and scale of the proposed four storey building would be sufficiently mitigated by landscaping. However, it determined that, while proposed landscaping 'may in the longer-term provide limited screening', it 'would not make any substantive contribution to mediating the bulk and scale of the proposed developed when viewed from the rear gardens of the properties in Wareana Street, particularly No 4 and No 6'.
The Tribunal's careful consideration and analysis of these matters, including the evidence of expert witnesses called by Bethanie and submissions made on its behalf, demonstrates that it did not inflexibly apply the LDP in the determination of the development application. Rather, as the Tribunal itself said at [110], on the evidence presented, Bethanie had 'not established a sound basis for departing from the planning principles identified in the LDP' and consequently 'the application should be dismissed'.
Ground 4 'The Tribunal erred in taking into account an irrelevant consideration, being fear of potential overlooking, in circumstances where that fear was not reasonably based in fact or supported by the evidence'
Bethanie submits that, as part of determining the second issue in the proceedings, Member de Villiers based his decision in relation to overlooking from the proposed development into adjoining residential properties on Wareana Street:
… entirely on a perception or fear of overlooking (on the part of the residents of the adjoining residential properties), without first properly concluding that there was a factual or realistic basis for this perception or fear.
Bethanie submits that the Member failed to 'proper[ly] satisfy himself that the proposal would create overlooking, as a matter of fact' and that:
In the absence of factual substantiation, the mere fear of overlooking was an irrelevant consideration that Mr [d]e Villiers was not required to take into account under clause 67 of the Deemed Provisions and should not have been taken into account as a matter of law.
As Member de Villiers recognised at [28] of the Tribunal's reasons, cl 67(n) of the deemed provisions required the Tribunal to have 'due regard' to:
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
As indicated earlier, in the Tribunal's reasons at [78]-[79], Member de Villiers referred to the decision in Woolworths Ltd and City of Joondalup and to the reference in that decision to the decision of VCAT in Self Help Addiction Resource Centre Inc v Glen Eira City Council at [56]. Indeed, as indicated earlier, Member de Villiers set out at [79] of the Tribunal's reasons the following statement by VCAT in that decision at [56]
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
(emphasis added)
Thus, Member de Villiers was aware that, in order for the Tribunal to be satisfied that the proposed development would result in an adverse impact on 'the amenity of the locality', it would have to be satisfied that 'there is a factual or realistic basis to [residents'] fears in order … to conclude that [the proposed development] will result in the amenity impacts alleged by the residents'.
As indicated earlier, the Tribunal determined as follows at [86]-[88] of the reasons:
86While the visual privacy provisions of the R-Codes clearly provide some guidance in regard to potential impacts on visual privacy the proposed building is not a residential building.
87Given that the occupants are likely to spend more time in their rooms than those in residential premises would generally utilise upstairs bedrooms, the number of rooms involved, the fact that a number will be located on the upper two floors, and that the corridors will be used on a 24/7 basis the Tribunal finds that the impact of the lines of sight could reasonably be regarded as having a negative impact on the amenity of residential premises to the west, particularly No 4 and No 6 Wareana Street.
88There is in the Tribunal's view a real and genuine prospect that the apprehensions expressed in the objections of the residents of Wareana Street are more likely than not to eventuate (Telstra Corporation Limited and Shire of Murray [2009] WASAT 117 at [65]).
As indicated earlier, the Tribunal's reasons for decision are to be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. In my view, read in this way, the Tribunal's findings 'that the impact of the lines of sight could reasonably be regarded as having a negative impact on the amenity of residential premises to the west, particularly No 4 and No 6 Wareana Street' and that there is 'a real and genuine prospect that the apprehensions expressed in the objections of the residents of Wareana Street are more likely than not to eventuate' involve a finding that the proposed development is likely to result in adverse impact on residential amenity in the locality by reason of loss a privacy, because of overlooking (through 'lines of sight') from residents' bedrooms and the western end of the corridor on levels 2-4 of the nursing home into the rear gardens and living areas of the adjoining residential properties, in particular No. 4 and No. 6 Wareana Street.
It is clear that Member Dr Villiers did not take into account or make any finding in relation to amenity on the basis of mere 'fear of potential overlooking', but rather was satisfied, on the evidence, that the objectors' concerns about loss of privacy as a result of the development are well founded and that the proposed development is likely to result in adverse amenity impact in terms of a loss of privacy at their properties, because of overlooking (through 'lines of sight') from residents' bedrooms and the western end of the corridor on levels 2-4 of the proposed development into the garden and living areas of the adjoining residential properties, in particular No. 4 and No. 6 Wareana Street. Further, in my view, this finding was reasonably open on the evidence before the Tribunal. There was (adopting the expression in Bethanie's submission) 'factual substantiation' for the Tribunal's finding. The Tribunal, therefore, did not take into account an irrelevant consideration, but rather made a relevant finding that was reasonably open on the evidence.
As the Tribunal said at [69], it received five witness statements and one submission from residents in Wareana Street which raised 'a number of amenity issues in regard to the proposed development', including that the proposed development was 'out of character with the suburb due to the proposed height, bulk and scale' and 'the potential impacts of overlooking on the garden and living areas' of the adjoining residential properties. In her witness statement (Exhibit 17), Ms Sheryl Anne Siekierka, who has lived with her husband and family at No. 4 Wareana Street for over 25 years, describes the layout of her house and property and says that the house was 'architect designed to take advantage of the orientation and to maximise our ability to use the rear yard as an outdoor living space for family and friends'. The family room, kitchen and meals area open onto the rear living area and the family room and the meals area have full length and width glass windows and large sliding doors to allow for access and to extend the indoor entertainment areas 'seamlessly to the exterior'. Ms Siekierka gave evidence that she and her family use both the internal and external living areas facing the location of the proposed nursing home regularly and extensively. Her first objection in her witness statement is that 'the proposed building robs us of privacy in the rear rooms of the house (family room, meals area, kitchen, bathroom, bedrooms/studies) and the backyard' and she considers that 'this lack of privacy will have a severe negative impact upon on the way we live our lives within our own property'.
Although, as the Member noted at [82], it was accepted by the architectural, urban design and planning expert witnesses that 'there is no direct overlooking of any of the adjoining residential properties to the west', he then referred to the 'Overlooking Diagrams' prepared by Mr Smyth (Exhibit 28 and Exhibit 28A) and said at [84] that it was 'generally accepted that there was potential for "lines of sight" from the proposed building to impact residences to the west'. As the Member also said these 'comprised oblique lines of sight from the resident's [sic] rooms and more direct lines of sight from the windows at the western end of the corridor on the first, second and third floors'. He said that the 'potential impacts of these lines of sight predominantly affected the properties at No 4 and No 6 Wareana Street'.
The Tribunal's findings at [84] that there would be 'oblique lines of sight' from residents' rooms and more direct lines of sight from the western end of the corridor on the upper levels of the proposed development affecting No. 4 and No. 6 Wareana Street are clearly borne out by Exhibit 28A. The proposed development does not involve any direct overlooking of adjoining residential properties from residents' rooms within the proposed development, because the windows in residents' rooms which are parallel to the common boundary with the residential properties to the west contain obscured glass. However, the residents' rooms also have a window with clear glass which, although generally oriented towards another resident's room within the development, are angled slightly towards the common boundary, and would enable a viewer looking through that window to have a 37 degree wide arc of vision out of the room which is not blocked or obscured by any part of the proposed building, part of which, in relation to four bedrooms on each of the upper levels of the development, involves viewing over the rear boundaries of No. 4 or No. 6 Wareana Street. Exhibit 28A also indicates that a person standing at the western end of the corridor on each of the upper levels of the proposed building would have a 43 degree wide arc of vision which is not blocked or obscured by any part of the proposed building over the rear boundaries of No. 4 and No. 6 Wareana Street. Furthermore, the Tribunal conducted a view of the site and locality, including viewing the site from adjoining residents' properties.
Therefore, contrary to Bethanie's submission, there was evidence before the Tribunal 'regarding actual or demonstrated overlooking'. The overlooking demonstrated in the evidence was through the 37 degree wide arc of vision enabling oblique, rather than direct, overviewing of adjoining residential properties from the second, third and fourth levels of the proposed building and direct overviewing of adjoining residential properties through a 43 degree wide arc of vision from the western end of a corridor at each of those levels. Exhibit 28 and Exhibit 28A depict a 10 metre set back line from the common boundary with the overviewing locations in residents' rooms and the western end of the corridor set back slightly further than 10 metres. Thus, the evidence before the Tribunal in relation to potential loss of privacy through overlooking of the adjoining residential properties was not merely of 'a fear or perception of overlooking, as distinct from actual or demonstrated overlooking'. It is correct, as Bethanie submits, that Exhibit 28 and Exhibit 28A do not show the extent (or distance) of the 'lines of sight' into the adjoining properties. However, Exhibit 28A shows a point 15 metres from the viewer in the residents' bedrooms and from the western end of the corridor at levels 2-4 as being within the rear garden/yard of No. 4 and/or No. 6 Wareana Street. This evidence taken together with photographs in Attachment 1 to Ms Siekierka's witness statement, showing views from the family room, kitchen, first floor bathroom and first floor study/bedroom across Ms Siekierka's pool and rear garden towards the site, provided sufficient evidence (particularly given that the Member had the opportunity to understand the evidence through a view of the site and locality) for the Tribunal to be able to find that the proposed development is likely to result in adverse amenity impact in terms of a loss of privacy, because of overlooking from residents' bedrooms and the western end of the corridor on levels 2, 3 and 4 of the development, into the rear gardens and living areas of the adjoining residential properties, particularly No. 4 and No. 6 Wareana Street.
Furthermore, as Ms Ide submits, '[i]t was open to the Tribunal to find that there were negative amenity impacts on the adjoining residential properties even in circumstances where the impact arose from the lines of sight, despite there being compliance with the visual privacy guidelines of the R-Codes'. The proposed development is not residential development to which the R-Codes apply.
Further, as Ms Ide submits, the Tribunal's reasons, as expressed at [86] and [87] for determining that the proposed development is likely to result in adverse amenity impact, in terms of loss of privacy, are 'reasonable and logical'. The Tribunal's 'reasonable and logical' reasons for this finding are that:
•'the proposed building is not a residential building';
•'the occupants [of the proposed nursing home] are likely to spend more time in their rooms than those in residential premises would generally utilise upstairs bedrooms';
•'the number of rooms involved';
•'a number will be located on the upper two floors'; and
•'the corridors will be used on a 24/7 basis'.
In my view, the Tribunal drew reasonable and logical inferences, which were open on the evidence before it, in determining that the proposed development is likely to result in an adverse amenity impact in terms of loss of privacy.
As indicated earlier, Mr Algeri gave evidence referred to by the Triubnal at [75] as follows:
Mr Joe Algeri, the expert planner called by the respondent, argues that:
… using the R-Codes as a guide, the proposal would comply in terms of visual privacy and overlooking requirements. Nevertheless, I am concerned that there still might practically be an element of overlooking or at least a fear or perception of overlooking by the adjoining neighbours which should not be discounted.
(WS paragraph 79)
This perception or fear of overlooking is attributed by the overall height of the development in comparison to the adjoining low-density, single residential development …
(WS paragraph 80)
Although Mr Algeri expressed a 'concern' that 'there still might practically be … at least a fear or perception of overlooking by the adjoining neighbours', which perception he said 'is attributed by the overall height of the development in comparison to the adjoining low-density, single residential development', the Tribunal did not make such a finding or determine that there would be an adverse amenity impact in terms of loss of privacy on this basis. Rather, the Tribunal found that the proposed development is likely to result in adverse amenity impact by reason of loss of privacy, because of overlooking from residents' bedrooms and corridors into gardens and living areas, that is, that there is likely to be a loss of privacy, not that there is a mere fear or perception of potential overlooking. Moreover, the Tribunal found that the proposed development is likely to result in adverse amenity impact in terms of loss of privacy, because of the 'lines of sight' from residents' rooms and corridors, which would allow overlooking into the garden and living areas of adjoining residential properties, rather than because of anything to do with 'the overall height of the development in comparison to the adjoining low-density, single residential development', which Mr Algeri referred to as the apparent basis of his concern about 'fear or perception of overlooking'.
Finally, although, in his closing submissions before Member de Villiers, Mr McQueen indicated on behalf of Bethanie that his client would accept conditions to address any privacy concerns, Bethanie did not propose any actual conditions to address the overlooking demonstrated by Exhibit 28 and Exhibit 28A. It was not the Member's role to formulate such conditions.
The Tribunal did not err in law as alleged in terms of ground 4.
Ground 5 'The reasons and decision of the Tribunal were otherwise manifestly unreasonable'
Although ground 5 is that '[the] reasons and decision of the Tribunal were otherwise manifestly unreasonable' (emphasis added), in Bethanie's oral submissions, it was framed in terms of the Tribunal's determination having been manifestly unreasonable, because of the errors alleged in the other grounds for review. However, as none of the other grounds for review are made out, ground 5 is without merit.
Finally, in its written submissions, Bethanie submits that the Tribunal's determination was manifestly unreasonable, because Member de Villiers 'failed to discharge the statutory duty imposed upon the Tribunal to arrive at the correct and preferable decision upon review' (required by s 27(2) of the SAT Act) and that the determination in this matter:
appears to be based upon the subjective opinion of Mr [d]e Villiers in relation to the development application (which seems to have been largely informed by the third-party objections before the Tribunal) and not upon an objective assessment of the merits of the development application as applied to the planning framework.
I do not accept this submission. It is clear from the Tribunal's careful distillation and assessment of the issues in dispute and review of the evidence and submissions presented by the parties that the Member undertook 'an objective assessment of the merits of the development application' and determined that, on its merits, the development application warrants refusal, because it is inconsistent with objective (b) of the Private Institution zone ('To ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area') and the LDP (being double the height of the built form relevantly contemplated in that document), because of the height, bulk and scale of the proposed building and its adverse amenity consequences as a result of its height, bulk and scale, as well as overlooking from it.
It is certainly the case that the impacts of the proposed development on adjoining residential properties were significant considerations in the Tribunal's decision to refuse to grant development approval. However, that does not indicate a failure to undertake an objective assessment of the merits of the development, much less so a decision 'based upon subjective opinion'. The proposed development is located at the immediate zoning/character interface with an established, low density residential area. The Tribunal's decision was reasonably open on the evidence before it. Ultimately, Bethanie's complaint is with the merit determination of the Tribunal.
The Tribunal did not err in law in terms of ground 5.
Conclusion
The Tribunal did not err in law in any of the five respects alleged in the grounds for review. The application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.
Orders
For these reasons, I make the following orders:
1.The application for review by a judicial member is dismissed.
2.The determination by the Tribunal in The Bethanie Group Inc and Presiding Member of the Metro NorthWest Joint Development Assessment Panel [2018] WASAT 45 in proceeding DR 319 of 2017 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE26 NOVEMBER 2018
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