THE BETHANIE GROUP INC and PRESIDING MEMBER OF THE METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
[2018] WASAT 45
•18 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005
CITATION: THE BETHANIE GROUP INC and PRESIDING MEMBER OF THE METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASAT 45
MEMBER: MR P DE VILLIERS (MEMBER)
HEARD: 29, 30 AND 31 MAY 2018
DELIVERED : 18 JUNE 2018
FILE NO/S: DR 319 of 2017
BETWEEN: THE BETHANIE GROUP INC
Applicant
AND
PRESIDING MEMBER OF THE METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Development - Established retirement complex - Recently approved four storey apartment building - Locality comprises private institutions area, residential area and Yokine Reserve - Local development plan - Weight to be given to Local development plan - Planning principle of Local Development Plan - Private Institution Design Guidelines - Height bulk and scale of proposed development - Impact on amenity of adjacent residential properties - Potential overlooking - Orderly and proper planning
Legislation:
City of Stirling Local Planning Scheme No 3, cl 4.2.10, cl 4.3, cl 5.12,
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg10(4), reg 77, reg 77(d), reg 78, reg 79(1), reg 79(2), Sch 2 cl 46, cl 56(1), cl 67
Planning and Development Act 2005 (WA), s 256(1), s 257A, s 257B
Town of Vincent Town Planning Scheme No 1, cl 20(4)(c), cl 20(5)
Town Planning Regulations 1967 (WA)
Town Planning Scheme No 1, cl 20(4)(c), cl 20(5)
Result:
Application for review dismissed and decision of respondent affirmed
Summary of Tribunal's decision:
In May 2017 the Bethanie Group Inc, the applicant applied for approval to develop a 'nursing home' on a portion of Lot 14691 Plantation Street, Menora. The application was refused by the Metro North-West Joint Development Assessment Panel on 14 September 2017 and on 6 October 2017 the applicant applied to the Tribunal seeking a review of that decision. In December 2017 the applicant filed and served amended plans for the proposed development.
The matter proceeded on the basis of the following issues:
Having due regard to the applicable planning framework whether the height, bulk and scale of the proposed development is acceptable; and
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.
A fundamental issue in the proceeding was that the applicant sought to prosecute its case on the basis that the Local Development Plan for the subject site was a strategic document which dealt with the placement of buildings on the site and was not intended to prescribe development controls for the site and the Private Institutions Design Guidelines should be regarded as the primary document against which to assess the proposal.
However, the Tribunal found that the principle that general provisions should not to be relied upon to set aside more particular requirements was applicable as the Local Development Plan provided specific requirements for the subject site while the Private Institutions Design Guidelines applied to all private institution zones in the municipality. In addition the Local Development Plan provided specific guidance for a site designated for aged care facilities while the Private Institution Design Guidelines covered a range of discretionary uses within the 'Private Institution' zone which could potentially include child care facilities, club premises, educational establishments, medical centres, offices and places of worship.
In regard to Issue 1 the Tribunal found that the four storey height, the increased bulk and the limited articulation on the western edge were not acceptable in terms of the explicit provisions of the Local Development Plan or the objectives for the 'Private Institutions' zone in the local planning scheme.
In regard to Issue 2 the Tribunal found that the proposed development was incompatible with the surrounding development and would not protect either the existing or future amenity of the area.
For these reasons the Tribunal found the proposal did not warrant support and the decision of the respondent should be affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Paul McQueen |
| Respondent | : | Catherine 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 at 7
Bigdeal Investments Pty Ltd and Town of Cambridge [2017] WASAT 122
Buildex Construction Company and City of Melville [2008] WASAT 86
Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
J & P Metal Pty Ltd and Shire of Dardanup [2006] WASAT 282
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272; (2007) 58 SR (WA) 320
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicotra and Town of Vincent [2008] WASAT 16
Rice & Anor and Town of Vincent [2007] WASAT 108
Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124
Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346
Telstra Corporation Limited and Shire of Murray [2009] WASAT 117
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
The Bethanie Group Pty Ltd and City of Stirling [2016] WASAT 6
Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 26 May 2017 the applicant, the Bethanie Group Inc applied for approval to develop a 'nursing home' on a portion of Lot 14691 (No 2) Plantation Street, Menora (subject site).
Following the receipt of further information requested by the City of Stirling (City or Council) in preparing the Responsible Authority Report (RAR) the matter was considered at the meeting of the Metro North-West Joint Development Assessment Panel (Metro North-West JDAP) on 14 September 2017.
At that meeting the Metro North-West JDAP resolved to refuse the application for the following reasons:
1.The proposed development does not satisfy Clause 67, Matters required to be considered by the local government of the Planning and Development (Local Planning Scheme) Regulations 2015, Schedule 2 as follows:
i.Pursuant to Clause 67, subclause (s), adequate vehicle access and egress from the site has not been illustrated with respect to:
a.conflict with existing verge infrastructure;
b.proposed vehicle sightlines;
c.right turn out movement prohibited;
d.turn path assessment for commercial vehicles; and
e.its relationship to access and egress on adjoining sites;
ii.Pursuant to Clause 67, subclause (m), the compatibility and relationship of the proposal with development on adjoining land in respect to car parking provision on Lot 95, HN 22 Plantation Street; and
iii.Pursuant to Clause 67, subclause (za), concerns raised by a public authority in respect to conflict with existing verge infrastructure and public service provision.
2.The proposed development fails to give consideration to the requirements of Local Development Plan for 2 Plantation Street, Menora, (approved by Council in November 2010) as required under the Planning and Development (Local Planning Scheme) Regulations 2015.
3.The structure of the development is not sympathetic to the scale of the surrounding properties which will result in an adverse impact on the amenity of the adjoining residential properties, particularly the introduction of balconies, communal terraces and major openings to habitable rooms on the west elevation.
On 6 October 2017 the applicant made an application to the Tribunal seeking a review of that decision.
On 15 December 2017 the applicant filed and served amended plans for the proposed development. Those amended plans are the subject of this review.
Site and locality
The subject site is bounded by Alexander Drive to the east, Plantation Street to the south and Yokine Reserve to the north. The western boundary abuts five residential dwellings on Wareana Street and Bethanie's Day Therapy Centre within a converted dwelling on the corner of Wareana and Plantation Streets. The site has a total area of 5.26 hectares.
The eastern half of the subject site contains an established retirement complex. More recently a four storey serviced apartment building has been completed centrally on the subject site adjacent to the Plantation Street boundary.
The western portion of the subject site, which previously contained a retirement village, is currently vacant.
There is a significant area of low rise aged care/seniors living on the southern side of Plantation Street facing the western portion of the subject site. To the east of these developments opposite the new serviced apartment building on the corner of Plantation Street and Friedman Road is a Jewish synagogue.
Adjacent to the northern boundary is a line of mature trees which edge the southern side of the Yokine Reserve. Adjacent to the southern boundary of the site street trees have been planted in the road reserve on the northern side of Plantation Street.
The subject site falls from west to east and the adjoining lots immediately to the west are marginally higher than the western end of the subject site.
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.
The proposed development
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 planning framework
The subject site is zoned 'Private Institutions' under the LPS 3. Clause 4.2.10 of LPS 3 states that the objectives of that zone are:
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.
Clause 4.3 of LPS 3 sets out the Zoning Table which provides that a 'Nursing Home' is a 'D' use, and a 'Retirement Complex' is a 'P' use where:
'P' means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D' means that the use is not permitted unless the Council has exercised its discretion by granting planning approval[.]
Clause 5.12 of LPS 3 requires that all development on land the subject of an adopted detailed area plan (DAP) is to comply with that DAP. This requirement was inserted into LPS 3 by an amendment gazetted on 24 March 2015. However, this requirement is affected by cl 56(1) of the 'deemed provisions' for local planning schemes incorporated into LPS 3 by the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) which came into force on 19 October 2015 under s 256(1) of the Planning and Development Act (WA) (PD Act).
The PD Act provides for the making of regulations which prescribe provisions that are 'model provisions' or 'deemed provisions': s 257A and s 257B of the PD Act. Relevantly to this matter, 'deemed provisions' are applicable to all town planning schemes and prevail over any inconsistent existing provision in the scheme: s 257B of the PD Act. Regulation 10(4) of the LPS Regulations states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:
The documents that comprise a local planning scheme are the following
…
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
Clause 56(1) of Sch 2 of the LPS Regulations 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.
A 'local development plan' (LDP) is defined in cl 46 of Sch 2 of the LPS Regulations as:
In this Part
local development plan means a plan setting out specific and detailed guidance for a future development including one or more of the following -
(a)site and development standards that are to apply to the development;
(b)specifying exemptions from the requirement to obtain development approval for development in the area to which the plan relates.
In addition, reg 79(2) of the LPS Regulations provides expressly that a 'detailed area plan' is to be taken to be the same type of planning instrument as a LDP. Regulation 79(1) of the LPS Regulations provides that a 'planning instrument' made under the PD Act before the 'commencement day' (that is, 19 October 2015) and in accordance with the Town Planning Regulations 1967 (WA) (TP Regulations) (which were repealed by reg 78 of the LPS Regulations) 'continues in force as if it were a planning instrument of the same type made under the [PD] Act in accordance with these regulations'. The definition of 'planning instrument' in reg 77(d) of the LPS Regulations includes 'a local development.
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.
On 2 November 2010 the respondent approved, subject to conditions, the DAP (LDP) - Lot 14691 Plantation Street, Menora (LDP). The conditions were subsequently reconsidered on 22 March 2011.
Essentially 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.
The 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.
Clause 4 of the deemed provisions of the LPS Regulations provides that the Council may prepare local planning policies.
The respondent has adopted a relevant local planning policy, the Private Institution Design Guidelines (PI Guidelines) which were adopted on 24 May 2011. 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 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.
Clause 67 of the LPS Regulations 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[.]
Issues
The respondent submitted that the issues in this review were as follows:
6.1Whether the proposed development has an adverse impact on the amenity of adjoining residential properties by way of the:
6.1.1height, bulk and scale of the development, and
6.1.2potential for overlooking from the western and northern sides of the development;
6.2Whether, having due regard to both to Lot 2 Plantation Street, Menora - Bethanie Lifestyle Village Redevelopment - Detailed Area Plan (Local Development Plan) (LDP), and the Local Planning Policy 4.5 Private Institution Design Guidelines (Private Institution Design Guidelines) the height, bulk and scale of the proposed development is appropriate;
6.3Whether egress from the proposed development is safe generally, and in particular whether the right out turn movement is prohibited in the Amended Plans;
6.4Whether adequate access and egress from the site has been demonstrated generally, and having particular regard to:
6.4.1conflicts with existing verge infrastructure, including street trees, bus stops and post office boxes; and
6.4.2impacts on access of Unit 4, 15 Plantation Street;
6.5Whether the plans provided by the Applicant adequately and accurately show existing road infrastructure, including street trees, and services;
6.6Whether the traffic counts provided in the traffic impact assessment are current and representative, and whether an upgrade of Plantation Street and Alexander Drive is required; and
6.7Whether the proposed development makes adequate allowance for the car parking area associated with Lot 95, HN 22 Plantation Street that is currently on the subject land.
The applicant did not accept the issues as set out by the respondent and submitted that they should be reformulated. In the applicant's view there are only two issues for the Tribunal to consider in this matter. Those are:
4.1whether the proposed development is acceptable in relation to height, bulk, scale, setbacks, visual privacy and overlooking; and
4.2whether the access, egress and road infrastructure considerations warrant refusal of the proposed development or whether they should instead be dealt with by conditions of development approval.
The joint statement of the traffic experts agreed that 'the access, egress and road infrastructure can now be properly dealt with by way of conditions, as the matters have been adequately addressed with the relevant external State Agencies'. In this context issues 6.3 to 6.7 of the respondent's issues fall away.
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 will deal with each of these issues in turn.
The applicable planning framework: height, bulk and scale
The 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)
And 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)
Mr Ben Doyle, expert planner called by the applicant, argues 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' (Witness Statement (WS) paragraph 42) because the issue for determination does not relate to whether the application results in a change to the desired planning for the remainder of the subject site.
In addition Mr Doyle argues that '[t]he subject land is located in an area which is characterised by existing private institutional premises, which are in some cases four or five storeys in height' (WS paragraph 65), '… 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 Private Institution Design Guidelines' (WS paragraph 65).
Mr Malcolm Mackay, the urban design expert called by the applicant, in dealing with building heights and setbacks compared the proposed aged care facility with a deemed-to-comply residential apartment building. From this assessment he concluded that 'the setback of the proposed building from the adjacent dwellings is considerably more than it would be for a deemed-to-comply residential building', and '[t]he vertical sightlines from the adjacent dwellings are generally more favourable[.]' (WS paragraph 8.5). Mr Mackay concludes that '… the proposed development is clearly a far superior outcome than a comparable residential apartment building' (WS paragraph 8.11) and that the proposed development '[I]s of a scale and massing that is appropriate to its purpose and location on site' (WS paragraph 9.6.8).
In 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)
In 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)
The applicant cited Bigdeal Investments Pty Ltd and Town of Cambridge [2017] WASAT 122 (Bigdeal) where the Tribunal at [127] stated:
It is the Guidelines which the structure plan and the Scheme both contemplate should be the primary vehicle for development control of the built form to be constructed in the Ocean Mia estate and with a total of 69 lots in the entire estate and only two being multiple dwelling lots it is not surprising that the Guidelines are weighted towards control of the single residences.
However at [75] of that decision the Tribunal observed:
In terms of the local planning framework the primary focus of the joint witness statement of the planning experts was on the Guidelines and the Tribunal accepts that these Guidelines constitute the relevant provisions against which the proposal should be assessed in terms of bulk and scale.
Bigdeal is to be differentiated from the current review given it was not contested by the planning experts in that matter that the Guidelines constituted the relevant provisions against which that proposal should be assessed.
In this matter the respondent submits that it is appropriate that in the circumstances of this application that significant weight is placed on the provisions of the LDP.
In response 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'. The respondent does not challenge that the requirement is for due regard to be given to the LDP.
The Supreme Court of Western Australia, in the decision of City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141, explicitly addressed the question of what constitutes 'due regard' in a planning context, and the relevant planning authority's obligations in this regard. Justice Martino determined that 'to have due regard' is to require the relevant matters be given 'proper, genuine and realistic' consideration when considering an application for development approval.
The applicant also submits that content in the RAR provided by the City to the Metro NorthWest JDAP dated 5 September 2018 clarifies the respective roles of the LDP and the PI Guidelines. The RAR suggests:
The objectives of the policy primarily concern the control and impact of development on adjoining properties and immediate locality external considerations, whereas the approved LDP controls and coordinates future development across the site as a whole.
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.
In 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 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.
In 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'.
The 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.
While 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.
In 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.
In 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.
In 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;
•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.
Importantly, 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.
Finally, 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.
For 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.
In the context of this review the relevant provisions of the LDP need to be ascertained.
The report provided to the respondent at its meeting of 2 November 2010 which approved the LDP included the following statement on building height:
The Detailed Area Plan (DAP) provides a mix of building heights, ranging from two storey to a five storey building. The DAP has located the higher building elements centrally to the site and away from the lower density adjoining properties.
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'.
In The Bethanie Group Pty Ltd and City of Stirling [2016] WASAT 6 the Tribunal found at [36] and [35] as follows:
It is not necessary for every development constructed on the site to be exactly the same as that foreshadowed by the DAP. This is because the approval of a development application in relation to some part of the area covered by a local development plan does not, at least since the commencement of the TP Regulations, require exact conformity with the local development plan[.]
… Once Building G is constructed, the form of that development will be, to a varying extent, a relevant consideration when determining development applications for any other part of the site[.]
On 11 March 2015 the Metro NorthWest JDAP granted approval of a four storey apartment building in the southeast corner of the then vacant western portion of the subject site. The LDP contemplated a two storey building on the Building G site. The subject site view conducted by the Tribunal confirmed that given the sloping nature of the subject site this building presented as a three storey building on a brick plinth raised approximately 1.5 metres (although this varies) above the footpath level on Plantation Street and predominantly faces the Jewish synagogue on the opposite side of the street which is of comparable height. Thus the issues associated with Building G are be differentiated from the issues in this review.
Given 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.
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.
In 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.
In 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)
For 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.
Potential amenity impacts: height, bulk scale and overlooking
In the review the Tribunal received in evidence five witness statements and one submission from residents in Wareana Street to the immediate west of the subject site. These raised a number of amenity issues in regard to the proposed development. The residents' 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.
Mr Doyle, called by the applicant, argued that:
… the issue of whether the application is acceptable in relation to height, bulk, scale, setbacks, visual privacy and overlooking is to be resolved having regard to the relationship of the development to the adjoining houses.
(WS paragraph 28)
Mr Doyle concludes, drawing on the RCodes Explanatory Guidelines, that the northern elevation of the building is acceptable in relation to visual privacy as vision glass windows are not closer than 13.4 metres to adjacent properties and the corridor is not habitable space (WS paragraphs 53, 56 57).
Mr Mackay argues that '… absolute privacy is inconsistent with the broader aims of urban consolidation and a desire for outlook as well as privacy' (WS paragraph 7.3). He also argues that 'it is also essential to understand that the proposed building is an ACF [Aged Care Facility] as opposed to an apartment building' (WS paragraph 7.6). This would mean that it is 'unreasonable to assume that residents of an ACF would have the same level of mobility and, therefore, the same level of access to windows and balconies, as typical residents of a residential apartment building' (WS paragraph 7.8).
Mr Mackay concluded that '[b]ecause of the difference in use between an ACF and a residential apartment building, any concerns about the privacy on the part of the adjacent residents should be significantly discounted' (WS paragraph 7.12).
Mr Steven Smyth, the architect called by the applicant, argued that overlooking is an issue that had been considered at every level of the design and a number of strategies have been introduced to reduce the perceived impact. These included:
•the planning of the building located the common spaces to eliminate and potential for overlooking;
•the articulation of the plan and location of windows within recesses constricts the cone of vision;
•there is no vision glass facing directly west from a habitable space or resident room on the western elevation; and
•the introduction of large trees within the setback will serve obscure further possible views.
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)
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346, the Tribunal, at [37], referred to the test of impact on amenity as articulated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296 at 304:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the matter in which the proposed use will affect the existing amenity and the degree of impact on the locality.
75 The Tribunal recognised in Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48]:
in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity.
In Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38 (Woolworths) the respondent asserted that the amenity of residents in an adjoining residential area would be affected by the proposed liquor store and that it would increase the high level of antisocial behaviour which currently exists in the area.
The Tribunal, at [76] of Woolworths, referred to the decision of the Victorian Civil and Administrative Tribunal (VCAT) in Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124, which involved a proposed alcohol and drug resource centre and neighbourhood residents' objections. VCAT observed as follows 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.
In J & P Metal Pty Ltd and Shire of Dardanup [2006] WASAT 282 (J & P Metal) the Tribunal observed that the driving force of the respondent's stance was premised on community opposition to the proposal. The respondent made particular reference to the 60 submissions received during the advertising period, but failed to develop any planning arguments from the submissions.
The Tribunal, at [50] of J & P Metal, held:
… Community opposition cannot of itself be a determinative matter, it is but one of many considerations that are relevant in the determination of an application. To elevate this consideration to the sole criterion is an error. The Tribunal is of the view that the respondent has failed to give proper, genuine and realistic consideration to the substantial merits of the particular case before it, which is contrary to the general proposition of law in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522.
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 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.
It 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 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 experts called by the applicant argued that it was not possible to achieve absolute visual privacy in an urban area and the outcome was acceptable.
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.
Given 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.
There 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]).
In addressing the potential impact of bulk and scale considerable discussion ensued over an attachment to the Witness Statement of Mr MacKay which purported to show the potential impacts on views from No 4 and No 6 Wareana Street of alternative developments which included a single dwelling, a three storey R60 apartment building and a four storey R60 apartment building.
This attachment was not of assistance to the Tribunal. The role of the Tribunal in a review is to assess the proposed development against the relevant provisions of the planning framework not against the potential impacts of some speculative alternative development.
Logically bulk and scale can be mediated by increased setbacks from a common boundary and the extent to which a proposed building is articulated.
While Mr Doyle concedes that 'A building which is bulky or out of scale with existing or future development in the locality may be detrimental to the character of the area' (WS paragraph 59) he argues the '… top of the parapet wall is set back approximately 10.65 metres from the western lot boundary' (WS paragraph 67(e)) and that '… the design of the façade suitably breaks up the elevation to further mitigate the perceived bulk and scale of the building' (WS paragraph 72).
The applicant sought to place considerable weight on the fact that the setback from the boundary of over 10 metres was more than double the 4.5 metres required by the LDP. However, Building H in the LDP is substantially articulated on its western edge and setbacks to the western boundary vary from the minimum 4.5 metres (with no major windows) to approximately 7 metres, 12 metres, 18.5 metres and 24 metres in various places. Importantly the setbacks in the areas adjacent to No 4 and No 6 Wareana Street are generally 7 metres to 12 metres.
The 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.
Mr Mackay argues that '… the proposed building incorporates a reasonable degree of articulation to the western elevation' (WS paragraph 9.5).
Articulation 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 applicant submitted that in assessing the potential amenity impacts of the building it was important to address likely future amenity as well as existing amenity. The definition of amenity in Sch 2 of the LPS Regulations is explicit in this regard.
However, the planning experts agreed that while Forsyth Gardens, the aged accommodation on the southern side of Plantation Street, was likely to be redeveloped the newer residential buildings on Wareana Street are likely to be there for some time.
Given that the existing residential development on Wareana Street clearly informs the likely future amenity of the area the bulk of a four storey structure almost 50 metres in length on its western edge with limited levels of articulation will introduce a structure which the Tribunal finds is incompatible (Buildex Construction Company and City of Melville [2008] WASAT 86 at [55]) with the surrounding development and which would not protect either the existing or future of amenity of the area (LPS 3 cl 4.2.10).
Finally, Mr Mackay argued that '… the inclusion of trees and other vegetation …' would 'act as a visual foil to the proposed building when viewed from the adjacent dwellings' (WS paragraph 9.1).
Mr Andrew Thomas, the landscape architect called by the applicant, noted that five Delonix regia (Flame trees) and eight Pyrus nivalis (Snow Pears) will be installed to the area adjoining the western boundary. He argued '[t]he trees have been arranged to allow the canopies to grow together to create a dense screen in places' (WS paragraph 13) although he conceded that '… It is expected that it will take between fifteen and twenty years for the trees to reach maturity. During this time the residents of the neighbouring properties will be subject to the western elevation of the building with limited planted screening' … (WS paragraph 17). In response to a question from the Tribunal Mr Thomas advised that while Flame trees are semideciduous Snow Pears are deciduous and would lose their leaves for three or four months during the winter.
The Tribunal questions Mr Mackay's view based on the expert opinion of Mr Thomas given the proposed trees would take 15 to 20 years to reach maturity and the Snow Pears, which constitute the majority of the proposed trees, were deciduous and would lose their leaves for three to four months a year. While these trees may in the longerterm provide limited screening they 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.
Finally, the residents of Wareana Street raised the issue of their expectations for the area.
In Rice & Anor and Town of Vincent [2007] WASAT 108 the Tribunal noted at [56]:
In this situation, the applicants' desires must be balanced against the reasonable amenity expectations of the community. The reasonable community expectations of amenity are defined by the planning framework, including the respondent's policies set out above.
In this instance for the reasons set out above the Tribunal finds the objectives set out in cl 4.2.10 of LPS 3 and the parameters established by the LDP define the reasonable community expectations for both current and future amenity in the locality.
In this context the Tribunal finds that the proposed development does not comply with cl 67(m) and (n) of the LPS Regulations 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' 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.
Conclusions
It is not contested that as a 'D' use in the 'Private Institution' zone the proposed nursing home can be considered. However, any approval requires the exercise of discretion and the question is whether in the circumstances of this particular case such discretion should be exercised.
In coming to a determination on that question the benefits of the proposal need to be weighed against any potential impacts of the development.
The subject site is both large and reasonably unconstrained and the principles established in the LDP constitute legitimate aspirations for the development of the subject site.
Given the findings above the Tribunal is of the view that the applicant has not established a sound basis for departing from the planning principles identified in the LDP and the application should be dismissed.
Orders
For the reasons set out above:
1.The application for review is dismissed
2.The decision of the respondent on 14 September 2017 to refuse the application for a 'nursing home' on a portion of Lot 14691 (No 2) Plantation Street, Menora is affirmed.
3.A copy of these orders is to be provided to the residents of Nos 4, 6, 8, 9, 10 and 12 Wareana Street, Menora.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P DE VILLIERS, MEMBER
18 JUNE 2018
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