Walsh and Shire Of Peppermint Grove - [2009] WASAT 46

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WALSH and SHIRE OF PEPPERMINT GROVE [2009] WASAT 46

MEMBER: MR J JORDAN (MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 16 AND 17 DECEMBER 2008

DELIVERED : 17 MARCH 2009

FILE NO/S: DR 265 of 2008

BETWEEN: TERENCE WILLIAM JOSEPH WALSH
CHELSEA REBELLE WALSH
Applicants
AND
SHIRE OF PEPPERMINT GROVE
Respondent
RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
Intervenors

Catchwords:

Town planning Development Refusal Twostorey single house Lot excised from front yard at north of heritage listed house Subdivision supported by local government Setbacks Corner lot Identifying primary street Bulk and scale Proximity to heritage house House on Municipal Heritage Inventory Streetscape

Legislation:

Metropolitan Region Scheme
Planning and Development Act (2005) (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.3, cl 6.4, cl 6.4.1 A1, cl 6.9, cl 6.9.1 A1, Appendix 1, Table 1
Shire of Peppermint Grove Town Planning Scheme No 3, cl 4.3.3, cl 4.3.4, cl 4.4, cl 4.4(c), cl 4.9.3, cl 4.9.3(f), cl 4.9.5, cl 4.11, cl 4.11(c), cl 5.1, cl 6.4, cl 8.6, Sch 1
State Administrative Tribunal Act (2004)(WA), s 32(7), s 37

Result:

The application for review is allowed
The decision of the respondent to refuse development approval for the erection of a single house at No 18 (Lot 1) Irvine Street, corner Venn Street, Peppermint Grove is set aside and conditional development approval is granted

Category: B

Representation:

Counsel:

Applicants:     Mr MJ Hardy
Respondent:     Dr S Wylley
Intervenors                   :     Mr P McQueen

Solicitors:

Applicants:     Hardy Bowen
Respondent:     Minter Ellison
Intervenors                   :     Lavan Legal

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

Boulter and City of Subiaco [2007] WASAT 71
Chambers and the City of Subiaco [2008] WASAT 259
Dunross Enterprises Pty Ltd and City of Fremantle [2006] WASAT 164
Willicombe and City of Gosnells [2006] WASAT 13

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 2007, the Western Australian Planning Commission approved the subdivision of No 18 Irvine Street, corner Venn Street, Peppermint Grove into two lots. One lot became No 1B Venn Street which had frontage to Venn Street. This lot had on it a house built in 1896 which was listed on the Shire of Peppermint Grove Municipal Heritage Inventory. The second lot of 669 square metres remained No 18 Irvine Street. The new No 18 Irvine Street was vacant and was, until the subdivision, the front yard of the heritage listed house. The Shire of Peppermint Grove had recommended to the Western Australian Planning Commission that the subdivision be approved.
The subdivision approval required the demolition of what were the front steps of the heritage house and the deviation of the southern boundary of the vacant lot to ensure a 900 millimetre setback from the northern edge of the verandah on the heritage house. Further development approvals have been issued by the Shire of Peppermint Grove for the demolition and rebuilding of the southern half of the heritage listed house, and the building of a double garage at the southern end of the front boundary of 1B Venn Street.
In 2008, the Shire of Peppermint Grove refused an application by Mr and Mrs Walsh for approval to develop a two‑storey house on No 18 Irvine Street. It considered that the proposed house would be too close to the boundaries, would be of bulk and scale not in keeping with the area, and would overshadow and adversely impact on the heritage qualities of the house at No 1B Venn Street.
The owners of two nearby houses in Irvine Street applied to the Tribunal and were granted leave to intervene in the hearing to present evidence on the effect the proposed house would have on the heritage value of the house now at No 1B Venn Street.
Significant to the Tribunal's consideration of this matter was the subdivision approval that created the new No 18 Irvine Street, the subject site, abutting the northern boundary of the heritage listed house at what became No 1B Venn Street. The site has a 40 metre east‑west axis and it is between 15 metres and 18 metres deep north‑south. The Tribunal has accepted that the subdivision approval created a reasonable expectation for development of a reasonably sized house for the locality which was reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls.
The Tribunal found that the proposed house would not be of unusual bulk and scale for the locality, but it would be inconsistent with the Irvine Street streetscape because that bulk would be at a reduced setback. The Tribunal concluded, however, that in the circumstances of this case, inconsistency with this streetscape would not, of itself, be sufficient to refuse the development.
The Tribunal, like the respondent, identified Irvine Street as the primary street. This was because, for the house design proposed, no sound planning reason was presented to set aside the definition for 'primary street' in the Residential Design Codes of Western Australia (2008).
In considering setbacks, the Tribunal found in this case that the nil setback at the eastern boundary was acceptable because of the use made of the adjoining lot. It was also found that the discretion available to vary the 9 metre Irvine Street setback should be granted because of the expectation that the subdivision would allow the development of a reasonably sized house for the locality which was reasonably responsive to the size and orientation of the site.
In considering the impact of overshadowing on the heritage listed house at No 1B Venn Street, the Tribunal found that this would be within reasonable expectations of the overshadowing that would occur with the creation of a house site at that proximity to a northern side boundary.
In respect of the impact of the proposed development on the heritage qualities of the house at No 1B Venn Street, the Tribunal found that the proposed house will remove much of the appreciation of the heritage qualities of No 1B Venn Street from Irvine Street. This, however, was considered to be an inevitable consequence of creating a lot between Irvine Street and the house. In the aspect from Venn Street, the heritage house would sit between the proposed house and a double garage approved by the respondent at the southern end of No 1B Venn Street. The proposed house would compromise the heritage character of the heritage listed house, but this was considered to be to an extent acceptable in the circumstances of the planning approvals issued or supported by the respondent.
In the consideration of whether the proposed development would constitute overdevelopment of the site, the Tribunal concluded that the proposed house was not an overdevelopment of the site ‑ it was a house of a scale and bulk consistent with other contemporary houses; the compromise required was a result of the house being located on the site inconsistent with most others in Irvine Street.
The Tribunal found that the planning of the locality has been circumscribed by the approval of the subdivision to create the site. The proposed development, while it will have an outcome less desirable than if there had been no subdivision, is considered, on balance, to be consistent with orderly and proper planning of a corner lot of this size in this locality.
The Tribunal therefore determined that the application for review be allowed and the development approved subject to appropriate conditions.

Introduction

This is an application for review pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a refusal of the Shire of Peppermint Grove (respondent, Shire or Council) to approve an application by Terence and Chelsea Walsh (applicants) for the development of a two‑storey single house at No 18 (Lot 1) Irvine Street, corner Venn Street, Peppermint Grove (site).
The site has an area of 669 square metres and, in general terms, is 40 metres wide east‑west facing Irvine Street, and north‑south is 18 metres deep facing Venn Street, reducing in part to 15 metres. The site is vacant except for a 1.8 metre high fence on the street boundaries, with double gateways at the truncation on the corner and at the eastern end.

Background

On 11 June 2007, the Western Australian Planning Commission (Commission) approved the subdivision of what was then No 18 (Lot 42) Irvine Street, on the south‑east corner of the junction of Venn Street with Irvine Street. Lot 42 had on it a single‑storey house built in 1896. This house is listed on the Council's Municipal Heritage Inventory 1999 (MHI). The heritage listed house has verandahs on the east, north and west sides. It was originally orientated to face north towards Irvine Street, with steps down from the northern verandah to what was the front yard between the house and Irvine Street.
The subdivision applied for and approved by the Commission was to excise the front yard. The new lot became No 18 Irvine Street (Lot 1) a vacant lot of 669 square metres that is now the site of this development proposal. The remainder became No 1B (Lot 2) Venn Street, adjoining to the south, containing the heritage listed house with a frontage of 28.29 metres to Venn Street, a depth of 40.19 metres, and an area of 1173 square metres. The subdivision approval required that the front steps of the heritage house be demolished and the boundary aligned to ensure that there remained a setback of at least 900 millimetres from the house.
The site, which is found on deposited plan no 57843, has a northern boundary to Irvine Street of 34.16 metres. There is a truncation of 8.54 metres on the corner of Irvine Street and Venn Street, and the frontage at the western end to Venn Street is 11.96 metres. At the eastern end, the boundary is adjacent to the access leg to a rear battleaxe lot and is 18 metres. There is an easement 3.9 metres wide adjacent to the eastern boundary for sewerage purposes.
The southern boundary to the site contains the required deviation to maintain a clearance as shown on the deposited plan of about 1 metre around the verandah of the heritage house on No 1B Venn Street adjoining to the south. This southern boundary extends eastward for 12.73 metres from Venn Street and then deviates for 4.24 metres to the north‑east before again assuming an east‑west alignment for 9 metres before deviating to the south‑east for 4.24 metres before resuming the original east‑west alignment for 12.38 metres to the eastern boundary. This deviation reduces the north‑south depth of the site from 18 metres to 15 metres.
The Council, at its meeting of 21 May 2007, resolved to recommend to the Commission that the subdivision be approved. Subsequent to the Commission's approval, the applicants had discussions with Council officers about planning controls and the development potential of the site. They purchased the site in November 2007.

The development proposal

The application for development approval for a two‑storey single house on the site was lodged with the Council in March 2008. The design before the Tribunal is shown on:
•site plan drawing no 201 rev A dated 26/05/08;
•ground floor plan drawing no 202 rev A dated 20/03/08;
•first floor plan drawing no 203 rev A dated 20/03/08;
•plot ratio plan drawing no 204 rev A dated 20/03/08;
•elevation plan drawing no 301 rev A dated 20/03/08;
•elevation plan drawing no 302 rev A dated 20/03/08;
•section 2 drawing no 401 rev A dated 20/03/08;
•schedule 1 drawing no 501 rev A dated 20/03/08; and
•schedule 2 drawing no 502 rev A dated 20/03/08.
Proposed is a two‑storey house built around verandahs in the centre of the northern façade at both ground and first floor level. At the ground floor eastern end is a single‑storey double garage, with a parapet wall on the eastern boundary adjoining, which is the front door to the house, service and utility rooms and stairs. In the southern central section are living areas and the kitchen opening onto the verandah. At the western end is a main bedroom. At the first floor level at the eastern end, with access via the stairs, is an office, in the centre is a living area opening onto the verandah and bedrooms at the western end. There would be a pool in the setback between the verandahs and the Irvine Street boundary.
The house would be on the eastern boundary, set back between 2.9 metres and 6 metres from Irvine Street, about 9 metres from Venn Street, and on the southern boundary, 1.7 metres to 2.4 metres except at the northern deviation where there would be a nil setback.

Planning framework

The site is zoned 'Urban' under the provisions of the Metropolitan Region Scheme. It is zoned 'Residential' under the provisions of the Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3) and is assigned a density coding of R12.5. Under the provisions of TPS 3, a 'dwelling' is a 'P' use (a use that is permitted provided it complies with the relevant standards and requirements of TPS 3) in the Residential zone.
Clause 4.3.3 and cl 4.3.4 of TPS 3 essentially repeat each other. Clause 4.3.4 of TPS 3 provides:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning codes shall conform to the provisions of those Codes and the Schedules to those Codes.
Clause 4.4 of TPS 3 sets out variations and exclusions to the Residential Design Codes of Western Australia (2008) (Codes). Subclause (b) of cl 4.4 of TPS 3 provides that no development shall exceed two storeys or 10 metres in height. The proposed dwelling would be 8.1 metres in height and so height is not an issue.
Clause 4.4(c) states:
For R 10 and R 12.5 coded areas the setback from the front street boundary to any building including carport or garage shall be a minimum of 9 metres from the primary street and 4.5 metres from the secondary street. Council may permit a lesser setback where:
•a lot has a depth of less than 25 metres from a street boundary to a rear boundary; or
•where there are a significant number of existing houses having a lesser setback to the same street block; and
•where it is considered that the lesser setback will not detrimentally affect the quality of the streetscape.
Clause 4.9.3 of TPS 3 states:
Notwithstanding the specific provisions of this Scheme Text in considering a proposed development the Council may have regard to and may impose conditions relating to the following:
(a)the need for limitation of height and location of buildings to preserve or enhance views;
(b)the need for preservation of existing trees or areas or buildings of architectural or historical interest;
(c)the choice of building materials and finishes where these relate to the preservation of local character and the amenity of the area generally;
(d)the dispersal of building bulk into two or more separate buildings on a lot to minimise the effect of building bulk;
(e)an increase in building setbacks where the adjoining land is controlled under a different zoning or residential code in order to ensure adequate protection for adjoining residents; and
(f)a location and orientation of a building or buildings on a lot in order to achieve higher standards of daylighting, sunshine or privacy or to avoid visual monotony in the street scene as a whole.
Clause 4.9.5 of TPS 3 states:
For R10, R12.5 and R15 coded areas the maximum plot ratio for any residential development shall be 0.5 unless otherwise determined by Council.
TPS 3 uses the definition of plot ratio from the Codes:
The ratio of the gross total of all floors of buildings on a site to the area of land in the site boundaries. For this purpose, such areas shall include the area of any walls but not include the areas of any lift shafts, stairs or stair landings common to two or more dwellings, machinery, air conditioning and equipment rooms, non-habitable space that is wholly below natural ground level, areas used exclusively for the parking of wheeled vehicles at or below natural ground level, lobbies or amenities areas common to more than one dwelling, or balconies or verandahs open on at least two sides.
Clause 8.6 of TPS 3 allows the respondent to prepare planning policies. At cl 4.11, it states that the policies are Attachment 2 and shall be considered in relation to the implementation of TPS 3. Subclause (c) refers to a Streetscape Policy, and the respondent's Streetscape Policy (Streetscape Policy) is attached to TPS 3. The objective of the Streetscape Policy is '… to encourage a high quality of streetscape'. It goes on to state that Council will aim to achieve the following when considering applications for planning approval:
•preserve an open outlook from the street reserve so that front gardens and buildings are visible;
•provide a setback appropriate to the width, height and bulk of the proposed building in relation to the adjoining buildings;
•minimise the effect of the proposal on the amenity of the area by taking account of outlook, overlooking and overshadowing;
•consider the position and size of crossovers in relation to street trees, crossovers on adjoining properties, proximity to right of ways and streets to preserve safety and achieve a good appearance.
The policy also provides the following guidelines 'to assist applicants for planning approval':
•street boundary fences should have an open aspect;
•the design, method of construction and appearance shall be in character with the buildings on the site and in harmony with the character of the area;
•the setback from street boundaries shall take account of adjoining buildings.
Clause 5.1 of TPS 3 is headed 'Heritage Precincts and Places of Cultural Significance'. Relevant clauses and the impact of the proposal on the heritage listed house at No 1B Venn Street are dealt with in the issues below.
Both parties made reference to the Codes, particularly cl 6.3 which refers to setbacks, cl 6.4 which refers to open space, and cl 6.9 which refers to overshadowing. These are discussed further below.

Reasons for refusal

The respondent refused the application for approval to commence development on 24 June 2008 for the reasons:
(a)the bulk and scale of the proposed development is not in keeping with the area and impacts upon the heritage residence at No 1B Venn Street;
(b)the proposed incursions into the northern, western and southern setback area is [sic] undesirable;
(c)the buildings located at the nil setback on the southern boundary will result in the overshadowing to the heritage home at No 1B Venn Street;
(d)Irvine Street is the primary street for the proposed dwelling as it provides the major entry to the building.

Intervenors

In July 2008, Lavan Legal made application on behalf of particular neighbours in two houses in Irvine Street diagonally opposite the site for leave to intervene and/or make submissions in respect of the proceedings pursuant respectively to s 37 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 242 of the PD Act. The matter was heard before then Deputy President Judge Chaney on 22 August 2008 and 9 September 2008. It was established that the respondent intended to adduce expert evidence on the issues raised in the statement of issues, facts and contentions except in respect of the impact of the proposed development on the heritage property next door to the site at No 1B Venn Street. The respondent was not calling an expert heritage witness. The intervenors proposed to adduce evidence from Mr Ronald Bodycoat, a heritage architect.

The Tribunal determined that there was clearly room for argument in relation to what was identified as a specific issue. Consistent with s 32(7) of the SAT Act, the Tribunal had to ensure that all relevant material was disclosed to enable it to determine all relevant facts in issue in the proceeding. Then Deputy President Judge Chaney issued orders which, when complete, included at Order 3:
Richard Goyder, Janine Goyder, David Thomas and Rachel Thomas have leave to intervene for the limited purpose of adducing evidence from Mr Ronald Bodycoat and making submissions on the heritage issue.

The issues

The issues addressed in the proceedings by the parties are as follows:
1)whether the bulk and scale of the proposed residence would be inconsistent with the streetscape of the locality;
2)whether Irvine Street should be considered a primary street for the development for the purpose of the Codes;
3)whether, if Irvine Street is regarded as the primary street, the proposed incursions into the northern, eastern and southern setback areas are acceptable;
4)whether the nil setback on the southern boundary would result in overshadowing of the residence at No 1B Venn Street;
5)whether the development would adversely impact upon the heritage qualities of the residence at No 1B Venn Street;
6)whether the development would constitute an overdevelopment of the site; and
7)whether the proposal would be contrary to orderly and proper planning.

Discussion

The Tribunal has found that the issues identified by the parties overlap. The positions reached on one issue inform and are informed by conclusions reached on others. It is important to state that the Tribunal found that in weighing the evidence, a significant consideration was the fact of the subdivision approval issued by the Commission in 2007 that created the site.
Counsel for the intervenors argued that the approval of the subdivision did not create a right to develop. Reference was made to the advice in the Commission's subdivision approval that said that subdivision approval was not to be construed as an approval to commence development of any of the lots proposed, with development approval required to be issued by local government.
The Tribunal adopts, with respect, the findings of the Tribunal in the matter of Boulter and City of Subiaco [2007] WASAT 71 (Boulter). At [60], Senior Member Parry stated:
This case highlights the difficulty which can result from the split planning system in Western Australia under which subdivision control and assessment is undertaken by the Commission at State level, whereas development control and assessment is generally undertaken by local governments are applying local planning schemes and policies at local level …
The Tribunal also stated at [63] ‑ [66]:
It is not open to the Tribunal, in these proceedings, to review the decision to grant the conditional subdivision approval. The subdivision approval subsists and is operative: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197. It must be assumed to be valid unless it is declared invalid by a court of competent jurisdiction: Antonas and Town of Vincent [2006] WASAT 303 at [55].
The subdivision approval contemplates development of a site at a density of R50. As Mr Smith explained, the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single dwellings of the nature proposed in the development application. The proposed southern house is a reasonable response to the size, and orientation of the site and the applicable local zoning and planning controls. On the other hand, as Mr O'Neill pointed out, the southern house would have very poor solar access.
The imposition of a standard condition on the subdivision approval requiring the subdivider to obtain development approval for a house on each lot is not an adequate response to a planning application to create a constrained site. The subdivision approval, in itself, creates reasonable expectations for development of the site. The condition is redundant, because development approval for a house would be required in any case. Furthermore, the condition can be satisfied by the approval of a house which the subdivider does not intend to build. When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
This creates a difficulty in the planning system and may result in a less than optimal net planning outcome. It raises the issue of whether, in some contexts, such as subdivision to enable urban infill in established areas, a single system of development/subdivision control and assessment, possibly by delegation to the relevant local government, may be preferable to the split system.
The Council, at its meeting of 21 May 2007, resolved unanimously to recommend to the Commission that the subdivision to create the site be approved. The Tribunal considers that the approval of the subdivision that created the site has given rise to the presumption of subsequent development 'for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls'. Such a house will have an impact on both the cultural heritage value of the house at No 1B Venn Street and on the streetscape of Irvine Street.
As stated by Counsel for the intervener, consistent with the findings in Boulter, subdivision of itself does not create an entitlement to a particular type of house. There is a statutory regime that allows houses to be approved on lots in Peppermint Grove as a right when there is strict compliance with TPS 3 and the Codes. Where there is not, an applicant has to seek the exercise of discretion. As Counsel said '(t)hat is when the myriad planning factors, including the preservation of heritage values, become enlivened'.
In the discussion on the issues that follows, an assessment is made of the proposed house and concessions required as against the provisions of TPS 3 and the Codes.

Issue 1: Whether the bulk and scale of the development would be inconsistent with the streetscape of the locality

Mr Ray Haeren, a consultant planner called to give evidence on behalf of the respondent, was of the opinion that the proposal was of a bulk and scale that was inconsistent with the streetscape of the locality. He said this was a consequence of the variation and concessions required in respect of plot ratio, open space and setbacks.
Clause 4.9.5 of TPS 3 states the maximum plot ratio for a site coded R12 has to be 1:0.5 unless the Council determines otherwise. Mr Greg Rowe, a planning consultant appearing for the applicant, said he adopted the plot ratio of 1:0.49 set out in the Shire officer's report to the Council. There is no explanation as to how the officer's calculation was arrived at. The applicants' Plan 402 revision A shows areas included in a plot ratio calculation of 1:0.4947. This noticeably excludes the 'equipment' room and the verandahs.
Mr Haeren said that the plot ratio was 1:0.55, again without calculations shown. He did, however, say that he had included the 23.5 square metre equipment room because the room had the area and appearance of a normal habitable room and areas of verandah enclosed on three sides. On the evidence before the Tribunal, Mr Haeren's plot ratio estimate is preferred.
Open space on the site has to be provided in accordance with the Codes. Acceptable development standards at cl 6.4.1 A1 and Table 1 of the Codes prescribes 55% private open space for an R12.5 coded lot. Mr Haeren said he calculated open space to be 54% of the site, Mr Rowe said 57.36% of the site, and the application plans included an open space calculation of 54.24% of the site. The Tribunal has adopted the calculation on the plan of 54.24%.
The setbacks from boundaries was the third standard addressed by the parties in respect of bulk and scale. Whether the setback proposed from each of the boundaries is acceptable is dealt with under issue 3 below. In respect of bulk, scale and streetscape, to note is that the proposed house would be set back from Irvine Street between 2.9 metres and 6 metres, it would be situated on the eastern boundary, would be set back about 9 metres from Venn Street and, on the southern boundary, at the ground floor adjacent to the house at No 1B Venn Street, it would in part be situated on the boundary.
The respondent's Streetscape Policy has the objective of encouraging high quality streetscapes and, to achieve this, includes various aims, one of which is to 'provide a setback appropriate to the width, height and bulk of the proposed building in relation to the adjoining buildings'. Height is not an issue in this matter as the building would be about 1.5 metres lower than the stipulated maximum. It was the submission of counsel for the respondent that the shortfall in open space was minor and the variation to plot ratio might be acceptable in other circumstances, but together with the unacceptable setbacks, the resultant building would be of bulk and scale inconsistent with the streetscape of the locality.
Irvine Street is a street of houses mostly set back at about 9 metres from the street. From the view conducted by the Tribunal, it was apparent that the vistas along the street are dominated by the peppermint trees and front fences beyond, many of which are solid to about 1.8 metres. At various points, however, the streetscape comprises houses set back at about 9 metres and, where the front wall is not solid, a garden setting is visible.
The view confirmed the applicants' submission that there is no consistent character of homes in the street. Except in the few instances where an owner has preserved a house of historic character, such as those of the intervenors, the houses mostly reflect the taste of the person who instructed the builder. The scale of the proposed house is consistent with most others in the street. The Tribunal has concluded that, in this context, the proposed variations to plot ratio and open space are acceptable. The house could, however, be an intrusion into the 'rhythm' of the streetscape, because the bulk is at a reduced setback. The Tribunal is of the view, however, that if a house on the site were set back at the required 9 metres from Irvine Street, it would be necessary, for adequate accommodation to be provided, for the house to be wider across the lot, and this would still have a noticeable impact.
The general size and character of the proposed house is not unusual in this street but at the setback proposed it would be inconsistent with the Irvine Street streetscape. The Tribunal is of the view, however, that the assessment of this streetscape is substantively circumscribed by the earlier approval of the subdivision which created the site with a long east‑west axis and a short north‑south axis. The inconsistency with the streetscape is a consideration which the Tribunal does not believe, in the circumstances, would, of itself, be sufficient to be determinative of the matter.
Venn Street has a different character from Irvine Street. It has a mixture of building setbacks, with some apparently less than 9 metres, with garages built close to the front boundary. The proposed house, at a setback of about 9 metres from Venn Street, is consistent with that character and, although slightly less than the setback to the house at No 1B Venn Street, is broadly consistent with that setback. When viewed from Venn Street, the house has the appearance of being set back from the southern boundary because, where it is on the boundary, is at the step in, and this is concealed behind the western section of the house. The location of the southern boundary, however, does have the effect of effectively removing a visual separation between the proposed house and the house at No 1B Venn Street. It should be noted that the Council has approved the development of a garage at No 1B Venn Street at the southern end of the front boundary. The redeveloped heritage house will be between that garage and the proposed two‑storey modern dwelling of different style, era and appearance. Venn Street is a street of a mix of house styles, setbacks and high and low front fences and the proposed house is considered to be consistent with this streetscape.

Issue 2: Whether Irvine Street should be considered a primary street for the development for the purposes of the Codes

Clause 4.4(c) of TPS 3 provides that the setback shall be 9 metres from the primary street and 4.5 metres from the secondary street. Lesser setbacks may be permitted in particular defined circumstances, but deciding which street is the primary street is significant in assessing the planning merit of the proposed house.
In the Codes, Appendix 1 sets out the meaning of words and phrases including:
primary street: unless otherwise designated by the local government, the sole or principal public road that provides access to the major entry (front door) to the dwelling.
There is evidence that prior to and after purchase the applicants and the officers of the Shire discussed potential development of the site and Venn Street was spoken of as the front boundary. The Council, in determining the matter, decided Irvine Street was the primary street.
The applicants have produced a design with a 9 metre setback from Venn Street, but with Irvine Street as the principal public road that provides access to the major entry (front door) of the house. The Tribunal is of the view that, with a vacant lot, consistent with the definition of the Codes, the starting point is to look at the proposed design and note where the front door will be. It is not accepted that the primary street should be declared the front setback and then a house designed that ignores the definition of 'primary street' in the Codes.
As set out in the definition in the Codes, the local government can declare that a different street is the primary street, but it did not do so in this instance. The Tribunal on review can also determine otherwise. The applicant has argued that the Tribunal should identify Venn Street as the primary street because it considered that this would result in a better planning outcome. This outcome would be achieved by the greater setback from Venn Street resulting in less intrusion by the proposed house into the aspect of the heritage house on No 1B Venn Street, and by the lesser setback from Irvine Street enabling a house design with rooms of usable proportions.
The respondent referred to Chambers and the City of Subiaco [2008] WASAT 259 in which the Tribunal found that regard must be had to the individual circumstances of the case when determining the primary street. In respect of the current matter, the Tribunal would say that it might consider declaring a street the primary street in conflict with the definition in the Codes where an obvious circumstance made this necessary ‑ such as topography, subdivision (for example, the house on No 1B Venn Street now has Venn Street as the primary street), restrictive planning controls, or the design of existing development. The site is generally flat and, other than the step in the southern boundary, is regular in shape. The Tribunal is of the view that the respondent's decision to identify Irvine Street as the primary street because of the house design is consistent with the Codes and should be maintained.
Having determined that Irvine Street is the primary street of the development, the next step is then to consider what the effect of this is, particularly in respect of the setbacks.

Issue 3: Whether, if Irvine Street is regarded as the primary street, the proposed incursions into the northern, eastern and southern setback areas are acceptable

The side wall of the garage would be set back 6 metres from Irvine Street and located on the eastern boundary. A building on the boundary in front of the house next door is in many situations unacceptable because of the adverse impact on the neighbouring property. At cl 6.3.2 of the Codes there is provision for buildings to be set on boundaries. The performance criteria for buildings on boundaries are set out at cl 6.3.2 P2 of the Codes and these are:
Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of the adjoining properties is not restricted.
In this instance, the wall on this boundary is considered by the Tribunal to be acceptable because it would be consistent with these performance criteria. The garage is single storey and it abuts to the east the driveway to the rear house on the adjoining lot. This driveway and the front of the neighbouring lot have 1.8 metre high brick walls, and the garage wall would have little impact on these improvements.
In relation to the southern boundary, there was no dispute that the setback of the proposed house, other than where the boundary is stepped in, would be consistent with the acceptable development provisions at cl 6.3.1 A1 of the Codes. Where the southern boundary steps in, the building at the ground floor would be on the boundary, and at first floor level, would have a setback of 1 metre. Having regard to the performance criteria at cl 6.3.2 P2 of the Codes, the proposed setback can be argued to satisfy the requirements to make effective use of the space, enhance privacy or otherwise enhance the amenity of the development. If these were the only criteria, then the development would certainly be acceptable. The remaining two requirements of cl 6.3.2 P2 are concerned with the impact of the development on the neighbouring property. These are considered so important by the respondent; they have been identified as issue 4 and issue 5 below and will be dealt with there.
From Irvine Street, instead of the 9 metre setback prescribed at cl 4.4(c) of TPS 3, the building is set back, according to Mr Rowe, mostly at 5.5 metres or more, except for at the western end, where a 2.77 metre long section of single‑storey wall is set back 2.9 metres. At the eastern end, the single‑storey double garage is set back at 6 metres. The impact this reduced setback has on the streetscape has been discussed under issue 1 above. Mr Haeren considered the setback reductions from 9 metres, particularly the 2.9 metre section, to be excessive and so not acceptable.
Clause 4.4(c) of TPS 3 states that a lesser setback from the street may be permitted where 'a lot has a depth of less than 25 metres from a street boundary to a rear boundary'. The depth of the site from Irvine Street is between 15 metres and 18 metres.
Both planning witnesses produced a sketch which outlined a floor area of a house that was more consistent with the setback requirements. Mr Haeren accepted that, to ensure that there would be appropriately sized rooms on a lot of this configuration, it would be necessary to relax the setback from Irvine Street. He did not accept, however, that this should be to the extent proposed in the development.
The Tribunal formed the view that there did not appear to be any justification for having the wall of a walk‑in wardrobe set back 2.9 metres from Irvine Street or for the wall above to be set back at 3.5 metres, and any approval could address this. The Tribunal has concluded, however, that the setbacks from Irvine Street to the remainder of the house are acceptable in the circumstances of this case. The Tribunal would repeat the comment made above that the approval of the subdivision that created the site gave rise to the presumption of subsequent development of a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site. The Tribunal considers that the reduced front setbacks from Irvine Street setbacks are acceptable because they enable that objective to be achieved.

Issue 4: Whether the nil setback on the southern boundary would result in overshadowing of the residence at No 1B Venn Street

The proposed residence will result in overshadowing of part of the residence at No 1B Venn Street. It was common ground that the sun would not cast a shadow of more than 25% of the site area of No 1B Venn Street, and would therefore be consistent with the acceptable development requirements of cl 6.9.1 A1 of the Codes. There are other considerations, however. Clause 4.9.3(f) of TPS 3 allows Council to require buildings to be located in such a way as to maximise sunlight. The performance criteria at cl 6.3.2 P2 of the Codes state that if a building is to be on the boundary, it should not have any significant adverse effect on the amenity of the adjoining property and should ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
Mr Rowe pointed out that the outdoor living area of No 1B Venn Street between the buildings was in the order of 1 metre wide and that the deep verandah restricted sunlight to rooms in any event. He was also of the opinion that a two‑storey building set back from the boundary at this point would still cast a shadow on the open space area at the northern side of No 1B Venn Street. The respondent considered that any development on the site should allow direct sunlight to the verandah. Mr Rowe was of the opinion that a single‑storey house at a standard setback would have the same impact on the verandah of No 1B Venn Street.
The Tribunal notes that the subdivision in 2007 resulted in the comparatively narrow site being created to the immediate north of the heritage house. It is consequence of this that the development of a house on the site is going to cause some overshadowing of the lot to the south. Having regard to the design of the house at No 1B Venn Street with its wide verandahs and the area of the lot ‑ 1173 square metres ‑ the Tribunal considers that the extent of overshadowing that will occur will be reasonable in the circumstances.

Issue 5: Whether the development would adversely impact upon the heritage qualities of the residence at No 1B Venn Street

Number 18 Irvine Street (now the house at No 1B Venn Street) is included in the respondent's MHI and, by virtue of cl 5.1.2, the TPS 3 heritage list. The MHI lists the house as Category 1, which is stated to mean:
Buildings, which due to their character create the atmosphere of Peppermint Grove, therefore should be retained, but may be altered and extended in a manner which is both discrete and sympathetic to the original fabric and character so that a significant proportion of the original building is retained and from the street the additions are seen to be a continuation of the same fabric and character.
Clause 5.1.1 of TPS 3 states:
Purpose and intent
The purpose and intent of the heritage provisions are ‑
(a)to facilitate the conservation of places of heritage value;
(b)to ensure as far as possible that development occurs with due regard to heritage values and in harmony with it.
The steps at the northern end of No 1B Venn Street were removed as a requirement of the subdivision approval. Recently, the Council has granted development approval for some remodelling of the verandah, the demolition and redevelopment of the southern half of the house and the construction of a double garage at the southern end of the Venn Street boundary. This work has commenced.
Counsel for the intervenors said that, when looking at the redevelopment plans, what was being preserved of the house at No 1B Venn Street was essentially the northern elevation. The significance of this elevation is to Irvine Street. For those in Irvine Street, and particularly the intervenors, the view of this elevation will effectively be removed. In counsel's submission, TPS 3 requires that any development on the site be harmonious with the heritage values, both of the heritage building itself and the appreciation of it by the public. Approval of the proposed house, it was said, will be in conflict with the intent of TPS 3 and so the discretion required should not be granted.
In support of this submission, counsel for the intervenors said that approval of the site did not create an entitlement to build a particular type of house. Counsel referred to the decision of the Tribunal in Dunross Enterprises Pty Ltd and City of Fremantle [2006] WASAT 164 in which a building was refused because of the impact on the heritage façades in Henry Street, Fremantle.
Mr Bodycoat, said even a single‑storey house on the site would spoil the view of the heritage house. A small house to the east of the site might be a compromise but there did not appear to be 'any reasonable economic development at all' possible for the site. Mr Bodycoat was also of the opinion that, because of the style of the proposed house and its location on the southern boundary, there would not be in the view from Venn Street an acceptable transition to the part of the heritage house that was to be retained.
Ms Nerida Moredoundt, a heritage architect called by the applicants, was of the opinion that the subdivision to create the site across the former frontage of the house has had a great impact on the heritage value of No 1B Venn Street. The local landmark quality and the front garden setting of the building have been destroyed. The heritage house now only faced Venn Street. She was also of the opinion that the approved building alterations for No 1B Venn Street will have a negative impact on the heritage value because of loss of original fabric.
Ms Moredoundt pointed out that there were 20 other houses in Irvine Street listed in the MHI, but the Council had not declared the street a heritage precinct as provided for at cl 5.1.3 of TPS 3. In her opinion, the diverse housing styles allowed by the Council in the street bear little or no relationship to the MHI listed homes. The proposed house on the site will have a potential visual impact on the house at No 1B Venn Street, but she considered that this was not due to the proposal itself, rather, to the fact that the site has been created for residential development. Any proposal on the site will have the same effect because of the location of the subdivision. Ms Moredoundt said that it was now too late to oppose development on the site on the grounds of potential adverse impact on the heritage listed house.
The Tribunal agrees with both the heritage experts that the proposed house will have an adverse impact on the heritage qualities of the house at No 1B Venn Street. The Tribunal has formed the view, however, that, as submitted by counsel for the applicants, the time when a decision was to be made on whether there was to be development between the Irvine Street frontage and the heritage house was at the time of subdivision. The creation of the site does mean that there will be a house between the heritage house and Irvine Street, and that house has to be sufficient to provide a level of accommodation consistent with contemporary houses in the locality.
The intervenors and their neighbours have enjoyed a streetscape that has included a view of the heritage house. That aspect of the streetscape will be mostly lost with any development of the site, because the site has been created, effectively, in front of No 1B Venn Street when viewed from Irvine Street. The Tribunal is of the view that Dunross can be distinguished. The development in that instance was to be inserted into a streetscape of acknowledged heritage significance. In the present matter, the house is to be inserted into a street ‑ Irvine Street ‑ that has some heritage houses but which has not been identified as a heritage place. The respondent has also approved over a long period the development of houses of contemporary but disparate design, irrespective of heritage listed neighbouring houses. The proposed house is just one more such house in Irvine Street.
The heritage experts agreed that the house at No 1B Venn Street now addresses Venn Street only. The heritage house will be 'crowded' by the new house at its northern side. The Tribunal notes, however, that the configuration of the common boundary is such that the western portion of the proposed house set back from that boundary at the acceptable development standards of the Codes is still in line with what is now the northern side of the verandah of the heritage house. Venn Street is not a street of heritage houses. The retained part of the heritage house and the southern addition will be framed by the new double garage and the proposed house. It is for this reason that the Tribunal does not consider that in Venn Street the findings of Dunross are applicable.
The proposed house will impact on the heritage qualities of the house at No 1B Venn Street. The proposed house will have a similar degree of harmony with the heritage house, as will the many other houses the Council has approved in both Irvine Street and Venn Street. It might be that a different house design on the site would have less impact, but the Tribunal considers that any house of reasonable accommodation will have a substantial impact. In the circumstances of the site having been created, the Tribunal has concluded that the impact of the proposed house on the heritage qualities of the house at No 1B Venn Street is not, of itself, a reason for the proposed development to be refused.

Issue 6: Whether the development would constitute an overdevelopment of the site

It was a submission of the respondent that, having regard to the context of the site, the streetscape and the amenity of the locality, the cumulative effect of the variations required to the standards set out in the Codes and TPS 3, particularly setbacks, leads to a conclusion that the proposed house would be overdevelopment of a lot of this size.
Counsel for the respondent referred to, in addition to other authorities, Willicombe and City of Gosnells [2006] WASAT 13. The Tribunal found in that matter, citing authorities, that the cumulative effect of a series of departures from the acceptable development provisions of the Codes can lead to a conclusion that a site is being overdeveloped. Counsel for the respondent in this case said that the same conclusion must be drawn with the proposed development. It was said that this overdevelopment of the site leads to the problems identified by the respondent in the discussion of the other issues.
Counsel for the applicants said that the:
acceptable development (standards of the Codes) represents, if you like, a state of notional planning perfection, and if something is at or close to acceptable development standards then the argument isn't that you are meeting or almost meeting acceptable development standards, you are establishing yourself as being within the range of acceptability …
Counsel for the applicants said that, where one is close to an acceptable development standard, by analogy, the proposal ought to be deemed to fall within a more closely explained context of the performance criteria or the objectives.
These comments were made in response to the Tribunal asking for a comment in respect of a finding, cf Willicombe, by Senior Member Parry in Boulter at [30], in which he said:
The Tribunal does not accept the evidence of Mr Chris O'Neill, a consultant town planner who both represented and gave evidence on behalf of the City, in relation to compliance with the open space Performance Criteria. Mr O'Neill's analysis was based on a comparison between the area of open space that would satisfy the Acceptable Development provision and the area of open space that is proposed. This approach is erroneous. As the Tribunal held in Sweetland and Town of Cambridge [2005] WASAT 278 at [36]:
"[W]here there is non-compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4.
Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes."
In this matter, the Tribunal has formed the view that the proposed open space and plot ratio variations can be supported, as found above, and has noted that the house would be less than the prescribed height. The proposed variations to these standards are not considered to contribute to a conclusion that the site is overdeveloped. In respect of setbacks, these are a function of the shape of the building and how it is to be situated on the site. Leaving aside the standard of accommodation, a development comprising a building of virtually the same plot ratio and with the same percentage of open space could be developed consistent with the prescribed setbacks. The Tribunal considers the setbacks in this instance do not support the view that the site is overdeveloped, but they were relevant to the arguments that the development would be poorly located on the site.

Issue 7: Whether the proposal would be contrary to orderly and proper planning

The submissions of counsel for the respondent on this issue were essentially a summary of the submissions on the evidence adduced in the examination of the six other issues. The conclusion drawn was that, because of the bulk and scale of the proposed house, its failure to satisfy setback requirements and the adverse impact it would have on the house at No 1B Venn Street, the development would not satisfy the provisions of TPS 3 and the Codes and so was contrary to orderly and proper planning.
The Tribunal has found in its consideration of the matter that the planning of the locality has been circumscribed by the approval of the subdivision to create the site. The planning consequences of that decision have led to the current development proposal before the Tribunal. The proposed development, while it will have an outcome less desirable than if there had been no subdivision, is considered to the circumstances to be consistent with orderly and proper planning of a corner lot of this size in this locality.

Conclusion

Significant to the Tribunal's consideration of this matter was the approval in 2007 of the subdivision that created the site. The site has its longest axis ‑ 40 metres ‑ east‑west and it is between 15 metres and 18 metres deep north‑south. The site was created abutting the northern boundary of the heritage listed house at No 1B Venn Street. The Tribunal has accepted that the subdivision approval, in itself, created a reasonable expectation for development of a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls.
In considering the first issue, whether the bulk and scale of the proposed residence would be inconsistent with the streetscape, the Tribunal found that the proposed house would not be of unusual bulk and scale for the locality, but it would be inconsistent with the Irvine Street streetscape because that bulk would be at a reduced setback. The Tribunal concluded, however, that in the circumstances of this case, inconsistency with this streetscape would not, of itself, be sufficient to refuse the development.
The next issue was whether Irvine Street should be considered a primary street for the development for the purpose of the Codes. The Tribunal has, like the respondent, identified Irvine Street as the primary street. This was because, for the house design proposed, no sound planning reason was presented to set aside the definition for primary street in the Codes.
The finding on the primary street had consequences for the third issue, which was whether the setbacks would be acceptable. The nil setback at the eastern boundary was found to be acceptable because of the use made of the adjoining site. Irvine Street has houses mostly set back at 9 metres, the standard required by TPS 3. TPS 3 provides that this setback may be varied for lots less than 25 metres deep and the site is up to 18 metres deep. Although inconsistent with the streetscape, the Tribunal found that, to achieve a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site, a front setback of not less than 5.5 metres would be acceptable.
Issue 4 was concerned with whether the proposed house would result in overshadowing of the house at No 1B Venn Street. The Tribunal found that the creation of a lot 15 metres to 18 metres deep abutting the northern boundary and 1 metre distant from the house at No 1B Venn Street would inevitably result in some overshadowing. This overshadowing would be of this northern setback of 1 metre and part of the verandah of the heritage listed house. In the particular circumstances, the Tribunal considered that this was within the reasonable expectations of the overshadowing that would occur with the creation of the site.
The fifth issue was whether the development would adversely impact on the heritage qualities of the house at No 1B Venn Street. The Tribunal found that the proposed house will remove much of the appreciation of the heritage qualities of No 1B Venn Street from Irvine Street. This, however, is an inevitable consequence of creating a lot between Irvine Street and the house. In the aspect from Venn Street, the heritage house will sit between the proposed house and a double garage approved by the respondent at the southern end of No 1B Venn Street. This will compromise the heritage character of the house but is considered to be acceptable in the circumstances of the planning approvals issued or supported by the respondent.
In the consideration of issue 6, whether the development would constitute an overdevelopment of the site, the Tribunal concluded that the proposed house was not an overdevelopment of the site. This was because the proposed house was of a scale and bulk consistent with other contemporary houses in the locality, and in respect of setbacks, the compromise required was a result of the house being located on a site smaller than, and therefore inconsistent with, most others in Irvine Street.
Issue 7 was whether the proposed house would be consistent with orderly and proper planning. The Tribunal found that the planning of the locality has been circumscribed by the approval of the subdivision to create the site. The proposed development, while it will have an outcome less desirable than if there had been no subdivision, is considered, on balance, to be consistent with orderly and proper planning of a corner lot of this size in this locality.
The Tribunal has therefore determined that the application for review should be allowed and the development approved subject to appropriate conditions.

Conditions

The parties addressed and agreed amendments to the schedule of draft conditions the respondent had produced, without prejudice to its position, as ordered by the Tribunal. The Tribunal, as set out above, has formed the view that there is warranted a further condition requiring that the front setback from Irvine Street be amended so that, consistent with the bulk of the house, no section of wall is set back less than 5.5 metres.
By identifying Irvine Street as the primary street, the fencing condition suggested by the respondent is also affected. It was proposed that the fencing comply with Council's local law relating to fencing, but with particular variations. The Tribunal accepts the applicants' submission that there be a solid fence abutting the pool for reasons of privacy and safety, and at by‑law 14(b), sections of solid front boundary fence may be approved. The Tribunal is also of the view that any fencing in the truncation should be open aspect fencing to assist in achieving streetscape objectives of views to gardens. The suggested condition has been amended accordingly.

Mr McQueen's submission was that, therefore, with respect, there was no scope for the Tribunal to do anything other than award costs of the proceeding. That is, there was no opportunity to award what would, in effect, be damages or expenses that have been incurred by the applicants. Mr McQueen said that the reasons for the application to recover costs seemed, with respect, to be personal to the applicants. In his submission, matters such as stress and the extra costs associated with the proceedings were not relevant considerations. Mr McQueen went on to say at T:17, 22.12.10:
The only question here is whether or not the interveners have behaved unreasonably in the context of the proceedings before SAT because that's what the section speaks to and that's what the authorities deal with. Mr Walsh's desire to bring an action against the [S]hire for damages based on negligence, misleading and deceptive conduct, the stress that he feels, stress that any member of his family feels; whilst there may be a degree of sympathy for that, that isn't the function of the tribunal to award costs against my client to compensate him or any other person for that.
The authorities are very clear on that point and it would be, with respect, an error of law to take any of those things into account.
...
The Tribunal notes that in Springmist, the applicant applied for orders that the respondent and the respondent's representative pay the applicant's costs on an indemnity basis. The application for costs was not confined to legal costs and disbursements but encompassed a range of costs, expenses and losses said to have been incurred by the applicant as a result of the delay by the respondent in processing the original application for development approval and as a result of the respondent's approach to the proceedings before the Tribunal. The application to the Tribunal was whether, on a proper construction of s 87(3) of the SAT Act, expenses and losses of the nature claimed are capable of being included in an order under s 87(2) of the Act. In Springmist, the Tribunal considered it appropriate to make observations about the nature of losses and expenses to which s 87(3) of the Act refers. The Tribunal held at [63] - [65]:
...
Section 87(1) establishes the general position of the Tribunal, namely that the parties bear their own 'costs in a proceeding of the Tribunal'. Section 87(2) then provides for a discretion for the Tribunal to make an order departing from that general rule. In empowering the Tribunal to make an order for the payment by a party 'of all or any of the costs of another party' the costs being referred to are the 'costs in a proceeding of the Tribunal' which would otherwise be the subject of the general rule prescribed by s 87(1). Section 87(3) extends the range of expenses that may be encompassed in an order for costs. As in s 87(2), the words 'an order for the payment by a party of the costs of another party' found in s 87(3) are a reference to the other party's 'costs in a proceeding of the Tribunal'.
The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal. For example, the costs may include the costs of a non lawyer advocate, the expenses of a party having to travel to a hearing or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
Section 87(3) does not provide a basis upon which compensation, in the nature of damages, can be awarded because of some negligence or failure on the part of the decision-maker to perform its function diligently and timeously, or because a decision-maker's conduct falls short of the usual expectations of those who seek some consent, approval or permit.
The Tribunal, with respect, adopts the findings of the Tribunal in respect of s 87(3) of the SAT Act in Springmist. That is, s 87(3) of the Act explains that costs 'in the proceeding' can be covered, but does not extend to damages beyond the hearing[,] such as loss of enjoyment, stress experienced and inconvenience because the hearing has been commenced and includes the interveners.
The Tribunal finds that, consistent with the findings in Springmist, s 87(3) of the SAT Act does not provide the applicants with a basis for compensation for the personal suffering they have identified.

Conclusion

In Walsh and Shire of Peppermint Grove, the respondent raised as an issue:
Would the Proposal adversely impact on the heritage qualities of the residence at 1B Venn Street?
When the respondent informed the Tribunal it would not be adducing evidence or making submissions on this issue, the Tribunal, finding that there was a valid heritage issue to be argued, granted the interveners leave to do so.
The applicant says that the interveners, in the arguments they raised, have acted outside the scope of the leave to intervene granted by the Tribunal. In having to engage a heritage expert and counsel for additional hearing time to address the interveners' 'unreasonable' arguments, an award of costs should be made. In addition, the applicants argued that an award of compensation should be made for loss and damage associated with delay, loss of enjoyment, stress and anxiety arising to the applicants as a consequence of the interveners' involvement in the matter.
The Tribunal has formed the view that it was open to the interveners within the leave granted to them to make the submissions that were made. The Tribunal considers the submissions reasonably arose out of the interveners' view of the impact of the proposed development on the heritage value of the existing house and on the contribution of the heritage house to the Irvine Street streetscape. The Tribunal has further found that s 87(3) of the SAT Act does not provide a basis for a claim for compensation for personal suffering.
The Tribunal, in Walsh and Shire of Peppermint Grove, ultimately, was not persuaded by the interveners' arguments and allowed the application. The Tribunal is a 'no costs' jurisdiction. The failure of the arguments to persuade the Tribunal does not, of itself, give rise to a claim for costs by the applicants. As set out in the discussion above, the Tribunal has found in this case, in respect of the particular arguments advanced by the applicants, that there is not a basis for exercising discretion and departing from the usual position that each party bear its own costs in the proceeding. The Tribunal has decided to dismiss the claim for costs.

Order

The claim for costs is dismissed.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER