WARE and CITY OF MELVILLE

[2021] WASAT 65

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WARE and CITY OF MELVILLE [2021] WASAT 65

MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT

MS M CONNOR, MEMBER

HEARD:   16 - 18 DECEMBER 2020 - FURTHER DOCUMENTS AND WRITTEN SUBMISSIONS FILED ON 5 FEBRUARY, 15 MARCH AND

25 MARCH 2021

DELIVERED          :   12 MAY 2021

FILE NO/S:   DR 259 of 2019

BETWEEN:   GUY WARE

Applicant

AND

CITY OF MELVILLE

Respondent

Catchwords:

Town planning - Development application - Four storey multiple dwelling development - Site at midblock boundary of Canning Bridge Activity Centre Plan area - Adjoining property to the south located outside Canning Bridge Activity Centre Plan area and comprising one storey single house - Whether proposed development complies with provisions of Element 5 (setback of third storey terrace) and Element 3 (height of structures at roof terrace) of Canning Bridge Activity Centre Plan and, if not, is it nevertheless acceptable in terms of height and setback - Whether impact of proposed development on residential amenity of adjoining property to the south is acceptable in terms of overshadowing and height, bulk and scale - Weight to be given to proposed amendments to local planning scheme and Canning Bridge Activity Centre Plan to remove midblock interface with adjoining area, by aligning boundary of Canning Bridge Activity Centre Plan area with streets, which would remove site from Canning Bridge Activity Centre Plan area

Legislation:

City of Melville Local Planning Scheme No. 6, cl 25(3), cl 25(4)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 34, reg 37(2), reg 37(4), reg 38(1), Sch 2 (deemed provisions), cl 27(1), cl 43(1), cl 67(2)(b), cl 67(2)(m), cl 67(2)(n), cl 89, cl 92(2)
Planning and Development Act 2005 (WA), s 252(1)
Planning Regulations Amendment Regulations 2020 (WA), reg 2(c), reg 62
State Administrative Tribunal Act 2004 (WA), s 24, s 24(b), s 27(2)
State Planning Policy 4.2 ­ Activity Centres for Perth and Peel
State Planning Policy 7.0 ­ Design of the Built Environment
State Planning Policy 7.3 ­ Residential Design Codes Volume 1 cl 5.4.2 C2.1
State Planning Policy 7.3 ­ Residential Design Codes Volume 2 - Apartments

Result:

Application for review allowed
Decision of respondent to refuse to grant development approval for construction of four storey building comprising three multiple dwellings at No. 4A View Road, Mount Pleasant set aside and decision substituted that development approval is granted for proposed development subject to conditions

Category:    B

Representation:

Counsel:

Applicant	:	Ms B Moharich
Respondent	:	Ms M Georgiou

Solicitors:

Applicant	:	Moharich & More
Respondent	:	Squire Patton Boggs

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

Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311

Edwards and Department of Planning and Infrastructure [2007] WASAT 101; (2007) 52 SR (WA) 328; (2007) 155 LGERA 1

Griffin Windfarm Holdings Pty Ltd and Valuer General [2012] WASAT 224

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 114

Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149

Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395

Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

TABLE OF CONTENTS

Introduction

Site and locality

Proposed development

Planning framework

Issues for determination

Does the proposed development comply with the provisions of Element 5 (setback of third storey terrace) and Element 3 (height of structures at roof terrace) of the CBACP and, if not, is the proposed development nevertheless acceptable in terms of setback and height?

Setback of third storey terrace

Height of structures at roof level

Is the impact of the proposed development on the residential amenity of No. 6 View Road acceptable in terms of overshadowing and height, bulk and scale?

Overshadowing

Height, bulk and scale

Privacy, noise and lighting

What, if any, weight should be given to proposed Amendment 9 to LPS 6 and the corresponding proposed amendment to the CBACP?

Exercise of planning discretion

Orders

Attachment A – Conditions of approval

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr Guy Ware (applicant) seeks review by the Tribunal, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Melville (City, Council or respondent) to refuse to grant development approval for the construction of a four storey building comprising three multiple dwellings at No. 4A View Road, Mount Pleasant (site).

2. In these reasons, we will firstly describe the site and locality, the proposed development and the applicable planning framework.  We will then set out the principal issues for determination in the review and address each of the issues in turn. 

3. For the reasons given below, we have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act2004 (WA) (SAT Act), in the exercise of planning discretion, is to grant development approval for the proposed development under the City of Melville Local Planning Scheme No. 6 (LPS 6 or Scheme) and the Metropolitan Region Scheme (MRS) subject to 18 conditions set out in Attachment A to these reasons. 

Site and locality

1. The site has a frontage of approximately 15.33 metres to View Road to the west and an area of approximately 503 m².  The site is generally flat and comprises a one storey single house, which was constructed as part of a duplex with the adjoining property to the north at No. 4 View Road, as well as an associated carport and shed. 

2. The site has an irregular boundary along four alignments with No. 4 View Road to the north.  Although the southern boundary of the site has a single alignment, its angle relative to View Road is greater than perpendicular, with the consequence that the site generally widens from the street frontage of approximately 15.33 metres to approximately 19 metres in the middle of the site and to approximately 20.18 metres at the rear or eastern boundary. 

3. The site is located on the eastern side of View Road in the street block bounded by View Road to the west, Helm Street to the north (approximately 60 metres north of the site), The Esplanade to the east and Rookwood Street to the south (approximately 190 metres south of the site).  View Road between Helm Street and Rookwood Street comprises single houses generally ranging in height from one to two storeys.  However, the adjacent property to the north of the site at No. 2 View Road (on the corner of Helm Street) comprises a three storey single house.  The property adjoining the site to the south at No. 6 View Road comprises a one storey single house.  To the rear or east of the site there are single houses ranging in height from two to three storeys fronting The Esplanade and, across a reserve, the Canning River.  We reproduce immediately below the Site Context Plan prepared by the designing architect which usefully shows the location of the site in the context of the Canning River, Canning Highway, Canning Bridge and Canning Bridge Station.[1]

[1] Drawing No. A500 (Exhibit 25). Although as shown on the Site Context Plan the site is located at the southern boundary of the Q2 Ogilvie Quarter of the Canning Bridge Activity Centre Plan area, the southern boundary of that area is not a straight line as depicted on the Site Context Plan. The southern boundary of the Canning Bridge Activity Centre Plan area is shown on the Current boundary plan reproduced at [96] below.

1. To the north of Helm Street are properties comprising one and two storey single houses, two storey grouped dwellings, a four storey multiple dwelling development (at No. 21 The Esplanade) and a 20 storey multiple dwelling development (at No. 63 Kishorn Road). 

Proposed development

1. On or around 29 May 2019, the applicant's designing architect lodged the subject development application with the City seeking approval for the construction of a four storey building comprising four multiple dwellings.  Amended plans were subsequently submitted reducing the number of multiple dwellings to three while retaining the four storey building form.  Mr Stephen Allerding, who is a consultant town planner called to give evidence by the City, helpfully summarised 'the key elements of the proposal' as follows:[2]

   … [T]he proposed development consists of a 4-storey residential apartment development, with at grade parking [in the form of a mechanical car stacker in the south–eastern part of the building accessed via a driveway along the southern boundary of the site] with a configuration comprising;

   (a)Ground Floor [first storey] - First level of unit 1 being a 3 x 2 residential apartment. Associated carparking and storage units for the entirety of the development are contained on the ground floor along with the vehicle access positioned along the southern boundary of the development.

   (b)First Floor [second storey] - Being the second level of unit 1 and the first level of unit 2 being a 3 x 2 residential apartment.

   (c)Second Floor [third storey] - Being the second level for the exclusive use of the unit 2 with associated external terrace and pool area.

   (d)Third Floor [fourth storey] - Floor for the exclusive use of unit 3 being a 2 x 2 bedroom residential apartment.

   (e)Fourth Floor [roof level] - Private roof terrace presumably for the exclusive use of unit 3. Additional associated utility structures and lift [and stair overrun] for the benefit of the entire apartment development.

   [2] Witness statement of Stephen Geoffrey Allerding dated 16 December 2020 (Exhibit 13) [11].

2. The development application was considered by the Council at its meeting in 27 November 2019.  The City's assessing planning officers recommended that the Council should grant development approval subject to conditions.[3]  However, the Council refused to grant development approval for the following five reasons:[4]

   1.Extent of overshadowing on the adjacent [adjoining] R20 zoned property and the need to resolve the legal issue regarding properties outside the Canning Bridge Activity Centre Plan compared to properties within the Canning Bridge Activity Centre Plan and the erosion of the rights of R20 landowners.

   2.Balcony set backs [sic] on level three intruding into the 8 metre set back [sic] area, which is only allowed for M10 and M15 developments in the Canning Bridge Activity Centre Plan and not provided for in H4 developments.

   3.The setback variations on both the northern and southern side at ground floor and level one.

   4.The bulk and size of development being inconsistent with the adjoining properties.

   5.The roof top height and lift overrun/stairs being excessive.

   [3] Respondent's section 24 bundle dated 25 September 2020 (Exhibit 3) tab 9 page 402.

   [4] Exhibit 3 tab 11 pages 421-422.

3. On 11 December 2019, the applicant sought review by the Tribunal of the Council's decision to refuse to grant development approval. 

4. On 4 September 2020, the Tribunal granted leave to the applicant to further amend the proposed development in terms of plans dated 17 August 2020 (17 August 2020 plans).  The evidence presented at the hearing on 16 ­ 18 December 2020 addressed the 17 August 2020 plans.  However, during concurrent expert evidence given by Mr Daniel Lees, who is a consultant town planner called by the applicant, Mr Allerding and Mr Malcolm Mackay, who is an architect and urban designer called by the City, the Tribunal explored with the expert witnesses whether alternative treatments for masonry planter beds used as balustrading at the third storey terrace facing the adjoining property at No. 6 View Road to the south and at the roof terrace could avoid the potential for overlooking from the third storey terrace into the north­facing courtyard and adjoining internal living areas of No. 6 View Road, mitigate the bulk and scale of the proposed development at the third storey terrace and at the roof terrace as seen from No. 6 View Road, and also mitigate the extent of overshadowing by the proposed development of that property.  In particular, the discussion between the Tribunal and the expert witnesses (which was joined in by Ms Belinda Moharich, counsel for the applicant, and Ms Marina Georgiou, counsel for the City) centred on potential amendments to the then proposed 1 metre high masonry planter bed with rendered finish and 0.6 metre high white opaque glass screen above the outer planter bed wall (total height 1.6 metres), set back 0.5 metre from the whole of the southern edge of the third storey terrace, and the then proposed 1.2 metre high masonry planter bed with rendered finish, set back 0.5 metre from all edges of the roof terrace other than in the location of the (3 metre high) lift and stair overrun on the northern façade of the building.  

5. Following the hearing, in light of the discussion of the expert witnesses during their concurrent evidence, the applicant filed further amended plans dated 5 February 2021 (5 February 2021 plans), together with his closing submissions, and, in effect, sought leave to rely on the 5 February 2021 plans.  The City did not object to the 5 February 2021 plans being substituted for the 17 August 2020 plans and addressed the 5 February 2021 plans in its closing submissions filed on 15 March 2021.  On 23 March 2021, we granted leave to the applicant to further amend the development application in terms of the 5 February 2021 plans.  The 5 February 2021 plans are the plans the subject of our determination in these proceedings. 

6. At the third storey terrace, the 5 February 2021 plans delete the 1 metre high masonry planter bed and 0.6 metre high white opaque glass screen above the outer planter bed wall set back 0.5 metre from the southern edge of the terrace.  The 5 February 2021 plans replace this with a 0.5 metre high planter bed and a 1 metre high clear glass screen above the outer planter bed wall set back 0.5 metre from the southern edge of the terrace in the western and central parts and a 0.5 metre high pool equipment store set back 0.5 metre from the southern edge of the terrace and rising diagonally to 1 metre in height at a setback of 1 metre from the southern edge of the terrace in the eastern part.  The general width of the planter bed and, in its central section, the planter bed and an indented fixed bench seat facing north, and of the pool equipment store, is 1.6 metres, meaning that a person standing on the third storey terrace would be at least 2.1 metres from the edge of the terrace.[5]  As discussed later in these reasons, the amendments to the third storey terrace in the 5 February 2021 plans and condition 1 in Attachment A to these reasons effectively preclude direct overviewing from the third storey terrace into the courtyard and adjoining internal living areas at No. 6 View Road.  As also discussed later in these reasons, these amendments reduce the bulk and scale of the proposed development when seen from No. 6 View Road. 

   [5] Drawing No. A203 of the 5 February 2021 plans shows that the planter bed is only 1 metre wide for 4.015 metres at its western end.  Although this section of the terrace is the furthest from the courtyard of No. 6 View Road, if the planter bed were not increased to 1.6 metres in width in this location, it would be possible (subject to landscaping in the planter bed) the view from the terrace into the courtyard, and potentially into the bedroom at the eastern end of the courtyard, at No. 6 View Road.  Condition 1 in Attachment A to these reasons requires the plans to be amended to increase the width of the planter bed to the west of the bench seat on the third storey (second floor) plan from 1 metre to 1.6 metres and consequently precludes the potential for overlooking from the western end of the terrace.

7. At the roof terrace, the 5 February 2021 plans delete the 1.2 metre high masonry planter bed set back 0.5 metre from the edges of the terrace and replace it with a 1.2 metre high glass balustrade, which is non­translucent up to 0.35 metre in height and clear above, set back 0.5 metre from the edges of the terrace.  As Mr Lees explained in a letter dated 5 February 2021 to the applicant's solicitor, the reason for the 0.35 metre section of the balustrade being non-translucent is that '[i]t is understood from Mr Mackay's evidence in the hearing that 0.35 [metre] is the maximum height of any solid element in this location so as not to contribute to overshadowing [of No. 6 View Road] … [and] [t]he rationale for the base of the glazed balustrade to be non-translucent is to minimise views from the roof level terrace to the non-accessible edge of the proposed building beyond the balustrade'.[6]  As discussed later in these reasons, the amendments to the roof terrace in the 5 February 2021 plans reduce the extent of overshadowing from the proposed development onto No. 6 View Road. 

   [6] Exhibit 26 page 3.

8. Because of the irregular alignments of the northern and southern boundaries of the site, referred to at [5] above, and the setback requirements of the applicable planning framework, particularly for the third and fourth storeys, discussed below, the built form of the proposed development is unusual. Consequently, we reproduce immediately below perspective drawings by the designing architect in order to convey a visual understanding of the design of the proposed development.[7]  The perspective drawings are from View Road, the rear of the site (south-east) and the north-east, View Road – driveway entry, the south-east (elevated to align with the second and third storeys) and the south-west (also elevated to align with the second and third storeys).

Planning framework

[7] Drawing Nos. A801, A802, A803, A203H and A203I (Exhibit 25).

1. The site is zoned 'Urban' under the MRS and 'Residential' with a residential density coding of 'R-AC0' under cl 25(3) of LPS 6.

2. Clause 25(4) of LPS 6 states that '[t]he R-Codes apply to an area if the area has a coding number superimposed on it in accordance with subclause (3)'.[8]  However, Table 2.1 Primary controls table of State Planning Policy 7.3 - Residential Design Codes Volume 2 - Apartments (R-Codes Volume 2) does not contain any primary controls for land coded R-AC0 and states in relation to land coded in this way 'Refer to local planning scheme, local dev plan and/or precinct controls as applicable'.[9] 

   [8] Exhibit 3 tab 2 page 156.

   [9] R-Codes Volume 2 page 15.

3. It is common ground between the parties – and clearly the case – that the 'precinct controls … [which are] applicable' to the site are those contained in the Canning Bridge Activity Centre Plan (CBACP) and, indeed, that '[t]he CBACP is the primary planning instrument applicable to development of the … [s]ite'.[10]  In opening the City's case, Ms Georgiou described the CBACP as 'the key planning instrument that we're looking at'.[11]

   [10] Respondent's further amended statement of issues, facts and contentions dated 14 December 2020 (Exhibit 1) [3.4] and applicant's statement of issues, facts and contentions dated 19 October 2020 (Exhibit 2) [3.4].

   [11] ts 41, 17 December 2020.

4. As the CBACP states, it was prepared jointly by the Western Australian Planning Commission (Commission), the City and the City of South Perth, together with other authorities, 'to provide a guide to development of the CBACP area, an area recognised as an 'activity centre' under the [Commission's] State Planning Policy 4.2: Activity Centres for Perth and Peel'.[12]The CBACP applies to an area to the west of Canning Bridge within the City's local government district and to an area to the east of Canning Bridge within the City of South Perth's local government district 'generally considered a convenient walkable distance from the Canning Bridge bus and rail interchange which is located at the junction of the Canning Highway and Kwinana Freeway'.[13]  The CBACP was approved by the Commission in April 2016 and modifications to the CBACP were approved by the Commission in June 2018, August 2019, June 2020 and July 2020.  As the applicant submits, the CBACP 'remains a contemporary planning instrument'.[14]

   [12] Exhibit 3 tab 1 page 4.

   [13] Exhibit 3 tab 1 page 4.

   [14] Applicant's closing submissions dated 5 February 2021 (applicant's closing submissions) [7].

1. The CBACP contemplates and provides for a significant increase in the population of the CBACP area over a 35 year period, from approximately 3,800 people in 2016 to approximately 8,000 people in 2031 and to approximately 24,000 people in 2051.  The CBACP therefore has as one of its objectives to '[i]ncrease the density and diversity of housing in and around the CBACP [area] to improve land efficiency, housing variety and affordability and support the facilities in the area'.[15]  To achieve this objective, the CBACP states that it 'presents a Vision for the area which is significantly different from the existing built form of the area'.[16]  As Mr Allerding said in his evidence, '[i]t is clear that there is an expectation for taller and more intense development forms within the CBACP [area]'.[17]

   [15] Exhibit 3 tab 1 page 8.

   [16] Exhibit 3 tab 1 page 20.

   [17] Exhibit 13 [29].

2. The site is located within, and at the southern boundary of, the Ogilvie Quarter (Q2) (and at the southern boundary of the CBACP area generally), which is one of two Geographical Quarters under the CBACP in the City's local government district and one of six Geographical Quarters in the CBACP area as a whole.  The site is designated 'H4', which is one of five 'Zones' under the CBACP.  Figure 2 Canning Bridge Activity Centre Plan Land Use, Built Form and Zones Plan refers to 'Residential [uses] up to 4 storeys' in height in the H4 Zone with the 'Maximum Height applied in metres' being 'Maximum Residential up to 16 metres in height'.[18]

   [18] Exhibit 3 tab 1 page 20.

3. The CBACP sets out 22 Elements, each with Desired Outcomes and Requirements.  The CBACP states as follows:[19]

   Each Requirement within the Guidelines represents the quantitative criteria against which a development will be designed and assessed.  Each Requirement is complemented by a Desired Outcome which represents the qualitative principles against which the decision maker exercises its judgment to determine the proposal.

   [19] Exhibit 3 tab 1 page 20.

4. As Mr Allerding said in his evidence, although there are 22 Elements in total, the Elements 'that are particularly relevant to the specific issues under [r]eview' are Element 3 Heights and Element 5 Side and Rear setbacks.[20]  These Elements are the subject of issue 1 identified below and we will set out the relevant Requirements and the Desired Outcomes stated in relation to these Elements, together with applicable parts of the definitions of the terms 'height' and 'storey', when we address that issue later in these reasons.

   [20] Exhibit 13 [33].

5. The CBACP is an 'Activity Centre Plan' that was made under Pt 5 of the deemed provisions in local planning schemes set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions). Part 5 of the deemed provisions was deleted by reg 62 of the Planning Regulations Amendment Regulations 2020 (WA) (Planning Regs Amendment Regs). However, cl 92(2) of the deemed provisions states as follows:

   On and after commencement day, a current activity centre plan —

   (a)continues in effect under this Scheme; and

   (b)is taken to be a precinct structure plan approved under this Scheme for which the approval has effect; and

   (c)may be amended or revoked accordingly.

6. The term 'commencement day' is defined in cl 89 of the deemed provisions to mean the day on which Pt 2 Div 2 of the Planning Regs Amendment Regs (which includes reg 62) comes into operation. Under reg 2(c) of the Planning Regs Amendment Regs, Pt 2 Div 2 of the Planning Regs Amendment Regs came into operation on 15 February 2021. Consequently, under cl 92(2) of the deemed provisions, the CBACP continues to have effect under the Scheme and is taken to be a precinct structure plan approved under the Scheme. However, because all of the evidence and submissions in these proceedings and the CBACP itself refer to the CBACP as the 'CBACP' and as an 'Activity Centre Plan', we will also refer to it in this way in these reasons.

7. Clause 27(1) of the deemed provisions states as follows:[21]

   A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

   [21] At the time of the hearing, and until it was deleted by reg 62 of the Planning Regs Amendment Regs on 15 February 2021, cl 43(1) of the deemed provisions was in the same terms as cl 27(1) of the deemed provisions except that it referred to 'activity centre plan' rather than 'structure plan'.

8. As the City submits, the expression 'due regard' means 'proper, genuine and realistic consideration to those provisions which is adequate in all the circumstances'.[22]  As the City also submits, '[a] policy will be expected to guide the exercise of planning discretion, but should not be inflexibly applied'.[23]  As the Tribunal[24] said in Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR (WA) 311 at [99]:

   In the exercise of planning discretion, the Tribunal is guided by the planning principles that find expression in the policies forming the planning framework, but will depart from the application of those planning principles where there is a cogent reason to do so in the circumstances of the case.  These principles were stated by Justice Barker, sitting in the Supreme Court of Western Australia, in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] as follows:

   In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications.  In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it.  If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion.  However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it.  Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application.  Good public administration demands no less an approach.

   [22] Respondent's closing submissions dated 15 March 2021 (respondent's closing submissions) [12] quoting Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 [42] (Buss P, Murphy JA and Allanson J).

   [23] Respondent's closing submissions [12].

   [24] Judge Parry DP and Mr P de Villiers M.

9. Consequently, as Mr Allerding said in his evidence, 'whilst the CBACP provisions are significant in the consideration of an application, they are not of themselves determinative and do not displace the assessment of a proposal based on the facts and degree of the case which would also include consideration of those matters outlined under [cl 67(2)] of the [deemed provisions]'.[25] 

   [25] Exhibit 13 [20].

10. Clause 67(2) of the deemed provisions states, in part, as follows:

    In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application —

    …

    (m)the compatibility of the development with its setting, including —

    (i)the compatibility of the development with the desired future character of its setting; and

    (ii)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; [and]

    (n)the amenity of the locality including the following —

    (i)environmental impacts of the development;

    (ii)the character of the locality; [and]

    (iii)social impacts of the development[.]

    …

11. The compatibility of the proposed development with its setting and the amenity of the locality are relevant matters for consideration in this case. In particular, as Mr Allerding observed in his evidence, the site 'adjoins exclusively low density R20 single residential development along its southern boundary … [which] is located outside of the CBACP [area]',[26] and we accept his evidence that '[a]s part of the facts and degree of the case, the location of the development at the edge of the CBACP [area], [adjoining and] adjacent to exclusively low density single residential development … gives rise to specific issues and considerations when exercising discretion on the suitability of development'.[27]  We also accept Mr Allerding's evidence that the location of the site at the southern boundary of the CBACP area in a midblock location and immediately adjoining low density residential development on the adjoining property to the south (at No. 6 View Road) 'is particularly relevant given the … [s]ite's northern position adjacent to [adjoining] … [No. 6 View Road], because of the particular effects that arise for solar access and overshadowing that do not arise for example in the other parts of the CBACP [area] where it transitions with other low density single residential [s]uburban development'.[28]

Issues for determination

[26] Exhibit 13 [15].

[27] Exhibit 13 [21].

[28] Exhibit 13 [21].

1. During the parties' opening statements, counsel agreed that the following are the principal issues for determination in this review:[29]

   [29] Exhibit 6.

   1.(a)      Whether the proposed development complies with the provisions of Element 5 Side and Rear setbacks of the CBACP in terms of the setback of the third storey terrace from the southern boundary of the site;

   (b)Whether the proposed development complies with the provisions of Element 3 Heights of the CBACP in terms of the height of structures at the (fifth storey) roof terrace; and

   (c)If the answer to either or both (a) or (b) is 'no', whether (as the case may be):

   (i)       the proposed development is nevertheless acceptable in terms of setback from the southern boundary of the site;

   (ii)the proposed development is nevertheless acceptable in terms of height.

   2.Whether the impact of the proposed development on the residential amenity of the adjoining property to the south is acceptable in terms of:

   (a)overshadowing; and

   (b)height, bulk and scale.

   3.What, if any, weight should be given to the following draft planning instruments in the exercise of planning discretion in the circumstances of this case:

   (a)Amendment No 9 to LPS 6; and

   (b)the corresponding amendment to the CBACP.

2. We will address each of these issues in turn.

Does the proposed development comply with the provisions of Element 5 (setback of third storey terrace) and Element 3 (height of structures at roof terrace) of the CBACP and, if not, is the proposed development nevertheless acceptable in terms of setback and height?

Setback of third storey terrace

1. As indicated earlier, the CBACP states that each Requirement in an Element 'represents the quantitative criteria against which a development will be designed and assessed' and that each Requirement 'is complemented by a Desired Outcome which represents the qualitative principles against which the decision maker exercises its judgment to determine the proposal'.[30]  Requirements 5.6 - 5.9 of Element 5 Side and Rear setbacks contain the following quantitative criteria against which the proposed development is to be assessed under the CBACP:[31]

   5.6Side and rear setbacks for all development within the H8 and H4 Zones shall be 3 metres for any lot which is less than or equal to 14 metres in width or shall be 3.5 metres for any lot which is greater than 14 metres in width but less than 16 metres in width or 4 metres for any lot which is equal to or greater than 16 metres in width.  Setbacks do not apply to any eaves and sun shading devices.

   5.7Provisions of privacy and solar access and overshadowing do not apply within the CBACP area.

   5.8Development of any third or fourth storey on any site (in Q1 and Q2) adjoining residential zoned land outside of the Canning Bridge Activity Centre Plan shall be setback [sic] a minimum of 8 metres from that common boundary.

   5.9Within H4 Zones (in Q1 and Q2) any structure located at roof level shall be setback [sic] a distance of 2.5 metres from the building edge at the side and rear boundaries.

   [30] Exhibit 3 tab 1 page 20.

   [31] Exhibit 3 tab 1 page 31.

2. The Requirements in Element 5 Side and Rear setbacks are complemented by the following Desired Outcome DO 5 which represents the qualitative principles against which the Tribunal is required to exercise its judgment to determine the proposed development:[32]

   To provide a continuity of frontage at ground and podium levels to encourage activity whilst providing interest.  To allow opportunities for tower elements to access sunlight, ventilation and view corridors throughout the area from and between multi-level developments.  To ensure that development opportunities throughout the precinct are maximised.  Developers should consider the amenity of the precinct by minimising overlooking and overshadowing of adjacent and adjoining properties through appropriate design response, supported by the setback provisions of this Element.

   [32] Exhibit 3 tab 1 page 31 (emphasis added).

3. In its further amended statement of issues, facts and contentions, the respondent argued that because '[t]he proposed [third storey] terrace is only setback [sic] approximately 3.5 metres from the boundary with [No. 6 View Road,] … the [p]roposed [d]evelopment does not comply with Requirement 5.8', which prescribes a minimum 8 metre setback for '[d]evelopment of any third or fourth storey' from the common boundary with an adjoining property which is outside the CBACP area.[33]  Similarly, in his witness statement, Mr Allerding expressed the view that the setback of the third storey terrace is 'contrary to my interpretation of the requirement provided for under [Requirement] 5.8'.[34]

   [33] Exhibit 1 [4.11].

   [34] Exhibit 13 [105].

4. However, during her opening statement, counsel for the City said that '[w]e don't rely on that argument [anymore]'.[35]  Similarly, during cross­examination, Mr Allerding conceded that the third storey terrace 'doesn't offend … the requirement of the eight metre setback' under Requirement 5.8.[36]  The City's withdrawal of its argument and Mr Allerding's concession were both properly made having regard to the definition of the term 'storey' in the CBACP.  That definition states, in part, that 'storey' 'means a space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above …'.[37]  Although the third storey terrace has a setback of 3.5 metres from the common boundary with No. 6 View Road, it is not 'a space within a building which is situated between one floor level and the floor level next above, of if there is no floor above, the ceiling or roof above' and is therefore not part of a 'storey' for the purposes of Requirement 5.8.  Furthermore, the third 'storey' within the proposed development has a minimum setback of 8 metres from the common boundary with No. 6 View Road and therefore complies with Requirement 5.8.

   [35] ts 45, 17 December 2020.

   [36] ts 121, 18 December 2020.

   [37] Exhibit 3 tab 1 page 44.

5. The third storey terrace also complies with the qualitative principles in Desired Outcome DO 5 which require that '[d]evelopers should consider the amenity of the precinct by minimising overlooking and overshadowing of adjacent and adjoining properties through appropriate design response, supported by the setback provisions of this Element'.[38]  It is common ground – and clear from the shadow diagrams in evidence – that the third storey terrace will not overshadow the adjoining property at No. 6 View Road (rather, the overshadowing will be caused by the edge of the (fifth storey) roof terrace).  Mr Allerding expressed the opinion in his evidence that '[t]he active and frequent use of the [third storey] terrace as the primary outdoor habitable space setback [sic] approximately 3.5 [metres] from the primary habitable spaces of the [No. 6 View Road] has the potential to have a significant effect on the amenity of the neighbouring property arising from privacy (both visual and acoustic) and the quiet use and enjoyment of their property noting the elevated position of the terrace'.[39]  However, in consequence of the 1.6 metre width of the planter bed, the planter bed and bench seat and the pool equipment store, as shown in the 5 February 2021 plans (other than in the westernmost 4.015 metre section of the terrace), a person standing on the third storey terrace will be at least 2.1 metres from the edge of the terrace and will therefore be unable to view into the courtyard or adjoining internal living areas at No. 6 View Road.  This is shown on sections DD and CC in the 5 February 2021 plans, which we reproduce immediately below.[40]  Condition 1 in Attachment A to these reasons also requires the plans to be amended to increase the width of the planter bed to the west of the bench seat on the third storey (second floor) plan from 1 metre to 1.6 metres, with the consequence that even from the furthest part of the third storey terrace (the westernmost 4.015 metre section) to the courtyard at No. 6 View Road, overlooking into the adjoining property will be effectively precluded.

   [38] Exhibit 3 tab 1 page 31.

   [39] Exhibit 13 [101].

   [40] Drawing Nos. A203E and A203F (Exhibit 25).

6. In terms of Mr Allerding's evidence set out at [37] above, the effective setback for use of the third storey terrace is not 3.5 metres, but rather (at least) 5.6 metres from the common boundary with No. 6 View Road. Although, as Mr Allerding said, the third storey terrace is 'the primary outdoor habitable space for Unit 2 and therefore is expected to be used frequently and at multiple times during the day and night',[41] contrary to his evidence set out at [37] above, in light of the amendments made in the 5 February 2021 plans and condition 1 in Attachment A to these reasons, the use of the third storey terrace does not have 'the potential to have a significant effect on the amenity of the neighbouring property arising from privacy (both visual and acoustic) and the quiet use and enjoyment of their property'. As indicated earlier, direct overviewing will be effectively precluded. Furthermore, although Desired Outcome DO 5 does not specifically refer to acoustic amenity, but rather only to minimising 'overlooking', we are also satisfied that the proposed development has appropriately considered the amenity of the precinct by minimising adverse impact on acoustic privacy at No. 6 View Road by ensuring, through the careful placement of structures, that any person standing on the third storey terrace will be (at least) 5.6 metres from the common boundary, and by including the 1 metre high clear glass screen above the outer planter bed wall. Although no acoustic engineering evidence was presented, the planter bed and glass screen to a height of 1.6 metres is likely to have some mitigatory effect on noise.

   [41] Exhibit 13 [96].

7. The City submits that the proposed development 'does not comply with [R]equirement 5.9 [of the] CBACP[,] because the planter box and screen are together a structure which incurs into the required 2.5 [metre] setback'.[42]  As indicated earlier, Requirement 5.9 states that 'any structure located at roof level shall be setback [sic] a distance of 2.5 metres from the building edge at the side and rear boundaries'.  It is common ground between the parties – and we assume for the purposes of these reasons – that the third storey terrace is 'roof level' for the purpose of Requirement 5.9, because it is the roof of the second storey.  The term 'structure' is not defined in the CBACP and bears its ordinary meaning.  The relevant apposite meaning of the word 'structure' is 'something built or constructed'.[43] 

   [42] Respondent's closing submissions [21].

   [43] Macquarie Dictionary Online.

1. The City is correct in its submission that the planter bed and screen (and the bench seat and pool equipment store) are 'something built or constructed' and, therefore, 'structures', which are not set back the required distance of 2.5 metres from the building edge under the quantitative criterion in Requirement 5.9.  However, these structures nevertheless comply with the qualitative principles in Desired Outcome DO 5, and the proposed development is nevertheless acceptable in terms of setback, for the following four reasons.

2. First, the structures at the third storey terrace do not cause any overshadowing of the adjoining property at No. 6 View Road.

3. Secondly, the structures at the third storey terrace have minimal, if any, impact on the bulk and scale of the proposed development as perceived from the adjoining property at No. 6 View Road.  Although we would have found the 1 metre high planter bed with the 0.6 metre high white opaque glass screen above the outer planter wall, as proposed in the 17 August 2020 plans, to be unacceptable in terms of the amenity impact of the proposed development on the residential amenity of the adjoining property at No. 6 View Road, because it would have added, in effect, about half a storey of bulk to the proposal at a setback of 4 metres when viewed from the adjoining property, the amendments made in the 5 February 2021 plans avoid that entirely by reducing the height of the planter bed to 0.5 metre (setback 0.5 metre from the edge of the terrace) and altering the glass screen from white opaque glass to clear glass.  The minimal impact of the structures at the third storey terrace under the 5 February 2021 plans is apparent from the designing architect's computer generated view image from the courtyard at No. 6 View Road taken at a viewing height of 1.7 metres above ground, which we reproduce immediately below (view image).[44]

   [44] Drawing No.A203J (Exhibit 25).

4. Thirdly, as indicated earlier, the structures at the third storey terrace (as amended by condition 1 in Attachment A to these reasons) serve to keep viewers at least 2.1 metres from the edge of the building and therefore effectively avoid any visual privacy impact on the adjoining property at No. 6 View Road.

5. Finally, the planter bed will contribute not only to the amenity of the occupants of Unit 2 within the proposed development, but also to the amenity of the adjoining property at No. 6 View Road, because, as can be seen on the view image reproduced at [42] above, plants growing in the planter bed are likely to be visible.

6. We note that the setback of the second storey of the proposed development from the southern boundary of the site is 3.5 metres, whereas, under Requirement 5.6 of Element 5 Side and Rear setbacks of the CBACP, the setback should be 4 metres, because the site has a relevant width in that location of greater than 16 metres.  However, the City did not contend that the non-compliance of the setback of the second storey by 0.5 metre warrants refusal of the proposed development or indeed that this non-compliance has any material adverse impact on the adjoining property at No. 6 View Road or on the streetscape.  The proposed development complies with Desired Outcome DO 5 and is acceptable in relation to setback from the southern boundary of the site notwithstanding the non-compliance with Requirement 5.6 in relation to the setback of the second storey.

7. We conclude that the proposed development complies with the provisions of Element 5 of the CBACP in terms of the setback of the third storey terrace from the southern boundary of the site and, in any case, is acceptable in terms of setback from the southern boundary. 

Height of structures at roof level

1. The quantitative criteria against which the proposed development is to be assessed in Element 3 Heights of the CBACP relevantly include the following Requirements 3.1 and 3.5:[45] 

   3.1Maximum building heights shall be in accordance with Figure 2 Canning Bridge Activity Centre Plan Land Use, Built Form and Zones Land Use, Built Form and Zones [as written] Plan, noting the minimum site area requirements of Clause[s] 2.2 and 2.3.

   …

   3.5… For buildings in the H4 Zone, notwithstanding the 4 storey height limit, no building shall exceed 16 metres above [natural ground level].

   [45] Exhibit 3 tab 1 page 29.

2. As indicated earlier, Figure 2 Canning Bridge Activity Centre Plan Land Use, Built Form and Zones in the CBACP states that the 'Maximum Height applied in metres' in the H4 Zone is 'up to 16 metres in height'.[46]  The term 'height' (in metres) is defined in the CBACP as follows:[47] 

   In relation to a building, means the distance measured from the mean natural ground level of that part of the land on which the building is erected to the highest point of any part of the building above it but does not include:

   (a)Any lift plant, water tower or similar utility services, not exceeding 3.0 metres in height measured from the finished floor level of the roof deck; or

   (b)Any architectural feature or decoration, other than a free-standing sign, not used for any form of accommodation, or any open roofed structures which (in Q1 and Q2 is required to be) is open on three sides and does not exceed 3.0 metres in height measured from the finished floor level of the roof deck, which may be developed to provide recreation and open space opportunities for building occupants which may be approved by the decision maker.

   [46] Exhibit 3 tab 1 page 20.

   [47] Exhibit 3 tab 1 page 43 (emphasis added).

3. The Desired Outcome which represents the qualitative principles against which the Tribunal is to determine the proposed development is DO 3 as follows:[48]

   To ensure that building heights are consistent with the desired scale and built form of the centre and to ensure that the interface between Zones is appropriately managed and the amenity of property both within and adjacent to the CBACP is adequately considered.

   Applicants are encouraged to provide variation in scale, bulk and form along the streetscape as per Figure 8.

   Where an applicant proposes heights greater than those identified in these requirements the applicant may choose to have the development assessed against the Requirements of Element 21 and Element 22 of these Guidelines.

   NB.Building Height is defined in the Interpretation Section of these Guidelines.

   [48] Exhibit 3 tab 1 page 29 (italicised emphasis original and bolded emphasis added).

4. The City submits that the proposed development 'does not comply with Element 3' in two respects, although it concedes that '[t]he evidence of all experts was that the non-compliance was not significant'.[49]

   [49] Respondent's closing submissions [31].

5. First, the City submits that '[t]he proposed planter box and screen on the 5^th level of the Amended Plans [5 February 2021 plans] is 650cm [sic] above the maximum height [of 16 metres]'.[50]

   [50] Respondent's closing submissions [33].

6. However, as indicated earlier, the 1.2 metre high planter bed set back 0.5 metre from the edge of the roof terrace at each frontage shown on the 17 August 2020 plans was deleted by the 5 February 2021 plans and replaced by a 1.2 metre high glazed balustrade which is partially non-translucent (to 0.35 metre high) and clear glass above, set back by 0.5 metre from the edge of the roof.  Furthermore, although the height of the building is 15.43 metres above natural ground level, with the consequence that the top of the 1.2 metre high glass balustrade is at 16.63 metres above natural ground level, as indicated earlier the term 'height' (in metres) under the CBACP 'does not include … any open roofed structures which (in … [the] Q2 [Zone] is required to be) is open on three sides and does not exceed 3.0 metres in height'.  The glass balustrades at the roof terrace are arguably excluded from the maximum building height control of 16 metres under Element 3, because they are open roofed structures, open on three sides and less than 3 metres in height.[51]  Furthermore, and in any case, even if the balustrades are not excluded under the definition of height (in metres) in the CBACP, they comply with the Desired Outcome in DO 3 '[t]o ensure that building heights are consistent with the desired scale and built form of the centre and to ensure that the interface between Zones is appropriately managed and the amenity of property both within and adjacent to the CBACP is adequately considered'.[52] The glass balustrade does not cause any overshadowing and would be barely perceptible from both within the CBACP area and from the adjoining property at No. 6 View Road (as is apparent on the view image reproduced at [42] above, even with a somewhat dark depiction of the balustrade).

   [51] However, the CBACP should be amended to expressly address glass balustrades in order to avoid confusion.

   [52] Exhibit 3 tab 1 page 29.

7. Secondly, the City submits (and the applicant accepts) that there is a non-compliance with the maximum building height control under Element 3 in relation to the lift and stair overrun structure, which has a height of 3.5 metres.  As indicated earlier, the definition of height (in metres) excludes 'lift plant … not exceeding 3.0 metres in height measured from the finished floor level of the roof deck'.  However, as the applicant submits, this is a 'technical'[53] or 'academic'[54] non­compliance, because the overall height of the lift and stair overrun structure is 18.93 metres (15.43 metres plus 3.5 metres), which is less than the maximum building height of 16 metres plus an (excluded) 3 metre 'lift plant' (19 metres).  The applicant's characterisation of the non-compliance as technical or academic is apt, because it could be avoided simply by raising the height of the building from 15.43 metres to 15.93 metres, in which case the building height would still be less than 16 metres and the lift and stair overrun structure would ascend only another 3 metres in height and would therefore be excluded from the definition of height (in metres).  We accept Mr Lees' evidence that the proposed development involves 'a better outcome rather than increasing the height of the building proper to 16 metres [or 15.93 metres] and having a compliant lift overrun structure at [3] metres',[55] because that increase in height would create additional overshadowing and building bulk. Furthermore, the height of the lift and stair overrun structure of 18.93 metres is compliant with the Desired Outcome DO 3, including in terms of appropriately managing the interface with and the amenity of the adjoining property at No. 6 View Road, and is acceptable in terms of height, because, as the applicant submits, 'the exceedance is technical, in that the height of the building is less than that allowable under the CBACP, and no part of the lift overrun exceedance contributes to overshadowing',[56] and because, as we find in relation to issue 2 below, although the height of the proposed development will have a significant and detrimental impact on the residential amenity of No. 6 View Road by reason of overshadowing, that impact is, in the circumstances of this case, acceptable.

   [53] Applicant's closing submissions [64].

   [54] ts 62, 17 December 2020.

   [55] ts 93, 17 December 2020.

   [56] Applicant's closing submissions [75].

8. We conclude that the proposed development generally complies with the provisions of Element 3 of the CBACP in terms of the height of structures at the roof terrace and, insofar as it does not comply with quantitative Requirements of that Element, it complies with the qualitative principles in Desired Outcome DO 3 and is, in any case, acceptable in terms of height.

Is the impact of the proposed development on the residential amenity of No. 6 View Road acceptable in terms of overshadowing and height, bulk and scale?

1. As indicated earlier, under cl 67(2)(m) and (n) of the deemed provisions, the Tribunal is required to have 'due regard' to:

   (m)the compatibility of the development with its setting, including —

   (i)the compatibility of the development with the desired future character of its setting; and

   (ii)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; [and]

   (n)the amenity of the locality including the following —

   (i)environmental impacts of the development;

   (ii)the character of the locality; [and]

   (iii)social impacts of the development[.]

2. In Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149, the Tribunal[57] said the following at [38]:[58]

   The term 'amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.  Planning law in relation to the assessment of amenity impact is well settled.  In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116, President Justice Barker held at [21] that '[t]he general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed'.  In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Town Planning Appeal Tribunal observed at 304 that '[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. However, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker accepted at [20] a submission that this observation in Tempora Pty Ltd v Shire of Kalamunda as to the approach to the assessment of amenity impact was formulated in a case 'which did not raise the issue of future amenity' and held at [22] that it 'does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity'. Furthermore, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker held at [21] that 'the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents'.  His Honour endorsed the Tribunal's  recognition in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] that '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 [of the locality] … [who] are often well-placed to identify the particular qualities and characteristics which contribute to their residential amenity'. Finally, Justice Barker also determined in Sunbay Developments Pty Ltd and Shire of Kalamunda at [28] that it is open in a planning assessment to focus on, and indeed to ultimately refuse to grant development approval for a particular development in the exercise of planning discretion because of, the extent of the amenity impact 'on a part of the locality or on a single property'.  His Honour reasoned and held as follows:

   Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality.  Indeed, experience in planning assessment suggests that this will often be the case.  Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property.  Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.

   [57] Judge Parry DP.

   [58] Footnotes omitted.

3. The City submits that the impact of the proposed development on the residential amenity of the adjoining property at No. 6 View Road is not acceptable in terms of overshadowing, 'because for at least [four] months of the year the indoor living areas are affected by overshadowing'.[59]  The City also submits that the impact of the proposed development on the residential amenity of No. 6 View Road is not acceptable in terms of height, bulk and scale, 'because of the size of [No. 6 View Road], and despite the site's inclusion in the CBACP, the height[,] bulk and scale is unacceptable'.[60]  In contrast, the applicant submits that the impact of the proposed development on the residential amenity of No. 6 View Road is acceptable in the circumstances of the case.

Overshadowing

[59] Respondent's closing submissions [8(a)].

[60] Respondent's closing submissions [8(b)].

1. Ms Rosemary Waldron-Hartfield and Mr Brenton Hartfield have lived at No. 6 View Road since June 1995.  Ms Waldron-Hartfield was called as a witness by the City and explained in her evidence that part of the reason they purchased that property is 'because [the] design [of the house] takes advantage of daylight from the north'.[61]  All of the indoor living areas are 'centred on and look into the courtyard and the key indoor areas have outlooks that face north'.[62]  In particular, as Ms Waldron-Hartfield said, 'the family room [referred to as the 'living room' on the plan of the house attached to her witness statement], kitchen and dining area, are open plan and centred around our courtyard which shares its northern boundary with the subject site'.[63]  Each of these rooms 'features large bi-fold glass doors which lead out to our central courtyard allowing daylight to enter'.[64]  Ms Waldron­Hartfield describes the courtyard as 'really the heart of our home'[65] and as 'the key outdoor living area which we both enjoy daily'.[66]  Mr Mackay also observed in his evidence that the house at No. 6 View Road 'has been specifically designed around the courtyard and the level of amenity that it provides – it is not an incidental space'.[67] 

   [61] Witness statement of Rosemary Waldron-Hartfield dated 13 November 2020 (Exhibit 10) [14].

   [62] Exhibit 10 [14].

   [63] Exhibit 10 [14].

   [64] Exhibit 10 [15].

   [65] Exhibit 10 [14].

   [66] Exhibit 10 [18].

   [67] Witness statement of Malcolm Mackay dated 17 December 2020 (Exhibit 14) [6.3].

2. The courtyard and the adjoining internal living areas at No. 6 View Road currently enjoy, as Mr Allerding said in his evidence, 'a very high level of solar access'.[68]  This is a product of the design of the house, orienting its courtyard and functionally related internal living areas towards the northern side boundary with the site (rather than the rear of the property) and the fact that the site currently comprises a one storey single house. 

   [68] Exhibit 13 [65].

3. Ms Waldron-Hartfield and Mr Hartfield are very concerned about the impact of the proposed development on their access to sunlight and daylight, particularly during the winter period.  As Ms Waldron-Hartfield said in her evidence, 'access to daylight during the winter period is paramount to our enjoyment of our key indoor living areas during the winter period as it provides natural warmth to those areas'.[69]  She is concerned that, if the proposed development is approved and built, 'there will be much less winter daylight in our courtyard area, rendering it essentially unusable as an outdoor living area during the winter months'[70] and that 'we will end up with a dark, cold and basically 'lifeless' area in the courtyard due to the fact that there would be a very limited number of plants that could grow in continuous full shade throughout the winter'.[71]  She states that '[t]o have the quality of our external environment (which is also the constant and dominating outlook from all of our indoor living environments) as severely compromised as it would be by the loss of winter sunlight, would be devastating to us'.[72]

   [69] Exhibit 10 [22].

   [70] Exhibit 10 [23].

   [71] Exhibit 10 [27].

   [72] Exhibit 10 [19].

1. To determine the extent of overshadowing from the proposed development, Mr Mackay constructed a 3D model using the Sketchup computer program, which he said is 'sufficiently accurate to gauge to a high degree of accuracy, the shadow impacts of the proposed development'.[73]  Mr Mackay generated shadow diagrams for the proposed development (17 August 2020 plans) at 9 am, 10.30 am, 12 pm, 1.30 pm and 3 pm at the winter solstice on 21 June.  Mr Mackay gave the following evidence based on the shadow diagrams he generated:[74]

   From the modelling of the transition of shadows from the proposed development during the day on June 21st, the impact on the courtyard and glazing of [No.] 6 View Road is limited in the early morning and steadily increases during the morning.  However, from shortly after midday the courtyard and associated windows of [No.] 6 View Road are in total shadow for the rest of the day.

   [73] Exhibit 14 [7.7]. 

   [74] Exhibit 14 [7.16.7].

2. Mr Mackay also gave evidence that at 12 pm on 21 June the proposed development (17 August 2020 plans) will overshadow 57.9% of the site area of No. 6 View Road[75] and that:[76]

   The extent of 12pm midwinter [21 June] overshadowing of [No.] 6 View Road by the proposed development covers most of the courtyard (80.6% excluding the shadow from the dividing fence).  The majority of the windows to the habitable rooms addressing the courtyard have no access to sunlight (89.3% of the window areas) [at 12 pm on 21 June].

   [75] The amendments made by the 5 February 2021 plans, in particular the deletion of the 1.2 metre high planter bed along the southern edge of the roof terrace and its replacement with a 1.2 metre high balustrade, which is clear glass above 0.35 metre, will reduce the percentage of the site area of No. 6 View Road that will be overshadowed by the proposed development at 12 pm on 21 June to 48% (Drawing No. A402 (Exhibit 25)).

   [76] Exhibit 14 [7.16.3]. 

3. The accuracy of the shadow diagrams generated by Mr Mackay using the Sketchup computer program and his evidence based on the shadow diagrams referred to in the preceding two paragraphs was not questioned by the applicant or contradicted by any evidence presented, and we accept the accuracy of Mr Mackay's shadow diagrams and his evidence referred to above.

4. Mr Allerding expressed the opinion that the overshadowing impact of the proposed development on the adjoining property at No. 6 View Road is unacceptable in light of the degree of impact during midwinter and also given that 'the assessment by Mr Mackay … indicate[s] that there is … a long duration of spread throughout the year where there would be some degree of [a]ffect [in terms of overshadowing]'.[77]  Mr Mackay also expressed the opinion that the proposed development '[w]ill unreasonably diminish the amenity of No. [6] View Road' by reason of overshadowing.[78]  In contrast, Mr Lees expressed the opinion that 'in the context of … what is a reasonable expectation … for this locality, I think that the proposed development is appropriate [in terms of its overshadowing impact on No. 6 View Road]'.[79]

   [77] ts 149, 18 December 2020.

   [78] Exhibit 14 [10.1.3].

   [79] ts 152, 18 December 2020.

5. For the five reasons that follow, we prefer the evidence of Mr Lees over the evidence of Mr Allerding and Mr Mackay in relation to this issue where they differ, accept the applicant's submissions and do not accept the City's submissions in relation to this issue, and find that although the proposed development will have a significant and detrimental impact on the residential amenity of the adjoining property at No. 6 View Road by reason of overshadowing, that impact is nevertheless acceptable in the circumstances of this case.

6. First, and significantly, the extent of overshadowing that will be caused by the proposed development is reasonably contemplated by Requirement 5.8 in Element 5 Side and Rear setbacks of the CBACP, which, as the applicant submits, is a 'very recent amendmen[t] to this very contemporary and very specific planning instrument [the CBACP] … [and] address[es] only a handful of sites within the CBACP [area that] … sit at the outer extremity of the CBACP area in the City … and … immediately adjoin land zoned Residential outside the CBACP area'.[80]  Requirement 5.8 was approved by the Commission and commenced in August 2019.  As indicated earlier, Requirement 5.8 states that '[d]evelopment of any third or fourth storey on any site (in [the] Q1 and Q2 [Zones]) adjoining residential zoned land outside of the [CBACP area] shall be setback [sic] a minimum of 8 metres from that common boundary'.[81]  As we found earlier in these reasons, the proposed development complies with Requirement 5.8.

   [80] Applicant's closing submissions [24].

   [81] Exhibit 3 tab 1 page 31.

7. We accept the following evidence of Mr Lees:[82]

   … I think the planning framework is clear in terms of what it envisages for – for this site and – and for this locality.  The provisions that have been inserted at – at clauses – particularly, [Requirement] 5.8 which – which as you know is the – the eight metre setback requirement that applies for any third or fourth storey for sites on the boundary such as this.  The insertion of that clause which – which we know happened at the Statutory Planning Committee meeting of July last year – July 2019 – is – is attempting to deal with interface – matters of interface and issues such as the one that we're dealing with. 

   …

   … So in the context of what – what is a reasonable expectation for – for this locality, I think that the proposed development is appropriate …

   [82] ts 151-152, 18 December 2020.

8. Mr Lees' evidence in this respect is strongly supported by the Department of Planning Lands and Heritage (DPLH) officer's 'comment' in relation to then proposed Requirement 5.8 in the report to the Statutory Planning Committee of the Commission on 23 July 2019, which states as follows:[83]

   The proposed amendment increases the setback requirement of any third and fourth storey on a site in Q1 and Q2 to a minimum of 8 [metres] from a boundary to the lot (typically single and two storey type development) outside the CBACP area to lessen bulk and overshadowing impacts. 

   This seeks to ensure increased separation between buildings subject to the plan and buildings on the perimeter of the CBACP area, which have significantly less development potential (largely zoned R12.5 - R20, with some R60). 

   The amendment will assist in protecting properties adjoining the [CB]ACP, alleviating the impact of overshadowing and building bulk between properties and provide transition at the edge of the activity centre. 

   The amendment offers an area specific response to local context and a reasonable response to control development outcome and amenity concerns in the transitionary area. It is therefore recommended to be supported. 

   [83] Applicant's bundle of documents dated 19 October 2020 (Exhibit 4) tab 3 page 17 (emphasis added).

9. Mr Allerding gave the following evidence in his witness statement:[84]

   The provision of an increased setback as provided for under [Requirement] 5.8 will, to some extent, provide some mitigation, but it is a blunt and generic instrument that alone fails to apply proper consideration on the effects for overshadowing in different parts of the CBACP area.

   [84] Exhibit 13 [54].

10. Similarly in his oral evidence, Mr Allerding said the following:[85]

    ... Because the standards apply across all of the CBACP, they're really quite blunt and they don't really take into account the circumstances of a case and that's the particular issue that I've confronted with this particular development because it could be entirely suitable if we were sitting on a northern site interfacing with a – a northern neighbour, but we – we don't have that.

    [85] ts 145-146, 18 December 2020.

11. We do not accept Mr Allerding's evidence set out in the preceding two paragraphs. As the DPLH officer's 'comment' in the report to the Statutory Planning Committee of the Commission set out at [68] above makes clear, Requirement 5.8 increased the setback requirement of any third and fourth storey to a minimum of 8 metres from the common boundary of a development site at the edge of the CBACP area (within the City's local government district) with development outside the CBACP area (which the officer said is 'typically single and two storey type development') 'to lessen bulk and overshadowing impacts'.[86]  The officer said that Requirement 5.8 'will assist in protecting properties adjoining the [CB]ACP, alleviating the impact of overshadowing and building bulk between properties' and 'offers an area specific response to local context and a reasonable response to control development outcome and amenity concerns in the transitionary area'.[87]  Because, in the Southern Hemisphere, shadow is cast by buildings in midwinter (and at the equinox) to the south, it is plain from the report to the Statutory Planning Committee that, contrary to Mr Allerding's evidence, Requirement 5.8 was included in Element 5 of the CBACP in part to address, and in particular to lessen and alleviate, overshadowing impacts of development on adjoining low density residential properties to the south of the CBACP area, including at midblock locations, such as in the present case. 

    [86] Emphasis added.

    [87] Emphasis added.

12. We do not accept Mr Allerding's characterisation of Requirement 5.8 as 'a blunt and generic instrument that alone fails to apply proper consideration on the effects for overshadowing in different parts of the CBACP area'.  Rather, for the reasons he gives, we accept Mr Lees' following evidence:[88]

    … I don't believe it's a blunt instrument.  It's – it's a provision that has been formulated to deal with a specific set of concerns, being the concerns at – at the interface.  So it – it deals with that specific issue of the interface of properties within and – and outside of the CBACP [area].  Being a specific provision, I – I wouldn't use the term blunt.

    [88] ts 162, 18 December 2020.

13. Rather than being 'blunt and generic', Requirement 5.8 is a sharp and specific provision which, as Mr Lees said, 'has been formulated to deal with a specific set of concerns, being the concerns at the interface'[89] and, in particular, in part to address and mitigate the impact of overshadowing from a relatively small number of development sites at the southern boundary of the CBACP area within the City's local government district on adjoining low density residential properties (typically comprising one and two storey single houses) located outside the CBACP area to the south.  Having regard to its recent incorporation into the CBACP and its specific application to a relatively small number of properties, including the site, significant weight should be given to Requirement 5.8 in this review.  Given that the proposed development complies with Requirement 5.8, the extent of overshadowing caused by the proposed development at No. 6 View Road, while significant and detrimental, is reasonably contemplated by this recently incorporated and specific provision.  Moreover, given its recent incorporation into the planning framework to address, in part, overshadowing at the interface between the CBACP area and properties to the south, this provision materially informs reasonable amenity expectations at adjoining low density residential properties, including at midblock locations, such as No. 6 View Road.  Consequently, we accept the applicant's submission that 'what is proposed by this development application is exactly what is contemplated in terms of future amenity by the CBACP'.[90]

    [89] ts 162, 18 December 2020.

    [90] Applicant's closing submissions [94].

14. Counsel for the applicant also referred in her submissions to the Tribunal's statement in its reasons for decision in Sapphire Developments Alliance Pty Ltd and City of Nedlands at [126] that '… the extent of overshadowing in this case is an unfortunate, but largely inevitable, consequence of reasonable development consistent with the R40 coding of the site and the fact that the affected properties lie to its south' and submits the 'this same line of reasoning should be applied in this case'.[91]  The affected properties that were overshadowed in Sapphire Developments Alliance Pty Ltd and City of Nedlands were coded R20.  We accept the applicant's submission.  Indeed, the reasoning in Sapphire Developments Alliance Pty Ltd and City of Nedlands applies with even greater force in the circumstances of this case, because, as we have said, Requirement 5.8 is a recent provision incorporated into the applicable planning framework to address and mitigate the very same issue as arises in this case of the impact of overshadowing across the boundary of the CBACP area and the proposed development complies with that provision.  

    [91] Applicant's closing submissions [113].

15. Secondly, as the shadow diagrams prepared by Mr Mackay (based on the 17 August 2020 plans) show, even at the winter solstice on 21 June, No. 6 View Road will retain some direct solar access into the courtyard and adjoining internal living areas during the morning and up to a little after midday.  At 9 am on 21 June, it appears that the proposed development will not overshadow the courtyard or north­facing dining room/kitchen and family/living room at No. 6 View Road.  Consequently at 9 am on 21 June, there will continue to be an area of direct sunlight at ground level in the southern part of the courtyard and there will continue to be direct sunlight through the western bi-fold doors into the dining room/kitchen and a small amount of direct sunlight through the eastern bi-fold doors into the family/living room.[92]  By 10.30 am on 21 June, the proposed development will cast shadow in the western part of the courtyard, although a substantial area in the central and eastern part of the courtyard will retain direct sunlight at ground level and sunlight will continue to penetrate through the eastern half of the western bi-fold doors into the dining room/kitchen and through approximately two-thirds of the eastern bi-fold doors into the family/living room.[93]  By 12.00 pm on 21 June, the shadow cast by the proposed development will move to cover most of the courtyard, the whole of the western bi-fold doors and the western half of the eastern bi-fold doors, although direct sunlight will still be retained at ground level in the eastern part of the courtyard and through the eastern half of the eastern bi-fold doors into the family/living room.[94]  By 1.30 pm on 21 June, the proposed development will overshadow all of the courtyard and both north­facing bi-fold doors in their entirety.[95]  This will continue to be the case at 3 pm on 21 June as the shadow cast by the proposed development moves further to the south-east.[96]  We also note that although the area to the rear or east of the house at No. 6 View Road is not presently used as an outdoor living area and is not contiguous with internal living areas, it will not be overshadowed by the proposed development during the morning or at midday on 21 June and will have direct solar access at ground level for about half of its width at 10.30 am (with the other half overshadowed by the back fence) and substantially for the whole of its area at 12 pm on 21 June.  This is an alternative area that could be utilised for access to direct sunlight in midwinter.

    [92] Exhibit 14 Annexure MAM 3.5.

    [93] Exhibit 14 Annexure MAM 3.6.

    [94] Exhibit 14 Annexure MAM 3.7.

    [95] Exhibit 14 Annexure MAM 3.8.

    [96] Exhibit 14 Annexure MAM 3.9.

16. Mr Mackay also carried out an analysis of the period of time during which 'at the benchmark 12pm time, the windows [that is, the north­facing bi-fold doors of the dining room/kitchen and the family/living room at No. 6 View Road] are free of shadow [cast by the proposed development]'.[97]  In the title to his shadow diagram showing the overshadowing impact the proposed development at 12 pm on 30 August, Mr Mackay described this analysis as '[the] date at which the building shadow falls short of the glass'.[98]  Mr Mackay determined that the proposed development, as shown in the 17 August 2020 plans, will have some impact by casting at least some shadow on the north­facing bi-fold doors at 12 pm for a little under five months of the year and estimated that, if amendments consistent with what became the 5 February 2021 plans were made, then this period would be reduced by 22 days to about four months and one week.  As indicated earlier, Mr Allerding relies on Mr Mackay's analysis and evidence in this regard to support his opinion that the proposed development would have an unacceptable impact on the residential amenity of No. 6 View Road by reason of overshadowing.  As also indicated earlier, the City's submission that the impact of the proposed development on the residential amenity of No. 6 View Road is not acceptable in terms of overshadowing 'because for at least [four] months of the year the indoor living areas are affected by overshadowing'[99] is based on Mr Mackay's analysis and evidence and Mr Allerding's consequent opinion. 

    [97] Exhibit 14 [7.16.6]. 

    [98] Exhibit 14 Annexure MAM 3.4.

    [99] Respondent's closing submissions [8(a)].

17. However, Mr Mackay's analysis as to the period of time during which the proposed development will have some impact by casting at least some shadow on the north­facing bi­fold doors at No. 6 View Road does not reflect any development standard that applies under the planning framework nor any recognised planning policy referred to in the evidence.  Rather, it is a standard of Mr Mackay's own making (and adopted to an extent in Mr Allerding's evidence).  Moreover 'some impact' for four months and one week in terms of casting some shadow on the north­facing bi-fold doors does not necessary equate to an unreasonable impact.  As indicated earlier, even at the winter solstice, if the development is approved and constructed, No. 6 View Road will still retain some direct solar access into the courtyard at ground level and through parts of the bi-fold doors into parts of the adjoining north­facing living areas during the morning (from some time prior to 9 am) and at midday.  After 21 June, the period and extent of direct solar access into the courtyard and into the north­facing internal living areas at No. 6 View Road will progressively increase to the point that, approximately two months later, there will be no overshadowing caused by the proposed development on the north­facing bi-fold doors and therefore into the north­facing internal living areas.  On balance, for the reasons given above and below, the amenity impact in terms of overshadowing is acceptable.

18. Thirdly, as the applicant submits, he has 'to the extent that [he] has been able [within the general design of the proposed development which, as we found earlier, 'is exactly what is contemplated in terms of future amenity by the CBACP',[100]] … through the … modifications to remove the planter boxes from the rooftop level [in the 5 February 2021 plans], … done all [he] can to ameliorate the impact [of overshadowing]'.[101]  As Mr Mackay indicated to the Tribunal in his evidence, and as is clearly apparent on the shadow diagrams that he produced, the 'leading edge' of the shadow cast by the proposed development (on the basis of 17 August 2020 plans) was from the planter bed (and plants growing in the planter bed) at the roof level.  The removal of the planter bed along the southern edge of the roof terrace and the incorporation of clear glazed balustrading (above 0.35 metre) set back 0.5 metre from the edge will result in some improvement to the overshadowing of the adjoining property, although not at or close to 21 June, when the shadow diagrams show that the shadow cast by the edge of the roof of the proposed development passes over the roof of No. 6 View Road.  As indicated earlier, Mr Mackay gave evidence, which we accept, that if amendments consistent with what is now proposed in the 5 February 2021 plans were made, there would be 22 days less overshadowing on the north­facing bi-fold doors at No. 6 View Road than would be the case under the 17 August 2020 plans.

    [100] Applicant's closing submissions [94].

    [101] Applicant's closing submissions [113.4].

1. At its Ordinary Meeting on 17 November 2020, the Council did not accept Mr Ponton's recommendation and resolved as follows:[126]

   1.In accordance with Schedule 2, Part 5 of the Planning and Development (Local Planning Schemes) Regulations 2015 resolves to prepare and initiate the following amendment to the Canning Bridge Activity [Centre] Plan:

   Modify the southern boundary of the Canning Bridge Activity Centre Plan so that the boundary follows the carriageways of Helm Street, Sleat Road and Wren Street to Ullapool Road, Mount Pleasant, in accordance with Attachment 1.

   2.Pursuant to Section 75 of the Planning and Development Act 2005, resolves to prepare and initiate Scheme Amendment No. 9 to Local Planning Scheme No. 6 as follows:

   a)Modify the southern boundary of the Canning Bridge Activity Centre Plan so that the boundary follows the carriageways of Helm Street, Sleat Road and Wren Street to Ullapool Road, Mount Pleasant, in accordance with Attachment 1.

   b)Modify the zoning of those properties excluded from the Canning Bridge Activity Centre Plan from Centre Zone RAC-0 to Residential R20.

   [126] Exhibit 12 page 12 (original emphasis).

2. As the Council resolved that Amendment 9 is a 'basic amendment', rather than a 'complex amendment', under reg 34 of the LPS Regs, it has not been publicly advertised under the LPS Regs. On 7 December 2020, the City forwarded Amendment 9 to the Commission for consideration. As at the date of Mr Ponton's supplementary witness statement (14 December 2020) and as at the date of his oral evidence (17 December 2020), the Commission had not indicated when it will consider the amendment. However, Mr Ponton said that the City's Strategic Urban Planning team had been advised by a DPLH officer 'that as a first step, a decision on the category of amendment is expected by 25 December 2020'.[127]  No further update has been provided to the Tribunal by the parties. 

   [127] Exhibit 12 [6].

3. Clause 67(2) of the deemed provisions states, in part, as follows:[128]

   In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application —

   …

   (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[.]

   [128] Original emphasis.

4. The applicant contests the Council's characterisation of Amendment 9 as a 'basic amendment' under reg 34 the LPS Regs and contends that it is a 'complex amendment' under that regulation. The applicant submits that, because Amendment 9 has not been advertised under reg 38 of the LPS Regs, it is not a relevant matter for consideration under cl 67(2)(b) of the deemed provisions. In contrast, the City submits that it lawfully 'determined [Amendment 9] was not required to be advertised' and that this review 'is not a proceeding regarding the correctness of the [r]espondent's decision that the amendment was not a complex amendment'.[129]

   [129] Respondent's closing submissions [58].

5. Contrary to the City's submission, the Tribunal has power when conducting a review of an administrative decision, such as the decision of the Council to refuse to grant development approval for the proposed development, to entertain a collateral attack on the validity of another administrative decision the validity of which will have an impact on the decision under review, such as the City's decision to characterise Amendment 9 as a 'basic amendment', rather than a 'complex amendment', to the Scheme.[130]  However, the corresponding proposed amendment to the CBACP is certainly a 'proposed planning instrument that the local government is seriously considering adopting or approving', within the meaning cl 67(2)(b) of the deemed provisions, and consequently a relevant matter for consideration under that provision.  Furthermore, it is unnecessary in this review to resolve the dispute as to whether Amendment 9 is a 'basic amendment' or a 'complex amendment', because, even assuming for the purposes of these reasons that it is a basic amendment and consequently a relevant matter for consideration (without advertising) under cl 67(2)(b) of the deemed provisions, in our view, applying the 'Nicholls principles',[131] little if any weight should be given to proposed Amendment 9 and the corresponding proposed amendment to the CBACP in the circumstances of this case.  This is because, although Amendment 9 and the corresponding amendment to the CBACP address the specific application in this case, by removing the site from the application of the CBACP, we are not satisfied that these amendments are based on sound town planning principles and it is neither relatively certain nor imminent that these amendments will be made.

   [130] Edwards and Department of Planning and Infrastructure [2007] WASAT 101; (2007) 52 SR (WA) 328; (2007) 155 LGERA 1 [46] (Justice Barker P) and Griffin Windfarm Holdings Pty Ltd and Valuer General [2012] WASAT 224 [37] (Justice Chaney P).

   [131] See Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 [40]-[59] (Mr DR Parry SM) and Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 [198]-[206] (Judge Parry DP and Ms M Connor M).

6. As indicated earlier, Requirement 5.8 in Element 5 Side and Rear setbacks of the CBACP was approved by the Commission and incorporated into the CBACP as recently as August 2019 in order to address and mitigate amenity impacts of development at the current boundaries of the CBACP area, including at midblock locations.  The report by the DPLH officer for the meeting of the Statutory Planning Committee of the Commission on the 23 July 2019 in relation to the then proposed Requirement 5.8 shows that it was based on sound town planning principles and was the subject of thorough assessment and justification.  In contrast, when Mr Ponton was asked in cross-examination 'whether or not that thorough level of justification has been undertaken in respect of this new amendment [to the southern boundary of the CBACP area]', he responded 'I wouldn't call it thorough'.[132] 

   [132] ts 70, 17 December 2020.

7. The Council concedes that Amendment 9 and the corresponding amendment to the CBACP are 'not certain or imminent'[133] and that consequently 'little or no weight'[134] or no more than 'limited weight'[135] should be given to them in the exercise of the planning discretion as to whether to approve the proposed development.  As indicated earlier, Mr Ponton recommended that the Council should not proceed with Amendment 9 and the corresponding amendment to the CBACP at this time, because 'a modification to the southern boundary of the CBACP [area] is best considered through comprehensive investigations as part of the current CBACP review' and the Commission 'has also advised that it is its expectation that no further amendments to the CBACP will be initiated until the review of the CBACP has progressed'.[136]  Specifically, when the Statutory Planning Committee of the Commission approved the most recent modification to the CBACP at its meeting on 9 June 2020, it resolved to '[a]dvise the [City] it is the [Commission's] expectation no further amendments are initiated for the [CBACP], in lieu of undertaking a full review'.[137]  Furthermore, there is no evidence as to the attitude of the Commission (or the Minister for Planning) in relation to Amendment 9 and the corresponding amendment to the CBACP. 

Exercise of planning discretion

[133] Respondent's closing submissions [56].

[134] ts 36, 17 December 2020.

[135] Respondent's closing submissions [56].

[136] Exhibit 12 page 10.

[137] Exhibit 17 Annexure 3.

1. Mr Lees carried out and provided in his evidence a detailed assessment of the proposed development against all of the relevant Elements of the CBACP.[138]  Other than in relation to Elements 3 and 5, which we discussed in terms of issue 1 above, Mr Lees' assessment was not questioned by the City or contradicted by any other evidence, and we accept it.  As Mr Lees said in his evidence, the assessment shows that 'the development is largely consistent with the relevant Desired Outcomes and Requirements of the CBACP'.[139]  Our findings in relation to issue 1 confirm that Mr Lees' conclusion is certainly correct in relation to Elements 3 and 5 and that the proposed development is acceptable in terms of setback from the southern boundary of the site and in terms of height.  There is no cogent reason in the circumstances of this case to depart from the application of the provisions of the CBACP in the assessment of the proposed development.  In particular, as we determined earlier in these reasons, the impact of the proposed development on the residential amenity of the adjoining property at No. 6 View Road is acceptable in terms of overshadowing and height, bulk and scale (and privacy, noise and lighting). 

   [138] Exhibit 17 Annexure 6.

   [139] Exhibit 17 [7.38].

2. Mr Lees also carried out and provided in his evidence an assessment of the proposed development in terms of each of the 10 design principles for good design under State Planning Policy 7.0 ­ Design of the Built Environment (SPP 7.0).[140]  Mr Lees expressed the opinion on the basis of his assessment that 'I consider that the proposed development responds positively and achieves the [10] design principles set out in SPP 7.0'.[141]  Mr Lees' assessment of the proposed development under the 10 principles for good design set out in SPP 7.0 was not questioned by the City or contradicted by any other evidence, and we accept it.

   [140] Exhibit 17 [7.113].

   [141] Exhibit 17 [7.113].

3. We have also determined that little if any weight should be given to proposed Amendment 9 and the corresponding proposed amendment to the CBACP to move the southern boundary of the CBACP area, in particular to exclude the site from that area, in the circumstances of this case.

4. It follows that the correct and preferable decision at the time of the decision upon the review, under s 27(2) of the SAT Act, in the exercise of planning discretion, is to grant development approval for the proposed development subject to conditions.

5. In accordance with the Tribunal's usual practice and programming orders, the City formulated and provided a set of draft 'without prejudice' conditions which it contends should be imposed if the Tribunal considers that approval of the development application subject to conditions is appropriate and the applicant provided a response. The applicant accepts all of the conditions proposed by the City and proposes an additional condition requiring that the development be carried out in accordance with the 5 February 2021 plans and that the approved plans should be listed by drawing number. 

6. We consider that the conditions suggested by the parties are appropriate to regulate the carrying out of the proposed development with the addition to the condition (condition 1) requiring the development to be carried out in accordance with the 5 February 2021 plans stating that the development shall be carried out in accordance with those plans 'as amended to increase the width of the planter bed to the west of the bench seat on Drawing No. A203 [at the third storey terrace] from 1 metre to 1.6 metres'.[142]

Orders

[142] A typographical error in condition 6(a) has been corrected by changing the words 'planter size' to 'planting size'.

1. For these reasons, we make the following orders:

   1.The application for review is allowed.

   2.The decision made by the respondent on 27 November 2019 to refuse to grant development approval under the City of Melville Local Planning Scheme No. 6 (LPS 6) and the Metropolitan Region Scheme (MRS) for the construction of a four storey building comprising three multiple dwellings at No. 4A View Road, Mount Pleasant is set aside and a decision is substituted that development approval is granted for the proposed development under LPS 6 and the MRS subject to the conditions in Attachment A.

Attachment A – Conditions of approval

(1)The development shall be carried out in accordance with the plan numbers listed in Annexure A and dated 5 February 2021 as amended to increase the width of the planter bed to the west of the bench seat on Drawing No. A203 from 1 metre to 1.6 metres.

(2)All stormwater generated on site is to be retained on site.

(3)Prior to the initial occupation of the development, all unused crossover(s) shall be removed and the kerbing and road verge reinstated at the owner's cost to the satisfaction of the City of Melville (City).

(4)The development shall be serviced by a concrete or brick paved vehicle crossover with a minimum width of 4 metres and located a minimum of 2 metres away from the outside of the trunk of any street tree. The crossover is to be constructed prior to the initial occupation of the development in accordance with the City's specifications to the satisfaction of the City.

(5)Fencing and all structures within the front setback area are to comply with cl 10.7 of Element 10 of the Canning Bridge Activity Centre Plan (CBACP) with a maximum height of 1.2 metres to the satisfaction of the City.

(6)Prior to the commencement of works, a detailed landscaping and reticulation plan for the subject site and the road verge adjacent to the site shall be submitted to and approved in writing by the City.  The landscaping plan is to include details of (but not limited to):

(a)the location, number and type of proposed trees and shrubs including planting size and planting density;

(b)any lawns to be established;

(c)any existing vegetation and/or landscaped areas to be retained;

(d)any verge treatments; and

(e)the landscaping treatment to be applied to the driveway access leg boundary.

(7)The approved landscaping and reticulation plan shall be fully implemented within the first available planting season after the initial occupation of the development and maintained thereafter to the satisfaction of the City.  Any species which fail to establish within the first two planting seasons following implementation shall be replaced in accordance with the City's requirements. 

(8)Prior to the initial occupation of the development, an updated Waste Management Plan shall be prepared in accordance with the City's Council Policy 'Waste and Recyclables Collection for Multiple Dwellings, Mixed Use Developments and Non-Residential Developments' and submitted in writing for the approval of the City. Once approved, the development is to be constructed and operated in accordance with the Waste Management Plan to the satisfaction of the City.

(9)Prior to the commencement of works, an updated Environmentally Sustainable Design Report shall be submitted to and approved in writing by the City in response to the amended building design and shall accord with cl 5 of the CBACP.

(10)Prior to the commencement of works, details of the exterior colours, materials and finishes are to be submitted to and approved in writing by the City.  Once approved, the development is to be constructed in accordance with those details.

(11)Lighting is to be provided to all car parking areas and the exterior entrances to all buildings in accordance with Australian Standard AS 1158.3.1 (Cat. P).  All external lighting to be hooded and oriented so that the light source is not directly visible to the travelling public or abutting development.

(12)A Construction Management Plan is to be prepared by the applicant and submitted to the City for approval at least 30 days prior to the commencement of works.  The Construction Management Plan shall detail how the construction of the development will be managed including the following:

(a)public safety and site security;

(b)hours of operation;

(c)noise and vibration controls;

(d)air and dust management;

(e)stormwater, groundwater and sediment control;

(f)waste and material disposal;

(g)Traffic Management Plans prepared by an accredited personnel for the various phases of the construction, including any proposed road closures;

(h)Parking Management Plan prepared by an accredited personnel;

(i)the parking arrangements for contractors and sub-contractors;

(j)on-site delivery times and access arrangements;

(k)the storage of materials and equipment on site (no storage of materials on the verge will be permitted); and

(l)any other matters likely to impact upon the surrounding properties or road reserve.

(13)Once approved, the development is to be constructed in accordance with the Construction Management Plan to the satisfaction of the City.

(14)Temporary structures, such as prefabricated or demountable offices, portable toilets and skip bins necessary to facilitate storage, administration and construction activities are permitted to be installed within the property boundaries of the subject site for the duration of the construction period. These structures must not obstruct vehicle sight lines. Temporary structures are to be removed prior to initial occupation of the development.

(15)Prior to the commencement of works, a scheme for the provision of Public Art shall be submitted to and approved in writing by the City in consultation with the City's Public Art Panel.  Once approved, the Public Art shall be provided in accordance with Council Policy ­ 085: 'Provision of Art in Development Proposals' and the CBACP prior to the initial occupation of the development to the satisfaction of the City. Alternatively, the Public Art contribution may be satisfied by a cash-in-lieu payment at the same rate, made prior to the commencement of works.

(16)Prior to the commencement of works, the street tree/s to be retained within the verge are to be protected through the installation of a Tree Protection Zone (TPZ).  Each TPZ is to be installed as per Australian Standard AS4970-2009 and in accordance with the following criteria to the satisfaction of the City:

(a)A free-standing mesh fence erected around each street tree with a minimum height of 1.8 metres and a 2 metre minimum radius measured from the outside of the trunk of each tree.

(b)If an approved crossover, front fence, footpath, road, or similar is located within the 2 metre radius, the TPZ fencing shall be amended to be the minimum distance necessary to allow the works to be completed.

(c)Fixed signs are to be provided on all visible sides of the TPZ fencing clearly stating 'Tree Protection Zone ­ No Entry'.

(d)The following actions shall not be undertaken within any TPZ:

(i)storage of materials, equipment fuel, oil dumps or chemicals;

(ii)servicing and refuelling of equipment and vehicles;

(iii)attachment of any device to any tree (including signage, temporary service wires, nails, screws, winches or any other fixing device);

(iv)open-cut trenching or excavation works (whether or not for laying of services);

(v)changes to the natural ground level of the verge;

(vi)location of any temporary buildings including portable toilets; and

(vii)the unauthorised entry by any person, vehicle or machinery.

(e)No unauthorised pruning of the canopy or roots of any Street Tree is permissible under the City's Street Tree Policy CP-029.  Pruning may only be undertaken by the City's' approved contractors following a written submission to and approval by the City.

(f)Once erected to the required standard, the TPZ shall be maintained in good condition to the satisfaction of the City's and may only be removed upon occupation of the development.

(17)Prior to the commencement of works, an Acoustic Report shall be submitted to demonstrate that all mechanical services and car parking associated with the development are capable of complying with the 'Assigned Noise Levels' contained in the Environmental Protection (Noise) Regulations 1997 (WA) when the noise is received at any neighbouring residential premises to the satisfaction of the City. Once approved, the development shall operate in accordance with the recommendations set out in the report to the satisfaction of the City.

(18)This decision constitutes planning approval only and is valid for a period of two years from the date of approval. If the development is not substantially commenced within the two year period, the approval shall lapse and be of no further effect.

Annexure A

Drawing No.	Drawing	Date
A201	Ground Floor Plan	05.02.21
A202	First Floor Plan	05.02.21
A203	Second Floor Plan	05.02.21
A203A	Section	05.02.21
A203B	Section	05.02.21
A203C	Section	05.02.21
A203D	Section	05.02.21
A203E	Section	05.02.21
A203F	Section	05.02.21
A203G	Perspectives	05.02.21
A203H	Render	05.02.21
A203I	Render	05.02.21
A203J	Render	05.02.21
A204	Third Floor Plan	05.02.21
A205	Roof Terrace	05.02.21
A301	Elevation	05.02.21
A302	Elevation	05.02.21
A401	Section	05.02.21
A403	Shadow Diagram	05.02.21
A404	Landscape Plan	05.02.21
A500	Site Context	05.02.21
A501	Streetscape Context	05.02.21
A502	Solar Access / Ventilation	05.02.21
A503	Solar Access / Ventilation	05.02.21
A504	Solar Access / Ventilation	05.02.21
A505	Solar Access / Ventilation	05.02.21
A506	Solar Access / Ventilation	05.02.21
A801	Perspective	05.02.21
A802	Perspective	05.02.21
A803	Perspective	05.02.21
A804	Perspective	05.02.21

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

JUDGE D R PARRY, DEPUTY PRESIDENT

12 MAY 2021