WOODCOCK and CITY OF FREMANTLE - [2020] WASAT 42

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WOODCOCK and CITY OF FREMANTLE [2020] WASAT 42
MEMBER:   MS M CONNOR, MEMBER
HEARD:   9 SEPTEMBER 2019, 23 JANUARY 2020 AND 7 FEBRUARY 2020
DELIVERED          :   30 APRIL 2020
FILE NO/S:   DR 311 of 2018
BETWEEN:   DAVID WOODCOCK

AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development - Grouped dwelling development comprising existing heritage listed dwelling, 'Existing Studio' and new two storey Grouped dwelling with roof terrace - Characterisation of 'Existing Studio' Construction and interpretation of planning instrument - Evaluative judgment - Whether 'Existing Studio' is 'detached addition to existing dwelling', 'Ancillary dwelling' or 'Grouped dwelling' - Whether 'Existing Studio' is selfcontained - Condition restricting use of 'Existing Studio' - Unworkable, unenforceable and seeks to confine use in the ordinary way

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 3.2.1(a), cl 4.1, cl 4.1.1, cl 4.1.2, cl 4.2, cl 4.2.2, cl 4.2.3, cl 4.3.1, cl 4.3.3, c. 4.7, cl 4.7.3, cl 4.7.3.1, cl 4.8, cl 5.1.2, cl 5.4.1, cl 5.4.2, Pt 5
Metropolitan Region Scheme
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), Sch 2, cl 67, cl 68(2)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.5.1, Appendix 1

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms A Butterworth (acting as agent)
Respondent	:	Mr J Algeri (acting as agent)

Solicitors:

Applicant	:	Allerding and Associates
Respondent	:	Altus Planning

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

Corp and Town of Cambridge [2019] WASAT 65
Dao Ji Association and City of Gosnells [2020] WASAT 10
Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Yu v Brisbane City Council [2005] QPEC78; [2006] QPELR 102

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

David and Anitra Woodcock made application to the City of Fremantle (respondent, Council or City) for development approval for the construction of a 'multiple storey single grouped dwelling' on Lot 22 (No 137) South Terrace, Fremantle (subject land).[1]
[1] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) pages 119-129.
The Planning and Development Committee of the Fremantle City Council, under delegation, at its meeting of 7 November 2018 resolved to refuse to grant development approval for a 'two storey with roof terrace Grouped dwelling and conversion of an Ancillary dwelling to Outbuilding (or detached addition to the existing Single house)'[2] on the subject land for the following reasons:
1.The proposal is detrimental to the amenity of the area and incompatible with the objectives of the Residential zone set out in clause 3.2.1(a) of the Local Planning Scheme No 4 as per clauses 67(a), (m) and (y) of the Deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
2.The lot boundary setback of the northern and western elevations do not satisfy the Design principles of clause 5.1.3 of the RCodes by reasons of the impact of bulk and scale of the amenity of the adjoining northern and western properties.
3.The proposal provides inadequate arrangement for vehicle parking as per clause 67(s) of the Deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
[2] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) pages 54-55.
Mr David Woodcock (applicant), on 28 November 2018 made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and development approval be granted for the proposed development.
As part of the proceedings in this matter the parties engaged in mediation, which resulted in a revised proposal being provided to the respondent. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised proposal.
The Council, at its meeting of 22 May 2019, reconsidered the matter and refused to grant development approval for the following reasons:[3]
1.The proposal is detrimental to the amenity of the area and incompatible with the objectives of the Residential zone set out in clause 3.2.1(a) of the Local Planning Scheme No 4 as per clauses 67(a), (m) and (y) of the Deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
2.The lot boundary setback of the norther elevation does not satisfy the Design principles of clause 5.1.3. of the R-Codes by reasons of the impact of bulk and scale on the amenity of the adjoining northern property.
3.The proposal provides inadequate arrangements for vehicle parking as per clause 67(s) of the Deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015.
[3] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) page 17.
The matter proceeded to final hearing for adjudication by the Tribunal.
On the morning of 9 September 2019, the Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject land, neighbouring properties and the immediate locality. At the commencement of the final hearing the Tribunal raised the following two issues that required the attention of the parties, in particular the applicant:
i)whether the subject land had right of access/carriageway over the private rights-of-way network, which the applicant intended to use as means of vehicular access to service the proposed dwelling; and
ii)what affect, if any, did the Water Corporation easement, as shown on the Certificate of Title for the subject land, have on the design of the proposed development.[4]
[4] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) page 124
The applicant sought an adjournment of the final hearing to investigate the issues raised and to consider their position in respect to the application for review. Subsequently, an application to amend the development application was made by the applicant and the Tribunal, on 25 October 2019, made orders allowing for the filing and serving of an amended development application. Amended plans were filed and served by the applicant on 8 November 2019 and, with leave of the Tribunal, it is this iteration of the plans that are the subject of this review (amended plans).[5]

Subject land

[5] Amended plans, received 8 November 2019 – STCE001.2P/9; STCE002P/7; STCE002P/7 (Exhibit 2).

The subject land is more particularly described as Lot 22 on Diagram 15324, being the whole of the land contained in Certificate of Title Volume 1138 Folio 846 and is 630m² in area.[6] The following two easements are registered on the subject land:
•1753138 Easement benefit granting rights of Carriageway over and along a portion of land at the rear of Lot 2 South Terrace (No 139-141 South Terrace to the subject land; and
•M805712 Easement burden on the subject land to the benefit of the Water Corporation for sewerage purposes.
[6] Respondent's section 24 bundle, dated 5 July 2010, (Exhibit 6) page 124.
The subject land currently contains a single storey dwelling which is listed on the City's Heritage List and assigned Management category - Level 3. Other improvements include a separate, single storey addition (referred to by the parties as the 'Existing Studio' comprises a bedroom, kitchenette, bathroom, and store) and a carport. These structures are located adjacent to the southern boundary of the lot.
Although the subject land has frontage to South Terrace due to the siting of the existing dwelling, there is no vehicular access directly available to South Terrace. While there is a 3.12 metre wide access easement over the rear of No 139-141 (Lot 2) South Terrace, it has not being established that the subject land has rights of carriageway over the network of private rights-of-way that connect to Price Street.[7]

The proposal

[7] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) pages 145-157.

Development approval is sought for a 'Grouped dwelling'[8] development that proposes to retain the heritage listed dwelling (existing dwelling) that fronts onto South Terrace as well as the Existing Studio and to construct a two storey dwelling with a roof top terrace (proposed dwelling) at the rear of the subject land, adjacent to the northern (side) and western (rear) boundaries of the lot.
[8] 'Grouped dwelling' is defined in Appendix 1 – Definitions of the R-Codes as 'A dwelling that is one of a group of two or more on the same lot such that no dwelling is paced wholly or partly vertically above or below another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property'.
The proposal does not involve any works to the existing dwelling other than the demolition of an existing patio at the rear of the dwelling and the provision of two scooter bays in that location. The existing carport, at the rear of the property, and the verandah attached to the Existing Studio are also to be demolished.
The proposed dwelling comprises three bedrooms each with en-suite, study, living room, kitchen, a rooftop terrace and pergola and an undercover parking area (25.7m² in area).
According to the assessment undertaken by officers of the City, the setbacks of proposed dwelling to lot boundaries varies from:[9]
•1.2 metres (northern ground floor wall) to 2.1 metres (northern roof terrace wall) from the northern boundary; and
•nil (carport pillar) to 2.4 metres (western roof terrace wall) from the western boundary.
[9] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) page 29.
The proposed dwelling is set back approximately 5 metres from the existing dwelling and approximately 2.2 metres from the Existing Studio.
The wall height of the two storey portion of the proposed dwelling measures 5.14 metres. The height of the building incorporating the roof terrace balustrade and the pergola measures 7.54 metres at its highest point.
The only parking available on site to service the Grouped dwelling development is scooter parking. Two scooter bays are located at the rear of the existing dwelling and additional scooter bays are identified in the undercover parking area of proposed dwelling. Access to the scooter bays is proposed from South Terrace via a 2.115 metre 'pedestrian and scooter access' that runs between the southern boundary of the lot and the existing dwelling. Details of manoeuvrability within the site are not illustrated on the plans but would involve all scooters navigating between the existing dwelling and the Existing Studio, and scooters associated with the proposed dwelling navigating between the Existing Studio and the proposed dwelling.
It should also be noted that portions of the proposed dwelling are located over the Water Corporation easement.

Planning framework

The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential' with a density coding of R35 under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
The aims of the Scheme and the objectives for the Residential zone are set out in cl 1.6.1 and cl 3.2.1(a), respectively.
Grouped dwelling is designated as a 'D' in the Residential zone in Table 1 Zoning Table of the Scheme. 'D' means that the use is not permitted unless the Council has exercised its discretion by granting development approval.
Clause 4.1.1 of the Scheme requires that any development is to comply with the provisions of the Scheme and pursuant to cl 4.1.2, due regard is to be given to any relevant local planning policies including design guidelines, which have effect in the Scheme area.
In addition, cl 4.2.2 and cl 4.2.3 of the Scheme provide as follows:
4.2.2Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the RCodes is to conform to the provisions of those Codes.
4.2.3The R-Codes density applicable to land within the Scheme area shall be determined by reference to the R-Codes density number on the Scheme map and the area contained thereto as delineated by the dashed black line borders superimposed on the Scheme map.
Provisions relating to special control areas are contained in Pt 5 of the Scheme. One of the special control areas identified in Pt 5 is 'local planning areas', which are shown on the Scheme map as 'LPA' with a number and included in Schedule 7 Local Planning Areas (Development Requirements) (Schedule 7) of the Scheme. The subject land is located in 'Local Planning Area 4 South Fremantle' (LPA 4), and more particular, Sub Area 4.3.1.
Clause 4.3.1 of the Scheme considers the relationship of the State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes) to Local Planning Areas and provides that:
Where there is inconsistency between the R-Codes and provisions contained in Schedule 7 (local planning areas) the provisions of Schedule 7 shall prevail to the extent of the inconsistency.
Further, cl 5.1.2 of LPS 4 provides that:
In respect of a special control area shown on a Scheme Map, the provisions applying to the special control area apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme.
The purpose of a Local Planning Area is 'to protect and enhance locally desired character'.[10] Clause 5.4.2 of the Scheme provides guidance on conflict between provisions relating to general development requirements of the Scheme and local planning areas, and local planning areas and sub areas within local planning areas.
[10] City of Fremantle Local Planning Scheme No 4 (LPS 4) - cl 5.4.1.
The specific development controls for Sub Area 4.3.1 relate to building height and as the subject land is on South Terrace, the height requirement is referenced under cl 4.1 Height Requirements of LPA 4, which provides as follows:

Zone (Within LPA Only)

Maximum External Wall Height

…

…

Residential

All requirements as per the R-codes and special application under clause 4.4. (sic).

Clause 4.2 of LPA 4 specifies matters to be considered in applying general and specific height requirements and states:
In granting consent to the maximum heights prescribed Council shall be satisfied in regard to all of the following:
•that the proposal is consistent with predominant height patterns of adjoining properties and the locality generally,
•the proposal would not be detrimental to the amenity of the area,
•the proposal would be consistent, if applicable, with conservation objectives for the site and locality generally, and
•any other relevant matter outlined in Council's local planning policies.
Council may impose a lesser height in the event that the proposal does not satisfy any one or all of the above requirements.
Clause 4.3.3 of LPS 4 provides discretion in a Local Area Policy Area, subject to certain criteria being met, to vary provisions of the RCodes relating to:
•minimum distance between buildings in different occupancies on the same lot;
•open space requirements within a heritage area; and
•setback provisions.
Clause 4.7 of the Scheme specifies the vehicle parking requirements for all uses classes. Vehicle parking for the 'Residential Use Class' of Grouped dwelling is to be provided in accordance with the R-Codes.[11]
[11] LPS 4 - cl 4.7.2.
Clause 4.7.3 of the Scheme provides for the relaxation of parking requirements. Subject to the requirements of Schedule 7, the standard parking requirements specified in Table 2 may be waived or reduced subject to the applicant satisfactorily justifying a reduction due to one or more of the eight considerations specified in cl 4.7.3.1 of LPS 4.
Clause 4.8 of the Scheme provides for variations to site and development standards and requirements. The applicant, correctly, did not argue that the Tribunal has powers under this provision of the Scheme to vary the minimum and average site requirements as specified in the RCodes.[12]
[12] Refer to Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272.
Clause 67 of Schedule 2 of the Planning and Development Regulations 2005 (WA) (deemed provisions) provides that in considering an application for development approval due regard is to be given the matters set out therein, to the extent that they are relevant to the development. The pertinent matters relevant to this application include:
•the aims and provisions of the Scheme (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•the compatibility of the development within its setting (subclause (m));
•the amenity of the locality (subclause (n));
•the adequacy of the proposed means of access to and egress from the site and the arrangements for manoeuvring and parking of vehicles (subclause (s));
•the history of the site where the development is to be located (subclause (w));
•any submissions received on the application (subclause (y); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
Pursuant to cl 68(2) of the deemed provisions , the local government may determine an application for development by:
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.

Issues

The parties agreed that the following issues arise for determination in relation to this matter:
1)Whether the proposed development should be approved having regard to:
a)the only form of on-site parking being provided is in the form of scooter bays; and
b)the function and relationship of the proposed Grouped dwelling to the Existing Studio.
2.Whether the proposed development will adversely impact on the amenity of the locality. and
3.Whether the proposed development is appropriate having regard to the principles of orderly and proper planning and the applicable framework.
The Tribunal in determining this matter will deal with issue 1b) first, as the findings on this issue, as accepted by the parties, may impact on the permissibility of the proposed development.

Whether the proposed development should be approved having regard to the function and relationship of the proposed Grouped dwelling to the Existing Studio

Planning approval was issued in December 2007 for 'Second Storey Addition and Alterations', which amongst other things involved the conversion of an existing structure labelled 'Single Storey Timber & Custom Orb' to a 'Retreat' and for the construction of an addition to that structure, comprising a 'Changeroom/Bathroom/Kitchenette'.[13] It would appear that the second storey addition to the existing dwelling did not proceed, although the conversion and additions to the 'Retreat' were constructed.[14] It is this structure (referred to in this proceeding as the ‘Existing Studio’), that the applicant asserts is not self-contained and is simply a detached addition to the existing dwelling.
[13] Consolidated Witness Statement of Joe Algeri, dated 15 January 2020, (Exhibit 9) Attachment JA4.
[14] Consolidated Witness Statement of Joe Algeri, dated 15 January 2020, (Exhibit 9) [31]

The Tribunal notes that the amended plans included a number of revisions to the site plan,[15] one of which depicts the current floor area and use of the Existing Studio as viewed on 9 September 2019. This revision detailed a reduction in the floor area of the Existing Studio as shown on plans STCE001.2P/8[16] from 76.11m² to 52.5m², of which, 34.75m² is labelled Existing Studio and 17.9m² as 'Store'.
[15] Amended plans (Exhibit 2) – Development Site Plan STCE001.2/9.
[16] Respondent's section 24 bundle, dated 5 July 2019, (Exhibit 6) page 19.
Ms Amanda Butterworth, a town planning consultant acting as agent for the applicant and called to give planning evidence on behalf of the applicant, states in her witness statement that '[t]he landowner has advised that their daughter resides in the separate building (studio) and that she utilises the kitchen and laundry facilities for (sic) the main house'.[17]
[17] Witness statement of Amanda Jane Butterworth, dated 16 August 2019, (Exhibit 16) at para 40.
In her additional supplementary witness statement, she further states:[18]
I am advised that the studio is used by the residents' family members, and is used as a detached addition to the existing dwelling, with the family member using the amenities (kitchen and laundry) located in the main house.
I note that the studio may have been used historically for short term accommodation, however I am advised that the studio is no longer used for that purpose and is simply used as a detached addition to the existing dwelling.
[18] Additional witness statement of Amanda Jane Butterworth, dated 14 January 2020, (Exhibit 18) at paras 1718.
Notwithstanding Ms Butterworth's evidence that the Existing Studio is no longer used for shortterm accommodation, the Tribunal notes that the Existing Studio is currently registered with the City as 'a short stay dwelling for short stay accommodation use for not more than 4 occupants …'.[19] Further, there are no physical works proposed to alter the built form of the existing building.
[19] City of Fremantle Short Stay Accommodation Registration, dated August 2016 (Exhibit 23).
According to Ms Butterworth the Existing Studio comprises a kitchenette that contains a sink, bench area and cupboards; a shower; and a toilet. In addition, she was at pains to point out that the oven in the kitchenette had been decommissioned and consequently, the kitchenette did not have any food preparation facilities.
Ms Butterworth holds the view that the function and relationship of the Existing Studio is simply a separate detached addition to the existing dwelling. She does not consider the Existing Studio to be an 'Ancillary dwelling'[20] as defined in the R-Codes because the Existing Studio is not self-contained as it does not contain a full kitchen or laundry facilities and maintains that these facilities are provided for in the main house.
[20] 'Ancillary dwelling' is defined in Appendix 1 of the R-Codes as '[s]elf-contained dwelling on the same lot a single house which may be attached to, integrated with or detached from the single house'.
The respondent contends that the Existing Studio is a habitable space that is self-contained as it includes a separate kitchenette, toilet and shower. The respondent submits that the fact that the structure does not include a laundry does not mandate that it not a dwelling.[21]
[21] Corp and Town of Cambridge [2019] WASAT 65.
Mr Joe Algeri, a town planning consultant acting as agent for the respondent and called to give planning evidence on behalf of the respondent, states in his witness statement that 'there is no doubt in [his] mind that the studio or retreat can only be classified as an '[A]ncillary dwelling''.[22] However, later in his witness statement he reflects on the deemedtocomply requirements and the design principles of cl 5.5.1 of the R-Codes, which specifically links an 'Ancillary dwelling' with the dwelling type 'Single house', and concludes that 'it is impossible under the R-Codes, to retain the existing Ancillary dwelling if a Grouped dwelling is being considered for the site'.[23]
[22] Consolidated witness statement of Joe Algeri, dated 15 January 2020, (Exhibit 9).
[23] Consolidated witness statement of Joe Algeri, dated 15 January 2020, (Exhibit 9).
The question before the Tribunal is whether an aspect of the proposed development, namely the Existing Studio, is a dwelling within its own right or merely a detached addition to the existing dwelling. The characterisation of this structure, as acknowledged by the parties, will have consequences as to the permissibility of the proposed development.
In closing submissions, Ms Butterworth referred to the adoption of the 'best-fit' approach where there are 'two or more defined purposes which are apt to cover a particular proposal': see Yu v Brisbane City Council [2005] QPEC78; [2006] QPELR 102 at [16]. This case is not squarely on all fours as the characterisation of components within the proposed development, as required in this case, will not affect the use class classification of the proposed development but determine whether the density of the proposed development is compliant with the applicable density coding assigned to the subject land under the Scheme.
Furthermore, the Tribunal in Dao Ji Association and City of Gosnells [2020] WASAT 10 (Dao Ji) at [102][103] noted as follows:
102However, we note that the Queensland Court of Appeal has expressed 'considerable doubt' about the 'best fit' principle of construction. In ADD Design Pty Ltd v Brisbane City Council [2012] QCA 44; (2012) 186 LGERA 390 (ADD Design) at Chesterman JA (with whom Phillippides J and Wilson AJA agreed) stated (at [46]) that the 'best fit' approach is a maxim which:
… offends the legal principle applicable to statutory construction pronounced by courts of the highest authority, and facilitates planning appeals be reference to intuitive judgments by those who specialise in that jurisdiction rather than by an objective and logical examination of the words of the statutory instruments in question, according to established legal doctrine.
103Since AAD Design, the best fit approach has been abandoned by the QPEC. More recent QPEC authorities adopt the reasoning of AAD Design and emphasise that the ordinary principles and canons of statutory construction should be applied to the classification of land uses: Gerhardt v Brisbane City Council [2017] QCA 285; (2017) 226 LGERA 257 at [31] (Fraser JA, Morrison JA, Flanagan J); Development Watch Inc v Sunshine Coast Regional Council [2018] QPEC 6 at [33] (Long J).
The Tribunal in Dao Ji at [104][105] articulated the following with respect to the 'best fit' approach:
104Having regard to the analysis of the Queensland Court of Appeal in AAD Design we consider that the 'best fit' principle should be approached with caution. We agree with the analysis in AAD Design that it is a principle that, in our view, purports to grant a planning authority or review body an omniscience as to how a land use should be best classified.
105It is also our view that the 'best fit' approach cannot be easily reconciled with the accepted principles for the objective construction of legislative instruments such as planning schemes. This is because the 'best fit' approach allows us to, in effect, make an intuitive judgment as to what we consider a proposed land use should be best classified as. We are not certain that such an approach to land use classification is sound.
The Tribunal in Dao Ji at [107] found that the question of construction is to be answered by having regard to the terms of the Scheme and the orthodox principles that apply to the interpretation of legislative instruments.
The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 as follows at [20][21]:
20Under s 87(4) of the PD Act, TPS 3 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
21In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
As previously stated, the inquiry in this matter is whether an aspect of the proposed development, namely the Existing Studio, is a dwelling within its own right or merely a detached addition to the existing dwelling. The question of characterisation, in this case, is to be answered by reference to the relevant clauses of the Scheme in conjunction with the relevant provisions and definitions contained in the RCodes. Ultimately, the characterisation of the Existing Studio is an evaluative judgment that involves questions of fact and degree: see Corp which cites Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 230 LGERA 319 at [90].
Firstly, the Tribunal finds that the Existing Studio cannot by definition be characterised as an 'Ancillary dwelling'[24] because it does not satisfy the second limb of the definition, as it will not be 'on the same lot as a single house'. The amended plans seek development approval for two Grouped dwellings on the subject land.
[24] 'Ancillary dwelling' is defined in Appendix 1 of the R-Codes as '[s]elf-contained dwelling on the same lot a single house which may be attached to, integrated with or detached from the single house'.
Secondly, the Tribunal finds that the Existing Studio is not a detached addition to the existing dwelling but a separate Grouped dwelling in its own right, for the following reasons.
The Tribunal accepts the evidence of Ms Butterworth about the applicant's intent to use of the Existing Studio by his daughter and her dependence on the main dwelling. However, as the Tribunal articulated in Corp,[25] '… planning approval generally operates as a right in rem and therefore the identity and intentions of the particular user is not the only focus of the inquiry'.
[25] Corp at [99].
Ms Butterworth's argument that the Existing Studio is not selfcontained as it does not have a 'full kitchen or laundry facilities' is less than persuasive. She told the Tribunal that the applicant has decommissioned the stove and did not intend to provide cooking facilities in the kitchenette. However, under crossexamination, Ms Butterworth conceded that planning approval was not required for the installation of cooking and laundry facilities and admitted that in the event that such equipment were installed in the Existing Studio then it would, in her opinion, 'change the characterisation of the use'.[26]
[26] Audio transcript, 23 January 2020, at 2:09:50.
Although it is now the intent of the applicant for the Existing Studio to be functionally dependent on the main house, subsequent owners may not share the same view. Plainly, the use of the Existing Studio as a selfcontained dwelling could recommence without any physical alterations or additional services being provided to the building. The historical evidence of the use of the Existing Studio for short-term accommodation confirms this to be the case.
The amended plans (specifically STCE001.1P/9) clearly notates a separate room of approximately 11.2m² as a kitchenette. The fact that the 'Development Site Plan' does not detail the fitout of the kitchenette is not uncommon at this stage of approval process. 'Kitchenette' is a word that does not find expression in the Scheme or R-Codes and as such it is appropriate to consider the normal and common meaning of the word. 'Kitchenette' is defined to mean 'a small kitchen'.[27] 'Kitchen' is defined to mean 'a room or place equipped for or appropriated to do cooking'.[28]
[27] Macquarie Dictionary (6^th edition, 2013).
[28] Macquarie Dictionary (6^th edition, 2013).
Planning approval of the amended plans would sanction the use of the room notated as 'kitchenette' as a fully operational kitchen.
In evaluating the amended plans for the proposed development I am not satisfied that the Existing Studio is an extension of the existing dwelling. The amended plans clearly depicts a building that can be described as self-contained for the purposes of the R-Codes. It is a 'Dwelling'[29] that has a bedroom, kitchen (although labelled as a kitchenette on the plans), bathroom and a large store area. The fact that the Existing Studio does not have a separate laundry does not assist the applicant's argument as articulated in Corp,[30] '[a] separate laundry is not a mandatory element of an independent "self-contained" dwelling'. Furthermore, there is adequate space available in the kitchenette to provide laundry appliances, if desired.
[29] 'Dwelling' is defined in Appendix 1 – Definitions of the R-Codes as 'A building or portion of a building being use, adopted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family'.
[30] Corp at [111].
In reading and interpreting the amended plans, the Tribunal finds that the Existing Studio is capable of functioning without any reliance on the existing dwelling and is an independent, self-contained dwelling. Furthermore, the built form and physical layout of the buildings on site and the manoeuvrability of vehicles within the site, albeit scooters, further supports this finding.
The Tribunal, therefore, concludes that the Existing Studio as depicted on the amended plans is properly characterised as a Grouped dwelling in its own right.
Ms Butterworth and Mr Algeri agreed that if the Tribunal found that the Existing Studio is a Grouped dwelling the proposed development would not conform with the provisions of the R-Codes as three Grouped dwellings on the subject land, even if one of the dwellings is assessed as a 'Single bedroom dwelling', would not comply with the minimum and average site area requirements for Grouped dwellings under cl 5.1.1 of the R-Codes.[31]
[31] Audio transcript, 23 January 2020, at 2:00:00; and audio transcript, 7 February 2020, at 3:31:30.
In an effort to militate against adverse findings the applicant sought leave of the Tribunal at the commencement of the last day of the final hearing (set aside for final submissions) to substitute the document entitled 'Applicant's Response to Respondent's Revised Draft Without Prejudice Draft Conditions' filed on 21 January 2020 (applicant's response)[32] with the 'Applicant's Modified Response to the Respondent's Revised Draft Without Prejudice draft Conditions' (applicant's modified response).[33]
[32] Applicant’s response to respondent’s revised draft without prejudice draft conditions dated 21 January 2020 (Exhibit 21).
[33] Applicant’s modified response to respondent’s revised draft without prejudice draft conditions dated 5 February 2020 (Exhibit 24).
In regard to this issue, the applicant's modified response sought to:
i)substitute the plan entitled 'Development Site Plan – STCE001.2P/9 with a further amended plan entitled 'Development Site Plan STCE001.2P/10.[34] The relevant modification to the plan in respect to this issue is the deletion of the notation 'kitchenette' from the plan and the depiction of the existing sink and bench in the room previously notated as kitchenette; and
ii)modify the wording of the previously suggested condition 7 contained in the applicant's response[35] to include an additional restriction that the Existing Studio 'shall not be self contained and therefore shall not contain an oven and/or hotplates and/or a washing machine and/or dryer'.[36]
[34] Applicant’s modified response to respondent’s revised draft without prejudice draft conditions dated 5 February 2020 (Exhibit 24) – [1].
[35] Applicant's response to respondent's revised draft without prejudice draft conditions dated 21 January 2020 (Exhibit 21) para 7 – 'The existing studio (retreat) shall only be occupied by family members of, or persons associated with the occupiers of the dwelling on the same lot and shall not be rented out as separate accommodation'.
[36] Applicant's modified response to respondent's revised draft without prejudice draft conditions, dated 5 February 2020 (Exhibit 24) at para 7.
As articulated in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [42], 'the Tribunal, in all situations, is cautious about imposing conditions which will provide difficulty for the respondent to police'.
If such a condition were to be imposed, the permissibility of the proposed development, pursuant to LPS 4, will hinge entirely on the readiness of the applicant, and subsequent owners, to rigidly comply with the condition. Although the applicant is accepting of such a condition, approval runs with the land and subsequent owners may have no knowledge of, or strictly comply with, a condition such as proposed.
Furthermore, the requirement for a condition of this nature further demonstrates that the Existing Studio is not an addition to the existing dwelling. It is capable of being used as a separate dwelling without any further physical works to the building.
The Tribunal does not consider the substitution of the Development Site Plan and the suite of very restrictive controls sought to be imposed in modified condition 7 appropriate as a condition of this kind seeks to alter the nature of the Existing Studio and 'hedge it about with [a condition] which [is] unworkable, unenforceable and [seeks] to confine the development from being used in the ordinary way'.[37]

Conclusion

[37] Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414 at 423.

Given the Tribunal's findings, the proposed development is not capable of approval as the proposed development does not conform to the housing density provisions of the R-Codes, and as such, the development application must be refused under cl 4.2.2 of LPS 4.
In light of the Tribunal's determination in relation to issue 1b), the Tribunal has not considered and expressed findings in relation to issues 1a), 2 and 3, as the design merits and other issues do not arise for determination. Furthermore, there would be no benefit in the Tribunal making any findings as the design of a development which conforms with cl 4.2.2 of the Scheme is likely to be different.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
30 APRIL 2020

Zone (Within LPA Only)	Maximum External Wall Height
…	…
Residential	All requirements as per the R-codes and special application under clause 4.4. (sic).