In addition, the Tribunal found that the proposed development was excessive in terms of bulk and scale and would amount to overdevelopment at the subject site, which would adversely affect the amenity of the adjoining properties, the streetscape and the locality.

Therefore, the Tribunal found it was not the correct and preferable decision on review, nor would it be consistent with orderly and proper planning to approve the proposed development.

Applicant : Mr Neil Gibney (sole director of applicant)

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65

Moore River Company Pty Ltd and Western Australia Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255

Nicholls and Western Australia Planning Commission [2005] WASAT 40

1 On 7 April 2016, the applicant made an application to the respondent for development approval for a four storey multiple dwelling comprising of twelve apartments (proposed development) at No 85 (Lot 341) Caledonian Avenue, Maylands (subject site).

2 On 5 July 2016 the respondent refused to approve the application for the proposed development.

3 On 18 July 2016, the applicant sought a review in the Tribunal pursuant to reg 18 of the Planning and Development (Development Assessment Panel) Regulations 2011 (WA) and s 171A and s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).

4 On 28 September 2016 the Tribunal invited the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis of an amended application for the proposed development.

5 On 7 November 2016, the respondent refused the amended application for the proposed development for the following reasons:

1. The proposal does not comply with clause 6.1.1 of the Residential Design Codes relating to building size, and significantly exceeds the maximum bonus permitted recommended by the Western Australian Planning Commission Planning Bulletin 113/2015 resulting in significant building bulk. The building size is inconsistent with the existing and future built form of the locality as established within the City of Bayswater Town Planning Scheme No.24.
2. The proposal does not comply with clause 6.1.2 of the Residential Design Codes relating to building height, the building height is inconsistent with the existing and future built form of the locality as established within the City of Bayswater Town Planning Scheme No.24.
3. The proposal does not comply with clause 6.1.4 of the Residential Design Codes relating to lot boundary setbacks, the development fails to provide sufficient vertical building articulation to reduce the visual impact of the building bulk on the surrounding locality.
4. The proposal does not comply with clause 6.3.6 of the Residential Design Codes relating to site works, the proposed fill within the street setback area does not respect the natural ground level of the site as viewed from the street and contributes to excessive building height.
5. Approval of the proposed development is contrary to clause 67(m) which stipulates that regard should be given to the compatibility of the development within its setting including the relationship of the development to development(s) on adjoining land or on other land in the locality including the likely effect of building height, bulk, scale, orientation and appearance of the development. The proposal is considered to have an undue impact on the amenity of the area given the proposed variations to the building size, building height, lot boundary setback, and site work standards of the residential design codes.
6. Approval of the proposed development will set an undesirable precedent for development of other multiple dwellings proposing excessive variations to the Residential Design Codes and as such is considered to be contrary to the principles of orderly and proper planning required under clause 67(b) of the Planning and Development (Local Planning Schemes) Regulations 2015.

6 Pursuant to the operation of s 31(3) of the SAT Act, it is the amended application for the proposed development that is the subject of the review before the Tribunal.

1. It comprises a total site area of 908m² with a frontage to Caledonian Avenue.
2. The subject site rises approximately 4.25 metres in a diagonal line from its lowest point on Caledonian Avenue at its border with No 83 Caledonian Avenue to its highest point at the rear of the subject site.

1. The subject site currently contains a single dwelling which is proposed for demolition.

1. The adjoining No 83 Caledonian Avenue to the east of the subject site is currently vacant and cleared having obtained development approval on 4 September 2015 for a three storey multiple dwelling.
2. The adjoining No 87 Caledonian Avenue to the west of the subject site contains a two storey grouped dwelling that appears to be of recent construction and in good condition.
3. The existing multiple dwelling development at No 86 Caledonian Avenue is positioned downward on the undulating terrain from the subject site. The height of this building is 10.8 metres, although given the excavation of that site, the height relative to the street level is approximately 8.7 metres to 10.2 metres. No 86 Caledonian Avenue obtained development approval in 1969.
4. The locality includes two other older style multiple dwellings built in the 1960's or 1970's at No 3 Sherwood Street which consists of seven storeys and at No 76 East Street which consists of four storeys.
5. The subject site is within 120 metres of the Maylands Activity Centre, 140 metres from the Maylands Park Shopping Centre and 520 metres ('as the crow flies') from the Maylands train station.

9 The applicant seeks approval for the proposed development on the subject site in order to demolish the existing single­storey house and construct a four­storey multiple dwelling comprising of twelve apartments. Details of the proposed development are as follows:

1. The ground floor comprises two single-bedroom dwellings, stores and bin stores.
2. To the rear of the subject site are 12 covered car parking bays for visitors and residents with a further four car parking bays to be provided to the rear of the dwellings on the ground storey.

1. The second and third storeys each contain four two­bedroom dwellings.

1. The fourth storey contains two two­bedroom dwellings which have what can be described as articulated, comprising a 7.4 metre setback from the three storeys below and 9.7 metre setback from the side boundary.
2. Vehicle access is directly off Caledonian Avenue via a covered driveway along the south east boundary of the subject site. The second and third storeys protrude over the covered driveway.
3. The building height is 13.44 metres above natural ground level in the middle of the subject site and 14.47 metres at its frontage on Caledonian Avenue.

10 The subject site is zoned Urban in the Metropolitan Region Scheme and Residential with a density coding of R50 under the City of Bayswater Town Planning Scheme No 24 (TPS 24).

11 The subject site is positioned at the boundary of the R50 area with land immediately adjoining to the east being R40 under TPS 24.

12 Clause 8.5.2.2 of TPS 24 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes'. Further, State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) (R­Codes) is a State planning policy prepared under s 26 of the PD Act, and therefore the Tribunal, pursuant to s 241(1)(a) of the PD Act is to have due regard to 'any State planning policy which may affect the subject matter of the application'.

13 Part 6 of the R­Codes provides applicable design elements for multiple dwellings in area coded R40 or greater. The objective of Pt 6 is to ensure that that development of multiple dwellings occurs with due regard to the existing development context and the desired future built form for the locality as set out in the planning framework.

14 The parts of the R­Codes relevant to the issues in dispute in this matter are cl 6.1.1 (building size), cl 6.1.2 (building height) and cl 6.1.4 (lot boundary setbacks). These will be discussed in more detail later under the relevant issue headings.

15 The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in cl 67 of Sch 2 a number of provisions which are deemed to be included in the local planning scheme text (Deemed Provisions). The subclauses in cl 67 of Sch 2 of the Deemed Provisions that are relevant to these proceedings are (b) ­ requirements of orderly and proper planning; (m) ­ compatibility of the proposal with its setting and locality; (n) ­ amenity; and (zb) ­ any other planning consideration.

16 The draft State Planning Policy 7 ­ Design of the Built Environment (draft SPP 7) was made available for public comment from 19 October 2016 to 20 December 2016. Draft SPP 7 is intended to provide guidance as to the design of the built environment, including residential development. Schedule 1 provides a number of design principles relevant to these proceedings, such as context and character, built form and scale, amenity and community.

17 The draft Volume Two of State Planning Policy 7.3 Residential Design Codes ­ Apartment Design (draft AP Codes) is a draft policy prepared by the Western Australian Planning Commission to support draft SPP 7 in the design of apartments. The draft AP Codes were also made available for public comment from 19 October 2016 to 20 December 2016. The Tribunal was informed at the hearing that, relevant to these proceedings, the draft AP Codes, are intended to replace Pt 6 of the R­Codes. Table 1 ­ Primary Controls Table at page 23 of the draft AP Codes provides the following development requirements for a proposed development in a R50 area:

(a) a maximum plot ratio of 0.6;

(b) a maximum building height of 3 storeys;

(c) a minimum street setback of 4 metres; and

(d) a minimum side boundary setback of 3 metres with consideration given to a nil setback at the ground floor only subject to certain conditions.

18 It is the view of the Tribunal that cl 67 of the Deemed Provisions has not displaced the established authorities in relation to seriously entertained planning proposals in relation to state planning policies: Nicholls and Western Australia Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [40] ­ [45].

19 The determination of whether a draft planning instrument or policy constitutes a relevant planning consideration as being a seriously entertained planning proposal requires an analysis of the source, nature and content of the document in question, and the stage it has reached in its development: Moore River Company Pty Ltd and Western Australia Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255 at [169].

20 The ultimate issue for the Tribunal to determine in this matter is whether the proposed development is the correct and preferable decision, having regard to the planning framework with particular issues to be determined as follows:

Issue 1: Does the proposed development satisfy the design principles under cl 6.1.1 (building size) of the R­Codes?

Issue 2: Does the proposed development satisfy the design principles under cl 6.1.2 (building height) of the R­Codes?

Issue 3: Does the proposed development satisfy the design principles under cl 6.1.4 (lot boundary setbacks) of the R­Codes?

21 The Tribunal is of the view that, whilst those above mentioned clauses of the R­Codes concerning building size, building height and setbacks are discrete and separate, they are nonetheless inextricably linked together in the Tribunal's determination of its impact on the streetscape, adjoining properties and locality and, ultimately, whether the correct and preferable decision is to approve the proposed development.

22 On 21 February 2017, the Tribunal had the benefit of a view of the subject site where the Tribunal also viewed the streetscape of Caledonian Avenue and the built form in the locality.

23 The Tribunal observed the adjoining properties to the subject site at No's 83 and 87 Caledonian Avenue noting the adjoining vacant site at No 83 Caledonian Avenue which has recently obtained development approval and has a lower R­Coding of R40 than the subject site at R50. The Tribunal was also able to observe the adjoining property to the rear of the subject site and geographical form of the locality which is undulating. The Tribunal was able to view the four­storey apartment building across the road from the subject site at No 86 Caledonian Avenue and to observe that this property was positioned sloping away from the subject site, and did not appear to present a prominent four­storey built form to the streetscape.

24 Finally, at the site view, the Tribunal was able to walk the 100 metres down Caledonian Avenue to the edge of the Maylands Activity Centre to observe the proximity of the subject site to the Maylands Activity Centre and the Maylands Railway Station approximately 800 metres away from that viewing point.

25 The Tribunal has considered all of the evidence provided in determining the issues in these proceedings. The expert town planning evidence which is referred to in what follows was of particular importance in reaching a determination of the issues in dispute.

26 The applicant provided expert evidence from a town planner, Mr David Caddy. The respondent provided expert evidence from town planner, Mr Ray Haeren.

27 Messrs Caddy and Haeren conducted an expert conferral prior to the hearing and provided a joint witness statement which highlighted in relation to the issues in dispute their agreement, disagreement and reasons for their disagreement. The joint statement was of great assistance to the Tribunal in hearing and determining the issues in dispute in this matter.

28 The principles relevant to resolving a conflict of expert evidence was summarised by the Tribunal in Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65 (Lombardi) at [40] - [45]. The Tribunal in Lombardi referred to the oft­quoted Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 where Huntley JA found at [381] that '[t]he choice between conflicting experts may have to be a matter of judgment and not of detailed reasoning'.

29 The Tribunal also noted in Lombardi at [42] that '[t]he choice is not so much a choice between experts per se, but whether the review leads to doubt about the opinion proffered by one of the experts'. Put another way, do any of the factual findings by the Tribunal undermine one or more of the expert opinions, as that opinion or those opinions are based on a different factual foundation?

30 As will be apparent from the reasons pertaining to each of the issues below, the Tribunal has accepted Mr Haeren's opinions in part and Mr Caddy's opinions in part. This is due to the findings that the Tribunal has made which underpin each of their individual opinions.

31 Both Mr Caddy and Mr Haeren agreed that the plot ratio for the proposed development is 0.997 and it did not meet the deemed to comply plot ratio of 0.6 as provided under cl 6.1.1 C1 and Table 4 of the R­Codes. It is noted that the deemed to comply plot ratio of 0.6 is the same for both R40 (No 83 adjoining the subject site) and R50 (subject site).

32 As the proposed development does not meet the deemed to comply provisions the design principles for building size need to be applied as the determining criteria. Clause 6.1.1 P1 design principles provide in relation to building size that '[d]evelopment of the building is at a bulk and scale indicated in the local planning framework and is consistent with the existing or future desired built form of the locality.'

33 Mr Haeren is of the view that the adjoining No 83 cannot be utilised as an argument for increasing the plot ratio for the subject site and that the excessive scale of such a plot ratio for the locality is indicated by the fact that a plot ratio of 0.997 fits into the deemed to comply maximum for R80.

34 Mr Caddy is of the view that a plot ratio of 0.997 is appropriate for the subject site, given the nature of the surrounding development and the mixed built form in the locality thereby meeting the design principles in cl 6.1.1 of the R­Codes.

35 No 83 Caledonian Avenue (at three storeys) is an example relied upon by Mr Caddy as the future desired built form of the locality. The Tribunal considers that it seems logical that No 83, being positioned next to R50 and being at the start of the R40 area, could argue that its proposed building size which sits above the deemed to comply provisions nonetheless satisfied the design principles. However, it cannot be said that the subject site, being on the outer edge of the R50 and adjoining R40 could argue the same, indeed, quite the opposite logic applies. The subject site is at the outer edge of the R50, next to the R40 and the proposed development needs to take account of its position in the locality.

36 The examples relied upon by Mr Caddy of No 86 Caledonian Avenue (four storeys), No 76 East Street (four storeys) and No 3 Sherwood Street (seven storeys) are only limited examples of the existing built form (approved decades ago under a vastly different planning framework) and are not examples of the future desired built form of the locality.

37 Mr Caddy was unable, in cross examination, to refer to any other examples of properties that are three storeys or above in the locality, other than what he referred to as the 'Finbar development' some 600 metres away on the other side of Guildford Road, regarding which the Tribunal has been provided no evidence and is not convinced is within the locality of the subject site. Mr Caddy also conceded, in cross examination, that the proposed development if approved would be the tallest building in the streetscape as it was uphill from No 86 Caledonian Avenue.

38 Having had the benefit of a site view to familiarise the Tribunal with the streetscape and the locality, the Tribunal was left with a different impression from Mr Caddy as to the surrounding development and the mixed built form in the locality. The Tribunal, whilst it has been assisted by Mr Caddy, prefers the expert town planning opinion of Mr Haeren in this regard.

39 The Tribunal finds, despite the four examples pointed to by Mr Caddy, that the predominant existing built form is one to two storeys in the locality. The Tribunal finds, despite the existence of those four examples, that the proposed development sitting as it would up the slope or hill from No 86, would be a prominent built form in the streetscape and locality to such a degree that it would not be consistent with the existing or future desired built form of the locality.

40 Therefore, the Tribunal finds that the proposed development does not satisfy the design principles in cl 6.1.1 of the R­Codes in relation to building size.

41 Both Mr Caddy and Mr Haeren agreed that the proposed development does not meet the deemed to comply provisions as to building height in cl 6.1.2 and Table 4 of the R­Codes (being up to 12 metres is deemed to comply) and that the design principles are the applicable determination criteria.

42 Clause 6.1.2 P2 design principles provide in relation to building height that:

Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:

• adequate access to direct sun into buildings and appurtenant open spaces;
• adequate daylight to major openings into habitable rooms;
• access to views of significance;
• buildings present a human scale for pedestrians;
• building façades designed to reduce the perception of height through design measures; and
• podium style development is provided where appropriate.

43 The area of disagreement between Mr Caddy and Mr Haeren lies in the extent to which the proposed development impacts on the amenity of adjoining properties and streetscape. Mr Haeren is of the opinion that the proposed development does not satisfy the design principles in cl 6.1.2 P2 of the R­Codes for three reasons as follows:

1. The scale of the development through the inclusion of the fourth story and extent of building mass is beyond what would reasonably be anticipated under the R50 zoning and plot ratio.
2. The visual impact to the street is not acceptable with the fourth level being clearly visible from the street.

1. The site is on the fringe of the R50 zone and the prevailing and predominant urban form in the locality is of a lower height and intensity as to what is intended for the subject site or locality.

44 Mr Caddy is of the opinion that the proposed development does satisfy the design principles in cl 6.1.2 P2 of the R­Codes for the following three reasons:

1. The proposed development is appropriately setback from the primary street and does provide architectural relief and the facade to reduce the impact on the streetscape and the amenity of the pedestrians.
2. The proposed development is located on the northern part of the subject site to limit the solar access implications on the adjoining properties and to the proposed courtyards. The provision of adequate openings in combination of sufficient setbacks of the dwelling allows for sufficient solar access to the habitable rooms.

1. The design of the facade does allow for a perceived setback of the upper floor and does break down the building bulk. In addition, the provision of a sufficient primary street setback and landscaped courtyard softens the building and provides a more suburban street appeal. Overall the building will present as a human scale development to pedestrians.

45 The Tribunal considers that Mr Caddy's reasoning does not have the substance and persuasive logic of the reasoning expressed by Mr Haeren. The Tribunal finds that Mr Haeren's reasons for stating that the proposed development does not satisfy the design principles better encapsulates the meaning and intent of the design principles for building size and height.

46 Therefore the Tribunal, whilst it has been assisted by Mr Caddy, prefers the expert town planning opinion of Mr Haeren as to the application of the design principles to the proposed development concerning building size and building height.

47 Having had the benefit of a site view and for the reasons expressed above in preferring the views of Mr Haeren, the Tribunal finds that the proposed development would have an adverse effect on the amenity of the streetscape and the adjoining properties.

48 Therefore, the Tribunal finds that the proposed development does not satisfy the design principles in cl 6.1.2 of the R­Codes in relation to building height.

49 The Tribunal considers that its findings in relation to building size and building height are determinative of the proposed development and does not consider it necessary to make findings in relation to Issue 3: lot boundary setbacks. However, as this issue did occupy a substantial amount of the hearing, the Tribunal finds as follows in relation to side setbacks.

50 Mr Caddy and Mr Haeren agreed that the proposed rear setback met the deemed to comply provisions of cl 6.1.4 of the R-Codes. In relation to the front boundary setback the planners agreed that, whilst it did not meet the deemed to comply provisions, the proposed front boundary setback was acceptable as it satisfied the design principles.

51 Mr Caddy and Mr Haeren disagreed as to whether the side setbacks met the deemed to comply provisions, in particular regarding the assessment of the wall length and the applicability of Table 5 of the R­Codes. They also disagreed, if the Tribunal was to determine that the side setbacks did not meet the deemed to comply requirements, as to whether the side setbacks satisfied the design principles.

52 Mr Haeren is of the opinion that the proposed development does not satisfy the deemed to comply provisions in cl 6.1.4 of the R­Codes for the following reasons:

1. The applicant's calculations do not allow for the skillion roof and the difference between natural ground level and finished floor level in determining building height.
2. The screening to balconies was not considered in the assessment of wall length.

1. Given the building height and plot ratio for the proposed development are equivalent to R80, Table 5 should be the applicable table.

53 Mr Caddy is of the opinion that the requirements as to side boundary setbacks are a worst case scenario based on a wall height of 9.44 metres, at a base level at the foot of the wall of 25 metres AHD. Mr Caddy states that the setback requirement for a wall length of 12.49 metres with no major openings (all windows are highline windows) is 2.1 metres. Mr Caddy's view is that the wall height is calculated just for the walls and does not include the balconies as they are not enclosed and therefore do not fall under the definition of 'wall' under the R­Codes. According to Mr Caddy therefore, given that the minimum setback proposed is 2.3 metres for the second level, the side setbacks satisfy the deemed to comply provisions in cl 6.1.4 of the R­Codes.

54 The Tribunal queried both Mr Caddy and Mr Haeren during the hearing as to how they had each reached their calculations. Having considered the views of each of the planners and the R­Codes, the Tribunal prefers the opinion of Mr Caddy on this issue. The Tribunal agrees with Mr Caddy that the front and rear balconies should not be included in the calculation as they are 'unenclosed' as defined in the R­Codes.

55 Therefore, the Tribunal finds that the proposed development meets the deemed to comply provisions in cl 6.1.4 of the R-Codes in relation to lot boundary setbacks.

56 The Tribunal has given consideration to the draft SPP 7 and the draft AP-Codes. Both of these planning instruments need to be given consideration as seriously entertained planning proposals, however, the reasoning of the Tribunal in determining this matter has primarily been reliant upon the existing R­Codes. The draft AP-Codes have only been considered by the Tribunal in a limited sense in order to reconfirm the findings of the Tribunal under the present provisions of the R­Codes as to the desired future built form of the locality.

57 In additions to the reasons concerning building size and building height expressed elsewhere, the Tribunal finds that the proposed development is excessive in terms of bulk and scale and would amount to overdevelopment at the subject site which would adversely affect the amenity of the adjoining properties, the streetscape and the locality.

58 Therefore, the Tribunal finds it is not the correct and preferable decision on review, nor would it be consistent with orderly and proper planning to approve the proposed development.

Accordingly the Tribunal makes the following orders:

1. The application for review is dismissed.
2. The decision of the respondent on 7 November 2016 to refuse the application for development approval is affirmed.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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