Town planning - Development application - Grouped dwellings - Whether there was discretion under Town Planning Scheme to refuse approval to a development which conformed to the provisions of the Residential Design Codes - Local planning strategy proposed downzoning of site from density coding of "R25" to "R10" - Whether a seriously entertained planning proposal - Weight to be given to planning proposal - Whether density which conformed to current density coding was inconsistent with low density amenity and character of locality - Traffic generation - Whether existing streets and intersection had sufficient capacity to cater for the proposed development - Internal circulation - Removal of trees

Town of Bassendean Town Planning Scheme No 3, cl 3.3.2(d) and cl 5.3.1

2. Development approval granted subject to conditions.

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

David Waite v Blacktown City Council [2004] NSWLEC 157

Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193

Nicholls and Western Australian Planning Commission [2005] WASAT 40

Robert Baccala and City of Fremantle [2005] WASAT 55

Tang v City of Stirling (1981) 5 APA 161

Tangelo Design Consultants and Town of Vincent [2005] WASAT 67

DEPUTY PRESIDENT CHANEY, MR D R PARRY (SENIOR MEMBER) AND DR B DE VILLIERS (MEMBER):

1 These proceedings involve an application by Sheldon Lloyd Dumbleton and Jane Palmer ("the applicants") for review of the decision of the Town of Bassendean ("the respondent") to refuse development approval for the construction of 11 two­storey and two single­storey grouped dwellings and an internal driveway ("the DA") at Lot 301 (No 1) Anzac Terrace, Bassendean ("the site").

2 The site has an area of 5630 square metres and is of an irregular shape. The principal part of the site adjoins a foreshore reserve and the Swan River to the east, a dual-purpose pathway and a railway line to the south, an adjoining residential property known as No 9 Anzac Terrace to the west, and a formed and unformed section of Anzac Terrace to the north. The remaining part of the site is in the form of an access handle to Railway Parade approximately 10 metres in width and 65 metres in length.

3 The formed section of Anzac Terrace terminates in a cul­de­sac adjacent to the north­western portion of the principal part of the site. The site has a frontage of approximately 25 metres to the formed section of Anzac Terrace. Anzac Terrace has a paved width of approximately 5 to 6 metres. There is a Flooded Gum (Eucalyptus rudis) with a height of approximately 20 metres in the verge between the north-westernmost part of the site and Anzac Terrace. In addition, there is an unbroken band of generally fig and some gum trees along the southern boundary of the site.

4 Each of the 13 proposed grouped dwellings is free­standing. Eleven two­storey dwellings are proposed in the principal part of the site. Of these, four are proposed to adjoin the eastern foreshore boundary, four the southern railway line boundary, and three the Anzac Terrace frontage. Two driveways are proposed at or near the head of the cul­de­sac on Anzac Terrace, one providing entry only and one providing exit only. Each of the 11 proposed grouped dwellings in the principal part of the site has a double garage or carport accessed through the internal driveway. In particular, the three dwellings which would present to Anzac Terrace have their garages at the rear, thereby permitting the frontage of each of these dwellings to be fully landscaped. These dwellings have setbacks of approximately 7 to 9 metres from the street frontage of the site.

5 Two single­storey dwellings are proposed in the access handle portion of the site. The eastern dwelling is proposed to have vehicular and pedestrian access through the driveways to and from Anzac Terrace. The western dwelling is proposed to have direct access to Railway Parade and would be, in essence, a free­standing dwelling­house physically separated from the remainder of the development.

6 The development application was advertised to approximately 125 properties. The respondent received 14 submissions by way of objection. The development application was recommended for conditional development approval by the respondent's assessing planning officer in a detailed report presented to the respondent's meeting on 15 February 2005. The respondent, however, resolved to refuse the DA for the following three reasons:

"1. Council considers the development is not consistent with the orderly and proper planning of the locality;

2. Council is not satisfied that the existing roads giving access to the site are suitable to serve the development, based on the short length of road frontage serving the site, and the reliance on Anzac Terrace alone to provide access to 12 of the 13 dwellings; and

3. The density of the proposed development is inconsistent with the Town of Bassendean Local Planning Strategy, which intends to zone the site Residential with a density code of R10."

7 At the commencement of the hearing, Mr PN Burke, counsel for the applicants, sought leave to substitute an amended plan for the plan the subject of the DA. The original plan had proposed that the western driveway to Anzac Terrace was to adjoin the western boundary of the principal part of the site along its full length. This had been objected to by Mr M Kar, who owns and resides with his family at the adjoining property to the west. The original plan would also have necessitated the removal of the 20­metre high Flooded Gum referred to at par [3] above. The respondent's assessing planning officer had recommended the imposition of a condition of approval that this portion of the driveway be relocated so as to preserve the tree. The amended plan gave effect to that recommendation by relocating proposed unit 11 to adjoin the western boundary and placing the western driveway between units 10 and 11. The amended plan also incorporated two "turning heads", which had been recommended by Mr DN Veal, a traffic and transport engineer who gave evidence for the applicants, in order to enable vehicles to enter and exit the car parking areas of proposed unit 4 and unit 12 in a forward direction.

8 Although the application for leave to substitute the amended plan was opposed by Mr Wittkuhn, counsel for the respondent, the Tribunal granted leave, as the amended plan was not substantially different from the plan which was refused by the respondent and was not, in truth, a new development application (David Waite v Blacktown City Council [2004] NSWLEC 157 at [22] ­ [24]), the respondent was not prejudiced by the amendments, as it had available a town planner and a civil engineer who were able to advise it and the Tribunal in relation to the amendments, and the amendments were responsive to the respondent's assessing planning officer's proposed condition and issues identified in the evidence.

9 In her evidence, Cr W­G Klein, the mayor of the respondent, described the locality as having an "almost country feel". Mr S G Allerding, a town planner who gave evidence for the respondent, considered that the words "country feel" were "a generally accurate description of the character of the locality especially in the immediate vicinity of the Appeal site". Mr Allerding calculated that the average lot size in the immediate locality is 1164 square metres, and observed that "the actual density of development is likely to be even lower", as a residence on the northern side of Anzac Terrace occupies several allotments. Mr P Sri Ramanathan, a town planner who gave evidence for the applicants, took issue with this characterisation.

10 Having regard to the aerial and street photographs in evidence, the Tribunal considers that the area is better characterised as having a low density residential character, comprised of substantial dwelling houses on large allotments of land. The dwelling­houses present to the street in a landscaped setting, which is a combination of substantial street trees and landscaped front gardens.

11 The site and four adjoining properties to the west are each zoned "Group Residential" with a density coding of "R25" under the Town of Bassendean Town Planning Scheme No 3 ("TPS3"). The allotments on the opposite side of Anzac Terrace are zoned "Residential" with a density coding of "R20". Most of the residentially zoned land in the vicinity of the site has a density coding of"R20", although properties to the south of the site adjoining the foreshore reserve have a density coding of "R5". To the south­west of the site, there are also a number of properties which have the same zoning and density coding as the site.

12 Clause 5.1.1 of TPS3 provides that "a person who desires to develop land for any purpose shall make application to the Council for planning consent to the development before applying for a building licence". Clause 5.3.1 of TPS3 provides, in part, as follows:

"In considering and making its decision on applications for approval under [cl 5.1] ... , the Council shall take into consideration the following matters:

(b) The size, shape and character of the land to which the application relates and the view from the building and interruption of the view likely to be caused by the proposed building;

(c) Any plan, design, development, code or policy adopted by the Council for the development of the locality, zone or use;

(d) The existing and likely future character and amenity of the neighbourhood, including (but without limiting the generality of the foregoing) the question of whether the proposed development is likely to cause injury thereto including injury caused by the appearance of the proposed building ... ;

...

(f) The nature of roads giving access to the land;

(g) The provision of car parking, access for manoeuvring of vehicles and likely traffic hazards;

(h) The presence of vegetation on the site, the desirability of retaining portion of the vegetation and provision of adequate landscaping;

(i) The submissions received by the Council including representations made by any public or statutory authority;

...

(k) The position of proposed buildings and their effect on adjoining buildings or land; ... "

"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of these codes."

14 It was common ground that, with two exceptions, the proposed development conformed to each of the relevant Acceptable Development provisions of the Residential Design Codes of Western Australia ("the R­Codes"). In particular, the development satisfied the minimum site area of 320 square metres per dwelling and the average site area of 350 square metres per dwelling prescribed in Table 1 to the R­Codes. Indeed, on a strictly numerical approach, land coded "R25" would permit 16 grouped dwellings to be developed.

15 Certain sections of wall of the single­storey dwellings proposed in the access handle portion of the site were not in compliance with the Acceptable Development provision in cl 3.3.1 of the R­Codes. However, the respondent's assessing planning officer described these non­compliances as "relatively minor", and concluded that "given the ground levels being lower than adjoining lots and the distance to the houses, no negative impacts are possible, subject to the external face of the walls being finished to the satisfaction of the Manager, Development Services". Mr Allerding stated that "[i]nsofar as any parapet walls do not comply with the Acceptable Development provisions, I would accept that they comply with the Performance Criteria". The Tribunal agrees with Mr Allerding and Mr Sri Ramanathan that the proposed single­storey dwellings in the access handle portion of the site meet the performance criteria set out in cl 3.3.1 of the R­Codes. In particular, the Tribunal is satisfied that these buildings are set back from boundaries so as to:

"• provide adequate direct sun and ventilation to the building;

• ensure adequate direct sun and ventilation being available to adjoining properties;

• provide adequate direct sun to the building and appurtenant open spaces;

• assist with protection of access to direct sun for adjoining properties;

• assist in ameliorating the impacts of building bulk on adjoining properties; and

• assist in protecting privacy between adjoining properties."

16 The second non­compliance with the Acceptable Development provisions of the R­Codes arose in consequence of the evidence of the traffic experts that the proposed pedestrian path adjoining the driveway from Anzac Terrace was required to be available, in part, in order to ensure that rubbish trucks could manoeuvre in a single movement through the site. This evidence meant that the development could not, without amendment, provide a pedestrian path separate from vehicular access, as required by cl 3.5.5 par A5.1 of the R­Codes. However, for reasons discussed in relation to the issue of internal access below, the Tribunal is satisfied that, if conditioned appropriately, the proposed development would satisfy the corresponding performance criteria in cl 3.5.5 par P5. The proposed development, therefore, conforms to the provisions of the R­Codes.

17 In his opening, Mr Wittkuhn identified the following nine issues for determination in the proceedings:

1. Whether there was a residual discretion under TPS3 to refuse the DA, notwithstanding its general conformity to the R­Codes.

2. Whether the impact of the development on the Flooded Gum was acceptable.

3. Whether the amenity impacts on No 9 Anzac Terrace arising from the relocation of unit 11 were acceptable.

4. Whether the internal circulation of the development was acceptable.

5. Whether the removal of trees, particularly along the access handle portion of the site, was acceptable.

6. Whether there was sufficient visitors' parking on site.

7. Whether the traffic network in the locality had capacity to appropriately absorb the traffic generation of the development.

8. Whether Anzac Terrace had capacity to cater for the traffic generation of the development, and whether the additional traffic gave rise to unacceptable safety and amenity impacts in Anzac Terrace.

9. Whether the density of the development was inconsistent with the existing and likely future character and amenity of the area, particularly having regard to the proposed reduction in the density coding of the site from "R25" to "R10" as envisaged in the Town of Bassendean Local Planning Strategy (February 2005) ("LPS").

Discretion to refuse a development application which is in conformity with the R­Codes

18 Mr Wittkuhn submitted that the effect of cl 3.3.2(d) of TPS3, which is set out at par [13] above, was that, although development for residential purposes could not be approved unless it complied with the R­Codes, conformity with the R­Codes did not mandate the grant of development approval. Mr Wittkuhn submitted that:

"Compliance with the R­Codes is a necessary, but not sufficient, condition for approval."

19 At the initial directions hearing, when they were not yet represented by counsel, the applicants contended that conformity with the R­Codes had the effect that neither the respondent nor the Tribunal on review could refuse the DA. At the final hearing, Mr PN Burke, counsel for the applicants, conceded, correctly in the Tribunal's view, that the respondent and the Tribunal retained a discretion under TPS3 to refuse an application for residential development which conformed to all relevant provisions of the R­Codes.

20 As noted earlier in these reasons, cl 5.1.1 of TPS3 requires the applicants to obtain planning consent to the proposed development. Clause 5.3.1 requires the respondent, and the Tribunal on review, to take specified matters into consideration "in considering and making its decision" on an application for planning consent made under cl 5.1.1. The first consideration listed in cl 5.3.1 is "the provisions of the Scheme", which include the requirement in cl 3.3.2(d) that the development "shall conform to the provisions of" the R­Codes. However, that provision does not qualify or derogate from the remaining specified considerations in cl 5.3.1. The effect of cl 3.3.2(d) of TPS3 is not to mandate approval of every development application which conforms to the provisions of the R­Codes. Nor is its effect to permit the refusal of a development application which conforms to the R­Codes only where a more stringent, corresponding provision is contained in the Scheme. Rather, on its proper construction, TPS3 permits the refusal of an application for planning consent where, taking into account each of the relevant considerations identified in cl 5.3.1, it is appropriate, in the exercise of planning discretion, to refuse the application, subject to the principle referred to at par [23] below.

21 Mr Burke submitted that:

"Satisfaction of the R­Codes ... creates a very strong presumption that the proposed development is to proceed. It is the task of the respondent, by reference to its Scheme, to rebut this presumption."

22 The Tribunal rejects this submission. It seeks to import, from the law of evidence, the concept of a rebuttable presumption, which has no application in relation to planning assessment. Moreover, in purporting to cast an onus on a consent authority in relation to a development application, it is incorrect. In a planning assessment, the onus remains firmly on an applicant to satisfy the Tribunal that the approval which it seeks should be granted, even where the application conforms to all relevant provisions of the R­Codes. However, the issues in relation to which the applicant must specifically satisfy the Tribunal in order to obtain approval will usually be identified by the original decision­maker.

23 Rather, the correct approach and principle was that stated by the Tribunal in Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 at [42] as follows:

"In most planning assessments, the fact that a development conforms to a relevant provision of the R­Codes is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration." (See also Robert Baccala and City of Fremantle [2005] WASAT 55 at [24]).

24 As noted earlier in these reasons, the plan the subject of the DA was amended so as to preserve the Flooded Gum located on the verge adjacent to the north­western portion of the principal part of the site. This tree was identified by Cr Klein as "a magnificent tree". It was similarly described by Mr Kar. However, it was not identified as having individual significance in a detailed arboriculture report prepared by Mr B Moorman in February 2005.

25 Rather, as Mr Allerding said in his written evidence, "[t]he photographs show the tree is a significant element of the streetscape and contributes in particular to the character and amenity of the immediate locality of Anzac Terrace". Mr Moorman considered that the overall health of the tree is good, although it has experienced a large number of large limb failures. He considered that it was possible to retain the tree "as long as guidelines for proper tree preservation are followed". Accordingly, had the applicants not amended the plans to avoid the destruction of the tree, if the Tribunal was otherwise minded to grant development approval, it would have imposed the condition recommended by the respondent's assessing planning officer.

26 Mr Moorman identified three "guidelines for proper tree preservation" which should be followed so as to retain the tree. First, he considered that "significant canopy works are required in an attempt to restore a reasonably acceptable structural form and remove any obvious hazards and deadwood". As the tree is located on the respondent's land, and as these canopy works are required irrespective of the proposed development, their implementation is the respondent's responsibility. Second, Mr Moorman considered that the tree should be monitored by a consulting arborist to evaluate health and vigour. Finally, he stated that "an undisturbed area around this tree free of any construction or other disturbances" was required. In particular, he recommended "a tree preservation zone around this tree approximately 7 metres in diameter and restrict all construction, compaction, storage, etc. within that area".

27 It was Mr Allerding's oral evidence, and Mr Wittkuhn's submission, that although the amended plans sought to preserve the tree, Mr Moorman's recommendation of a tree preservation zone could not be accommodated. In particular, Mr Allerding said that, when Mr Moorman used the word "diameter", it is more likely that he meant "radius". However, it appears from his report that Mr Moorman was an appropriately qualified and experienced arboricultural consultant. When an arboricultural consultant uses the word "diameter", it is reasonable to consider that that is precisely what he meant. According to the Macquarie Dictionary (Revised 3rd Edition), "diameter" means "a straight line passing through the centre of a circle or sphere and terminated at each end by the circumference of the circle" (page 527), whereas "radius" means "a straight line extending from a circle or sphere to the circumference or surface" (page 1563).

28 It appears that, other than a front fence, the closest structures proposed within the development to the tree are the verandah of unit 11, set back approximately 7.0 metres from the tree, and the western driveway, set back approximately 6.0 metres. The development, therefore, comfortably satisfies Mr Moorman's recommendation. However, for more abundant caution, and as Mr Burke did not oppose such a condition, all works and storage (other than the front fence) could be excluded from the area north of a point 1.0 metre from the verandah of unit 11 and west of a point 1.0 metre from the western driveway. This would allow the construction of those structures without interference with the tree.

29 It was Mr Kar's evidence that, although he would not oppose a development comprising 10 or 11 grouped dwellings on the site, he did oppose a 13­unit development. One of Mr Kar's principal objections was the fact that the western driveway was originally proposed immediately adjoining his property boundary. Mr Kar said:

"I would find the noise and vibrations of those vehicle movements to be unacceptable, and I object to the internal arrangement of the complex having its internal driveway right along the boundary. If that is the only way that the Applicants were able to achieve the 13 units, then I just feel that the 13 units would be achieved at the expense of my family's amenity and reasonable enjoyment of our own property."

30 As noted earlier in these reasons, the amended plans relocated unit 11 adjacent to Mr Kar's property and placed the western driveway between units 10 and 11, that is, away from Mr Kar's property. Although a section of driveway was still proposed adjoining the southern half of Mr Kar's boundary, that section would serve only two units, namely unit 11 and unit 12. Furthermore, Mr Kar has obtained subdivision approval from the Western Australian Planning Commission which, if implemented, would create a separate allotment on the southern half of his property where it adjoins the section of driveway serving unit 11 and unit 12. In the circumstances, the Tribunal is satisfied that the amenity impact of the short section of driveway adjoining Mr Kar's property is acceptable.

31 When Mr Kar was called to give evidence on the second day of the hearing, it became apparent that, although he had attended the first day of the hearing when leave to substitute the amended plan was granted, he had not been shown the amended plan. The Tribunal expects representatives of respondents to show any amended plan to witnesses before they are called to give evidence. When Mr Kar was shown the amended plan, he indicated that the relocation of unit 11 did not cause him any concern, other than the proposed location of the garage directly adjoining the common boundary. Mr Burke volunteered a condition on behalf of the applicants that the garage be relocated to have a setback of 1.0 metre from the common boundary. The Tribunal is satisfied that the amenity impact of the relocated unit 11 on the adjoining property to the west is acceptable.

32 In his written statement of evidence, Mr E Ryke, a civil engineer with 14 years' experience in the design and construction of major road works, traffic engineering and infrastructure projects, who was called on behalf of the respondent, identified two principal problems in relation to the internal circulation of the proposed development. First, he considered that a standard garbage truck would not be able to circulate within the internal driveway. Second, he noted that unit 4 and unit 12 had long driveways leading to their garage or carport and that it was necessary for vehicles exiting these units to reverse along that driveway before being able to proceed out of the development in a forward direction.

33 Mr Veal holds a masters degree in transport planning and engineering and has practised as a traffic and transport engineer for over 25 years. It was his evidence that the internal road "should accommodate the swept path movements of rubbish trucks and furniture vehicles". He also stated that, if "turning heads" were introduced for the benefit of unit 4 and unit 12, vehicles could enter and exit the car parking area of these units in a forward direction. As noted earlier, the amended plan incorporated "turning heads".

34 At the Tribunal's direction, Mr Ryke and Mr Veal had discussions outside the Tribunal room before they were called to give evidence, in order determine matters agreed between them, matters not agreed between them, and the reasons for any disagreement. When they came to give evidence, they did so concurrently. The Tribunal asked questions of each witness in relation to each relevant issue in turn. Each witness was then given an opportunity to ask his colleague any relevant question. Finally, counsel for the parties were given an opportunity to ask questions. The Tribunal found this process to be particularly helpful in understanding the evidence and the issues.

35 It quickly became apparent that the principal reason for the disagreement between the experts in relation to whether a rubbish truck could travel through the site in a continuous movement, was that, whereas Mr Veal had used a standard design 8.8­metre long service vehicle in his assessment, Mr Ryke had used a 10.0­metre long vehicle, which is the length of the vehicle which collects rubbish in the respondent's local government area. Mr Ryke and Mr Veal agreed that a standard design 8.8­metre long service vehicle could traverse the proposed internal driveway in a single movement. After overnight work, Mr Ryke and Mr Veal also agreed that a 10­metre long garbage truck could traverse the internal driveway in a single movement if a proposed dedicated pedestrian path were removed or if it were a dual-purpose path, and if a triangular area having a maximum depth of 0.5 metres and a length of 8.0 to 9.0 metres were removed from the private open space of unit 10 and added to the driveway area. Mr Ryke considered that it would be "totally unacceptable" not to have a dedicated pedestrian path, and he suggested that the private open space of unit 9 and unit 10 should be reduced so as to allow for a dedicated pathway. Mr Veal considered that a dedicated pedestrian path was unnecessary, because of the low volume and low speed environment of the development.

36 Mr Allerding stated in his oral evidence that, if the design of the development were modified to eliminate the dedicated pedestrian path in order to permit a garbage truck to manoeuvre through the site in a single movement, the development would breach the Acceptable Development criteria in relation to pedestrian access prescribed in cl 3.5.5 of the R­Codes. The relevant criterion in par A5.1 is as follows:

"Where a communal accessway between a public street or a communal car-parking area and individual dwellings serves 10 or more dwellings, there is a pedestrian path separate from vehicular access, designed according to Australian Standards (AS 1428.1, 2001) on Access, to be barrier free and at least 1.2m in width."

37 It is also to be noted that the Acceptable Development criterion in par A4.5 of cl 3.5.4 of the R­Codes requires that a driveway for grouped dwellings have a minimum width of 4.0 metres.

38 The Tribunal is satisfied that, in the circumstances of this case, if the dedicated pedestrian pathways shown on the plan the subject of the DA became dual­use pathways in the internal parts of the site, the development would nevertheless satisfy the corresponding performance criteria in cl 3.5.5 of the R­Codes, which provides as follows:

"Provision of safe and comfortable access for pedestrians between communal car parking areas or public streets and individual dwellings."

39 The access for pedestrians to and from Anzac Terrace would be "safe and comfortable", notwithstanding the fact that a portion of the pedestrian accessway would be dual­use, because:

i. there is room to provide dedicated pedestrian paths, separate from vehicular access, of 1.2 metres in width, at the street frontage of both driveways, which can be graded down to a common level with the driveway approximately 15 metres from the street frontage;

ii. the footpath (including the dedicated pedestrian path and the dual­use path) can be conditioned to be paved in a different colour to the paving of the driveway;

iii. rubbish trucks would need to pass over two corner portions of the dual­use path for no more than a few minutes once a week only;

iv. each of the proposed driveways would have only one­way traffic, thereby allowing pedestrians to be conscious of the direction of traffic; and

v. the development involves a low speed, low volume traffic environment.

40 In this latter respect, we prefer the evidence of Mr Veal, who is an experienced, specialist traffic and transport engineer with over 25 years' experience, to that of Mr Ryke, who is a civil engineer, although with experience in traffic engineering and infrastructure projects. However, consistently with par A4.5 of cl 3.5.4 of the R­Codes, the Tribunal considers that the width of the internal driveway, where it serves more than one dwelling, should be increased to 4.0 metres exclusive of a 1.2­metre wide pedestrian path (which, as noted earlier, would be in part a dual­use path for pedestrians and vehicles). Condition 25 in the annexure to these reasons describes the necessary modifications which should be made to the plan.

41 Finally, in relation to garbage truck movement, Mr Ryke noted that "two­way traffic access will be impeded when rubbish trucks are collecting waste from within the site". However, it was Cr Klein's evidence that garbage collection occurs only once a week (with recycling collection at the same time, but only every second week). The fact that some residents might be inconvenienced for a relatively short period once a week does not make the proposal unacceptable. Indeed, the fact that residents of the proposed development would have the convenience of being able to leave their rubbish bins directly in front of their dwellings, or in the case of unit 4 and unit 12 having to roll the bin or bins a relatively short distance to the principal portion of the driveway, rather than having to roll their bins a considerably greater distance to Anzac Terrace, adds to the internal amenity of the proposal. It also adds to the amenity of the locality, because it avoids 12 or 24 bins being placed on the Anzac Terrace verge. Contrary to Mr Wittkuhn's submission, there are a number of places off the driveway and pedestrian path where the residents of unit 4 and unit 12 could leave their bins adjacent to units 5, 8, 9, 10 or 11.

42 In relation to the "turning heads" shown on the amended plan, Mr Ryke and Mr Veal agreed that vehicles could enter and exit the car parking area of unit 4 in a forward direction, if the carport of that unit were relocated to the northern side of the area allocated to that unit. Condition 23 in the annexure to these reasons addresses this modification. Mr Ryke and Mr Veal also agreed that the proposed turning head for unit 12 would permit vehicles to enter and exit the parking area of that unit in a forward direction, although larger four wheel drive vehicles would require more than a three point turn. Mr Ryke said that a larger four wheel drive vehicle might require a five point turn to be able to exit in a forward direction. The Tribunal does not consider that the fact that, in the case of one unit, a larger four wheel drive vehicle might require a five point turn, means that the internal circulation of the proposed development is unacceptable.

43 Mr Ryke and Mr Veal also agreed in their concurrent evidence that the distance between the two driveways on Anzac Terrace was acceptable and that the sightlines were acceptable. In particular, they both considered that there were no branches or growth in the tree to be retained on the verge which would obstruct visibility.

44 The evidence shows that approximately 54 trees are proposed to be removed adjacent to the southern boundary, and that approximately 24 trees in that section are proposed to be retained. Specifically in the access handle part of the site, 24 out of approximately 27 trees are proposed to be removed to make way for two of the proposed dwellings and driveways.

45 It was Mr Allerding's evidence that:

"The trees contribute to the amenity of the area and are visible from a number of vantage points such as properties on the southern side of Anzac Terrace, Railway Parade, the Dual Use Path running along the boundary to the Swan River and from residences and areas on the southern side of the rail reserve such as along Earlsferry Court."

46 Although it was apparent from photographs that the trees in the access handle part of the site do contribute positively to the amenity of the three residential properties immediately to the west of the site, in light of the zoning and density coding of the site (and of the three adjoining residential properties), it would not be reasonable to insist on the retention of the trees in the access handle in order to preserve this "borrowed" private residential amenity. The retention of the trees in the access handle part of the site would, in effect, preclude development of that part of the site for dwellings. Moreover, the aerial photograph indicated that the westernmost two properties adjoining the access handle had been developed with structures in close proximity to the common boundary, rather than with landscaping. In particular, the residence of Mr MA Hansen at No 13 Anzac Terrace, who gave evidence in the respondent's case objecting, among other things, to the removal of trees in this section of the site, has a large pool and what appear to be buildings or other structures, without any trees, adjacent to the common boundary with the site. It would not be reasonable to preclude residential development in the access handle because of the choice of adjoining property owners to develop their properties effectively to the common boundary.

47 From Railway Parade, the proposed development would replace the present view of a treed, grass­covered laneway with a single­storey, freestanding dwelling. A tree at the south­western corner of the site and two trees to the rear of proposed unit 13 would be retained. The Tribunal considers that the impact of the development on streetscape and amenity when viewed from Railway Parade is acceptable.

48 Existing fig trees are proposed to be retained along slightly more than half of the southern boundary of the site, although the two single­storey dwellings proposed along the access handle part would be visible in the sections where existing trees are proposed to be removed. The Tribunal considers that, in light of the zoning and density coding of the site, and the presence of significant railway infrastructure to its south, the proposed development, including the removal of trees, would have an acceptable amenity impact when the site is viewed from the dual­use pathway and from residential properties to the south of the railway line.

49 The Acceptable Development provision of the R­Codes in cl 3.5.1 in relation to visitors' spaces for grouped dwellings prescribes a "rate of one for each four dwellings, or part thereof, in excess of four dwellings served by a common access". As 12 of the proposed dwellings are served by a common access, the Acceptable Development provision requires two dedicated visitor spaces.

50 The proposed development includes two dedicated visitor spaces in a central location adjacent to the internal driveway. The fact that the development conforms to the relevant provision of the R­Codes in relation to visitors' spaces is a significant factor in assessing the merits of the application under TPS3. In addition, eight of the 12 proposed units which would be accessed from Anzac Terrace, namely units 1, 2, 3, 4, 5, 7, 8 and 12, have sufficient space on their individual driveways to allow at least one visitor's vehicle to park off the common driveway.

51 The Tribunal, therefore, rejects Mr Wittkuhn's submission that the development is likely to lead to a spill­over of visitors' parking onto Anzac Terrace.

Impact of additional traffic on Success Hill locality

52 Mr Veal considered that the development was likely to give rise to a traffic generation of up to six vehicle trips per day per dwelling, that is, a total of 78 vehicle trips per day. Mr Ryke considered that the correct figure was likely to be 8 vehicle trips per day per dwelling, with a total of 104 vehicle trips per day, because the likely incoming population of the development would be younger than the existing "perhaps older" population of the locality. For the purposes of these reasons, we have assumed that the likely vehicular generation of the proposed development would be 104 vehicle trips per day.

53 An unusual characteristic of the area known as the "Success Hill Locality", which is bounded by Lord Street, Success Road, the Swan River and the railway line, of which the site forms part, is that the only access onto the adjacent district road network from the locality is via the intersection of Lord Street and Success Road, as all other streets have been closed to through traffic. During the peak road period, that is, from 8 am to 9 am, the development is likely to generate approximately 10 to 13 per cent of the daily traffic movements from the Success Hill Locality on to the local network.

54 In his written evidence, Mr Ryke stated as follows:

"The intersection [of Lord Street and Success Road] is a recognised black spot location (according to Main Roads WA). A "black spot" location means that the Federal Government has classified the site under their National Road Safety Black Spot program that targets roads and intersections with a proven history of crashes in order to reduce the number of crashes on Australian roads. As such, the proposed development will increase the traffic to this intersection by approximately 13 per cent."

55 However, it emerged during Mr Ryke's oral evidence that he based this evidence on what he had been told by an unnamed person and that he had not been able to verify it. In contrast, Mr Veal stated that he had actually checked whether the Lord Street/Success Road intersection was identified as a "black spot". Although, according to his evidence, the intersection does qualify for a submission to be made for "black spot funding", it has not been included on the 2005 or 2006 federal list for such funding and has not been included on the State budget for funding of black spots. According to the Main Roads WA website, the intersection is ranked as the 1881st worst intersection in the State. Although Main Roads WA has a record of nine collisions at the intersection, it was Mr Veal's evidence that this history is not unacceptable for an intersection of this nature. Two of these nine collisions involved right turning vehicles which, according to Mr Ryke's evidence, "can be attributed to traffic using Success Road".

56 Mr Veal undertook an operational assessment of the Lord Street/Success Road intersection using a computer program called aaSIDRA. He gave the following evidence based on this assessment:

"The results indicate that the intersection currently performs well within its potential capacity. The side road traffic is light compared to the through movements on Lord Street and overall the intersection scores well on the performance indicators. This includes a degree of saturation of less than 0.5, which is a measure of the capacity of the intersection, indicating that during the busiest period of the day it is experiencing about 50 per cent of the total volume of traffic it can accommodate. A degree of saturation of 1.0 would indicate that the intersection is at its practical capacity.

Traffic delays on Lord Street are minimal with the occasional delay caused by a driver waiting to turn right into Success Road. In practice, such vehicles do not always block through movements. Drivers on Success Road do experience delays particularly if wishing to turn right. This is typical of such suburban streets. In this case side road traffic does have the advantage of gaps being created in the traffic stream by the traffic signals located up­stream."

57 Mr Veal then repeated the analysis to include the proposed development. It is to be noted that, although he considered that the traffic generation of the proposal was 78 vehicle trips per day, he used the more conservative estimate of 104 vehicle trips per day in the assessment. He gave the following evidence:

"As the additional traffic volume is relatively small, the results were a marginal increase in the length of delay forecast for drivers exiting Success Road. Overall, the operational performance indicators remain good and in any event, well within the operational capacity of the intersection. It would retain substantial spare capacity and the increase in queue lengths and delay times would be minimal.

The assessment of Lord Street intersection with Success Road, assuming the addition of the proposed group [sic] housing traffic, indicated a degree of saturation of less than 0.6. Such an increase in traffic volume at this intersection is unlikely to be noticed by drivers on Lord Street and is expected to add only one extra vehicle to the queue on Success Road (east) at any time. During the peak hour the extra traffic volume on Success Road is likely to be of the order of 10 vehicles. This equates to an extra vehicle every six minutes. To put this in perspective, in the same timeframe more than 1300 vehicles will travel through the intersection along Lord Street or 130 vehicles in the six minute gap between drivers from the proposed group housing."

58 Mr Ryke did not undertake a similar operational assessment, and did not question the operational assessment undertaken by Mr Veal. However, Mr Ryke noted that Mr Veal's assessment had classified the level of service for the vehicles exiting the Success Hill Locality, in both the morning peak and afternoon peak, as "F", which means "unacceptable, fail" for both the existing and post­development scenarios. Mr Veal responded that the program had, nevertheless, classified the overall performance of the intersection as "A", which means "excellent", for both scenarios. The "F" level of service in the morning and afternoon peaks for the existing situation was generated by an average delay of 68 seconds, with a queue length of two vehicles, in the morning, and 68 seconds, with a queue length of one vehicle, in the afternoon. The development would increase the average delay by only 9 seconds and the queue length by one vehicle in the morning, and would only increase the afternoon delay by 5 seconds and the queue length by one vehicle. In Mr Veal's experience, such delays and length of queues was not unexpected in the peak periods in relation to such intersections.

59 A number of residents objected to the proposed development, because it would exacerbate existing congestion at the Success Road/Lord Street intersection. Councillor Klein described the intersection at peak hour in the morning as "a real problem area". Mr Hansen referred to "large backlogs of traffic queuing every morning along Lord Street, making it difficult to turn safely from Success Road".

60 Although the residents' objections and evidence about delays in exiting the Success Hill Locality are borne out in the operational assessment undertaken by Mr Veal, the Tribunal does not consider that the level of delay and potential traffic safety risk in the peak periods warrants the refusal of the proposed development. The Tribunal accepts the evidence of Mr Veal that the level of delay and potential for vehicular collisions are not unacceptable for an intersection of the type at Lord Street/Success Road. It does so in light of Mr Veal's significant level of specialist experience and the fact that the intersection has not been identified as warranting "black spot" expenditure. Although, given the level of service found by Mr Veal in the peak periods, the intersection would no doubt benefit from expenditure which would improve performance and safety, the Tribunal is satisfied that the intersection has sufficient capacity to cater for the vehicles generated by the proposed development.

Impact of additional traffic on Anzac Terrace

61 Mr Veal had caused traffic counts to be undertaken on Anzac Terrace. On the basis of these counts, he estimated that there were approximately 120 vehicle trips per day in the busiest section of Anzac Terrace. The proposed development would double this traffic volume, resulting in an average of 20 movements per hour or one movement every three minutes. In the immediate vicinity of the cul­de­sac, where the present vehicular generation is about 20 movements per day, the proposed development would increase that number five or sixfold.

62 However, Mr Veal considered that a road having a paved width such as Anzac Terrace had the capacity to cater for 1000 vehicle trips per day. He, therefore, considered that Anzac Terrace had sufficient capacity to cater for the proposed development. Moreover, he did not consider that the development would give rise to an unacceptable pedestrian safety risk.

63 A number of the objections which were made by residents to the respondent in relation to the proposed development raised concerns about safety and noise issues associated with additional vehicular use of Anzac Terrace. In his evidence, Mr Hansen noted that, because of the width of Anzac Terrace, vehicles cannot easily pass coming from opposite directions and that there is no footpath. He noted that he had observed vehicles picking up speed on River Street and Eighth Avenue as they approached the intersection of Anzac Terrace, because of the steep downward slope onto Anzac Terrace. He also said that the increase in traffic "will adversely affect enjoyment of our property by forever altering the quiet and secluded character of the area".

64 Mr Ryke raised no concern about the capacity or safety issues of additional traffic generated by the proposed development on Anzac Terrace. As noted earlier in these reasons, Mr Ryke and Mr Veal agreed that the distance between the two proposed driveways on Anzac Terrace was acceptable and that there were adequate sightlines for safe vehicular exit onto Anzac Terrace. In consequence of the evidence of both traffic experts that Anzac Terrace has sufficient capacity to cater for the proposed additional traffic, and that the additional traffic will not give rise to an unacceptable safety risk, the Tribunal has concluded that the development is acceptable in this respect. Although it is likely that, in the vicinity of the head of the cul­de­sac, a sixfold increase in traffic would be noticeable, it is simply a consequence of the zoning and density coding of the site. It would, therefore, be unreasonable to refuse the development application because cars generated by it are likely to affect residential amenity in the immediate locality.

65 As noted earlier in these reasons, the proposed number of units is less than the maximum permitted by the­Codes. This fact is significant in relation to the related consideration of whether the development has an excessive density when judged against the mandatory heads of consideration set out in cl 5.3.1 of TPS3. Compliance with the maximum density under the R­Codes is not, however, determinative. It is conceivable that, in the particular facts and circumstances of a case, a development which is compliant with the maximum density prescribed in the R­Codes might, nevertheless, be an overdevelopment of a particular site. However, the Tribunal has determined that this is not such a case.

66 Mr Wittkuhn submitted that the proposed development was an overdevelopment of the site. He relied, in particular, on the LPS. According to the evidence of Cr Klein, the LPS "has recently been approved for readvertising". According to the evidence of Mr BH Carter, who was a councillor of the respondent from 1991 until May 2005 (when he chose not to renominate) and mayor from 1997 to 2001, the LPS is being advertised until July 2005.

67 The introduction to the LPS includes the following:

"The Town of Bassendean has decided to prepare a Local Planning Strategy to assist it and the community in setting out the strategic direction for the sustainable provision of Housing, Commercial and Industrial development in the Town. Whilst there is no statutory obligation to prepare the strategy, Council has decided to undertake the project as part of the preparation of the Town Planning Scheme No. 10. ...

The Town of Bassendean Local Planning Strategy is a strategic planning tool that enables the Council and community to set out its vision for the municipality, and to establish short, medium and longer term directions for sustainable land use and development. ... The Town of Bassendean Local Planning Strategy is in the first instance an expression of Council and the community vision for the Town of Bassendean over the next 15­20 years. ...

The vision and planning philosophy outlined within the Local Planning Strategy will form the basis for land use, zoning, subdivision and development throughout the municipality. This vision is to be implemented through the statutory planning system and may include amendments to Council's Town Planning Scheme."

68 The site is located near the northern end of the area identified in the LPS as "Housing Precinct F". Clause 3.8.1 of the LPS contains an "overview" of this Housing Precinct as follows:

"This precinct comprises the majority of riverfront properties in the easternmost part of the municipality. The housing within this precinct comprises large riverfront homes on relatively large residential lots where, due to the extent of development on the lots, and the quality of existing development, there is little prospect for short to medium term redevelopment within this precinct.

Generally the lot sizes range from 1000 square metres to 2000 square metres and upwards. Under Town Planning Scheme No. 3, this precinct was zoned Residential R5 with the exception of a small sub­precinct adjacent to Daylesford Road which was zoned R20 and the riverfront Success Hill which was zoned R20 and R25."

69 The "objectives" for this Housing Precinct are stated in cl 3.8.3 of the LPS as follows:

"• To retain Housing Precinct F as predominantly a single residential housing area with larger riverfront housing lots in the short to medium term.

• To make limited provision for a planned redevelopment of small sub­precincts for the purpose of high quality medium density housing and/or subdivision in a manner that does not undermine the precinct as a single residential area, but recognises the unique qualities of the Swan River environs."

70 The stated "strategies" for this Housing Precinct in cl 3.8.4 of the LPS include the following:

"Apply a residential zone with a coding of R5 to the entire precinct under Town Planning Scheme No. 10, with the exception of the Daylesford Road sub­precinct which is to be coded R20 and Success Hill sub-precinct which is to be coded R10."

71 Therefore, the fundamental change contemplated by the LPS in relation to the site is a down­coding from "R25" to "R10". The practical effect would be to reduce the number of potential dwellings on the site from 16 to 5. Councillor Klein stated in evidence that she regarded the LPS "as a truer reflection of the intent which the Council, as elected representatives of the Town of Bassendean, has for the locality". She supported low density development close to the river for the following two reasons:

"Firstly, for environmental reasons, ie not overdeveloping the fragile river environment, and secondly, to preserve the character and feel and amenity of the area".

72 In her oral evidence, Cr Klein said that, in 1996, the respondent had set about changing the zoning of the site from "R25" to "R15­20". However, "that failed because the government did not agree". In 2003, the respondent assessed the fragility of the river and resolved that the area should be coded "R10". Although Cr Klein stated at first that "most definitely" the site would be down­zoned to "R10", she conceded that she had not spoken to the Minister for Planning in relation to the down­coding, and that, if the respondent were to receive submissions in opposition to the down­coding, "we will need to look at it again". She conceded that "anything could happen", and volunteered that, in her earlier evidence, her use of the word "definitely" was "very presumptuous".

73 Mr Carter gave evidence that it was his opinion, and, based on discussions, councillors' opinions generally, "that TPS3 does not reflect some of the environmental concerns that have arisen in the past 20 years, especially for land adjacent to the Swan River". He stated that "as such, at all stages through the proposed Town Planning Scheme No. 10 process, land has been identified for a lower density". He indicated that the down­coding process commenced in about 1995. Although "there have been considerable delays, particularly on the part of the Western Australian Planning Commission, ... Council's intent with regard to 1 Anzac Terrace has been clear and consistent". In his oral evidence, Mr Carter confirmed Cr Klein's evidence that, in 2003, "the Planning Commission took [the respondent's proposed down­coding of the site and locality] as a down-zoning and had concerns".

74 There are two ways in which the LPS could be of relevance in relation to the proposed development. First, par (c) of cl 5.3.1 of TPS3 requires the respondent, and the Tribunal on review, to take into consideration "any ... policy adopted by the Council for development of the locality". This would include the LPS, which has been adopted by the respondent, and which, on the evidence, reflects the view of the respondent since at least 1996 that the "R25" coding of the site was, in Cr Klein's words, "an anomaly". However, although the contemplated down­coding in the LPS is a relevant consideration under cl 5.3.1 of TPS3, it could only be given minimal weight as an adopted policy of the respondent, because the express objects of the Scheme include:

"To define the land use and types of development permitted in each of the zones established and to guide investment decisions of both intending developers and present and future residents and business people" (cl 1.3.2(b)).

75 TPS3, therefore, recognises that zoning plays a significant role in land use planning and that important investment decisions will be based on zoning.

76 The second way in which the contemplated down-coding in the LPS could be of relevance is as a "seriously-entertained planning proposal" under the so-called "Coty principle". The "Coty principle" derives its name from the decision of the Land and Valuation Court of New South Wales in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. In Nicholls and Western Australian Planning Commission [2005] WASAT 40, the Tribunal noted that the Coty decision has been followed or applied in a large number of cases, including in each Australian State: see citations at [40]. Having reviewed the principal authorities, the Tribunal held at [45] as follows:

"It appears that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must undertake four stages of enquiry. The four stages are as follows:

(1) In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously-entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.

(2) If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.

(3) The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.

(4) The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions."

77 The Tribunal accepts Mr Wittkuhn's submission that the down­coding of the site from "R25" to "R10" is a "seriously­entertained planning proposal": Tang v City of Stirling (1981) 5 APA 161 at 172; Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193. The Tribunal also accepts Mr Wittkuhn's submission that the proposed development of 13 units is inconsistent with the planning objective contemplated in the LPS. Although approval of the application might not impair the overall achievement of the planning objective, as the site is located in the northernmost part of Housing Precinct F, it is certainly likely to render more difficult the ultimate decision as to whether the northernmost part of that Precinct should be included in the down­coding, should it ultimately be included in a gazetted Scheme.

78 Having reviewed the authorities in relation to attribution of "appropriate weight" at [57] - [58], the Tribunal in Nicholls and Western Australian Planning Commission (supra) identified "the four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft planning instrument or policy or a draft amendment to such an instrument or policy in a planning assessment or appeal", at [59], as follows:

"(1) The degree to which the draft addresses the specific application.

(2) The degree to which the draft is based on sound town planning principles.

(3) The degree to which its ultimate approval could be regarded as 'certain'.

(4) The degree to which its ultimate approval could be regarded as 'imminent'."

79 In this case, Mr Wittkuhn ultimately made no submission in relation to weight. Mr Burke identified the statutory processes which were required to be completed before the down­coding contemplated in the LPS could form part of the Scheme, and emphasised the evidence of Cr Klein that "anything could happen". He noted that previous attempts to rezone the land were met with opposition from the Minister.

80 The Tribunal considers that only minimal weight could be given to the down­coding contemplated in the LPS in the circumstances of this case. Although the down­coding addresses the specific application in question in these proceedings, there was no satisfactory evidence before the Tribunal in relation to whether the down­coding is based on sound town planning principles, at least in relation to the first reason put forward for the down­coding. While Cr Klein and Mr Carter identified one of the bases of the down­coding as concern about the impact of residential development on the environmental quality of the river, no scientific evidence was presented to establish that the down­coding was necessary in order to preserve that environment. Indeed, the Swan River Trust advised the respondent that it had no objections to the proposal, subject to the imposition of conditions. The second reason put forward by Cr Klein for the down­coding, namely "to preserve the character and feel and amenity of the area" was supported by Mr Allerding. It appears that this reason might be based on sound town planning principles.

81 However, the down­coding envisaged in the LPS is uncertain and quite the opposite of imminent. No evidence was presented in relation to the attitude of the Western Australian Planning Commission, much less of the Minister, in relation to the down­coding. The fact that approval has been given by the Commission to advertise the LPS could not be regarded as endorsement of any or all of that document. The fact that the Minister did not agree to a down­coding of "R15­R20" does not bode well for a more significant down­coding to "R10". Moreover, the LPS is not even a proposed amendment to TPS3, although the LPS envisages that its provisions would ultimately be effected through amendment of the Scheme. Therefore, in addition to the receipt and consideration of submissions which, as Cr Klein conceded, could result in the respondent having to "look at it again", the respondent's final position following the review of submissions would need to be translated into a draft amendment to TPS3.

82 Mr Allerding considered that "notwithstanding the density code that applies over the subject site [at present], it is considered that the form of development proposed will be incongruous with the nature and form of existing development within the area particularly that identified within Council's Local Planning Strategy for Area F". Mr Allerding emphasised the following matters:

"• The lot sizes and density proposed will be significantly smaller from that existing;

• The streetscape presentation to Anzac Terrace will result in effective lot width of the proposed dwellings as being significantly less than that which exists;

• The dwellings will contain a much lesser front and/or rear yard typical of other riverfront properties in Area F;

• Street setbacks would be significantly less than existing typical riverfront properties and properties in Area F; and

• The frontage and presentation to the foreshore and Swan River will result in a substantially different form of development to that prevalent along the river which presents much larger lots with large riverfront homes and extensive landscaped/vegetated garden areas."

83 Mr Allerding stated that "achievement of the maximum density [permitted under the R­Codes] should not ... override all other planning considerations, including those outlined in Clause 5.3 of Council's Town Planning Scheme No. 3 in order to achieve good urban form and the interests of orderly and proper planning". However, he considered that "it is possible that the same density could be achievable" once the issues which he identified were satisfactorily addressed. In cross­examination, Mr Burke challenged Mr Allerding to reconcile his view that a similar density could be achievable with his view that the proposed density was unacceptable in light of the considerations identified above. Mr Burke suggested to Mr Allerding that, if larger lots were required at the street frontage to achieve good urban form and in the interests of orderly and proper planning, a similar density to that proposed could only be achieved by significantly smaller lots within the development. That, however, would involve a breach of the R­Codes.

84 Mr Sri Ramanathan considered that the building forms, and the spaces between and around the proposed buildings, would contribute "to a harmonious streetscape composition". He emphasised that the proposed buildings would have pitched roof configurations compatible with the existing dwellings in the vicinity and that their heights matched existing dwellings. He also emphasised that the location of the garages on the driveway permitted the forecourts of the street front dwellings to be landscaped and to achieve an open streetscape setting for the buildings, thus enhancing the streetscape composition.

85 Although the Tribunal accepts Mr Allerding's evidence that the density coding is a maximum density and that it should not override other planning considerations, it does not accept his opinion that the proposed development "will be incongruous with the nature and form of existing development". While the street presentation of the proposed development will be different to existing development in the locality, it will, nevertheless, be compatible with existing development. This compatibility is achieved by the presentation of the three buildings facing Anzac Terrace and the single building facing Railway Parade as single detached dwelling­houses in a landscaped setting. The fact that the width, lot sizes and front gardens of the proposed dwellings are smaller than that which is typical of large single dwelling­houses on large allotments of land is, however, an almost inevitable consequence of development of the site in accordance with the applicable zoning and planning controls. No photographs were tendered of the appearance of the site and of the locality from the river. However, there is room for landscaping between the proposed buildings and the river. Conditions 6 and 7 in the annexure to these reasons require the preparation, implementation and maintenance of a landscape management plan to the satisfaction of the Swan River Trust for this part of the site. In addition, condition 14 requires the approval by the respondent, and implementation and maintenance, of a landscape plan for the site generally.

86 A number of objectors also raised a concern that the density and form of the development would be out of character with the locality. Councillor Klein gave evidence that she was:

"concerned that allowing the development and an R25 density would go against the whole character and feel of the area. You would go from a large­block, almost country feel, to an intensive hive of residences virtually on the river, and all at the end of a cul­de­sac."

87 Mr RE Chisolm, who resides on a very large property at No 6 Anzac Terrace, and Mr Hansen each stated that they enjoyed the large blocks, the sense of spaciousness, and the peace and quiet of the area.

88 It appears that, fundamentally, the residents' objection is to the zoning and density coding of the site, not to the merits of the particular proposal. The fact that the character of the site would change significantly in consequence of the development and that, as a result, the character of the area would also change to some extent, is an almost inevitable consequence of redevelopment in accordance with the applicable zoning and planning controls.

89 It is also of significance that Mr Chisolm's property is coded "R20" and Mr Hansen's property is coded "R25", although these properties are presently developed at a density far less than the permissible density. They are, nevertheless, capable of significant redevelopment. The critical question in this case is whether, in light of the applicable zoning and planning controls, the proposed development is an acceptable response that merits approval in the exercise of planning discretion. The Tribunal has determined that it is.

90 On the proper construction of TPS3, the conformity of a residential development with all applicable provisions of the R­Codes does not mandate approval. The respondent, and the Tribunal on review, retains residual discretion under the terms of the Scheme, taking into consideration the specified matters set out in cl 5.3.1. However, the fact that a development conforms to a relevant provision of the R­Codes is likely to be significant in relation to a related required matter for consideration under a town planning scheme.

91 In this case, the principal merit considerations in relation to the proposed development concerned density, traffic delay and safety, and internal circulation.

92 The Tribunal has determined that the proposed development is not an overdevelopment of the site. It is not a development which exceeds the environmental or planning capacity of the site. In this regard, although the respondent has formulated, and placed on public exhibition, a proposal which would ultimately, if implemented, lead to a down­coding of the site, the weight which can be reasonably given to the proposed down­coding is minimal. While it is a "seriously­entertained planning proposal" and, therefore, a relevant matter for consideration in the planning assessment, the ultimate down­coding of the site is, on the evidence, uncertain and, if it ever occurs, hardly imminent.

93 The form and presentation of the proposed development would certainly be different to the form and presentation of existing dwellings in the immediate locality. However, given that development in the locality is characterised by large dwelling-houses on large allotments of land, that is hardly surprising. The fact that the proposal would present to the public domain as more modestly sized dwellings on smaller allotments is an almost inevitable product of the zoning and coding of the site. However, the Tribunal is satisfied that the proposed development, while different, would, nevertheless, be compatible with the nature and form of existing development in the locality, principally because the proposed dwellings would present as single dwellings of one or two storeys in a landscaped setting. The retention of a large Flooded Gum on the road reserve adjacent to the site will also assist in integrating the proposed development into the wider locality.

94 Although, unusually, the locality of the site has only a single access point to the district road network, the Tribunal is satisfied that the intersection which provides access to the district network has sufficient capacity to cater for the proposed development and that the proposed development does not give rise to an unacceptable traffic safety risk. Similarly, the Tribunal is satisfied that the immediate road network has sufficient capacity to cater for the development and that the development does not give rise to an unacceptable pedestrian or vehicular safety risk in the immediate locality. Although the increase in vehicular use of the immediate road environment of the site would be noticeable, that impact is an almost inevitable consequence of the zoning and density coding of the site.

95 The Tribunal is satisfied that, with some modification by way of condition, the internal circulation proposed is workable. In particular, the Tribunal is satisfied that, with conditions to be imposed, the site can be serviced, including by 10­metre long garbage trucks, without the need for multiple movements. Furthermore, vehicles will be able to access each of the units off Anzac Terrace and exit the site in a forward direction, without having to reverse for other than a short distance on the common driveway.

96 The Tribunal is, therefore, satisfied that the proposed development merits conditional development approval. The orders of the Tribunal are as follows:

1. The application for review against the refusal by the respondent of planning consent for the development of 11 two­storey and two single­storey grouped dwellings on Lot 301 (No 1) Anzac Terrace, Bassendean is upheld.

2. Planning consent for the development of 11 two­storey and two single­storey grouped dwellings on Lot 301 (No 1) Anzac Terrace, Bassendean is granted subject to the conditions in Annexure "A".

3. Exhibits 1A and 1B (the plans of the approved development) and Exhibit 3 (plan showing existing trees to be retained) shall be retained on the Tribunal file.

1. The development shall be carried out in accordance with the plans and elevations shown on plan 122179 drawn by Automated Surveys dated May 2005, except as varied by the following conditions.

2. Stormwater drainage shall be contained on site or connected to the local government drainage system in accordance with the Swan River Trust Stormwater Disposal Policy. Drainage plans are to be submitted and approved by the General Manager, Swan River Trust prior to the development commencing.

3. No fill, building rubble, rubbish or any other deleterious matter shall be deposited on the Parks and Recreation Reserve or allowed to enter the Swan River as a result of the development.

4. All waste materials from the development shall be completely removed from the site upon completion of the development.

5. Any fence to be constructed along the boundary of the Parks and Recreation Reserve shall be open view with a maximum height of 1.8 metres.

6. Prior to commencement of development, a landscape management plan for the area between the Parks and Recreation Reserve and units 1, 2, 3 and 4 shall be prepared to the satisfaction of the General Manager, Swan River Trust.

7. The landscape management plan required under condition 6 shall be implemented to the satisfaction of the General Manager, Swan River Trust prior to the occupation of the development and shall be maintained.

8. The street number shall be prominently displayed at the front of the development.

9. A building licence shall be obtained prior to substantial commencement of the development.

10. Any fencing located between the front walls of the buildings on units 9, 10, 11 and 13 and the street and the front walls of units 1, 2, 3, 4, 5, 6, 7, 8 and 12 and the internal driveway shall be visually permeable to the satisfaction of the Manager, Development Services.

11. The provision of an externally accessed storage unit, of no less than 4 square metres internal measurement, for each dwelling, which is to be constructed of the same materials as the main dwelling.

12. All vehicle accessways and hardstand areas shall be paved and drained to the satisfaction of Council (Development Control Unit) prior to the occupation of the development.

13. The proposed boundary walls shall be finished to the satisfaction of Council (Development Control Unit), including anti-graffiti sealant to the southern boundary adjoining the railway reserve.

14. A detailed landscape plan shall be submitted for approval of the Council with the application for a building licence. The approved landscape plan shall be implemented prior to the occupation of the development and shall thereafter be maintained.

15. The landscape plan referred to in condition 14 shall:

(i) show the location and type of existing and proposed trees, shrubs and lawns to be installed, and natural landscaping areas to be retained, in accordance with the approved plan;

(ii) include a watering system to ensure the establishment of species and their survival during the hot, dry summer months;

(iii) use, where possible, landscaping methods which do not rely on reticulation; and

(iv) show as retained the trees shaded greed on Tree Plan dated November 2004 (Exhibit 3 in State Administrative Tribunal proceedings no RD 389 of 2005).

16. The trees shaded green on Tree Plan dated November 2004 (Exhibit 3 in State Administrative Tribunal proceedings no RD 389 of 2005) shall be retained.

17. A tree preservation zone shall be established and maintained throughout the construction of the development around the Eucalyptus rudis (Flooded Gum) tree on the road verge to the north­west of the site, 1.0 metre to the north of the verandah of unit 11, 1.0 metre to the west of the western edge of the western driveway and to the south of the southern edge of the paved road surface adjacent to the tree. No construction, compaction, storage or any other work associated with the construction of the development shall take place within this tree preservation zone, other than the construction of a front fence which shall be installed within the tree preservation zone under the supervision of a qualified arborist.

18. A detailed management plan for the retention of the trees referred to in conditions 16 and 17 shall be prepared by a qualified arborist on behalf of the applicants and shall be submitted to and approved by the Manager, Development Services prior to substantial commencement of the development. The approved detailed management plan shall be implemented under the supervision of a qualified arborist and shall be maintained during the construction of the development.

19. Letterboxes proximate to the street frontages of the site and bin storage areas on the area allocated to each unit shall be provided in materials to complement the development to the satisfaction of Council (Development Control Unit).

20. The buildings approved shall not be occupied until all of the conditions of planning consent have been complied with to the satisfaction of the Manager, Development Services, unless the applicant has entered into an agreement with the Council to comply with those conditions within a specified period.

21. The two visitor parking bays shall be clearly marked for "Visitors Only".

22. The landowner shall indemnify the Council and its waste management contractors for any damage caused to the driveway as a result of Council's rubbish service using that driveway.

23. The carport of unit 4 shall be relocated to the north such that it has a setback of 1.0 metre to the northern boundary of the area allocated to that unit.

24. The garage of unit 11 shall be relocated to the east such that it has a setback of 1.0 metre to the western boundary of the site.

25. The section of the internal driveway and brick paved footpath adjoining and adjacent to unit 9 and unit 10 shall be modified as follows:

(i) The width of the brick paved driveway shall be no less than 4.0 metres, except, in the case of the western driveway where it adjoins or is adjacent to the south-western corner of the area allocated to unit 10, where it shall be no less than 4.7 metres;

(ii) The brick paved footpath shall be a minimum width of 1.2 metres (exclusive of the brick paved driveway) and shall be continued around the western side of the area allocated to unit 10 up to the edge of Anzac Terrace;

(iii) The brick paved footpaths adjoining the areas allocated to unit 9 and unit 10 shall be graded to the same level as the adjoining brick paved driveway from a point 15 metres to the south of the street frontage of the site such that, if necessary, a vehicle turning within the brick paved driveway around the corners to the south­east of unit 9 and to the south­west of unit 10 is able to utilise the brick paved footpath at the same grade as the brick paved driveway;

(iv) The eastern driveway shall be clearly marked as "Entry Only" and the western driveway shall be clearly marked as "Exit Only", and signs shall be placed at the vehicular entry and in two locations within the internal driveway stating that the maximum speed limit within the development is 5 kilometres per hour; and

(v) The brick paved footpath, including the section of footpath which is at grade with the adjoining brick paved driveway, shall be paved in a different colour to the paving of the brick paved driveway and signs shall be erected at the northern ends of the sections of the brick paved footpath which are at grade with the brick paved driveway indicating that the footpath south of that point is a "dual­use pathway" available to vehicles and pedestrians.

These modifications shall be depicted on plans submitted with the application for building licence.

I certify that this and the preceding 38 pages comprise the reasons for decision of the Tribunal.

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Deputy President Chaney