Town planning ­ Development application ­ Demolition of two storey building and erection of 12 two storey plus loft dwellings in two buildings ­ Minor projection of second level of each dwelling over garage of other dwelling ­ Heritage conservation ­ Substantial two storey Federation residence built in Queen Anne style ­ Historic and social value as health and welfare facility for care of mothers and children ­ Significant unsympathetic additions and alterations to each façade and demolition of verandahs with Council approval ­ Two storey Federation residences rare in locality ­ Whether cultural heritage significance is such that demolition should be refused ­ Characterisation ­ Whether proposed development constitutes "grouped dwellings" or "multiple dwellings" under Residential Design Codes ­ Whether "dwelling" includes "garage" under Residential Design Codes ­ Purposive interpretation ­ "Any part of a dwelling" means "any substantial part of a dwelling" ­ Internal amenity ­ Private open space ­ Communal open space ­ Whether separate pedestrian path required ­ Whether adequate visitor parking provided ­ Impact on streetscape ­ Words and phrases: "any part of a dwelling", "dwelling", "partly vertically above"

Heritage of Western Australia Act 1990 (WA), s 45

Residential Design Codes of Western Australia (2002), cl 2.2, cl 2.3.4(3), cl 3.4.3, cl 3.4.4, cl 3.4.4 A4.1, cl 3.5.1, cl 3.5.5 A5.1, cl 3.10.3 A3.2. Table 1

Town of Vincent Town Planning Scheme No 1, cl 6(3)(g), cl 19(2), cl 23(1), cl 23(2), cl 24(1), cl 24(4), cl 38(5)(g), cl 38(5)(h)

Town Planning and Development Act 1928 (WA), s 8A(1)

2. Development approval for the demolition of a two storey building and outbuildings and for the erection of 12 grouped dwellings in two buildings at Lot 8 (No 30) Bulwer Street, Perth is refused.

Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

PL Nicholls and Western Australian Planning Commission [2005] WASAT 40

1 Filton Pty Ltd sought development approval for the demolition of a two storey building and outbuildings and for the erection of 12 units in two buildings. The principal issues were:

1. Whether the cultural heritage significance of the building was such that its demolition should be refused.

2. Whether the proposed development was characterised as "grouped dwellings" or as "multiple dwellings".

3. Whether the proposed development conformed to provisions of the Residential Design Codes of Western Australia (2002).

4. Whether the impact of the development on streetscape was unacceptable.

2 The Tribunal determined that the demolition should not be refused on heritage grounds. The cultural heritage significance of the place had been significantly reduced by very substantial physical works on each of the four facades of the building, including demolition of the original verandahs and two storey additions and alterations. The extent of physical works fundamentally altered what was a Federation residence in the Queen Anne style into an unexceptional building of incongruous architectural character.

3 The Tribunal determined that the development comprised "grouped dwellings" rather than "multiple dwellings". Minor and contrived projections of areas of units over garage areas of other units did not transform "grouped dwellings" into "multiple dwellings".

4 The Tribunal found that the development did not conform to the Residential Design Codes in relation to minimum site area per dwelling, plot ratio, minimum dimensions of private open space, separate pedestrian paths or visitors' bays. Consequently, the development application had to be refused.

5 The Tribunal also considered that the internal amenity of the proposed units was unacceptable in relation to the location and size of outdoor areas.

6 Finally, the Tribunal considered that the streetscape impact was acceptable.

7 The application for review was dismissed and development approval was refused.

8 These proceedings involve an application by Filton Pty Ltd (Filton) for review pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) of the decision of the Town of Vincent (Town) to refuse development approval for the demolition of a two storey building and outbuildings and for the erection of 12 three bedroom two storey plus loft dwellings in two buildings at Lot 8 (No 30) Bulwer Street, Perth (site). The site is located on the northern side of Bulwer Street opposite Perth Oval.

9 The site has a regular, rectangular shape, a length of approximately 57.4 metres, a width of approximately 30.3 metres and an area of 1737 square metres. The site rises by approximately 3.5 metres from Bulwer Street to the rear boundary.

10 Presently erected on the site is a substantial two storey building with a staggered set back between approximately 15.0 metres and 20.0 metres from Bulwer Street, and three outbuildings. The street setback area is substantially paved and is used as a car park. The building is used as a backpackers' hostel.

11 The site is zoned "Residential" and has a density coding of "R80" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). Both grouped dwelling and multiple dwelling land use is permitted on the site with development approval.

12 The proposed development comprises two mirror­image buildings running north to south adjacent to the eastern and western boundaries of the site with a central driveway from Bulwer Street. The buildings are approximately 48.0 metres long and approximately 9.0 metres wide and have setbacks of 5.5 ­ 6.0 metres from Bulwer Street, 1.0 metre ­ 1.97 metres from the side boundaries and 1.5 metres from the rear boundary. The separation between the two buildings ranges from approximately 8.5 metres to approximately 11.0 metres. The two street front units each have a second level terrace which projects to 5.5 metres from the street and ten of the units have a second level terrace off bedrooms which projects into the driveway area with a separation of between approximately 3.7 metres and 4.5 metres across the driveway and approximately 0.5 metre between adjoining units.

13 Six units are proposed in each of the two buildings. Each unit has an individual entrance at ground level via a courtyard (shared by two units) off the driveway, an adjoining double garage (without garage door) and a small area of private open space at ground level adjoining its internal floor area.

14 The essential form, presentation and function of the development is 12 townhouses. However, a small section of the second level bathroom of each unit, measuring either approximately 0.4 metre by 2.2 metres (the area of the vanity and about half the shower) or 0.75 metre by 1.65 metres (the area of the toilet and most of the shower) has been designed to project above the garage area of another unit. The total floor space of units which project above the garage areas of other units is approximately 12.705 square metres or 0.8 per cent of the total floor space of the development.

15 Filton contends that the consequence of these minor projections is that the proposed development is properly characterised as "multiple dwellings" rather than as "grouped dwellings" under the Residential Design Codes of Western Australia (2002) (Codes). The effect of Table 1 of the Codes is that whereas if the development is characterised as "multiple dwellings" 12 units are permitted on the site, if the development is characterised as "grouped dwellings" only nine units are permitted. As Mr MJ Hardy, counsel for Filton, accepts, if the development is characterised as "grouped dwellings" the practical consequence is that the application must be rejected.

16 The following four principal issues require consideration in the review:

1. Whether the cultural heritage significance of the existing building is such that its demolition should be refused.

2. Whether the proposed development is properly characterised as "grouped dwellings" or as "multiple dwellings".

3. Whether the proposed development conforms to the Codes in relation to minimum site area per dwelling, plot ratio and minimum dimensions of private open space (if the development is characterised as "grouped dwellings") or in relation to communal open space (if the development is characterised as "multiple dwellings"), and in either case in relation to separate pedestrian paths, visitors' bays, bin stores and privacy.

4. Whether the scale and nature of the development would have an unacceptable impact on streetscape.

Does cultural heritage significance warrant refusal of demolition?

"To promote and safeguard the cultural heritage of the Town by ­

(i) identifying, conserving and enhancing those places which are of significance to Vincent's cultural heritage;

(ii) encouraging development that is in harmony with the cultural heritage value of an area; and

(iii) promoting public awareness of cultural heritage generally;": cl 6(3)(g).

19 The legislative mechanism by which the Town identifies a place as one which is of significance to its cultural heritage is by designation of the place on the Heritage List which the Town is required to establish and maintain by cl 23(1) of the Scheme. Clause 23(2) provides that the Heritage List is the Municipal Inventory, as amended from time to time, prepared by the Council pursuant to s 45 of the Heritage of Western Australia Act 1990 (WA). The Heritage List is to comprise "places considered by the Council to be of heritage significance and worthy of conservation": cl 23(1).

20 In 2002 a predecessor in title to Filton sought development approval from the Town for the demolition of the buildings on the site. It appears that the development application was refused on heritage grounds. The Town received and endorsed a detailed heritage assessment dated July 2002 prepared by Ms Hannah Eames, its senior heritage officer. Ms Eames gave evidence that, when the Town refused development approval for demolition, it also resolved to refer the site to the heritage consultant who had then recently commenced a comprehensive review of the Town's Municipal Inventory/Heritage List for consideration as to whether the site should be included on the revised Inventory/List.

21 At some point in 2004 the Town's heritage consultant formed the view that the site should be included in the draft revised Inventory/List. It is unclear what, if any, additional research or assessment the heritage consultant did beyond reviewing Ms Eames' July 2002 assessment. It is common ground that the Town did not, either before or after the inclusion by the heritage consultant of the site in the draft revised Inventory/List, notify the owners of the site of the draft listing.

22 Although the process of review of the Inventory/List has been ongoing for approximately four years, the draft revised Inventory/List has still not been publicly exhibited. The site is not, therefore, a heritage place identified on the Heritage List under the Scheme. Although the Town had apparently resolved in December 2005 to place the draft Inventory/List on public exhibition in February 2006, that resolution was rescinded to enable consideration by the Town of the relationship between the Scheme, the Heritage List and the Municipal Inventory. Ms Eames indicated that this issue was to be considered by the Town at its meeting on the night of the hearing.

23 Mr Hardy submits that the proposed inclusion of the site on the Inventory/List is not a seriously­entertained planning proposal, because of the considerable delay in progressing the listing, the lack of any consultation with Filton or its predecessor and the uncertainty as to the relationship between the Scheme, the Heritage List and the Municipal Inventory. Mr SJ Bain, a consultant town planner, who represented and gave evidence on behalf of the Town, did not make any submissions in relation to this issue.

24 In PL Nicholls and Western Australian Planning Commission [2005] WASAT 40 the Tribunal reviewed the principal decisions in relation to the consideration of draft instruments and policies in planning assessment and identified a four stage inquiry at [45]. The first stage of the inquiry, considered at [46] ­ [49], is whether the draft is a seriously­entertained planning proposal. If the draft is a seriously­entertained planning proposal, it is a relevant matter for consideration in the exercise of planning discretion, and a planning consent authority, including the Tribunal on review, must proceed to stages two, three and four. The second stage involves a consideration of whether 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 to render more difficult the ultimate decision as to whether the draft should be made or its form. The third stage involves an assessment of the weight to be accorded to the consistency or otherwise between the application and the draft. The final stage involves weighing the consent authority's conclusions in relation to the earlier matters in the balance along with all other relevant considerations in the exercise of planning discretion.

25 The Tribunal finds that the inclusion of the site within the Heritage List is not a seriously-entertained planning proposal. The Town referred the site to its consultant for consideration as to whether to include it in the Inventory/List approximately three­and­a­half years ago. Although the consultant formed the view that it should be included at some point during 2004, the Town has not apparently endorsed its inclusion, nor has it consulted with Filton or its predecessor about designating the site as a heritage place. Although it resolved to publicly advertise the draft revised Inventory/List in December 2005, the draft has not yet been placed on public exhibition.

26 If, contrary to the Tribunal's finding, the inclusion of the site as a heritage place is a seriously-entertained planning proposal, the proposed demolition is arguably inconsistent with the planning objective or planning approach embodied or reflected in the draft listing, namely conservation and enhancement of the heritage value and character of the place. However, even if the draft listing were a seriously-entertained planning proposal, the weight which the Tribunal would accord to the inconsistency between the application and the draft is minimal in consequence of the lack of certainty or imminence as to the ultimate listing of the site: see PL Nicholls and Western Australian Planning Commission at [59]. In addition to the uncertainty about the relationship between the Scheme, the Heritage List and the Municipal Inventory, of particular significance in relation to the lack of certainty and imminence is that the Town to still required to notify the owner of the property of the intention to include the place on the Municipal Inventory to give the owner a "right of reply and comment" within 28 days and to consider any objection: Policy No 3.6.2 Heritage Management - Municipal Heritage Inventory cl 8.

27 Although the Town may proceed to list a place on the Inventory/List despite an objection, it is not at all certain that the site will ultimately be listed and the whole process is likely to take time.

28 However, the Tribunal's finding that the inclusion of the site on the Heritage List is not a seriously-entertained planning proposal and that, if it were a seriously-entertained planning proposal, minimal weight should be given to it, does not mean that the Tribunal cannot consider the cultural heritage significance of the site and refuse development approval in consequence of that significance, if that is the correct and preferable decision in the circumstances of the case. Consistently with the general objective of the Scheme "to promote and safeguard the cultural heritage of the Town by ... encouraging development that is in harmony with the cultural heritage value of an area" and the obligation to have regard to "the orderly and proper planning of the locality" and "the conservation of the amenities of the locality" (cl 38(5)(g) and (h)), the Tribunal is relevantly required to consider whether the heritage significance of the site is such that the application warrants refusal.

29 The effect of the site not being designated in the Heritage List is simply that provisions of the Scheme which serve to protect listed items have no application. It is not that the cultural heritage significance of the site and the effect of the development on that significance is an irrelevant consideration in the overall exercise of planning discretion.

30 We also reject the proposition put by Mr Ronald Bodycoat, a heritage architect who gave evidence on behalf of Filton, that non­inclusion of an item on the State Register, the Register of the National Estate or the National Trust Classified List indicates "either that the place is not currently determined to be of cultural heritage significance or that it has been passed over, as of low value, for consideration in due course". We accept the proposition put in the evidence of Mr Antony Ednie­Brown, an architect with considerable specialist experience in heritage conservation, and Ms Eames that the absence of listing on such registers does not bear on the heritage assessment at the local level.

31 The Tribunal has the benefit of detailed heritage evidence from Mr Bodycoat, Mr Ednie­Brown and Ms Eames. In accordance with the Tribunal's standard practice, these experts conferred after they had each exchanged their written evidence, prepared a joint witness statement of matters agreed, matters not agreed and the reasons for any disagreement and gave evidence concurrently. The Tribunal has been greatly assisted by this process.

32 The building, as erected in 1914, was a substantial two storey dwelling house in the Federation Queen Anne style. It subsequently underwent several major changes to its original built fabric. In particular, substantial two storey additions were carried out on each of the four facades of the building. It appears that in the mid 1950s, a substantial addition was erected on the western side of the building to house an operating theatre for a private hospital then in operation at the site. In the mid 1970s, two storey additions were carried out to the south, east and north of the building. The works in the mid 1970s included the removal of the verandahs to the south and east of the building and their replacement with brick extensions. The works also included adding a brick "skin" and increasing the vertical and horizontal size of openings for windows, as well as replacing the original windows. All of these works were undertaken with the prior approval of the Town.

33 Mr Bodycoat describes the building as "an unexceptional building of incongruous architectural character with no aesthetic appeal". He describes the external architectural character of the building as "discordant, a mix of uncoordinated details", although an expert in building styles would recognise "remnants of the former house ­ the high­volume form and some Federation period details such as tall chimneys, half­timbered gables and some limestone footings".

34 Mr Ednie­Brown notes that "substantial additions have been constructed of no particular heritage value in ... their architectural quality" and that "architecturally these additions are intrusive". In oral evidence, he described the substantial additions on each elevation as "encrusting" or "enclosing" the heritage building. However, internally, whilst large rooms of the original residence may have been partitioned off into smaller enclosures, the original built fabric, with the exception of the demolished verandahs, remains. The intact interior detail includes ceiling roses, cornices, architraves and skirtings, door detail, decorative arches and some windows. In oral evidence, he said that the appearance of the building is "quite inappropriate, but stripped of its exterior there is a substantial Federation building which could be retained".

35 Ms Eames agrees that "staged additions to the place compromises the place".

36 The experts agree in relation to the relevant criteria for assessment of cultural heritage value, but disagree in relation to whether the building and site retain sufficient cultural heritage significance to warrant refusal of the application. Mr Bodycoat assesses the site as having "little if any sustainable cultural heritage significance". Mr Ednie­Brown considers that "with the basic form, built fabric and much of the detailing still in place, the building has considerable heritage value". Ms Eames considers that there is still sufficient fabric to warrant retention of the building.

37 In terms of aesthetic value, the experts agree that "from an architectural aesthetic perspective ... the existing building as it stands is inappropriate". Ms Eames considers, however, that the "aesthetic value" criterion in heritage assessment is not restricted to the architectural aesthetic or physical architectural style of a building, but includes landmark qualities, contribution to the setting and contribution to other vistas. She considers that, notwithstanding its inappropriate appearance, the building has aesthetic value in the sense that it retains a landmark quality in consequence of its siting and general form and the rise in the site from the street to the building facade. She also notes that the principal gable, the chimney, the roof form and a smaller, asymmetrical gable, which are all characteristic of the Federation period of architecture, are apparent to the street.

38 Mr Bodycoat considers that "landmark" means "a structure or building that stands out ­ that has some very strong visual appearance". In his opinion, the building no longer has that quality. This is "one of the elements which have been unfortunately transformed by the changes".

39 The Tribunal finds that the building has essentially no aesthetic value. This is the unfortunate result of substantial demolition, alterations and additions to the facades of the building.

40 The Annexure to these reasons contains a photograph of the building as built and a photograph of the building as altered. It is apparent from the photograph of the building as altered that the remaining external architectural elements identified by Ms Eames ­ the two gables, the roof form (although not the material) and the chimney ­ while important features of Federation architecture and of the building as built, are now, as Mr Bodycoat says, "uncoordinated details" of a most unfortunate building, rather than features or elements of a Federation residence. The changes to the appearance of the building are so great that the remaining, original features do not contribute to aesthetic value. Furthermore, although the building as built appears to have had a landmark quality, the physical works have significantly reduced the strength of its visual appearance.

41 The experts agree that the place has historic value as identified in Ms Eames' July 2002 assessment. The assessment states that the place "played an important role in the early provision of specialised maternity care and training of nurses under Eleanor Harvey, First Matron of King Edward Hospital". The building also housed the first private hostel in Western Australia for the temporary care of children whose mothers were hospitalised and was a children's hostel during the Second World War. The place has historical associations with Matron Harvey and Florence Hummerston, both of whom played a significant role in the development of child welfare and midwifery in Western Australia.

42 The experts agree that the place has little scientific value.

43 The experts agree that the place has social value as identified in Ms Eames' July 2002 assessment. The assessment states that "the place has strong associations for the patients and staff who were admitted to the hospital [which operated during the 1950s, 1960s and 1970s] and for the people who were admitted as children during the Second World War to the Wanslea Hostel for Children".

44 The experts disagree in relation to rarity value. Mr Bodycoat considers that the building is not rare within the locality and gave five examples of two storey Federation houses nearby. Ms Eames considers that two storey Federation houses are rare within the local government area. She accepts that four of Mr Bodycoat's examples are comparable but maintains that there are only "a handful of comparable buildings out of 14 000 buildings" in the Town. Ms Eames' evidence was not challenged or contradicted on this point.

45 The Tribunal finds that two storey Federation buildings are rare in the local government area. A "handful" out of 14 000 buildings is necessarily "rare". Moreover, none of the other examples of two storey buildings identified by Mr Bodycoat are in the Queen Anne style.

46 The experts agree that the place would have representative value as described in Ms Eames' July 2002 assessment "if [it] was stripped of its inappropriate additions". According to the heritage assessment, the place is representative of "a substantial Federation building exhibiting numerous typical elements associated with this style of architecture, namely asymmetrical roof spaces and facades, and the utilisation of external spaces for setting".

47 Finally, the experts agree that the building appears to be generally structurally sound and that it has "a moderate level of integrity, as the place has been somewhat compromised because of the changing uses over time".

48 Each of the foregoing criteria must be taken into consideration in determining the cultural heritage significance of the place and whether that significance warrants refusal of the proposed demolition. The Tribunal considers that, because of the extent of the substantial physical works undertaken on each of the four facades, the heritage significance of the building is now insufficient to warrant refusal of its demolition. As the photographs in the Annexure show, the extent of physical change is such that it is no longer the same building as erected in 1914 or as it stood through the period of its principal historic significance.

49 Moreover, we accept Mr Bodycoat's evidence that the historic value of the building "although important, does not justify identification of the building as significant in its present substantially altered condition" (original emphasis). Similarly, the social value of the place is not such that retention of the building is warranted. As Mr Bodycoat observes, "the place in itself does not offer a tangible interpretation of the history".

50 We have also considered whether the role and position of the building and the site in the context of the wider cultural heritage value of the street and locality warrants refusal of the proposed demolition. The heritage experts agree that the relevant section of Bulwer Street "has no streetscape homogeneity in a way that would be detrimentally affected by the loss of the place". However, in oral evidence, Mr Ednie­Brown expressed the opinion that the building has streetscape value in terms of providing context to its companions "Dilhorn", which is a substantial, late nineteenth century, restored landmark building at the corner of Lord Street and Bulwer Street, and No 60 Bulwer Street, which is a substantial two storey Federation building. Mr Bodycoat disagrees because the site cannot be read in the same context as the two other buildings. He describes the connection as "tenuous ... in a very diverse visual landscape".

51 The site cannot be readily viewed in the context of either or both "Dilhorn" or No 60 Bulwer Street. However, approximately three­quarters of the buildings on the northern side of Bulwer Street in the general vicinity of the site are original, early twentieth century (or, in the case of "Dilhorn" late nineteenth century) buildings. The notable exceptions include two storey residential flat buildings on the two properties to the immediate west of the site. The Brigatti Locality Policy Statement which forms part of the Town's Residential Design Guidelines and which applies to the northern side of Bulwer Street in the area of the site encourages "[t]he retention and restoration of existing buildings which are indicative of the era in which the area was developed and generally contribute to the character of the Locality". The Brigatti Locality Policy Statement also states that:

"Intact streetscapes are strongly encouraged to be maintained. As such, applications for demolitions are generally not supported in areas that have intact streetscapes."

52 Prior to the substantial works in the 1970s, the building on the site formed part of the wider heritage context of "Dilhorn" and No 60 Bulwer Street, was "indicative of the era in which the area was developed" and contributed to the character of the locality. However, because of the extent of change, the building is no longer indicative of the era. For the same reason, the streetscape of the site can no longer be said to be "intact".

Is the development characterised as "grouped dwellings" or as "multiple dwellings"?

53 As noted earlier, Filton contends that the proposed development is properly characterised as "multiple dwellings" under the Codes. The term "multiple dwelling" is defined in cl 2.2 of the Codes (and for the purposes of TPS 1: see cl 9 and Sch 1) as follows:

"A dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above part of any other but does not include a Grouped Dwelling."

54 The term "grouped dwelling" is defined as follows:

"A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special considerations of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property."

55 Mr Bain considers that the proposed development constitutes "grouped dwellings". He emphasises that the dwellings are located substantially side by side, rather than one on top of the other. Mr Bain also says, based on 25 years' town planning experience, that grouped dwellings and multiple dwellings typically function in different ways. In particular, multiple dwellings will have communal open space, whereas grouped dwellings are not required to have communal open space. The nature of open space is, therefore, different in the two types of development. Mr Bain considers that the characteristics of the proposed development are consistent with "grouped dwellings" rather than "multiple dwellings".

56 Mr Alan Stewart, a consultant town planner called on behalf of Filton, relies on the literal meaning of the words "any part of a dwelling" in the definition of "multiple dwellings". In his opinion, the projecting elements described at [14] above satisfy this expression. Mr Stewart also refers to nearby examples of multiple dwellings which appear externally to be two storey single dwelling houses and says that "just because a building looks like something doesn't mean that it is". However, Mr Stewart was unable to give an example comparable to the proposed development in which a building having an internal overhanging element presents as a row of townhouses.

57 Mr Hardy advances a literal interpretation of words of the definitions. He submits that there is no room to apply any element of degree. In his address, Mr Bain submits that the development is "closely aligned" to a grouped dwelling development and is "in substance" such a development.

58 In Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ stated at 320 that "[t]he fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole". Their Honours recognised at 321 that the literal meaning of legislation may be departed from in "any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions". Similarly, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA said at 423 that "[a] purposive and not a literal approach is the method of statutory construction which now prevails ... [I]f the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail".

59 Two aspects of the Codes indicate that the literal interpretation advocated on behalf of Filton does not conform to the Codes' intent or purpose in relation to the distinction between "grouped dwellings" and "multiple dwellings".

60 The first aspect is a clear contemplation, found in three parts of the Codes, that each grouped dwelling occupies a separate and distinct part of a site whereas multiple dwellings occupy a site in common.

61 The first reflection of this contemplation is in the explanatory text to Element 1 ­ Housing Density at page 41 of the Codes. The text describes "grouped dwellings" and "multiple dwellings" as "different housing types" and states that the minimum site area set out in column 3 of Table 1 is to be calculated differently for each. In the case of grouped dwellings the minimum site area is to be calculated as "the area of a defined site for each dwelling; that is, the area occupied by the dwelling itself, together with any other areas set aside for the exclusive use of the dwelling ...". In the case of multiple dwellings the minimum site area is to be calculated on the basis of "the total area of the development site, divided by the number of dwellings".

62 Similarly, the diagram entitled "illustration of housing arrangements on different titles" at page 43 contemplates that attached and detached grouped dwellings, their parking areas and private open space occupy separate and distinct parts of sites. In contrast, the diagram contemplates that multiple dwellings, car parking areas and open space (by its nature communal not private) occupy sites in common.

63 Finally, the explanatory text to Element 4 ­ Open Space discusses "private open space" only in the context of single houses and grouped dwellings and says that the term "is synonymous with open space in the case of Single Houses and Grouped Dwellings". The term "private open space" is defined in cl 2.2 of the Codes as "open space set aside on a lot for the exclusive use of the occupants of the dwelling to which it abuts ... ". The plain contemplation of these provisions is that, like single houses, grouped dwellings occupy a particular area of land exclusively. Similarly, the definition of "outdoor living area", namely "the area external to a Single House or Grouped Dwelling to be used in conjunction with that dwelling ... [excluding any area] not readily accessible from the dwelling" contemplates that grouped dwellings, like single houses, have external areas used in conjunction with the dwelling which are readily accessible from the dwelling. There is no equivalent term or requirement for multiple dwellings. Whereas Table 1 requires that each grouped dwelling be provided with a minimum outdoor living area of 16 square metres on land coded "R80", it does not require the same for each multiple dwelling, but rather a minimum provision of communal open space of 16 square metres per unit. Moreover, the explanatory text at page 61 states that "[c]ommunal open space will always be a feature of Multiple Dwelling developments, where most, if not all, open space will be communal". Although the explanatory text goes on to say that "communal open space may also be a feature of Grouped Dwelling developments", Table 1 does not prescribe any requirement for communal open space in the case of grouped dwellings.

64 The contemplation of these provisions, that whereas each grouped dwelling, its car parking area and abutting private open space occupies a separate and distinct part of a site, multiple dwellings occupy a site communally, is consistent with Mr Bain's evidence referred to above.

65 The second aspect of the Codes which indicates that Filton's literal interpretation does not conform to the Codes' intent or purpose is found in the minimum site area per dwelling requirement in Table 1. Whereas on land coded "R80" Table 1 requires a minimum site area per dwelling of 125 square metres for multiple dwellings, it requires a minimum site area of 160 square metres and an average site area of 180 square metres for grouped dwellings. The Codes, therefore, distinguish between the two forms of development by permitting a significantly greater residential density in the case of multiple dwellings in comparison to grouped dwellings.

66 This context indicates that it could not have been the intention of the Codes to regard a development in which each unit substantially occupies its own separate and distinct part of the site for the dwelling, car parking and appurtenant private open space as "multiple dwellings". Moreover, it could not have been the intention of the Codes to permit such a development to obtain a density significantly greater than that permitted for grouped dwellings by a mere internal contrivance such as that proposed by Filton in this application. A one­third increase in residential density from nine to 12 units is likely to have material consequences in terms of both external impacts and internal amenity.

67 The literal interpretation of the words "any part of a dwelling" in the definition of "multiple dwelling" advocated by Filton does not accord with the legislative intention ascertained by reference to the language of the Codes viewed as a whole. Read in this context, these words relevantly mean "any substantial part of a dwelling". Similarly, the word "partly" in the definition of "grouped dwelling" relevantly means "in substantial part". Where a substantial part of a dwelling is vertically above a substantial part of any other, it cannot be said that the dwellings each occupy a separate and distinct part of the site and are, therefore, "grouped dwellings". Rather, they occupy the site in common and are consequently "multiple dwellings".

68 The Tribunal finds that the development comprises 12 grouped dwellings for each of two reasons.

69 First, no dwelling is placed wholly or in substantial part vertically above another.

70 Second, the areas below and above each of the minor projections do not constitute a part of a "dwelling".

71 The area below each projection is the garage of another dwelling and, in two cases, part of the common driveway. The term "dwelling" is defined in cl 2.2 of the Codes as follows:

"A building or portion of a building being used, adapted, designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."

72 The term "building" is defined to include "dwellings and structures appurtenant to dwellings such as carports, garages ... ".

73 The clear contemplation of the definitions of the terms "dwelling" and "building" is that a garage is appurtenant to a dwelling but does not form part of a dwelling for the purposes of the Codes. The Tribunal is unable to discern any legislative intent or purpose in the Codes which suggests a contrary interpretation.

74 Similarly, the area above each projection is roof space and is not, therefore, part of a "dwelling".

Does the development conform to the Residential Design Codes?

75 Mr Bain and Mr Stewart agree that, if the development comprises 12 grouped dwellings, it does not conform to the Codes in the following respects:

(i) minimum site area per dwelling (160 square metres minimum and 180 square metres average required; 98.4 square metres (8 units), 110 square metres (2 units) and 137.7 square metres (2 units) and 106.9 square metres average proposed);

(ii) plot ratio (0.65:1 ­ 1129 square metres ­ permitted; 0.88:1 ­ 1534 square metres ­ proposed); and

(iii) minimum dimensions of private open space (4.0 metres minimum required; 1.0 metre ­ 1.97 metres proposed for 10 units and 3.5 metres proposed for 2 units).

76 Clause 2.3.4(3) of the Codes provides that a council may not vary the minimum or average site area per dwelling requirements set out in Table 1. Furthermore, although discretion is available in relation to plot ratio and minimum dimensions of private open space, Filton did not present any evidence or argument in support of the exercise of discretion. It follows that the development application must be refused under cl 19(2) of TPS 1 which requires that the development "conform to the provisions of [the] Codes".

77 Some evidence was directed to non­compliances with acceptable development provisions of the Codes concerning separate pedestrian paths, visitors' parking bays, bin stores and privacy.

78 Clause 3.5.5 A5.1 of the Codes contains an acceptable development provision that "where a communal accessway between a public street ... and individual dwellings serves 10 or more dwellings, there is a pedestrian path separate from vehicular access". The development does not provide a separate pedestrian path. The corresponding performance criteria is "provision of safe and comfortable access for pedestrians between ... public streets and individual dwellings". Mr Stewart considers that the performance criteria can be used to justify the shared use of the central driveway by pedestrians and vehicles, but does not indicate how the development provides safe and comfortable access for pedestrians other than to point to the fact that each unit has a double garage which would avoid the need for occupants of the units to park on the street.

79 The Tribunal is not satisfied that the development conforms to cl 3.5.5 in relation to pedestrian access. In particular, the Tribunal is not satisfied that the development provides safe and comfortable access for pedestrians between the street and the units. This is a further reason requiring refusal of the application.

80 Clause 3.5.1 of the Codes contains an acceptable development provision in relation to on­site parking provision which states that two spaces are required per dwelling as well as visitors' spaces at the rate of one space for each four dwellings. The plans of the proposed development show two visitors' spaces in the street frontage area on either side of the central driveway set back by only the width of the front fence and a 200 millimetre wide strip of landscaping.

81 The location of the proposed visitors' spaces is contrary to the Brigatti Locality Policy Statement which states that "front setback areas are to be landscaped and, preferably, devoid of parking spaces". The Tribunal considers that the location of car parking spaces in the street setback area of the site is inappropriate. Consequently, the development does not propose any suitably­located visitors' spaces. The application warrants refusal for this reason.

82 If the development did provide two suitably­located visitors' spaces and is, therefore, one space short of the acceptable development provision, the Tribunal would be satisfied that it conforms to the performance criteria which state "adequate car parking provided on­site in accordance with projected need related to ... the location of the proposed development in relation to public transport and other facilities". The site is in an inner­city location and is well served by public transport.

83 Clause 3.10.3 A3.2 of the Codes contains an acceptable development provision that rubbish bins are accessible to residents. Mr Bain correctly notes that the location of the visitors' spaces in the street setback area appears to preclude convenient access to the bin areas which are located behind the visitors' spaces. As the Tribunal considers that the location of the visitors' spaces is inappropriate, this concern is resolved.

84 Clause 3.8.1 A1i contains an acceptable development provision which requires a 7.5 metre separation between unenclosed outdoor active habitable spaces including balconies. As noted earlier, the proposed units have terraces off the bedrooms projecting into the driveway area which have separation of only approximately 3.7 metres to 4.5 metres across the driveway and only approximately 0.5 metre between adjoining units. The corresponding performance criteria include "avoid direct overlooking between active habitable spaces and outdoor living areas of the development site ... taking account of the provision of effective screening". Mr Stewart considers that it is common practice to deploy screening for higher density developments in the inner city and that the provision of screening to a height of 1.6 metres will ensure future occupants of the dwellings "can make use of the terraces without any loss of privacy".

85 The Tribunal considers that the amenity of the proposed outdoor areas of the units generally is unacceptable. The terraces projecting into the driveway area are the largest outdoor areas available to any of the units. However, they are located off bedrooms, rather than off living areas and have inadequate setbacks from one another. Although the performance criteria contemplate the use of effective screening, the use of screening in this case would compromise the amenity of the terraces by eliminating outlook and is unlikely to provide an acceptable level of acoustic amenity. The outdoor areas at ground level adjacent to the "entertainment area" of each unit are unacceptably small, with dimensions of one­quarter to one­half the minimum required. The remaining area of the units' open space, namely terraces off the first floor family rooms, are small ­ having areas of 4.0 square metres (12 balconies), 7.25 square metres (8 balconies) and 8.5 square metres (2 balconies) ­ and are poorly located ­ 16 out of 22 directly abut each other with 100 millimetre wide by 2.2 metre high masonry separation.

86 The question of whether the development conforms to the Codes in relation to communal open space does not arise because, as noted earlier, the Codes do not prescribe a requirement for communal open space in relation to grouped dwellings. However, as the issue was argued and as it might be material to future development of the site, the Tribunal will address it.

87 The areas of the site identified by Filton as "communal open space" comprise two areas of lawn in the street setback area of 45 square metres each, four courtyards off the central driveway which have an area of 14 square metres each and provide pedestrian access to units and a landscaped courtyard between the northern end of the driveway and the rear boundary of the site which has an area of 58 square metres. Clause 3.4.4 A4.1 of the Codes contains an acceptable development provision that communal open space for multiple dwellings be provided in accordance with Table 1. Table 1 requires 16 square metres of communal open space per multiple dwelling. Twelve multiple dwellings require 192 square metres of communal open space. The lawn and courtyard areas relied on by Filton have a combined area of 204 square metres.

88 The four 14 square metre courtyard areas do not satisfy the definition of "communal open space" set out in cl 2.2 of the Codes. The definition specifies "open space set aside for the recreational use of the occupants of the dwellings". These courtyard areas are clearly not set aside for the recreational use of the occupants of the dwellings but rather serve as accessways. Furthermore, it appears that part of the front lawn areas are not likely to provide for the recreational use of the occupants of the dwellings other than occupants of a single dwelling which has its internal entertainment area and a terrace oriented towards and contiguous with this part of the lawn. It appears that the lawn areas which are likely to provide for the recreational use of the occupant of the dwellings are limited to rectangular areas on each side of the driveway having dimensions of approximately 7.5 metres by 3.5 metres.

89 In consequence, whereas 192 square metres of communal open space would be required for 12 multiple dwellings, only approximately 110.5 square metres of communal open space is proposed in the development. This represents a deficiency of 42.5 per cent.

90 Mr Stewart considers that the development is in conformity with the performance criteria in cl 3.4.4 of the Codes which state that "adequate area of Communal Open Space for Multiple Dwelling developments to meet the future needs of residents, having regard to the location of the development". Mr Stewart stresses that the site is directly opposite Perth Oval, diagonally opposite Loton Park Tennis Club and within 400 metres of Birdwood Square, Brigatti Gardens and Jack Marks Park.

91 On the assumption that the development would be characterised as "multiple dwellings", the Tribunal is not satisfied that it provides an adequate area of communal open space having regard to the location of the site. The area of the proposed communal open space is significantly deficient. Moreover, each of the three areas which satisfy the definition of "communal open space" directly adjoins the central driveway which limits its amenity. The proximity of public parks and other facilities does not sufficiently compensate for the inadequate on­site provision of communal open space.

Does the development have an unacceptable impact on streetscape?

92 Mr Bain considers that the development would have an unacceptable impact on streetscape because the roof pitch, building materials and wall eaves heights do not correspond to the established character of predominantly single storey dwellings, the buildings are not designed to harmonise with existing character and the front setback includes car parking. Mr Hardy contends that the existing streetscape is not cohesive or harmonious. He also contends that the replacement building will not alter the rhythm or scale of the streetscape.

93 The seven street front buildings between the site and "Dilhorn" are all single storey early twentieth century buildings which, despite some large street front walls, form a relatively cohesive and original streetscape, particularly when viewed from the southern side of Bulwer Street. The existing building on the site is significantly different to the cohesive streetscape formed by the single storey buildings because of its considerably greater setback and elevated two storey character.

94 The proposed replacement buildings would present as two approximately 9.0 metre wide two storey buildings approximately 8.0 metres apart on a relatively wide site. The replacement of the existing building with these buildings would not, as Mr Hardy submits, alter the rhythm or scale of the streetscape in any material sense. Indeed, other than in relation to the inappropriate placement of visitors' parking in the street setback which we discussed earlier, the presentation of the development to the street would form an acceptable transition in the streetscape from single storey dwelling houses to the east of the site to two storey, wide blocks of units on the two properties to the west of the site.

95 The cultural heritage significance of the existing building and the site has been significantly reduced by very substantial physical works at each of the four facades including demolition of original verandahs to the south and east and two storey additions and alterations. Although the general disposition of the place as a large Federation residence is evident internally in terms of the placement of walls and fittings, the extent of physical works carried out have fundamentally altered what was a substantial Federation residence in the Queen Anne style into an unexceptional building of incongruous architectural character. While the gables, roof form and chimneys remain, they are no longer able to be read as characteristic elements of a Queen Anne Federation building but rather present as uncoordinated details of a discordant building.

96 Although the place has social and historic significance and two storey Federation buildings in the Queen Anne style are rare in the locality, the cultural heritage significance of the building has been reduced to a point at which its demolition should not be refused on heritage grounds.

97 The historic and social value of the site can be appropriately recognised by the naming of new development and by suitable interpretative materials installed at the street frontage of the site.

98 The proposed development comprises "grouped dwellings" rather than "multiple dwellings". On their proper interpretation in the context of the Codes read as a whole, the words "partly vertically above" in the definition of "grouped dwellings" and the words "any part of a dwelling" in the definition of "multiple dwellings" mean "in relation to a substantial part vertically above" and "any substantial part of a dwelling", respectively. The minor and contrived projections of areas of bathrooms above garages of other units do not have the effect of transforming the development from "grouped dwellings" to "multiple dwellings".

99 The development application must be refused consent because it does not conform to the Codes in relation to minimum site area per dwelling, plot ratio, minimum dimensions of private open space, separate pedestrian paths or visitors' bays. In addition, the Tribunal considers that the internal amenity of the proposed units is unacceptable in relation to the location and size of outside areas.

100 The scale and nature of the development would not have an unacceptable impact on the streetscape. Indeed, the development in its physical form, other than the inappropriate location of visitors' car bays in the street frontage, would provide an appropriate transition in the streetscape.

101 Although the Tribunal has found that the heritage significance of the existing building is not such that its demolition should be refused, the development application seeks demolition in the context of proposed replacement buildings which must be refused consent. The development application as a whole, therefore, warrants refusal.

2. Development approval for the demolition of a two storey building and outbuildings and for the erection of 12 grouped dwellings in two buildings at Lot 8 (No 30) Bulwer Street, Perth is refused.

I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER

Annexure