The Tribunal considered the meaning of the deemed-to-comply requirement in relation to building height for a single dwelling contained at C6 in cl 5.1.6 of the R­Codes. The Tribunal determined that the Town of Mosman Park Town Planning Scheme No 2 contained provisions that controlled building height in that local government area. As such, the Tribunal was satisfied that the deemed-to-comply provision at C6 in cl 5.1.6 of the R­Codes had been replaced by the relevant clause in the local planning scheme.

The applicant argued that it was only the part of the provision in the Town of Mosman Park Town Planning Scheme No 2 that specified a maximum building height in metres that became the relevant building height deemed­to­comply provision. The Tribunal was not persuaded by this submission and found that the entire provision in cl 5.1.1 of the Town of Mosman Park Town Planning Scheme No 2 had effectively become the relevant deemed­to­comply provision for the purposes of determining whether development approval was required. As the proposed development did not comply with the requirements in that clause, the Tribunal determined that a building permit could not be issued in relation to the proposed development without planning approval. The decision of the respondent was affirmed.

Hughes and Town of Mosman Park [2010] WASAT 190

1 In December 2016, Colleen Christine Howson (applicant) applied to the Town of Mosman Park (respondent) for a building permit in relation to a four storey residential dwelling plus a pergola and swimming pool at 28 Saunders Street, Mosman Park (site).

2 By notice dated 3 February 2017, the respondent refused the application for a building permit. The reasons given for that refusal were:

1. Section 20(2) of the Building Act 2011 provides that a permit authority to which an application is made must not grant the building permit unless it is satisfied as to each of the matters mentioned in subsection (1)(a) to (s); and
2. The Town of Mosman Park is not satisfied that the applicant has obtained, in relation to the building work, each authority under a written law that is prescribed for the purposes of section 20(1)(n) [of the Building Act 2011], namely development approval pursuant to the Town of Mosman Park Town Planning Scheme No. 2.

• The application does not satisfy the deemed to comply provisions of the R-Codes (as modified by the Scheme) with respect to building height and street setbacks.
• The proposed pergolas exceed the 3.5m maximum height contrary to Town's Local Planning Policy 02.
• The deemed to comply provisions of the R-Codes for Street Walls and Fences and Visual Privacy have not been satisfied.

5 On 24 February 2017, the applicant lodged an application with the Tribunal pursuant to s 119(a) of the Building Act 2011 (WA) (Building Act) seeking review of the respondent's decision. That application, which was identified in the Tribunal as CC 363 of 2017, was listed for a final hearing on 18 April 2017.

6 In the meantime, the applicant made a second application to the respondent seeking a building permit for a four storey residential dwelling without any pergola or swimming pool at the site. By notice dated 10 April 2017, the respondent refused the second application for a building permit, providing similar reasons for the refusal as specified in the notice dated 3 February 2017. The respondent also stated in the notice that:

1. The application does not satisfy the deemed to comply provisions of the R-Codes (as modified by the Scheme) with respect to building height.
2. The proposed pergolas exceed the 2.5m average and 3.5m maximum height contrary to the Town's Local Planning Policy 02.
3. The application does not satisfy the deemed to comply provision of the R-Codes with respect to street walls and fences and site works.

7 On 11 April 2017, the applicant lodged another application for review under s 119(a) of the Building Act in relation to the respondent's refusal of the second application for a building permit. That application, which was identified in the Tribunal as CC 648 of 2017, was listed for a directions hearing to be heard prior to the hearing of CC 363 of 2017 on 18 April 2017.

8 With the consent of the parties at the directions hearing for CC 648 of 2017, the Tribunal ordered that the materials filed in CC 363 of 2017 were taken as also filed in CC 648 of 2017 and the matter of CC 648 of 2017 proceeded to final hearing directly following the directions hearing. The final hearing of CC 363 of 2017 was vacated and that matter was adjourned to a further directions hearing awaiting the outcome of CC 648 of 2017.

9 At the hearing of CC 648 of 2017, the Tribunal admitted into evidence the following documents:

1. the application for review lodged on 11 April 2017 with its attachments (Exhibit 1);
2. a Statement of Agreed Facts (Exhibit 2);
3. Witness Statement of Erina Elizabeth Parsons dated 10 April 2017 (Exhibit 3); and
4. Supplementary Witness Statement of Erina Elizabeth Parsons dated 13 April 2017 (Exhibit 4).

10 Ms Parsons is a town planner employed by the respondent. The applicant did not require Ms Parsons to be made available for cross­examination and no witnesses were called by the applicant.

11 After hearing submissions made by counsel on behalf of each of the parties, the Tribunal reserved its decision. What follows are the reasons for decision in the matter CC 648 of 2017.

12 Section 9 of the Building Act renders it an offence to carry out building work without a building permit unless:

(a) a building permit is in effect for the building work; or

(b) a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or

(c) the work is done in accordance with a building order; or

(d) the work is done in the course of taking action under section 118(2).

13 The term 'building work' is broadly defined in s 3 of the Building Act and relevantly includes the construction, erection, assembly or placement of a building or incidental structure and any site works necessary for such construction, erection, assembly or placement. There is no dispute in this matter that the construction of the proposed dwelling is 'building work' within the meaning of the Building Act and that none of the circumstances identified in s 9(b) to (d) of the Building Act applied.

14 Division 2 of Pt 2 of the Building Act provides for, amongst other things, the making of an application for a building permit and the information required to be provided with such an application. Section 20 of the Building Act concerns the grant of a building permit and it relevantly provides:

(1) A permit authority to which a certified application or an uncertified application is made must grant the building permit if it is satisfied ­

(n) that the applicant has obtained in relation to the building work each authority under a written law that is prescribed for the purposes of this paragraph; and

(2) A permit authority to which an application is made must not grant the building permit unless it is satisfied as to each of the matters mentioned in subsection (1)(a) to (s).

15 Regulation 18(2)(b) of the Building Regulations 2012 (WA) (Building Regulations) relevantly prescribes that for the purposes of s 20(1)(n) of the Building Act 'if the building work is development as defined in the Planning and Development Act 2005 section 4, each approval required under that Act in relation to the work'.

16 As indicated above, the reasons given by the respondent for the refusal to grant the second application for a building permit was that the applicant had not obtained development approval for the proposed development. As such, it is the respondent's view that a building permit cannot be issued as s 20(1)(n) of the Building Act has not been complied with.

17 In s 4 of the Planning and Development Act 2005 (WA) (PD Act) the term 'development' is relevantly defined to mean:

[T]he development or use of any land, including ­

(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land;

(b) the carrying out on the land of any excavation or other works[.]

Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless -

(a) the approval has been obtained and is in force under the planning scheme or interim development order; and

(b) the development is carried out in accordance with the conditions subject to which the approval was granted.

19 There is no dispute that there is nothing in the PD Act which would alter the position in this case in relation to whether or not the planning scheme requires development approval to be obtained for the proposed development the subject of the second building permit application.

20 The Town of Mosman Park Town Planning Scheme No 2 (TPS 2 or Scheme) has, since the commencement of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), incorporated the deemed provisions contained in Sch 2 of the LPS Regulations: s 256 and s 257B of the PD Act together with cl 10 of the LPS Regulations. Clause 60 of Sch 2 of the LPS Regulations relevantly provides that:

A person must not commence or carry out any works on, or use, land- in the Scheme area unless ­

(a) the person has obtained the development approval of the local government under Part 8; or

(b) the development is of a type referred to in clause 61.

21 Clause 61(1)(c) of Sch 2 of the LPS Regulations provides:

Development approval of the local government is not required for the following works ­

(c) the erection or extension of a single house on a lot if the R-Codes apply to the development and the development satisfies the deemed-to-comply requirements of the R-Codes[.]

22 The proposed development the subject of the second building permit application is development to which the R Codes apply. Thus, the only issue in dispute between the parties in this matter is whether or not the proposed development satisfies the deemed-to-comply requirements of the R Codes.

1. In determining natural ground level pursuant to clause 5.1.1(b) of the Town of Mosman park Town Planning Scheme No. 2 (Scheme), the Respondent generally uses the Water Authority of Western Australia contours of 1975 (WAWA contours) which establish 1m contours for the district in plans at a scale of 1:1000.
2. If the WAWA contours are used for the assessment of the proposed development, its height does not exceed 8.5m above natural ground level.
3. The proposed development is a four storey building.

24 Ms Parsons identified in her Supplementary Witness Statement (Exhibit 4, at paragraph 3) that the proposed development the subject of the second application for a building permit was identical to the proposed dwelling the subject of the original application for a building permit except that:

(a) the building is set back 7.5m (in lieu of a nil setback) from the front boundary;

(b) screening is provided on the western boundary adjacent to the alfresco dining area on the ground floor;

(c) a pergola has been deleted from the alfresco dining area on the ground floor.

25 Ms Parsons' witness statements addressed whether or not, in her opinion, the proposed development met the relevant deemed-to-comply provisions of State Planning Policy 3.1 ­ Residential Design Codes (R­Codes). In her assessment, the proposed development the subject of the second building permit application did not meet the deemed­to­comply provisions of the R-Codes in relation to building height, street walls and fences, and site works. Ms Parsons was also of the view that a number of structures identified on the plans as aluminium screening were pergolas within the meaning of one of the respondent's local planning policies which did not meet the requirements in that policy in relation to the average and maximum heights of pergolas.

26 The deemed-to-comply provision in the R-Codes in relation to building height of a single house is contained in cl 5.1.6 at C6, where it states:

Buildings which comply with Table 3 for category B area buildings, except where stated otherwise in the scheme, the relevant local planning policy, local structure plan or local development plan (refer Figure Series 7).

27 In the section of the R­Codes containing all of the tables, there is a heading 'Table 3: Maximum building heights'. Following that heading is a box form table which identifies maximum building heights by reference to the type of roof involved and by reference to three categories. As considerable argument was focused on the proper interpretation of Table 3 of the R­Codes, it is necessary to reproduce the table in full.

28 Immediately following that table is the following text:

1. Category B will apply unless a scheme, the relevant local planning policy, local structure plan or local development plan requires the application of category A (generally single level development) or category C (development on three levels) or an alternative standard.

• less than 9m long: exempted
• greater than 9m long: add one third of the height of the gable, between the eaves and the apex of the gable wall, to the eaves height.

1. Applies to ridges greater than 6m long. Short ridges: add 0.5m height for each 2m reduction in length.
2. Applies to roof pitches up to 25 degrees. In some localities steeper pitches may be required and greater height permitted in accordance with the provisions of the scheme, the relevant local planning policy, local structure plan or local development plan.

29 Clause 5.1.1 of TPS 2 provides, in relation to building height:

5.1.1(a) Council's guidelines for development within the district limits building to no more than two storeys in height so as to maintain privacy, views and general amenity. In exercising this control Council will not regard undercroft space used for lift shafts, stairways or meter rooms, bathrooms, shower rooms, laundries, water closets or other sanitary compartments or the parking of vehicles where that space is not higher than a datum being one metre above the crown of the road measured directly opposite the centre of the site boundary abutting the road. In the case of lots with multiple street frontages the datum shall be determined from the crown of the high(est) road. Council may vary this control where natural ground forms indicate that a variation is warranted, provided that it is satisfied that the amenity of neighbouring areas will not be adversely affected as determined if the regular standards of the Scheme were imposed.

5.1.1(b) Measurement of Building Height - For the purpose of measuring 'storey' and hence 'building height', Council shall generally follow the following formula, except in particular cases where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished.

The maximum height of a building shall not exceed 8.5m above natural ground level.

Notwithstanding clause 5.1.1(c) below, the maximum building height of any building shall be measured from the highest point of the building to a point at natural ground level immediately beneath that highest point. In determining natural ground level Council shall utilise AHD contours for the district at 1 metre intervals unless it can be proven by licensed survey to the Council's satisfaction, that such contours are not appropriate in a particular instance.

Variations to the above heights may be permitted in the case of extensions to existing buildings.

30 The respondent submits that the deemed-to-comply provision in relation to the building height of a single house is only the building heights specified in Table 3 of the R­Codes in relation to Category B area buildings. The rest of Table 3 is not incorporated into the deemed­to­comply provision. In particular, the respondent asserts that the alternative standard referred to at note (i) following the Table is not incorporated into the deemed-to-comply provision.

31 In addition, the respondent submits that TPS 2 does 'state otherwise' in relation to building height and therefore there is effectively no deemed­to­comply requirement in relation to building height within the respondent's local government area.

32 The applicant submits that an interpretation that effectively removes a deemed-to-comply provision of the R­Codes is inconsistent with the legislative purpose of allowing development without the need to obtain planning approval if the proposed development meets the deemed­to­comply requirements of the R­Codes. The Applicant submits that the language of the deemed-to-comply provision should be construed 'broadly and not pedantically and in a manner that will give effect to the evident purpose of specifying a deemed-to-comply standard for all buildings.' The applicant submits that, adopting this approach, it is implicit in note (i) following Table 3 of the R­Codes that if the Scheme requires the application of an alternative standard then it will be that alternative standard that will be the deemed-to-comply provision.

33 It is also submitted that the R­Codes do not allow an alternative standard in relation to building height that is not a height measurement. This is for two reasons. Firstly, the alternative standard must be an alternative to that which is expressed in Table 3 of the R­Codes. As that Table specifies heights in metres, the alternative must be a height in meters. Secondly, the point of a measurement of building height is to provide certainty and the promotion of consistency. The applicant submits specifying a number of storeys in relation to building height is not certain as storeys can be of different heights in metres.

34 The R­Codes are a policy and are not drafted by Parliamentary Counsel. As such, one cannot assume that ordinary drafting conventions were known and adopted in the drafting of the R­Codes. Although the R­Codes are not legislation, in understanding what is meant by a particular provision of the R­Codes it is useful to look at the words used in the context of the policy as a whole and having regard to the objectives, aims or purposes of the policy. The Department of Planning and the Western Australian Planning Commission also publish a document entitled R-Codes, Residential Design Codes of Western Australia, Explanatory Guidelines (Explanatory Guidelines). It is stated on the front page of the Explanatory Guidelines that '[t]hese guidelines supplement State Planning Policy 3.1 Residential Design Codes of Western Australia and are to be read in conjunction with that policy'. It is therefore necessary to also have regard to any relevant parts of the Explanatory Guidelines when seeking to understand what is meant by a provision of the R­Codes.

35 The Tribunal is not persuaded by the applicant's submission in relation to the proper construction of the R­Codes. The applicant's submission relies on application to the R­Codes of a purpose said to be found in the Scheme because of one of the deemed provisions incorporated into the Scheme by the LPS Regulations (cl 61 of Sch 2 of the LPS Regulations). That is, the applicant argues that in interpreting the R­Codes, one should have regard to the purpose evident in the provisions of the Scheme in relation to the circumstances in which development approval is not required. The fact that a specific scheme provisions allows for proposals that meet identified requirements to proceed without development approval and the identified requirements are based on compliance with the R­Codes, does not assist in understanding what is meant by a provision in the R­Codes. Such an approach is putting the cart before the horse, so to speak.

36 The objective of Pt 5 of the R­Codes, which includes the clauses relating to building height, are stated as -:

(a) To ensure that residential development meets community expectations in regard to appearance, use and density.

(b) To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.

(c) To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.

(d) To ensure that open space (private and communal) is provided on site and:

• landscaped to establish streetscapes;
• provide a balanced setting and relationship to buildings; and
• provide privacy, direct sun and recreational opportunities.

(e) To ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing a transition, development achieves the desired future character of the area identified in local planning framework.

37 'Height, building' is a defined term in the R­Codes at Appendix 1, where it is stated:

This is the distance between the point where the base of the wall meets the natural ground level and measured to the highest point of a wall or roof of a building vertically above that point (for measurement guidance refer to Figure Series 7) excluding minor projections.

38 Figure series 7 of the R­Codes contains two figures that show how to measure building height following the natural ground level or, where natural ground level varies across the site, following the 'deemed natural ground level'. A note to Figure Series 7 of the R Codes states:

The height of a building is taken as the highest point at any part of the development immediately above natural ground level.

39 Clause 4.4 of the Explanatory Guidelines relates to Building height. This clause relevantly states:

Measuring building height

Figure series 7 of the R-Codes provide a standard method of height measurement designed to reduce ambiguity and confusion.

Building height is relatively straightforward to measure and administer as a control. There are two basic measures that can be used; one being height in storeys and the other height in metres. The former has problems of definition (for example, what constitutes a storey, use of roof spaces and mezzanines) and also can vary, depending on ceiling heights. For the purpose of the R-Codes, the measure used is height in metres.

...

4.4.1 Building height - Part 5 of R-Codes

(Clause 5.1.6 of the R-Codes)

...

Common height limits

It is common for decision-makers to impose height limits on residential development in order to maintain consistency of streetscapes to minimise privacy conflicts and loss of views. However, there is a lack of consistency between decision-makers in terms of how building height is measured and the precise limits imposed. It is therefore desirable for the R-Codes to address height.

Regulation of building height and setback is fundamental to defining the streetscape, and in character areas or other places with special design sensitivity, the appropriate limits should be determined on a local streetscape basis, via scheme provisions, local planning policies or local development plans.

The R-Codes establish an objective set of building height limits that correspond approximately to one, two and three-storey building heights. A default provision establishes Category B, corresponding to two storeys, as a limit in the absence of a local planning policy.

A decision­maker may adopt Category A or C for all or parts of its district as an amended requirement through the adoption of a local planning policy.

A decision-maker may also adopt Category A or C for specific types of development, such as development upon rear battleaxe sites, through local planning policies.

Building height of a proposal may be considered appropriate where:

• the building height of the proposed development is consistent with the building heights of existing and adjacent buildings in the locality; or
• meets objectives identified in local planning policies and/or local development plans adopted for the locality; and
• has little or no adverse impact on the amenity of adjoining properties, including the public domain and natural areas.

40 Clause 5.1.6 at C6 of the R­Codes provide for a deemed-to-comply provision in relation to building height that, unless stated otherwise in the scheme or a local planning policy, local structure plan or local development plan, applies only the height measurements in relation to category B buildings in Table 3 of the R­Codes.

41 Interestingly, note (a) to Table 4 of the R­Codes, which relates to maximum building heights for multiple dwellings in areas with a density coding of R40 or greater, states that:

Maximum height as defined in Table 4 does not supersede any height controls which are defined in scheme, the relevant local planning policy, local structure plan or local development plan.

42 This deemed-to-comply provision, located at C2 in cl 6.1 of the R­Codes, is, other than the reference to Table 4 of the R­Codes (as opposed to Table 3 for category B buildings) identical to the deemed­to­comply provision in cl 5.1.6 at C6.

43 The Scheme does not expressly state that the height provisions in cl 5.1.1 of TPS 2 are provided as an alternative standard for the purposes of the deemed­to-comply provision C6 in cl 5.1.6 of the R­Codes. However, this Scheme, like some other local planning schemes, was originally gazetted prior to the publication of the version of the R­Codes that introduced the 'acceptable development', then later the deemed­to­comply provisions. In this context, and having regard to what seems to be the purpose as conveyed by the note to Table 3 and Table 4 of the R­Codes referred to above, it seems likely that the reference to the deemed-to-comply provision in relation to building height being otherwise provided for in a scheme, etcetera, is to be understood as indicating that any provisions in a scheme, policy, structure plan or development plan in relation to building height will effectively replace the deemed-to-comply provision in C6 at cl 5.1.6 and in C2 in cl 6.1 of the R­Codes.

44 If I am wrong on that point, and, as TPS 2 does not expressly state that cl 5.1.1 of TPS 2 is the standard to be applied as the deemed­to­comply provision in cl 5.1.6 of the R­Codes, what then is the deemed­to­comply provision that is to be applied for the purposes of determining whether planning approval is required?

45 The Tribunal is not persuaded by the respondent's submission that if a local planning scheme, policy, structure plan or development plan contains building height requirements, there is then no deemed­to­comply provision in relation to building height. The wording and the grammatical form used are more apt to conveying that where a local planning scheme, policy, structure plan or development plan contains building height requirements, it is these requirements that become the deemed­to­comply requirements in the R­Codes in relation to building height.

46 The Tribunal is also of the view that it would be inconsistent with the objectives of the R­Codes to accept the contrary submission made by the respondent. This is because if the effect of a local instrument specifying requirements in relation to building height was to cause there to be no deemed­to­comply provision in the R­Codes, the result would be that a proposed development could meet all the deemed­to­comply requirements without regard to the consistency or otherwise of the proposed development with the locally applicable building height controls. This would have the consequence that there would be no need to obtain development approval for the proposed development if it otherwise complies with the deemed­to­comply provisions of the R­Codes.

47 Therefore, if TPS 2 does not provide otherwise in relation to building height, as the proposed development has a building height of 8.5 metres (see Exhibit 3, at paragraph 13), it does not comply with the maximum height specified for a category B building in Table 3 of the R­Codes and therefore does not meet the deemed­to­comply requirement in relation to building height.

48 Turning to the issue of what is the deemed­to­comply requirement provided for in TPS 2, it is necessary to look to the R­Codes. It is plainly contemplated that a scheme, policy, structure plan or development plan may alter that deemed-to-comply provision in relation to the whole, or some part of, the scheme area so as to apply the height measurements in relation to category A or C buildings in Table 3 of the R­Codes. It is also plainly apparent that a scheme, policy, structure plan or development plan may provide otherwise in some other way. This is because, the first note to Table 3 of the R­Codes describes the deemed­to­comply provision in a way that expressly contemplates that what may be otherwise provided are the building heights in relation to category A or C buildings or 'an alternative standard'. The notes to the Tables may not form part of the text of the deemed­to­comply provision itself, but they provide assistance in what the drafter of the R­Codes understood 'otherwise' to mean.

49 It is clear from the Explanatory Guidelines that the R­Codes deliberately use height measurement rather than identification of the number of storeys of a building in order to provide consistency and precision in relation to the limits imposed. This is in the context where what is in issue is building height, which is an aspect of building design that may significantly impact on amenity, privacy and existing views. On this basis, the applicant argues that the 'alternative standard' must be one that utilises height measurements rather than storeys of buildings.

50 If what is intended is to only allow an alternative standard that utilises height measurements, why not state this rather than use the broader phrase 'alternative standard'? On the other hand, as Table 3 of the R­Codes provides different height measurements in relation to the type of roof being used, arguably the phrase is used to convey a similar set of building height measurements.

51 The words used in C6 of cl 5.6.1 of the R­Codes are not narrow ones. Although the R­Codes evince a clear intention to use height measurement rather than that of storeys in the R­Codes, there is also, in my view, a clear intention to allow the scheme or other local instrument to prevail in relation to building height. In my view, the words used do not support a reading that the R­Codes allow only a provision in a scheme or other local instrument that controls building height only using measurement to override the deemed-to-comply provision at C6 of cl 5.1.6 of the R­Codes.

52 To find otherwise would, in some instances, including in relation to TPS 2, have a result that would be inconsistent with the objectives of Pt 5.1 of the R­Codes for the following reasons.

53 The height measurement in relation to category B buildings in Table 3 of the R­Codes corresponds approximately with the height of a two storey building: as stated in the Explanatory Guidelines. Clause 5.1.1 of TPS 2 provides that, as a starting point, development within the local government area will be limited to a building height of two storeys. There is then a discretion to vary that limit in specific circumstances. In my view, the way in which the clause is written indicates that the stated maximum building height of 8.5m in cl 5.1.1 of TPS 2 is intended to provide an additional limit so that whether or not more than two storeys are allowed, the building height cannot exceed 8.5m, except where variation of that height is warranted and there is no amenity impact. This is consistent with the view of the Tribunal in Hughes and Town of Mosman Park [2010] WASAT 190.

54 A discretion to allow building height up to a maximum of 8.5m where the decision-maker is satisfied that the variation is warranted and the amenity of the neighbouring area is not affected, is a matter entirely different to effectively replacing a building height limit approximately equal to a two storey building (in the R­Codes) with a provision that allows a building height of 8.5m as a deemed-to-comply requirement, compliance with which means planning approval is not required.

55 There are local planning schemes which provide building height controls only by reference to limits on the numbers of storeys. There are others, as in TPS 2, which control building height by a combination of height measurement and storey number restrictions. As indicated previously, the relevant provisions of TPS 2, as with some other local planning schemes, were in place prior to the introduction of the acceptable development and then deemed-to-comply provisions in the R­Codes. In the context where the objectives of the relevant requirements in the R­Codes are, amongst other things, to ensure designs respond to the local context in terms of bulk and scale and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties, and in the context where it was intended to allow the relevant local planning framework to override the deemed­to­comply provisions in relation to building height, it would be inappropriate, without clear words to that effect, to adopt an interpretation of the R­Codes that has the effect of either causing the local building height controls to be ignored, or to be applied only in part so as to substantially change their effect when considering whether or not planning approval is required.

56 For the sake of clarity, the Tribunal notes that the building height control in a local scheme, policy, structure plan or development plan become the deemed­to­comply provisions in relation to building height for the purposes of determining whether development approval is required. Where development approval is required, when considering the merits of the proposal, the situation is different. Where the building height controls are contained in a local planning scheme, and where, as in TPS 2, the scheme contains a provision to the effect that residential development must comply with the R­Codes except where the scheme provides otherwise (cl 5.2.1(c) of TPS 2), the compliance or otherwise of the proposal with the building height provisions in the R­Codes will not be relevant to consideration of the consistency of the proposal with the provisions of the local planning scheme. Instead, because the scheme provides building height controls, the proposal has to comply with the provisions in the local planning scheme and not the provisions relating to building height in the R­Codes. Of course, consideration of the consistency of the proposal with relevant State Planning policies pursuant to cl 67 in Sch 2 of the LPS Regulations will bring in consideration of the consistency of the proposal with the R­Code as a separate consideration.

57 On the evidence before the Tribunal, the proposed development is more than two storeys in height. There is no evidence that the respondent has determined that variation is warranted and that variation would not have an adverse impact on the amenity of the neighbouring area. The deemed-to-comply provision in C6 in cl 5.6.1 of the R­Codes has been replaced with the building height controls specified in cl 5.1.1 of TPS 2, and therefore the proposed development does not comply with the deemed-to-comply requirement in relation to building height that applies in this case. Therefore, development approval is required for this proposed development.

58 At the hearing of this matter, it was foreshadowed that the applicant would provide further certified and modified plans in relation to the proposed street fences and walls. Although some submissions were made in relation to the effect of an ornamental pond located in the front setback area, the height of a side wall and what the respondent described as 'pergolas' on the proposed development's compliance with relevant deemed-to-comply provisions in the R­Codes, the focus of the hearing was on the building height provisions.

59 By letter dated 27 April 2017, the applicant provided some amended plans that showed that the height of the side wall had been reduced in the front setback area and certified, the screens described by the respondent as 'pergolas' certified and the ornamental pond adjacent to the driveway having been removed. The applicant also sought leave to make a further submission in reply.

60 The respondent objected to the modified plans and the application for leave to make further submissions for a number of reasons.

61 Given the determination of the Tribunal in relation to the lack of compliance with the deemed-to-comply requirement in relation to building height, it is unnecessary to determine the more minor issues in relation to the side wall, the ornamental pond and the 'pergolas'.

1. The decision of the respondent dated 10 April 2017 to refuse the applicant's application for a building permit to construct a four storey single dwelling and incidental structures as identified in the plans for 28 Saunders Street Mosman Park labelled Job No 170174, revision 4, sheets numbers S1 - S14 is affirmed.
2. The application is dismissed.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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