Town planning - Development application - Preliminary issue - Whether there is discretion to approve a proposed development - Local planning scheme prescribes maximum building height development standards of two storeys and 8.5 metres above natural ground level - Proposed building exceeds building height development standards - Local planning scheme allows variation of building height development standards when natural ground forms indicate that a variation is warranted and the amenity of neighbouring areas will not be adversely affected or unreasonably diminished - Determination of whether to allow variation of building height development standards calls for and involves evidence and planning assessment and cannot be reasonably or appropriately determined as a preliminary issue

Planning and Development Act 2005 (WA), s 242, s 251(1)

State Administrative Tribunal Act 2004 (WA), s 27(1), s 31, s 31(1)

Town of Mosman Park Town Planning Scheme No 2, cl 5.1.1(a), cl 5.1.1(b), cl 5.1.2

There is discretion to approve the proposed development if the consent authority is satisfied that the conditions precedent to be exercise of discretion prescribed in cl 5.1.1(a) and cl 5.1.1(b) of the Town of Mosman Park Town Planning Scheme No 2 are established

Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176

1 Mr and Mrs Hughes applied to the Tribunal for a review of the decision of the Town of Mosman Park to refuse their development application for the construction of a dwelling on their property at No 51 Saunders Street, Mosman Park, to replace their existing three storey dwelling. The proposed development exceeds the maximum building height development standards of two storeys and 8.5 metres above natural ground level prescribed by cl 5.1.1(a) and cl 5.1.1(b) of the Town of Mosman Park Town Planning Scheme No 2. However, these provisions allow for the variation of the relevant development standard if the consent authority is satisfied that natural ground forms indicate that a variation is warranted and the amenity of neighbouring areas will not be adversely affected or unreasonably diminished.

2 One of Mr and Mrs Hughes' neighbours, Mrs Visscher, applied to the Tribunal to make a submission 'in relation to whether there is discretion to approve the proposed development' under the town planning scheme and that issue was listed for determination as a preliminary issue. Mrs Visscher conceded that natural ground forms, in particular a 17 metre fall in Mr and Mrs Hughes' property, indicate that a variation of the building height development standards is warranted. However, Mrs Visscher argued that the consent authority lacks power to approve the proposed development because it will have an adverse impact on views from her house.

3 The Tribunal decided that the issue of whether the amenity of neighbouring areas will not be adversely affected or unreasonably diminished can not be reasonably or appropriately resolved as a preliminary issue. Rather, the determination of this issue requires and involves evidence and planning assessment at the final determination of the development application.

4 The Tribunal observed that the determination of whether the amenity of neighbouring areas will not be adversely affected or unreasonably diminished potentially involves the assessment and balancing of a wide variety of amenity considerations including, but not limited to, the maintenance of views from one or more nearby dwellings. While a building may result in the loss of views from one or more nearby dwellings, the consent authority could still potentially find that the 'amenity', that is the quality and characteristics of an urban environment, of neighbouring areas will not be adversely affected or unreasonably diminished, having regard to all relevant amenity considerations. Ultimately, the consent authority must carefully assess and balance all relevant amenity considerations.

5 As Mr and Mrs Hughes had amended the development plans to reduce the height of their proposed dwelling, following on­site mediation conducted by Tribunal members that included a view of the site from Mrs Visscher's house, the Tribunal invited the Town of Mosman Park to reconsider its decision to refuse development approval, having regard to the amended plans.

6 This proceeding involves an application for review brought by Mr John Joseph Hughes and Mrs Margarita Unabia Hughes (Mr and Mrs Hughes) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the Town of Mosman Park (Town or Council) to refuse Mr and Mrs Hughes' development application for the construction of a dwelling on their property at No 51 Saunders Street, Mosman Park (site) to replace their existing three storey dwelling. Natural ground level on the site falls by over 17 metres, from approximately 37.8 metres AHD at the street frontage to approximately 19.90 metres AHD at the eastern boundary. The site has an area of 907 square metres and is of an atypical shape with five property boundaries and its width tapering from the west adjoining and adjacent to the street to the east.

7 The site is zoned Residential and is subject to a residential density coding of R12.5 under the Town of Mosman Park Town Planning Scheme No 2 (TPS 2 or Scheme).

8 One of Mr and Mrs Hughes' neighbours is Mrs Anka Visscher who lives at No 46 Saunders Street, Mosman Park. At the directions hearing held on 12 November 2010, Mrs Visscher sought and was granted leave, pursuant to s 242 of the PD Act, 'to make a submission in relation to whether there is discretion to approve the proposed development under the [TPS 2]'. The Tribunal also made the following direction:

The issue of whether there is discretion to approve the proposed development under the [TPS 2] is to be determined as a preliminary issue at 10am on 16 December 2010 for three hours.

9 At the hearing of the preliminary issue on 16 December 2010, Mr GD Cobby of counsel submitted on behalf of Mrs Visscher that there is no discretion to approve the proposed development under cl 5.1.1(a) of TPS 2 or, alternatively, under cl 5.1.1(b) of TPS 2. These provisions of the Scheme are in the following terms:

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 form 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 extension to existing buildings. (Emphasis in bold added.)

10 The proposed building would present a single storey to the street, but exceeds two storeys, for the purposes of cl 5.1.1(a) of TPS 2, and its maximum height exceeds 8.5 metres above natural ground level, for the purposes of cl 5.1.1(b) of TPS 2. It is common ground that the proposed building would have an adverse impact on views enjoyed from Mrs Visscher's house.

11 Clause 5.1.1(a) and cl 5.1.1(b) of TPS 2 each prescribe two conditions precedent which must be satisfied in order for the Council (or the Tribunal on review) to be able to exercise a discretion to vary the maximum building height development standards of two storeys and 8.5 metres above natural ground level so as to allow the building height of the proposed development. The conditions precedent are:

(a) that natural ground forms indicate that a variation is warranted; and

(b) that the amenity of neighbouring areas will not be adversely affected as determined if the regular standards of the Scheme were imposed;

(a) that natural ground forms indicate that a variation is warranted; and

(b) that the amenity of neighbouring areas is not unreasonably diminished.

13 Mr Cobby conceded on behalf of Mrs Visscher that natural ground forms on the site, and in particular, the significant fall from west to east, indicate that a variation of the building height development standards prescribed by cl 5.1.1(a) and cl 5.1.1(b) of TPS 2 is warranted. However, Mr Cobby submitted that the amenity of neighbouring areas will be adversely affected by the variation of the two storey building height development standard for the purposes of cl 5.1.1(a) of TPS 2 and will be unreasonably diminished by the variation of the maximum 8.5 metre above natural ground development standard for the purposes of cl 5.1.1(b) of TPS 2. Mr Cobby submitted:

As to the diminution of amenity, the proposed development will have an adverse impact upon the presently unobstructed view of Point Walter and the spit adjoining the point, including the interface of the land and water at those points, from the living and dining rooms, kitchen, bedrooms and balconies at 46 Saunders Street.

...

[T]he Council consequently lacks power to approve the proposal, it having been admitted by the Council that the construction of [Mr and Mrs Hughes'] proposed new residence will adversely impact upon the amenity of [Mrs Visscher's] and at least two other residents', homes.

14 However, as Mr MJ Hardy, counsel for Mr and Mrs Hughes, submitted, the second condition precedent under either cl 5.1.1(a) or cl 5.1.1(b) of TPS 2 is not reasonably or appropriately capable of resolution as a preliminary issue. Rather, the determination of whether the second condition precedent under either provision is satisfied requires and involves evidence, including expert evidence, and planning assessment at the final determination of the development application, whether by the Council on invitation by the Tribunal for the Council to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or by the Tribunal at a final hearing or final determination on documents of the proceeding.

15 In relation to cl 5.1.1(a) of TPS 2, the consideration of 'amenity', the delineation of 'neighbouring areas' and the concept of 'adverse affect' all call for and involve evidence and planning assessment. Moreover, the determination of what development 'the regular standards of the Scheme' contemplates and the impact of such development clearly calls for evidence and planning assessment.

16 The term 'amenity' is defined in Appendix A of the Scheme to mean:

The quality and characteristics of an urban environment, in the opinion of the Council.

17 While Mr Cobby stressed the amenity consideration of preservation of views, the quality and characteristics of an urban environment, in the opinion of the Council, may involve many other considerations of amenity. Although cl 5.1.1(a) of TPS 2 identifies the maintenance of views as one of the reasons for the establishment of the two storey height development standard, it also refers to the maintenance of privacy and the maintenance of general amenity. Furthermore, while 'the need for limitation of height or location of buildings to preserve or enhance views' is one of the general amenity considerations identified in cl 5.1.2 of the Scheme, that clause also refers to 22 other amenity considerations. The determination of whether 'the amenity of neighbouring areas will not be adversely affected ...' for the purposes of cl 5.1.1(a) of TPS 2 potentially involves the assessment and balancing of a wide variety of amenity considerations including, but not limited to, the maintenance of views from one or more nearby dwellings.

18 It would be potentially open to the consent authority to find that a proposed building will adversely affect views enjoyed from one or more nearby dwellings and also that the 'amenity of neighbouring areas', that is the quality and characteristics of an urban environment, in the opinion of the Council, 'will not be adversely affected ...' for the purposes of cl 5.1.1(a) of TPS 2. While a building may result in the loss of views from one or more nearby dwellings, it may also improve the quality and characteristics of an urban environment in terms of other amenity considerations. Ultimately, in determining whether the second condition precedent under cl 5.1.1(a) of TPS 2 is satisfied, the consent authority must carefully assess and balance all relevant amenity considerations.

19 Furthermore, the determination of whether the second condition precedent is satisfied needs to occur having proper regard to the evidence presented by the parties. Mr Hardy noted that his clients wish to call evidence in relation to whether the amenity of neighbouring areas will not be adversely affected as determined if the regular standards of the Scheme were imposed.

20 In relation to cl 5.1.1(b) of TPS 2, similarly, the consideration of 'amenity' and the delineation of 'neighbouring areas' calls for and involves evidence and planning assessment. Furthermore, the consideration of whether the amenity of neighbouring areas is not 'unreasonably diminished' plainly calls for planning assessment having regard to all relevant planning circumstances. Indeed, as Mr Cobby submitted, the determination of whether the amenity of neighbouring areas is unreasonably diminished involves a wide variety of factors not 'limited to the diminution of amenity per se, but whether the diminution is reasonable in all the circumstances'. While the particular factors identified in Mrs Visscher's submission may be relevant, they are hardly potentially exhaustive considerations. Furthermore, as Mr Hardy submitted, the determination as to whether the amenity of neighbouring areas is not 'unreasonably diminished' involves questions of degree and calls for evidence and potential balancing of 'amenity' considerations including, but not limited to, maintenance of views.

21 Finally, while Mr Cobby referred to the assessment made in the Town's planning officer's reporting in relation to adverse amenity impacts of the proposed development, this review proceeding is, as stated in s 27(1) of the SAT Act:

... to be by way of a hearing de novo, and it is not confined to matters that were before the decision­maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

22 Furthermore, as discussed earlier, a finding by the consent authority that Mr and Mrs Hughes' proposed dwelling would adversely impact upon views enjoyed by Mrs Visscher and other nearby residents does not dictate a finding that 'the amenity of neighbouring areas will ... be adversely affected ...' for the purposes of cl 5.1.1(a) of TPS 2 or a finding that 'the amenity of neighbouring areas is ... unreasonably diminished' for the purposes of cl 5.1.1(b) of TPS 2.

23 The determination of whether the second condition precedent to enable the variation of the building height development standard prescribed by either cl 5.1.1(a) or cl 5.1.1(b) of TPS 2, so as to enable approval of the building height of the proposed development, cannot properly or appropriately be made as a preliminary issue. The necessary assessments can and should only be made on the determination of the development application.

There is discretion to approve the proposed development if the consent authority is satisfied that:

(a) natural ground forms indicate that a variation in:

(ii) the maximum height of the building above natural ground level,

(b) the amenity of neighbouring areas will not be adversely affected as determined if the regular standards of the Scheme were imposed by the proposed exceedance of two storeys; and

(c) the amenity of neighbouring areas is not unreasonably diminished by the proposed exceedance of the maximum height of 8.5 metres above natural ground level.

25 At the first directions hearing in the proceeding, held on 8 October 2010, the Tribunal referred the matter to on­site mediation on 4 November 2010 before two members of the Tribunal and requested Mrs Visscher to allow the Tribunal members and the parties to attend her property 'in order to view the location of the proposed development and its impacts' during the mediation. The mediation took place as scheduled and Mrs Visscher allowed the members and the parties to view the site from her property.

26 Following the mediation, the members directed Mr and Mrs Hughes to provide 'additional information' to the Town by 19 November 2010 and invited the Council to reconsider its decision under s 31 of the SAT Act by 14 December 2010.

27 Mr and Mrs Hughes provided 'additional information', in the form amended plans reducing the height of the proposed development, to the Town. However, the Council did not proceed to reconsider its decision under s 31 of the SAT Act, because of the listing of the issue of whether there is discretion to approve the proposed development under TPS 2 for determination as a preliminary issue.

28 It is appropriate for the Council to be invited to reconsider its decision, having regard to the amended plans. As I said in Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176 at [28]:

... [W]here circumstances have changed through mediation by discussion and the provision of information, as appears to be the case here, it is appropriate for the original decision-maker to have the opportunity to address the changed circumstances and make a fresh decision, having regard to the changed circumstances.

There is discretion to approve the proposed development if the consent authority is satisfied that:

(a) natural ground forms indicate that a variation in:

(ii) the maximum height of the building above natural ground level,

(b) the amenity of neighbouring areas will not be adversely affected as determined if the regular standards of the Scheme were imposed by the proposed exceedance of two storeys; and

(c) the amenity of neighbouring areas is not unreasonably diminished by the proposed exceedance of the maximum height of 8.5 metres above natural ground level.

1. Pursuant s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision, having regard to the amended plans of the proposed development, on or before 22 February 2011.
2. The proceeding is adjourned to a further directions hearing at 10.30 am on 25 February 2011 in order to await the reconsideration.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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