1. Both the applicant and the respondent have filed statements of issues, facts and contentions and submissions. The respondent has filed a bundle of documents pursuant to s 24 of the SAT Act (s 24 bundle) and the applicant has also filed a bundle of documents. The City has put forward draft without prejudice conditions and the applicant has made detailed submissions on these.
2. The respondent has submitted an expert witness statement from Mr Thomas James Hockley who is a town planner with the firm Allerding and Associates.

Temporary accommodation in the City: the applicable framework

1. The respondent has assessed the Proposal as an application for temporary accommodation (short term dwelling). As stated at [26] Policy 7.4.5 includes a definition of Short Term Dwelling.
2. However, Short Term Dwelling is not a defined land use in LPS 2 and the City dealt with the Proposal as an unlisted or innominate use pursuant to cl 18(4) of LPS 2. I agree that there is no land use within Table 1 of LPS 2 that relates to the Proposal and that cl 18(4) applies.
3. I find the manner in which the City deals with proposals for temporary accommodation is unusual. The first point is that the City has Policy 7.4.5 which includes an introductory statement that the City is situated close to the Perth Central Business District (Perth CBD) and 'is well located for the provision of temporary accommodation'. The underlying premise of Policy 7.4.5 is sensible and represents orderly and proper planning. However, for reasons that I will explain, in my view Policy 7.4.5 is of very limited value as a planning policy.
4. Temporary accommodation is not a recognised land use in LPS 2; neither is Short Term Dwelling. There are no land uses in Table 1 that relate to temporary accommodation. The effect of this is that any application for temporary accommodation must be dealt with by the City as an innominate use under cl 18(4) of LPS 2.
5. For a category of land use that is plainly recognised as being relevant to the City, as evinced by Policy 7.4.5, it is also unusual that LPS 2 ­ an objective of which includes controlling and guiding development - is completely silent on which zones or locations may be suitable for such uses.
6. It is also the case that Policy 7.4.5 does not include any direction or guidance as to where temporary accommodation may be appropriately located or what criteria will be applied in the assessment of such applications (other than applications that relate to strata titled development will not be accepted without the consent of the strata company and that a management plan will need to be submitted with any application).
7. The almost complete absence of planning and development control criteria that are to apply to applications for temporary accommodation make their assessment somewhat difficult. Policy 7.4.5 is completely vacuous in terms of outlining where the City may support proposals for temporary accommodation. If the City considers that the entirety of its municipal area is appropriate for temporary accommodation, then that should be clearly set out as this will inform the community (and the Tribunal) of its position in relation to such land uses.
8. The result of this lacuna in the planning framework as to temporary accommodation uses may be supported is that no one has any certainty as to where such uses will be regarded as appropriate or otherwise by the City. However, the desirability of that as a planning framework is not a matter for the Tribunal.

1. The classification of the Proposal is not in contest between the parties as both consider it should be assessed as innominate use described as 'temporary accommodation (short term dwelling)'.
2. Regardless of the position of the parties, the Tribunal has authority to categorise a proposed use in the course of exercising its review jurisdiction: Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [30] - [53] (Barker P, Parry SM); Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 at [57] (Buss P, Murphy JA and Mitchell JA).
3. On the question of classification, the Proposal falls within the terms of a use that is recognised in LPS 2 being a 'holiday house' which is defined to mean:

a single dwelling on one lot used to provide short­term accommodation but does not include a bed and breakfast[.]

1. I note the definition of 'holiday house' is consistent with the model provisions set out in cl 38 of Sch 1 to the LPS Regulations. The Proposal, by its terms, involves the use of a single dwelling for the purposes of short term accommodation.
2. In my view, where a proposed use falls within the terms of a land use that is defined in a planning scheme, it is preferable to classify the land use on the basis of that defined use as opposed to adopting another land use classification that is not recognised in the planning scheme. That is so even where the land use is not included in the Zoning Table. This is because I consider that it is preferable for a land use to be at least recognised in the context of a local planning scheme, which has the force of law, as against a policy, which does not.
3. If I were minded to approve the Proposal, I consider that the appropriate classification for the Proposal would be as a 'holiday house' which is also an unlisted use for the purposes of LPS 2.
4. I do accept, however, that the application for development approval was made for what was described as 'temporary accommodation (short term dwelling)'. That is plainly a reference to Policy 7.4.5. If I were to approve the Proposal, it would be appropriate to include conditions (and restrictions) that reflect the nature of the temporary accommodation that the applicant has applied for.
5. However, for reasons that will be explained, I consider that the correct and preferable decision is to affirm the City's decision to refuse the Proposal.
6. I will refer to the proposed land use as a 'holiday house' as I consider that is how the Proposal should be classified for the purposes of planning assessment under LPS 2.

1. The respondent's objection to the Proposal is put on three bases.
2. The first is that the proposed parking is insufficient and the Proposal will cause traffic issues. By reason of the City's Policy No: 7.7.1 ­ Non-residential Development Parking Requirements the respondent says that, applying the rate applicable to a 'serviced apartment' (in the context of up to six occupants), requires the provision of three on­site parking bays. The respondent sets out that parking along Moir Street is also time limited to one hour. Given that the Proposal involves the provision of only one on-site bay (in the front setback of the Premises), there is a shortfall of two car parking bays. The respondent considers that those staying at the Premises may seek to park on Moir Street which may lead to a 'traffic conflict'.
3. The second is that the absence of a keeper (or site manager) may result in the Premises being used by tenants in a manner that creates an adverse noise impact. The respondent referred the Tribunal to the decision of New Frontier Pty Ltd and City of Vincent [2013] WASAT 187 which involved a small bar on Green Street in Mount Hawthorn. While the proposed management plan does contain provisions which address noise, they are inadequate. For example, the provision that allows a tenant to be given 24 hours to terminate a booking is not satisfactory.
4. The third is that approval would be contrary to the principles of orderly and proper planning on the basis that the Proposal has the potential to adversely affect the amenity of the locality (including in relation to noise and parking).
5. In its (further) submissions, the respondent also made submissions that the Proposal would be adverse to the 'social cohesion' of what is a low residential density area based on the Tribunal's decision in Hope and City of Joondalup [2007] WASAT 8 at [38] - [39] (Hope).

1. The applicant made detailed submissions in support of the Proposal. Those submissions included the locational attributes of the Land and in particular its proximity to public transport and the Perth CBD generally. For example, the applicant notes that the Land is located approximately:

1. 155 metres from William Street, which is a high frequency bus route into/out of the Perth CBD; 2. 785 metres from the Perth Central Railway Station;

1. 190 metres from Newcastle Street (which is the boundary of the Perth Free Transit Zone); and

1. 350 metres from the Northbridge Central Carpark (which is open 24 hours a day, seven days a week).
2. Having regard to its location, the applicant submits that the Land is appropriate for short term accommodation given the proximity to the Northbridge entertainment precinct and the Perth CBD.
3. The applicant also submits that the existing dwelling on the Land is currently rented by long-term tenants (and has been for the last 12 years ­ aside from between December 2017 and August 2018) and that the Proposal will not cause any greater impact on the amenity of the locality. The applicant also considers that occupancy will be less frequent in a holiday house arrangement given that there will be times when the premises are not booked. The applicant estimates that occupancy of the Premises is likely to drop to around 80% (although I note that there is no evidence to that effect).
4. To this end, the applicant notes that the Premises are currently rented to two couples and one individual meaning there are three distinct groups cohabitating the house and therefore the Proposal is likely to lead to less demand for parking than is presently the case. The applicant also considers that because the two current on­street parking permits will be lost once the temporary accommodation use commences that the parking situation within this locality is likely to improve. The applicant disputes the parking requirement that has been outlined by the City under Policy No 7.7.1_._
5. It is also the case that the Premises operated as temporary accommodation (without approval) for a period from December 2017 to August 2018 and experience suggested that only 5% of guests required or requested more than one car parking bay. During the period in which the Premises were used for temporary accommodation the applicant notes that no complaints were received from adjoining neighbours in relation to the use of the Premises for such purposes.
6. The applicant also submits that the enhanced management that will be introduced under the proposed management plan, will ensure that the amenity of the locality will be better protected than when the dwelling was being rented for (permanent or long-term) residential uses. The revised management plan includes the availability of instant communication between the keeper and the Premises to actively manage the property via a bi-directional video camera system (on the front and rear doors) while it is being used. Sensors to monitor noise are also proposed.
7. The applicant considers that the use of the Land for a holiday house is compatible and consistent with the residential use of land.
8. The applicant does not consider that the Proposal will have an impact on the heritage values of the Land and the locality more generally. Furthermore, the applicant (correctly) notes that the Proposal was twice supported by the professional staff at the City. The applicant does not consider that the use of the land for a holiday house will result in an intensification of the use of the Land.
9. The applicant refers to, and included details of, other approvals for temporary accommodation that have been issued by the City.
10. The inclusion of the details of other approvals goes, in part, to the applicant's submission that the 'true motivation' of the Council in refusing the Proposal is that it has formed the view that temporary accommodation is inconsistent with a heritage residential area and that that view has no foundation.

1. As explained, the respondent filed a witness statement from Mr Hockley who is a town planner with Allerding & Associates. Mr Hockley's statement includes an assessment of the Proposal against the range of criteria set out in cl 67 of the deemed provisions. It is not necessary that I set out his analysis in full. A summary of his evidence is as follows.
2. Mr Hockley considers that because the Land is surrounded by land that is zoned and used for residential purposes the Proposal could potentially give rise to adverse amenity impacts to neighbours arising from noise and parking combined with the high intensity of the Land for temporary accommodation in a locality which is currently characterised permanent residential accommodation at a density of R25.
3. Mr Hockley also considers that the Proposal would be contrary to the principles of orderly and proper planning on the basis that it does have the potential to adversely affect the amenity of the locality, including but not limited to potential noise impacts and impacts associated with insufficient on­site parking being provided.
4. In relation to car parking requirements, Mr Hockley considers that the applicable policy is LPP 7.7.1 which came into effect on 7 April 2018. Because the Proposal involves a non-residential land use the parking requirements set out in SPP 7.3 Residential design codes ­ Volume 1 have no application.
5. Mr Hockley considers that under Policy 7.7.1 the most comparable land use would be 'serviced apartment' which is a use that requires the provision of one parking bay per bedroom. The result being that the Proposal generates a need for three car parking bays. The Proposal involves only one parking bay.
6. Mr Hockley notes that the Land is included (together with surrounding properties) on the State Heritage Register. The question of the impact of the Proposal on built heritage was raised in the public submissions. However, Mr Hockley does not consider that the change to the use of the Premises arising from the Proposal is likely to negatively impact built heritage characteristics.
7. In relation to the impact on the cultural heritage significance of the area, again the focus of a number of public submissions, Mr Hockley is of the view that the use of the Premises for a holiday house may have some impact on the heritage significance of the area resulting from additional parking and traffic associated with the Proposal which may intrude on the character of the locality. This is because at the time the original estate was laid out there was no motorised transport.
8. Mr Hockley considers that the geographic location of the Land may be appropriate for this type of land use essentially because it is located in close proximity to the Perth CBD and with access to public transport. However he considers that having regard to the particular characteristics of this unique inner-city residential setting, the Proposal does have the potential to cause issues which may not necessarily exist in other locations or other residential environments.
9. Mr Hockley considers that this is due to the constrained nature of historical residential subdivision patterns location and the potential impacts arising from the Proposal in relation to noise and parking conflict. Mr Hockley also considers that permanent residents in this environment are likely to discern any increase in traffic and pedestrian movements associated with the Proposal arising from the constant turnover of guests more readily than if the Premises were used for residential purposes.
10. Mr Hockley considers that the Proposal will introduce a land use that is not compatible with or complimentary to this residential location.
11. In relation to the question of amenity, Mr Hockley notes that the applicant's updated management plan contains noise control measures which have been developed to address noise and nuisance including guest screening, minimum weekend stays, sound level monitoring and two-way video communication. Mr Hockley considers that while these measures may be effective in relation to some guests, there is no guarantee that noise and any other amenity impacts will not arise in all circumstances. Mr Hockley does not explain what 'other' amenity impacts he is referring to.
12. Mr Hockley considers that compliance with the management plan is not determinative in its own right and that adverse amenity impacts can still arise from noise or nuisance depending on the nature of activities in the context of the land. Mr Hockley notes that the Land is surrounded on all sides by residential dwellings with windows and outdoor living areas in close proximity to the Land.
13. Irrespective of the management plan measures proposed by the applicant there may still be amenity impacts to the locality arising from the use of the Land as a holiday house. Given this particular residential context, Mr Hockley considers any activities associated with the use of the Premises as a holiday house are likely to be amplified due to the constrained nature of the street and the pedestrian environment.
14. Mr Hockley observes that even if noise impacts are appropriately managed, the regular activities associated with the use of the Land for temporary accommodation during the day and evenings are likely to be perceived by residential neighbours in what is a residential context. Mr Hockley considers the Proposal involves the introduction of a non-residential use into a residential environment whereby used for permanent residential accommodation.
15. Mr Hockley also considers that there is an inherent potential for the Proposal to be used in a manner which creates an adverse noise impact, particularly as there not be a keeper (site manager) on-site.
16. Mr Hockley reiterates that he does not consider that the arrangements put in place for the parking of vehicles are adequate given that only one car bay is proposed in circumstances where Mr Hockley considers that three car bays should be provided. The result is that Mr Hockley considers that there is a potential impact that will be caused by the Proposal on parking arrangements within Moir Street.
17. In relation to the history of the site, Mr Hockley notes that upon a query being made with the respondent an inspection was carried out and it was found that the Land was being used for temporary accommodation purposes without approval. The applicant subsequently applied for approval which is the basis for these review proceedings. Mr Hockley cites the query that was made to the City, as well as the concerns raised in the public submissions, in reaching his view that there is potential for the Proposal to cause an adverse impact on the residential character and amenity of the locality.
18. Mr Hockley considers that the Proposal would not be consistent with orderly and proper planning on the basis that it has the potential to adversely affect existing and future amenity of the locality and that the number of car parking spaces proposed is not adequate.
19. The applicant did not file any evidence. However, the applicant filed a document entitled 'Applicant's response to the Respondent's Expert Witness Statement (Thomas James Hockley)'. The applicant 'rejects' most of the opinions offered by Mr Hockley in his planning assessment. I have treated this document as, in effect, the applicant's submissions as to the weight that I should give Mr Hockley's evidence.

1. In reaching my decision on this matter, my analysis will focus on: (i) the geographic location of the Land; (ii) the question of car parking and traffic; (iii) heritage considerations; (iv) whether the Proposal is compatible with its context; (v) amenity considerations; and finally; (vi) whether the Proposal is consistent with orderly and proper planning.
2. I will then address the public submissions and will also discuss the other sites where the City has approved temporary accommodation uses and the relevance or otherwise of the recommendations of the City's planning staff that the Proposal should be approved. I will conclude by outlining the reasons for my decision.
3. Before proceeding, however, it is important to note that temporary accommodation (such as a holiday house) is a commercial land use, not a residential land use. That point, quite properly, does not appear to be contested by the applicant. Rather, the applicant's case is that the Proposal is consistent and compatible with the surrounding residential land uses.

Issue 1: Whether the geographic location of the Land makes it suitable for temporary accommodation

1. In terms of its geographic location, I find that the Proposal has merit. The Land is located close to a broad range of commercial activities and lies at the edge of the Northbridge entertainment precinct and the Perth CBD. I accept the applicant's submissions that the Land, in terms of its geographic location, is suitable for a use such as temporary accommodation.
2. Indeed, Mr Hockley accepted that the Land, in a geographic sense, was appropriate for the proposed use. This is not a case where it can be said that there is no planning merit in what is proposed. In terms of Policy 7.4.5 the Land is a site which is close to the Perth CBD, public transport attractions and education facilities and as such is well located for a use such as a holiday house.

Issue 2: Whether the Proposal is acceptable in terms of car parking and traffic

1. I attended a site visit with the parties on 13 August 2019. I inspected the Premises and the general locality of Moir Street. On-street parking is available on both sides of Moir Street. Some houses, including the Premises, have an off-street car parking in the front setback.
2. The parking and traffic situation on Moir Street is typical of an inner-city location. That is, available car parking is at a premium. That will remain the case regardless of whether the Proposal is approved or not.
3. Whilst a holiday house is not a residential use, I do not accept that the parking demand generated by such a use will necessarily be more intensive than a residential use. The proximity of the Land to the Perth CBD and a wide range of public transport options tends to ameliorate concerns over car parking.
4. Whilst Mr Hockley considers that three parking bays should be provided based on the number of bedrooms, in the context of the Land, I consider that requirement to be excessive. I consider that the one off-street parking space in the front setback of the Premises is appropriate in this instance.

Issue 3: Whether the Proposal is acceptable from a heritage perspective

1. It is common ground that the Land together with surrounding properties are listed on the State Heritage Register, the City's Heritage List, the City's Municipal Inventory and is included within the Guidelines.
2. As has been explained, the Guidelines outline that the heritage significance of this locality relates to the series of semi­detached and detached residences in the Federation Queen Anne style on Brookman and Moir Streets.
3. The Proposal is an application to change the use of the Land from a residential to a non-residential use. In this instance, I find that the effect of the Proposal, if approved, will be benign from a heritage standpoint. This is because the change in the use of the Land will not impact the heritage streetscape in any tangible manner. There is no aspect of the Proposal that raises an issue from a heritage standpoint.

Issue 4: Whether the Proposal is acceptable from an amenity perspective

1. The respondent's concerns, as outlined in the evidence of Mr Hockley is that the Proposal is contrary to orderly and proper planning particularly in relation to the question of amenity.
2. 'Amenity' is defined in cl 1 of the deemed provisions to mean:

all those factors which combine to form the character of an area and include the present and likely future amenity[.]

1. It follows that the impact of the Proposal on the amenity of the locality is a central consideration and informs (but does not resolve) the question of whether the Proposal is consistent with orderly and proper planning.
2. In Cranston and Shire of Serpentine­Jarrahdale [2019] WASAT 19 I had occasion to observe that 'amenity', like 'development', is one of the 'hardest worked words in planning' citing the decision of the Supreme Court of New South Wales in Ex parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282 at [306] (Street CJ, Maxwell and Herron JJ).
3. The principles that inform the manner in which amenity is evaluated are settled: Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 and Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [21] (Barker P). Those principles require that:
   1. the existing amenity should be established;
   2. the impact of the proposal on that existing amenity be evaluated; and
   3. the degree of impact of the proposal on the amenity to be assessed.
4. Sunbay also confirmed that an evaluation of amenity should take account of future amenity: at [22]. The need to consider future amenity is expressly recognised in the definition of amenity in cl 1 of the deemed provisions.
5. In order to be able to evaluate amenity, the relevant 'locality' needs to be defined. In his written statement, Mr Hockley does not set out what he considers to be the relevant locality for the purposes of assessing amenity. However, when addressing the question of amenity in his statement Mr Hockley focuses on the immediate residential neighbours. Having inspected the Premises and the surrounding area generally, I find that the relevant locality for the purposes of assessing amenity is Moir Street and those lots on the western side of Brookman Street (at the rear of the Premises).
6. It is apparent from the statement of Mr Hockley that he considers that the primary impacts caused by the Proposal will be in the form of adverse noise and possible traffic and parking issues. These impacts inform the question of amenity and therefore I am satisfied that Mr Hockley, as a town planner, is entitled to express opinions on such matters.
7. On the question of noise, Mr Hockley's concerns are that the Proposal represents the introduction of a commercial use into what is a residential context. In short, Mr Hockley's evidence is that the Premises are surrounded by residential land uses and the close urban environment provided by what is a historic subdivision will serve to amplify the noise impacts.
8. The noise issues that arise from temporary occupants staying in residential areas was considered by Senior Member Parry (as he then was) in Hope where he noted (at [48]) that:

It is, therefore, reasonable to expect that visitors and short term occupants of the site would use the outdoor entertaining area more intensively and at more unpredictable hours than if the property were being resided in on a permanent basis, thus resulting in more noise and disturbance to neighbours.

1. I note that a management plan is a mandatory requirement of Policy 7.4.5. The management plan proposed by the applicant will go some way in managing the impacts that arise from the Premises being used for a non-residential use. The fact that there will be noise monitoring and a two-way video intercom (in particular) evince a comprehensive approach to the issue of noise management by the applicant.
2. While there is nothing more that the applicant can reasonably do in order to address noise, the question of noise impacts of the Proposal remain a concern for me. If the Premises are suitable for use as a holiday house, then those who choose to stay should be entitled to use the Premises in an ordinary manner that one may use a holiday house.
3. However, the Land is zoned 'Residential' and is surrounded by single houses. The immediate context of the Proposal is purely residential. The dwellings are semi­detached. It is a close urban environment. I am also required to take account of future amenity. There is nothing in the applicable planning framework that suggests any planned change for the locality the subject of these proceedings. The future planned amenity of the locality is permanent residential.
4. All surrounding properties have outdoor areas in close proximity with each other (although the adjoining property to south appears to have created a south facing courtyard). The result of the Proposal will be a commercial use surrounded by single houses.
5. To me, that raises a question as to whether the Proposal ­ as a commercial use - is acceptable in relation to noise. As I have explained, whilst the management plan proposes an extensive range of controls in relation to noise, I am not satisfied that the Proposal is acceptable from a noise amenity perspective having regard to what is a residential context.
6. In Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR(WA) 65 DK Malcolm QC (as his Honour then was) outlined (at (87)) that:

... In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality ... I use the word 'nuisance' in the sense that the appellant's activities will result in some kind of interference with the ordinary enjoyment of life by the residents[.]

1. I consider that DK Malcolm's comments on amenity are apposite to this case. That is, the noise that is likely to result from the ordinary use of the Premises as a holiday house ­ especially the rear courtyard - is likely to impact or interfere with nearby premises which are all used for permanent residential use. I therefore find that the Proposal is likely to adversely affect the residential amenity of this locality, especially those dwellings which adjoin the Premises.
2. While the applicant 'rejected' this aspect of Mr Hockley's evidence no contrary expert viewpoint was offered. In his evaluation of Mr Hockley's evidence, the applicant 'accepts' there were incidents during the period in which the Premises were used for temporary accommodation in 2018 but highlights that the management plan is proposed to be substantially enhanced to deal with noise.
3. It is also the case that the applicant could have, but did not, call expert evidence to address noise or amenity issues. While the applicant may not agree with Mr Hockley, no contrary evidence was put to explain why Mr Hockley's concerns were ill-founded or misplaced.
4. I accept Mr Hockley's opinion in relation to the impact of noise on the amenity of the locality.

Issue 5: Whether the Proposal is compatible within its context

1. The Land sits within in a residential context. Moir Street and Brookman Street are residential streets characterised by single houses. Whilst the broader context in which these streets sit is not purely residential, the immediate locality presents as something of a preserved residential enclave of heritage dwellings in the Federation Queen Anne style of architecture. Although, as I have explained, in my view, the Proposal does not impact the heritage qualities of this locality.
2. Holiday house is a commercial use and it will change the manner in which the Premises will be used. The Land has an area of 303m2 and the surrounding properties are similarly sized. It is, as I have mentioned, a close urban environment.
3. The use of land for residential purposes is a distinct land use which has inherent qualities. Dwellings (whether they be a single house or a grouped or multiple dwelling) provide places for people to shelter, to retreat, to eat and to gather. While temporary accommodation (such as a holiday house) may be said to also provide these, the intensity of these two land uses is not the same. This is because in the context of a holiday house, the premises are not being occupied as a dwelling but for some other purpose: that other purpose could be as holiday accommodation, or extended work stays or another purpose altogether.
4. Where land is being used for a holiday house the intensity and manner in which the Premises are used are likely to be different to residential land uses. For example, as was noted in Hope, outdoor areas are routinely used more intensively and for longer hours in temporary accommodation than would often be the case for permanent residential use. If the Proposal is approved, the duration for which people would be staying at the Premises would reduce. Each time a booking began and ended people would be entering and leaving the Premises. The regular movement of people into and out of the Premises will have consequential amenity impacts on the surrounding locality.
5. I consider that the introduction of a holiday house use in this locality is not compatible with its immediate residential context. It is also the case that the Land is not distinguishable from any of the surrounding residential properties and therefore there is no planning rationale for why commercial activities should be permitted on the Land.
6. The Land is not at the interface of any change in use or zoning nor can it be said that it is part of a transition area. Whilst the applicant submits that the Land is only 50 metres from an area which is zoned 'Mixed Use' and identified as such in the City's Policy No 7.1.1 being (approximately) one third down the street is not the same as being at the interface.
7. The Land is surrounded by land used for residential purposes. Whilst the broader context indicates a robust and varied and urban environment, the immediate context of Land is purely residential. A non-residential use would not gel easily into this context.
8. I therefore find that the Proposal is not compatible with its residential context.

Issue 6: Whether the Proposal is consistent with orderly and proper planning

1. The term orderly and proper planning is routinely used in land use planning in Western Australia. For example, the term appears in cl 30(1) of the MRS and, more relevantly for the purposes of this proceeding, in cl 67(b) of the deemed provisions.
2. Despite it being a common planning term, Pritchard J (as the President then was) noted that it is a term that has been the subject of little judicial exposition: Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178] (Marshall).
3. Her Honour's analysis on the meaning of orderly and proper planning (which was made in the context of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act) but which is equally applicable to the planning instruments made under the PD Act) bears repeating. Her Honour outlined that the starting point for determining the meaning of the phrase 'orderly and proper planning':
   1. ... is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
   2. The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
   3. However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
   4. While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.

1. I have already set out that Policy 7.4.5 is not a planning instrument that informs or guides the exercise of planning discretion because it says nothing about what criteria should be applied in the planning assessment of where temporary accommodation should be permitted.
2. It therefore cannot be said that the Proposal would be contrary to Policy 7.4.5. However, as stated, the Land is zoned 'Residential' with a coding of R25. At [18] I set out the objectives of the Residential zone in LPS 2. Those objectives include providing for a range of non-residential uses, which are compatible with and complementary to residential development.
3. For the reasons set out above, I consider that the Proposal is not compatible with and nor would it complement residential development. Having regard to Pritchard J's explanation of orderly and proper planning in Marshall and in light of my reasoning above, in this instance, I find that there is no sound basis on which to allow what I have found would be an incompatible use to be permitted in the Residential zone in this locality. This is so even taking account of the location of the Land in relation to Northbridge and the Perth CBD, and the fact that I have found that parking and heritage matters are of no concern in this instance.
4. Whilst it is apparent that non-residential uses can be approved in residential areas, I do not consider that the Proposal is appropriate in this residential context. As I have indicated above, I consider that the Proposal for what is a holiday house would adversely impact the amenity of the immediate (residential) locality.
5. On balance, I therefore consider that the Proposal would be contrary to orderly and proper planning.

1. Included in the s 24 bundle is a table which outlined the various concerns raised in the public submissions. The concerns raised go to questions of traffic and parking, impact on heritage values and amenity as well as the compatibility of the Proposal in its context.
2. On account of my decision to dismiss the application, it is unnecessary for me to outline these submissions in any close detail.

Approvals for temporary accommodation issued on other land within the City

1. The applicant's submissions refer to eight other residential sites where temporary accommodation has been approved by the City. As a very general planning proposition, each parcel of land is different and application for approval turns on its own facts. It is therefore difficult to discern too much from these approvals.
2. However, I will make two observations. The first is that none of these applications were approved by the Tribunal and it is not for me to justify or explain these decisions which were made by the City. The second is that I note that the applicable density coding of these sites are, save for one site, far higher than the R25 coding that applies to the Land. The only other site that has a density coding of less than R50 is 99 Hobart Street, Mount Hawthorn (which is coded R20) which:

1. is a corner lot which fronts Axford Park; 2. is one lot removed from Scarborough Beach Road and a range of commercial and other uses; and

1. adjoins a site zoned 'Mixed Use' (with an applicable density code of R80).

The officers' recommendation of support for the Proposal

1. The applicant, in his submissions, notes (quite reasonably) that the Proposal has twice been supported by the City's professional planning staff.
2. In APP Corporation Pty Ltd and City of Perth [2011] WASAT 132; (2011) 77 SR (WA) 198 the Tribunal at [151] referred to the decision of the former Town Planning Appeal Tribunal in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 (Dalla Riva) where it was stated (at [35] ­ [36]) that:
   1. It is suggested that no weight ought to be attached to the planning officers' recommendations. Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees.
   2. It is accepted, without demur, that of course the decision at all times remains the Respondent's. When, however, the matter is addressed by the Tribunal on appeal there is proper scope to consider the reflective advice provided to the Respondent in the course of its consideration on and deliberations about the relevant application. It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard ought to be had as a matter to be considered in the determination of this appeal. To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal.
3. The analysis in Dalla Riva has been cited in a number of Tribunal decisions such as Aydogan and Town of Cambridge [2006] WASAT 122; Murphy & Anor and Town of Vincent [2006] WASAT 322; (2006) 46 SR (WA) 122; Forsyth and City of Fremantle [2006] WASAT 361; (2006) 48 SR (WA) 86 and Driscoll and Shire of Augusta­Margaret River [2008] WASAT 219.
4. The principle that is said to arise from Dalla River needs to be carefully understood. Dalla River cannot be interpreted as suggesting that the officer's report to the planning authority is to be given weight in the exercise of discretion by the Tribunal. That simply cannot be the case especially where the relevant officer is not called to give evidence.
5. In my view, Dalla River merely stands for the proposition that a review body may consider the reasoning that was applied in the professional report that was presented to the planning authority as an expression of how that planner would exercise the discretion. To me, read in context, Dalla River does not put the matter any higher than that.
6. In this instance, the City officers' planning reports that recommended approval to the Proposal have been overtaken by the evidence provided to the Tribunal by Mr Hockley. Nevertheless, I have read the officers' reports recommending support for the Proposal (and which form part of the s 24 Bundle). In my view these planning reports do not address the question of the amenity impacts of the Proposal in relation to noise in sufficient detail.

1. The various planning considerations set out in cl 67 of the deemed provisions do not serve to displace the discretion that is to be exercised in relation to permissible, discretionary or innominate uses. The term 'due regard' requires only that I give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46] (Martino J). Regardless of my findings in relation to each of these cl 67 matters, I retain a discretion in relation to the ultimate decision I am required to make.
2. In general terms, I find that the Proposal has planning merit. The Land is close to Northbridge, the Perth CBD and is well-located in terms of access to a range of public transport options. Regardless of the concerns expressed in some of the public submissions about temporary accommodation as a land use, we live in an era where such uses (whether it be via Airbnb or another platform) are an attractive proposition to many. Planning law needs to keep pace with the demands of the community which it ultimately serves. Having regard to the broader urban context, the Proposal has merit and warrants support.
3. However, in the end, I am of the view that the Proposal would not be compatible with the immediate residential context which constitutes the relevant locality. The Land sits within, and is surrounded by, land which is used for residential purposes at relatively low density. That makes the Land a very sensitive site in which to locate what is a commercial use. The degree of management of noise proposed, to me, evinces the sensitivity of the Premises for uses other than residential uses.
4. Ultimately, I am not persuaded that the Proposal warrants support having regard to the immediate residential context. Aside from his views on parking and traffic, I generally accept the opinion of Mr Hockley that the Proposal would be contrary to orderly and proper planning and has the potential to adversely affect the amenity of the locality particularly on the issue of noise. The locality is planned to remain residential. No evidence to contradict or displace the opinion of Mr Hockley was offered by the applicant.
5. If the Land was at the interface with a mixed use or commercial area, then my concerns about the impact of temporary accommodation would dissipate to a significant extent. However it is not. The Premises sit as part of two streets which are zoned and used for permanent residential purposes. This is not an appropriate location for the introduction of what is a commercial land use. The correct and preferable decision is to affirm the City's decision.

1. The decision of the City to refuse the Proposal on 2 April 2019 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.