Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1 Pt 6 cl 38, Sch 2 cl 67(2)

Planning and Development Act 2005 (WA), s 252(1)

State Administrative Tribunal Act 2004 (WA), s 9b, s 27(2)

Coghlan and Shire of Augusta-Margaret River [2022] WASAT 110

Hope and City of Joondalup [2007] WASAT 8

Kogon and City of Vincent [2019] WASAT 75

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149

1. Mr Ian Maciejewski and his wife Ms Tu Anh Tran (applicants) seek review by the Tribunal under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Belmont (City, Council or respondent) on 13 August 2024 to refuse to grant development approval for the retrospective approval for a holiday house at No 23 (Lot 27) Stanley Street, Belmont (subject land or site) in what the respondent describes as 'the heart of the residential area' of the City.
2. The Tribunal will first describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
3. For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to dismiss the application for review and affirm the decision of the respondent.

1. The subject land is 814m2 in area and is located on the north-eastern side of Stanley Street, mid block between Hardey Road and Keymer Street. There is an existing three bedroom single house with a carport constructed on the subject land. Hardey Road is a bus route with bus stops in either direction located within proximity of Stanley Street. No evidence was adduced as to the frequency or destination of buses on Hardey Street.

Stanley Street is characterised by predominantly single storey single houses with a multiple dwelling development adjacent to the subject land at No. 21 Stanley Road and grouped dwellings at numbers 10, 11, 22 and 26 Stanley Street.

1. The applicants seek approval to use the existing three bedroom 'single house' as a 'Holiday House' for the accommodation of a maximum of six people at any one time. The holiday house use, while included in the definitions within the City of Belmont Local Planning Scheme No. 15 (the Scheme or LPS 15) is not listed in the Land Use Table of the Scheme and as such has been dealt with appropriately by the respondent as a use not listed under the Scheme.
2. The applicants have used the property for the purpose of holiday house since 2022 without approval. The booking of the holiday house has been and is proposed to continue to be via Airbnb and managed by Ms Thi Tram Anh Tran who provided a witness statement for the applicants. Any potential guests undergo a screening process and the applicants have submitted a management plan and house rules that address amongst other things parking, pets and noise associated with the use. The house rules contain specific rules in relation to noise and in particular advise guests that 'Noise complaints will NOT be tolerated and will result in a Breach Notice and booking is terminated' (original emphasis).[1]
3. The Tribunal, the applicants, and the respondent's representative and witness had the benefit of a site view on the day of the hearing. The applicants' witness Ms Thi Tram Anh Tran did not attend the site view or the hearing.
4. At the hearing the parties agreed that the applicants' witness's witness statement only addressed management of the holiday house and that the applicants' Statement of Issues, Facts and Contentions (SIFC) contained the applicants' relevant responses in relation to the issues in this case. The parties agreed that the applicants' responses in their SIFC could be accepted as evidence in that regard, acknowledging that s 9b of the SAT Act lists as one of the main objectives of the Tribunal in dealing with matters under its jurisdiction that it acts with as little formality as possible. The respondent advised that as the applicants were going to give evidence, the respondent would not have any questions for the applicants' witness and it was agreed with consent of the parties that Ms Thi Tram Anh Tran would not be required to appear.
5. Mr Nicholas Reddy, a qualified and experienced town planner and Senior Planning Officer for the City, appeared as witness for the respondent. The applicants did not adduce any expert town planning evidence.

1. There is no dissent, and I find that the locality for the purpose of this application is as described by Mr Reddy in his witness statement and as shown on Attachment 2 of that witness statement being street numbers 11 - 37 inclusive and 8 - 34 inclusive Stanley Street and street numbers 16 - 24 inclusive Durban Street, being those lots potentially impacted by the proposed development.[2]
2. Mr Reddy explained that:[3]

I have defined the locality based on properties I consider likely to be impacted by the proposal. I consider that the primary impacts potentially arising from the proposal relate to amenity impacts such as noise, traffic, parking and access to the property, to the extent the impacts go beyond those normally expected in a residential setting.

1. Schedule 1 of LPS 15 contains a land use definition for 'holiday house' which is defined to mean:

A single dwelling on one lot used to provide short-term accommodation but does not include a bed and breakfast.

1. Further, the General Definitions sections of Schedule 1 of LPS15 define short-term accommodation as:

Temporary accommodation provided either continuously or from time to time with no guest accommodated for periods totalling more than three months in any 12 month period.

1. Although Holiday House is defined in Schedule 2 of LPS15, it is not a use class listed in the Zoning Table (Table 1) of the Scheme.[4] Clause 3.4.2 of LPS15 provides:

3.4.2. If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:

1. determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
2. determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures contained in Clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2; or

1. determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.

1. In this case, the respondent determined that 3.4.2 (b) was applicable and advertised the application prior to determination.
2. The Objectives of the Residential zone in clause 3.2 of LPS15 are:

Residential Zone

The purpose and intent of the Residential Zone is to increase the population base of the City of Belmont by permitting a mix of single housing and other housing types to reflect household composition and thereby increase the resident population.

Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).

1. As a result of amendments to the deemed provisions with respect to short-term rental accommodation in September 2024, they now include definitions for 'hosted short term rental accommodation', 'short-term rental accommodation', 'short term rental arrangement', and 'unhosted short-term rental accommodation', as follows:

hosted short-term rental accommodation means any of the following -

(a) short-term rental accommodation where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the dwelling, resides at the same dwelling during the short-term rental arrangement;

(b) short-term rental accommodation that is an ancillary dwelling where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the other dwelling on the same lot, resides at that other dwelling during the short-term rental arrangement;

(c) short-term rental accommodation that is a dwelling on the same lot as an ancillary dwelling where the owner or occupier, or an agent of the owner or occupier who ordinarily resides at the dwelling, resides at the ancillary dwelling during the short-term rental arrangement ...

...

short-term rental accommodation -

(a) means a dwelling provided, on a commercial basis, for occupation under a short-term rental arrangement; but

(b) does not include a dwelling that is, or is part of, any of the following -

(i) an aged care facility as defined in the Land Tax Assessment Act 2002 section 38A(1);

(iii) a lodging-house as defined in the Health (Miscellaneous Provisions) Act 1911 section 3(1);

(v) a retirement village as defined in the Retirement Villages Act 1992 section 3(1);

short-term rental arrangement means an arrangement under which -

(a) a dwelling, or part of a dwelling, is provided for occupation by a person; and

(b) the person occupies the dwelling, or part of the dwelling, for a period or periods not exceeding a total of 3 months in any 12-month period ...

...

unhosted short-term rental accommodation means short-term rental accommodation that -

(a) is not hosted short-term rental accommodation; and

(b) accommodates a maximum of 12 people per night ... [5]

1. Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The relevant matters in cl 67(2) of the deemed provisions to which the Tribunal is to have due regard in determining this application are as follows:
   • the aims and provisions of LPS15 (subclause (a));
   • the requirements of orderly and proper planning (subclause (b));
   • any approved State planning policy (subclause (c));
   • any local planning policy for the Scheme area (subclause (g));
   • the compatibility of the development with its setting, including -

(i) the compatibility of the development with the desired future character of its setting; and

(ii) the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development (subclause (m));

• the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
• any submissions received on the application (subclause (y)); and
• any other planning consideration the local government considers appropriate (subclause (zb)).

Western Australian Planning Commission Position Statement - Planning for Tourism and Short-term Rental Accommodation

1. In November 2023 the Western Australian Planning Commission (Commission or WAPC) published a Position Statement titled 'Planning for Tourism and Short-term Rental Accommodation' (Position Statement) and the 'Planning for Tourism and Short Term Rental Accommodation Guidelines' (Guidelines).
2. The Policy Intent of the Position Statement is to:[6]

guide the appropriate location and management of tourism and short-term rental accommodation land uses through the planning framework and:

• facilitate acceptable development of new and evolving tourism opportunities;
• provide a high-level of amenity in tourism areas; and
• deliver quality land use planning outcomes.

1. The applicable cl 4 Policy Objectives of the Position Statement in regard to this application include to:[7]
   • Provide a strategic approach to the sustainable development and management of tourism and short-term rental accommodation land uses by ensuring decision-making is guided by a local planning strategy which reflects the demand for local and regional tourism. ...
   • Ensure land use impacts between tourism and short-term rental accommodation activities and other land uses (including residential areas) are appropriately managed.
   • Manage the effects of tourism and short-term rental accommodation on local housing markets, including:
     • Demand for accommodation for tourism industry workers;
     • Impacts on housing supply; and
     • The availability of dwellings for long-term rentals.
2. Section 5 of the Position Statement is titled 'Policy Measures' and states:

Local governments are best placed to plan for tourism and short-term rental accommodation within their communities, with local knowledge of tourism activity, opportunities, constraints, including potential impacts and what requirements should be placed on tourism or short-term rental accommodation proposals.

1. Section 5.1 of the Position Statement is the 'General measures' which include that strategic and statutory planning decisions should:

Promote the location of tourist accommodation in areas with the highest tourism amenity (for example beach access, views, facilities, availability of services) and adequate separation from, or management of, any interface with residential land uses.

1. Section 5.2.2 of the Position Statement with respect to short-term rental accommodation states that:

The success of online booking platforms offering short-term rental accommodation has seen a rapid increase in short-term rentals, with high concentrations occurring in popular tourist locations. Demand can also be high in localities attracting non-tourism related travel, such as medical, education and business travel. In some cases, the rapid growth in the short-term rental market has placed management and compliant stress on local governments and can have a variety of negative flow-on effects.

1. Clause 5.2.2.2 of the Position Statement says in relation to the location of short-term rental accommodation that:

Outside tourism zones, consideration should be given to the appropriate location of short-term rental accommodation, specifically where it should be prioritised to further strategic planning objectives, enhance the tourism experience and avoid adverse impacts on surrounding land uses.

1. Clause 5.2.2.2 also lists considerations that may be relevant to the local government in seeking to guide the location of short-term rental accommodation outside tourism zones, which relevantly include:
   • Provision of, and access to, tourist amenity, proximity to social, cultural and leisure attractions and accessibility to transport routes and public transport services. ...
   • Locations to minimise adverse interface issues, particularly amenity impacts on surrounding residential and other land uses (for example rural).
2. Clause 5.4.2 of the Position Statement states that :

Short-term rental accommodation is considered a distinct land use class to traditional tourist accommodation and is divided into two categories: hosted and unhosted. Local planning schemes can manage the location of unhosted short-term rental accommodation through a combination of zoning and land use permissibility.

Development control measures can be set through local planning schemes and local planning policies to manage size, location, and potential amenity impacts.

1. Section 5.4.2.2 of the Position Statement says in regard to unhosted short-term rental accommodation:

Local government should regulate unhosted short-term rental accommodation through its local planning framework to supplement broader State Government reforms on this matter.

...

Where short-term rental accommodation is occurring as unhosted for more than 90 nights in a 12-month period, the intensity of the use and form of activity changes from a permanent residential dwelling. There is the potential for impacts on the locality, particularly in relation to residential amenity, as well as broader housing supply objectives. Accordingly, use of a dwelling as unhosted short term rental accommodation for longer periods of time is considered a change of use from a residential dwelling.

1. Clause 5.4.2.2 of the Position Statement provides that for 'General Local Planning Considerations':

The regulatory and policy response of the local government toward unhosted short term rental accommodation should be proportional to the significance of the issues arising in a municipality, especially in regional areas.

In determining the appropriate way to further tailor unhosted short-term rental accommodation requirements, the following statutory planning mechanisms can be considered:

...

• Utilising a local planning policy to guide discretionary decision-making, which may include but not be limited to:
  • locational factors which may assist in determining appropriate locations for unhosted forms of short- term rental accommodation within residential areas (refer to the Guidelines for further information);
  • impact on local housing market, where this has been identified as an issue in the local planning strategy;
  • limits to the number of guests and/ or rooms;
  • provision of car parking;
  • minimum stay or booking requirements (e.g. 2 nights);
  • minimum services such as potable water and reticulated sewerage;
  • preparation and approval of a Management Plan;
  • waste management;
  • whether pets of guests (such as dogs) are permitted;
  • managing for potential noise nuisance; and
  • bushfire emergency procedures and options for evacuation.

1. The Position Statement suggests utilising a local planning policy to guide discretionary decision-making with respect to unhosted short-term rental accommodation, including but not limited to 'locational factors which may assist in determining appropriate locations for unhosted forms of short-term rental accommodation within residential areas'.[8]

1. The Guidelines are intended to provide guidance on the implementation of the Position Statement and propose addressing the specific issues faced by local government in relation to short-term rental accommodation (STRA) through local planning scheme provisions and the preparation of local planning policies.

Local Planning Policy No. 19 - Short-term Rental Accommodation (LPP 19)

1. The respondent prepared and adopted LPP 19 in March 2024 in response to the Position Statement and the Guidelines. The objectives of LPP 19 set out in cl 4 are to:

1. Provide guidance and standards for operators seeking to establish and operate STRA. 2. Ensure STRA is appropriate for its location by being located near other short-term accommodation and tourist accommodation uses (such as hotels and motels along Great Eastern Highway) and accessible for visitors by being near high frequency public transport stop.

1. Ensure STRA does not adversely impact on the character and amenity of the surrounding residential area or nearby residents.

1. Safeguard the primary purpose of residential areas in providing residential dwellings which are affordable and available on a long-term basis. 2. Ensure dwellings located within the flexible density coded areas which have been developed above the base density coding are providing long-term and affordable residential accommodation.
2. Clause 8 of LPP 19 contains assessment criteria, and states that STRA will generally only be supported where the listed criteria are met. More specifically with respect to location, clause 8.1 of LPP 19 provides that STRA should be:

Within 400m of a high frequency public transport stop located on Great Eastern Highway and an existing tourist accommodation use (ie, hotel).

1. Clause 8.3 of LPP 19 with respect to amenity provides:

• The City will evaluate the potential amenity impacts of each STRA proposal, considering their individual circumstances and the specific local context.
• STRA proposals that detrimentally impact the surrounding locality's amenity will not be supported.
• The evaluation of a proposal will focus on the inherent suitability of each proposed use, as presented in the application, with specific attention to its details and how it impacts amenity of the locality. Conditions of approval should not be used to support proposals that are inherently unsuitable.
• In reviewing STRA proposals, the City will assess proposed management measures to consider if they are reasonable, enforceable, and effective in maintaining amenity.
• STRA proposals must, at a minimum, demonstrate compliance with the Environmental Protection (Noise) Regulations 1997. However, compliance does not automatically translate into acceptable noise impacts from a planning amenity perspective. The City will consider factors such as arrival times, use of outdoor areas, proximity to adjoining dwellings, and other relevant aspects.

1. The parties agreed that the issues for determination by the Tribunal are:
   1. Whether the proposed development is consistent with the objective of the Residential zone?
   2. Whether the proposed development is consistent with LPP 19, and if not, is there a cogent reason to depart from the policy?
   3. Whether the proposed development would have an unacceptable impact on the amenity of the locality?
   4. Would approval of the proposed development set an undesirable precedent?
2. I will address each issue in turn.

Issue 1 - Whether the proposed development is consistent with the objective of the Residential zone?

1. The objective of the Residential zone is articulated in LPS15 as being to 'increase the population base of the City of Belmont by permitting a mix of single housing and other housing types to reflect household composition and thereby increase the resident population'.[9]
2. It is the applicants' position that the use of the subject land for the purpose of holiday house is a form of residential use and that it therefore meets the objective of the residential zone. They say that the proposed STRA does not conflict with the objectives of the residential zone as 'The short-term rental use does not alter the character or amenity of the area since the property is a standalone house with no shared walls, ample on-site parking, and clear house rules limiting disruptive behaviour'.[10] The applicants contend that while they accept that the locality is a traditional residential area, the presence of flexible density coding of R20/40 allows for a range of residential uses including short term residential accommodation provided it aligns with applicable planning guidelines.
3. It is prudent to consider at this point that the holiday house use is a use not listed in the Land Use Table of the Scheme and therefore permissibility is not attributed and the respondent has asserted that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
4. It is the respondent's position that a holiday house use or STRA does not meet the objectives of the Residential zone as it is not a residential use.
5. The respondent asserts that this position was also held in Kogon and City of Vincent [2019] WASAT 75. In Kogon the application sought to change the use of a three-bedroom single house to a land use the local government described as temporary accommodation but which the Tribunal found should be classified as a holiday house. Similar to this case, the local planning scheme included the land use definition of holiday house from the model provisions and also did not include the use in the zoning table.
6. Also like this application, in Kogon the application for development approval for the holiday house was accompanied by a management plan and the local government had a local planning policy which dealt with short-term rental accommodation. However, in Kogon the Tribunal was critical of the policy being completely silent on which zones or locations may be suitable for short-term accommodation.
7. Senior Member Willey in Kogon, gave a clear indication that locational criteria are important to guide the exercise of discretion for short-term accommodation uses.[11] The Tribunal said also, 'it is important to note that temporary accommodation (such as a holiday house) is a commercial land use, not a residential land use'.[12] Whilst the Tribunal found that in Kogon the proposal did have merit in terms of its geographic location because it was located close to a broad range of commercial activities at the edge of the Northbridge Entertainment Precinct and the Perth CBD, it was not appropriate to introduce a commercial land use into what was otherwise a residential context, and the locality was described in the decision as a close urban environment.
8. The Senior Member said that:
   1. 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.
   2. 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.
   3. 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.

1. 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.'[13] & [14]
2. In this case the respondent has addressed the matter that was of concern to the Tribunal in Kogon, being a lack of locational criteria within the STRA policy. LPP 19 clearly considers the objectives of the policy in cl 4 and sets out locational criteria in cl 8.1 for the areas that are considered appropriate for the location of STRA. It states that:
   1. Policy Objectives

1. Provide guidance and standards for operators seeking to establish and operate STRA.
2. Ensure STRA is appropriate for its location by being located near other short-term accommodation and tourist accommodation uses (such as hotels and motels along Great Eastern Highway) and accessible for visitors by being near high frequency public transport stop.

1. Ensure STRA does not adversely impact on the character and amenity of the surrounding residential area or nearby residents.

1. Safeguard the primary purpose of residential areas in providing residential dwellings which are affordable and available on a long-term basis.
2. Ensure dwellings located within the flexible density coded areas which have been developed above the base density coding are providing long-term and affordable residential accommodation.

STRA and Serviced Apartments will generally only be supported where the following criteria (Section 8.1 to 8.5) are met:

• Within 400 metres of a high frequency public transport stop located on Great Eastern Highway and an existing tourist accommodation use (i.e. hotel).

1. The applicants' position that the holiday house use is a residential use is contrary to the position already stated by the Tribunal in Kogon which finds that a holiday house use is a commercial land use. I find that the use being commercial in nature is not consistent with the objective of the Residential zone to increase the resident population of the City by permitting a mix of single and other housing types as it removes an existing residential dwelling from the residential housing stock.
2. I find that LPP 19 does not completely preclude the use in the City, but rather what it does do is clearly delineate areas adjacent to other tourism uses that may appropriately accommodate STRA including a holiday house in accordance with the assessment criteria set by LPP 19. LPP 19 seeks to safeguard the primary purpose of residential areas in providing residential dwellings in the majority of its residential area for long-term residential use and protect the residential amenity of those residential areas from the impacts of commercial land uses of which holiday houses are one.
3. I therefore find that I am persuaded by the respondent's position that permitting the change of use of permanent residential housing to the commercial land use of holiday house in the Residential zone, outside of the location criteria proposed by LPP 19, decreases the residential housing available for the residential population of the City and is therefore inconsistent with the objectives of the Residential zone.

Issue 2 - Whether the proposed development is consistent with LPP 19, and if not, is there a cogent reason to depart from the policy?

1. The respondent asserts that an objective of LPP 19 is to locate unhosted STRA in or near areas associated with tourism land uses and associated amenity, and away from more traditional residential areas. They say that this reflects the different amenity expectations of residents of traditional residential areas with permanent residents and those of short-term occupants. It is reasonable to conclude that residents that are located in areas which are already impacted by non-residential uses, to varying degrees, particularly in areas adjacent to Great Eastern Highway and in proximity to tourism uses, do not experience amenity consistent with a traditional residential area and may therefore have lower expectations and be more accommodating of the impact of non-residential uses than those living in traditional residential areas.
2. The respondent also asserts that the objective of LPP 19 to protect the supply of long-term housing is consistent with the objective of the Residential zone to increase the population base of the City. In particular, it identifies areas of flexible residential density coding such as the subject land as having the potential to increase the permanent residential population of the City of Belmont.
3. As discussed above, the proposed use is a commercial use and not a residential use that I find in paragraph 49 is inconsistent with the objectives of the Residential zone and I find it is also inconsistent with the objective of the LPP 19 to protect the long-term housing in the City.
4. The applicants contend that the flexible density coding is one of the factors that should be considered in the exercise of discretion to approve the holiday house as they say that the overreaching objective of LPP 19 is to manage the impact of the use, not prohibit unhosted STRA in residential area outright. The applicant asserts that they have provided a robust management plan to ensure compliance and that the respondent's claim that the use is inconsistent with the Residential zone objective is not supported by the flexible density coding and the discretionary nature of short-term rental approval.
5. Whilst the applicants identify the flexible residential coding as a cogent reason to depart from the policy, they do so without any expert planning evidence. Ms Tran however contends that:[15]

the flexible density coding allow[s] for a mix of housing type. It doesn't mean that the owners of the land are forced to develop it. If we do not do the short-term, it doesn't mean that the number of the house will increase in the lot anyway. So the flexible density coding allow for mixed housing type, including short-term accommodation, without compromising long-term planning objective. The proposed use is consistent with the nature of planning approval under the policy, and aligned with contemporary housing and tourism.

1. Mr Reddy says in relation to the flexible coding that:[16]
   1. The properties within the locality are currently zoned Residential with a density code of R20/40. The flexible density code provides an opportunity for the predominantly detached single houses within the locality to be redeveloped at a higher density (R40).
   2. I understand that the existing housing stock may transition to provide Grouped or Multiple dwellings, similar to the development present at 21 Stanley Street. However, this would not change my view that the amenity of the locality will remain residential in nature, consistent with a low to medium density residential area.
2. Mr Reddy says that '[t]he flexible density code provides an opportunity for the predominantly detached single houses within the locality to be replaced at a higher density (R40)' which together with cl 4 (e) of LPP 19 points to the objective of the flexible density coded area being to provide for long term and affordable residential accommodation in the City.
3. Mr Reddy also identifies the objectives of LPP 19 that he considers particularly relevant to the proposed holiday house are cl 4 (b) to (d) inclusive. He says that meeting the assessment criteria under cl 8 of LPP 19 is one way that a proposal can demonstrate that it satisfies the objectives of the policy but where a proposal seeks variation to the assessment criteria as is the situation in this case, consideration must be made as to whether the proposal meets the objectives of LPP 19.
4. It is Mr Reddy's opinion that the locational approach of grouping STRA within proximity of Great Eastern Highway and tourist accommodation, ensuring visitor accessibility through public transport to key destinations like the airport, Perth CBD, Optus Stadium, and the Swan River and mitigating the spread of STRA to address concerns about housing supply and amenity impacts is entirely consistent with Section 5 of the Position Statement. He says in his witness statement at [83] and [84] that:
   1. Properties that are within close proximity to Great Eastern Highway and existing tourist accommodation will generally have a distinctly different amenity to the established residential amenity at the subject site.
   2. Properties within close proximity to Great Eastern Highway and existing tourist accommodation are likely to have an existing amenity that includes commercial activities. This means the expectations of residents are more aligned with the amenity impacts that can occur with short-term accommodation.
5. I find that the respondent has clearly considered the flexible coding in the preparation of the policy and in the identification of areas suitable for STRA and seeks to protect those areas identified for increased permanent residential uses and not already impacted by tourism and other commercial uses. The subject land is located in the area that the respondent seeks to protect for increased permanent residential density. Locating commercial uses in areas where increased permanent residential housing is planned is inconsistent with the planning framework and has the potential to increase the number of permanent residents impacted by the commercial development as density increases.
6. I am persuaded by Mr Reddy's evidence that there is a distinction between the areas identified by LPP 19 as suitable for the holiday house use subject to meeting the assessment criteria identified by LPP 19 and those areas for which the respondent seeks to provide protection of residential amenity through the exclusion of commercial uses such as the proposed holiday house. The area the respondent seeks to protect for long term residential use specifically references those areas with flexible coding.
7. In particular I find that the holiday house use in this location does not meet cl 4 (b), (c), and (d) for the following reasons:

1. The proposed holiday house is not 'located near other short-term accommodation and tourist accommodation uses (such as hotels and motels along Great Eastern Highway) and accessible for visitors by being near high frequency public transport stop'.[17] It also does not meet cl 8.1 which requires it to be '(w)ithin 400 metres of a high frequency public transport stop located on Great Eastern Highway and an existing tourist accommodation use (i.e. hotel)'. Mr Reddy contends, the applicants do not dispute and I find that the subject site is located 795 metres from the closest hotel on Great Eastern Highway, the Ingot Hotel.[18] There was also no evidence adduced that the subject land is within 400 metres of a high frequency bus route.
2. I therefore find that the proposed holiday house does not meet LPP 19 cl 4(b).

1. This objective seeks to 'Ensure STRA does not adversely impact on the character and amenity of the surrounding residential area or nearby residents.'
2. While it is the applicants' position that the management plan ameliorates any impact of the holiday house use on the amenity of the surrounding residential area, as I have stated in paragraph 44 above the Tribunal has previously determined that STRA is a commercial use and that despite management plans, the commercial use will have more intensive activity and thus a different impact on residential amenity to a single dwelling, resulting in an adverse impact on the amenity of the surrounding residential area and nearby residents.
3. Mr Reddy submits that he has considered the applicants' management plan in terms of its ability to mitigate the potential impacts of the holiday house use on the amenity of the locality and he is of the view that the management plan will not effectively mitigate the potential impacts of the commercial use to a point where it is not likely to have an adverse impact on the ordinary enjoyment by residents of the residential amenity of the locality. For that reason he says, the proposal does not meet cl 4(c) of LPP 19.
4. I am persuaded by Mr Reddy's evidence and find that the holiday house use on the subject land does not meet LPP 19 cl 4(c) for these reasons.

1. Clause 4(d) seeks to safeguard the primary purpose of residential areas in providing residential dwellings that are affordable and available on a long-term basis. Mr Reddy refers to the explanation of this objective in the respondent's report on the adoption of the LPP 19:

The City has observed a rise in STRA applications within residential areas. This trend highlights issues such as:

• The erosion of long-term housing stock and dwellings within the rental market, particularly at a time when listings and vacancy rates at are at historic lows (0.2%).
• Housing affordability via reduction in long-term housing stock, which can lead to increased rental prices due to the decreased supply. Furthermore, investors may be willing to pay a premium for properties that can generate higher rental income through STRA compared to traditional long-term rentals.
• Undermining intended residential density outcomes by residential development being converted to STRA.
• Land use conflict between residential and commercial uses. The State Administrative Tribunal (SAT) has established that STRA is a commercial use.
• Lack of tourist amenities and public transport accessibility in residential locations.
• A disconnect between STRA and the traditional tourist accommodation, which is predominantly located along Great Eastern Highway.

Considering the above observations, it is evident that while Belmont does not face a shortage of traditional tourist accommodation, there is a need to protect long-term housing outcomes. In light of this, it is crucial for the City to carefully manage the impact of STRA. This involves striking a balance between promoting tourism, ensuring the availability of affordable, long-term housing, and preserving the residential character and overall amenity of Belmont.[19]

1. Mr Reddy also points to the analysis of tourism accommodation along Great Eastern Highway which revealed that there is a supply of approximately 1400 rooms which was then cross-referenced with Tourism WA occupancy rates for the City indicating an ample supply of tourist accommodation exists in the City.[20] He says the Objective of LPP 19 is aligned with the objective of the Residential zone, and that protecting long term residential accommodation is a relevant planning matter for consideration in this case and the proposal is contrary to that objective. I am persuaded that the holiday house does not meet objective 4(d).
2. On the basis of the evidence before me, I find that the proposal is inconsistent with the provisions of LPP 19, and there is no cogent reason to depart from this contemporary policy that aligns with the WAPC's Position Statement and Guidelines in this case.

Issue 3 - Whether the proposed development would have an unacceptable impact on the amenity of the locality?

1. It is the respondent's position that the holiday house on the subject land has an unacceptable impact on the amenity of the locality due to it being a commercial use in what it refers to as the residential heartland of the City. The respondent referred the Tribunal to Hope and City of Joondalup [2007] WASAT 8 (Hope), which was not a holiday house but another form of STRA, where the Tribunal addressed the question of noise generated by temporary occupants staying in residential areas and recognised that it is reasonable to expect that short term occupants of the site would use outdoor entertainment areas more intensively and at more unpredictable hours than if the property was resided in on a more permanent basis, thus resulting in more noise and disturbance to adjoining residential neighbours.[21]
2. The respondent in LPP 19 has identified suitable areas for STRA as those that already experience somewhat compromised residential amenity by virtue of their location in proximity to other non-residential and tourist uses within 400 metres of Great Eastern Highway. The subject land is not located within one of those areas but rather is located within the area contemplated for solely residential use and therefore creating an expectation by residents of optimised residential amenity not impacted by non-residential uses, such as a holiday house.
3. Clause 1 of Sch 2 of the deemed provisions defines 'Amenity' as 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. Clause 67(2) of the deemed provisions specifically indicates that amenity of the locality, including the character of the locality, is one of the matters to which due regard is to be given in the consideration of an application for development approval. The principles that inform the manner in which amenity is considered are established[22] and the Tribunal considers these principles in the review of this case.
4. The applicants dispute the claim that STRA inherently creates issues and asserts that the use will not have an adverse impact on the amenity of the surrounding residential area. They say that '[t]he management plan in place mitigates potential concerns, ensuring responsible and regulated use of the property',[23] that seeks to limit disturbance by way of hours of arrival, minimum five nights stay and noise monitoring which triggers a response by the property manager and can lead to termination of the stay of the patron. The applicants did not adduce expert evidence to support their views on impact on residential amenity.
5. On the basis of the evidence before me, I find that the holiday house use will have an unacceptable adverse impact on the existing amenity of the locality, by formalising an existing unapproved commercial use that does not reflect the low intensity of use of a standard single dwelling. Despite what might be the best intentions of the applicant to limit the impact through the management plan, as found in Kogon the nature of the holiday house use results in a higher intensity of use and therefore greater adverse impact on residential amenity than a permanent residential use.
6. I find that the cumulative impact of this and other holiday houses that may be approved as a result of the approval of this holiday house if it was approved and its approval was considered to set a precedent, will likely have a significant adverse impact on the residential amenity that should otherwise be expected by inhabitants of the locality. I will discuss the issue of undesirable precedent next.

Issue 4 - Would approval of the proposed development set an undesirable precedent?

1. For precedent to be a relevant factor, both tests as set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [74] must be satisfied:

(1) That the proposed development or subdivision is not in itself unobjectionable; and

(2) That there is more than a mere chance or possibility that there may be later undistinguishable applications.

1. In this case for the reasons discussed earlier in this decision, the proposed use is not of itself unobjectionable.
2. The respondent contends that the approval of the holiday house on the subject land would set an adverse planning precedent for other similar developments that do not meet the locational criteria of LPP 19 and that don't meet the objectives of the Residential zone under LPS 15.
3. The potential for the approval of this application to be an undesirable precedent is of great concern to the City, the evidence from the background report to LPP 19 is that there are, or at least there were, a large number of unapproved STRA activities in the Residential zone and Mr Reddy contends that in his opinion 'there is more than a mere chance or possibility of later undistinguishable applications'.[24]
4. Mr Reddy says that he came to this conclusion as there are a significant number of properties in the City that like the subject land, are zoned Residential and not located within close proximity to Great Eastern Highway; as an officer at the City, he has assessed many development applications seeking a change of use to operate a holiday house in an existing single house in the Residential zone; and, he has not identified anything in regard to the proposed development which provides for a unique or exceptional circumstance to distinguish this proposal from other sites of applications seeking to operate STRA.
5. The respondent contends that the consequence of an approval in this case is that it would be very difficult for the City to refuse other STRA uses within residential areas, and in particular the many other unapproved STRA that the City is attempting to address through the policy provisions of LPP 19.
6. The applicants' response to the question of setting of an undesirable precedent was to argue that 'the use of this property as a holiday house will not set [an undesirable] precedent, but instead establish a benchmark for similar application[s]. So the revised management plan, with its emphasis on the robust control and community integration and proactive management, should provide sufficient ground to dispute the council refusal.'[25]
7. The respondent refers the Tribunal to the decision of Coghlan and Shire of Augusta-Margaret River [2022] WASAT 110 (Coughlan) which was also an application for a holiday house in a residential area where the local government had a Local Planning Policy which included a permitted location for holiday house developments and the proposal was outside that permitted location.
8. In that case, the Tribunal found that the nature of the proposed use and the pattern of habitation that results from STRA increases the potential for conflict between the residential and tourism uses. The Tribunal found that the proposal would undermine the objectives of the Residential zone, though those objectives are not the same as in this case. The Tribunal did however accept that the higher rental numbers may have a negative effect on supply and affordability of housing contrary to the policy objectives. The Tribunal also concluded in Coughlan that the development is likely to set an undesirable precedent.
9. The contemplation of the second criteria, necessarily requires consideration of whether there are any sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics.
10. I accept the evidence of Mr Reddy that there are a significant number of single dwellings in the Residential zone of the City, outside of the areas where STRA may be considered acceptable under LPP 19, that may be indistinguishable from the subject land for the purposes of assessment under LPP 19.
11. I therefore find that while each planning application is to be assessed on its own merits, if the proposed holiday house in this case was to be approved it is likely to set a precedent for the approval of similar applications.
12. I find that similar to Coughlan, the cumulative impact of the approval of STRA in the Residential zone would have the impact of undermining the objectives of the Residential zone under LPS 15 and objectives of LPP 19.
13. I find that both the criteria of Nicholls are satisfied in this case. In the consideration of undesirable or adverse planning precedent of this case, refusal of this application is warranted.

1. The consideration of whether the proposed development is consistent with orderly and proper planning arises under cl 67(2)(b) of the deemed provisions.
2. In Marshall at [179] - [182], Pritchard J considered the meaning of the expression 'orderly and proper planning' and emphasised that an assessment as to whether a proposed development is consistent with orderly and proper planning requires an objective, disciplined, methodical, logical and systematic approach.[26]
3. Pritchard J in Marshall at [180] acknowledges that:

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'.

1. The evidence adduced in this matter has not in my view established that the proposed development constitutes 'a legitimate aspiration of the planning framework'.[27]
2. I find that in consideration of the substantive merits of the application and for the reasons expressed above, there is no sound basis to depart from the planning principles expressed in the planning framework. I therefore conclude that the proposed development is not consistent with orderly and proper planning.

1. The purpose of the review in accordance with s 27(2) of the SAT Act is 'to produce the correct and preferable decision at the time of the decision upon the review'. The function of the Tribunal in regard to this matter is to consider the evidence before it and to form its own view as to whether the proposed development application for a holiday house on the subject land demonstrates compliance with the planning framework having consideration of the matters it is required to consider under cl 67(2) of the deemed provisions.
2. For all the reasons above, the Tribunal concludes that the correct and preferable decision in the circumstances of this case, is that the proposed development warrants refusal in the exercise of discretion and as such, the application for review is dismissed and the decision of the respondent dated 13 August 2024 is affirmed.

1. The decision of the Respondent is affirmed.
2. The application for review is dismissed.

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

[1] Respondent's s 24 Bundle of documents dated and filed 9 December 2024 Page 12 - Item 10 Noise Control.

[2] Witness Statement of Mr Nicholas Reddy dated and filed 25 February 2025, Attachment 2 and at [19].

[3] Witness Statement of Mr Nicholas Reddy dated and filed 25 February 2025, [19].

[4] Schedule 2, Planning and Development (Local Planning Schemes) Regulations 2015.

[5] Deemed provisions Sch 1 Part 6 cl 38.

[6] Respondent's s24 bundle of documents dated 9 January 2025 (Exhibit 3, Tab 11) Position Statement: Planning for Tourism and Short-term Rental Accommodation WAPC, November 2024 page 1 cl 1.

[7] Respondent's s24 bundle of documents dated 9 January 2025 (Exhibit 3, Tab 11) Position Statement: Planning for Tourism and Short-term Rental Accommodation WAPC, November 2024 page 2 cl 4.

[8]Respondent's s24 bundle of documents dated 9 January 2025 (Exhibit 3, Tab 11) Position Statement page 7 first dot point.

[9] Respondent's s24 bundle of documents dated 9 January 2025 (Exhibit 3, Tab 13) LPS15 cl 3.2 - Objectives of the zones.

[10] Applicant's Statement of Issus, Facts and Contentions (Applicant's SIFC) dated and filed 16 February 2025 response to par 6 of Respondent's SIFC.

[13] Kogon at [123] - [125] & [127].

[16] Witness Statement of Mr Nicholas Reddy dated and filed 25 February 2025 par 61 - 62.

[18] Witness Statement of Mr Nicholas Reddy dated and filed 25 February 2025, Second plan of Attachment 2.

[19] Witness Statement of Mr Nicholas Reddy filed and dated 25 February 2025, Attachment 5 page 600.

[20] Witness Statement of Mr Nicholas Reddy filed and dated 25 February 2025 par 96.

[22] Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 [38].

[23] Applicant's SIFC filed and dated 16 February 2025, page 2 - response to Respondent's SIFC par 4.

[24] Witness Statement of Mr Nicholas Reddy filed and dated 25 February 2025 at [105].

[26] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226.