17 As the Shire submits, it follows from these provisions that the member was required to consider the proposed development having regard to the preservation of both the present and likely future amenity of the locality. In particular, the member was required to have regard to the impact of the proposed development upon the likely future amenity of the locality. Clearly, the fact that subdivision approval to create residential lots immediately adjoining the site has been granted is a material consideration in assessing the impact of the proposed development on the likely future amenity of the locality. Moreover, as the Shire submits, the objective of the zone, that the area "be progressively developed for residential purposes", bears upon this consideration. It is apparent from Member Jordan's reasons for decision that he approached the consideration of the impact of the proposed development on the likely future amenity of the locality correctly under the applicable planning instrument.
18 Sunbay Developments seeks to impugn the member's decision in relation to "amenity" on essentially seven bases.
19 First, Sunbay Developments contends that, having correctly determined at [37] of his reasons that the test for impact on amenity is that stated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304, the member "erred in not applying that test (that is, the impact on the existing amenity of the locality) but rather a test based on the perceived impact on the future amenity of the locality".
20 As the Shire correctly submits, the decision of the Town Planning Appeal Tribunal in Tempora v Shire of Kalamunda "simply outlines an approach to considering or assessing amenity" which was formulated in a case "which did not raise the issue of future amenity". In Tempora v Shire of Kalamunda, the Tribunal observed at 304 that "the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality". The Tribunal emphasised that the first part of the inquiry involves a determination, "as a matter of fact, [of] the objective character of the area that represents the present state of amenity".
21 The general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed. However, as the State Administrative Tribunal recognised in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48], "in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often wellplaced to identify the particular qualities and characteristics which contribute to their residential amenity". Thus, the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents.
22 However, the approach in Tempora v Shire of Kalamunda to the consideration of the impact of a proposed development on existing amenity does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity. As the Shire correctly submits, "there is no suggestion in the statutory scheme that the consideration or regard that the Tribunal is required to afford likely future amenity is any less than that afforded to present amenity". Moreover, the member approached the consideration of the impact of the development on likely future amenity in a similar, sensible, objective manner to the approach to the impact on existing amenity in Tempora v Shire of Kalamunda.
23 Second, Sunbay Developments contends that "the Tribunal's consideration of future amenity is limited (notwithstanding the reference to future amenity within the definition of amenity) to an assessment of the general appropriateness of the proposed use or development in terms of potential land use conflict (that is, the extent that land use conflict may prevent the fulfilment of the Outline Development Plan or the future planning intentions for the locality)".
24 However, there does not appear to be any basis for limiting the consideration of the impact of a development on likely future amenity of the locality to general appropriateness in terms of potential land use conflict. Potential land use conflict is a separate matter for consideration in terms of orderly and proper planning.
25 Third, Sunbay Developments contends that, as the Tribunal found that the proposed development is not contrary to the intent of the ODP, it "was not entitled to conclude that the proposed development could not be supported on amenity grounds". This contention involves a challenge to a finding of fact, not a determination of law. In any case, a finding that the development is not contrary to the intent of the ODP, because nonresidential and institutional uses are often found and may be approved within residential areas, does not necessitate a finding that a particular childcare centre proximate to a particular residential use is acceptable where its impacts on the residential use are not able to be appropriately mitigated on site.
26 Fourth, Sunbay Developments submits that, even if the Tribunal was entitled to consider the impact of the development on the likely future amenity of the locality, it was not entitled to focus on discrete landholdings within the locality. Sunbay Developments relies on the statement by Jacobs JA in Focus Video v City of Enfield (1985) 55 LGRA 214 at 220 that "the extent of the relevant 'locality' for planning purposes varies from case to case, but care must be always ... taken not [to] unduly ... restrict the locality, for the tighter the locality [is] defined, the greater [the] impact of the impugned subject matter ... and the greater is the risk of distorting the relevant planning criteria".
27 It is apparent from Member Jordan's reasons that he did not "unduly ... restrict the locality". He recognised that, for the purposes of both present and future amenity impact, the locality comprises not only the approved, adjoining residential lots, but also residences under construction across Hale Road, which he noted is a district distributor road, mostly vacant residential lots adjacent to the site and a commercial and mixed use precinct on the far side of public open space from the site. However, as the member observed at [38], "[t]he areas of concern identified by the parties are the adjacent residential and future residential lots". The member was satisfied, on the evidence, that the existing and future amenity of the adjacent residential lots will be safeguarded by conditions requiring mitigating works and measures within the site. However, as noted earlier, he considered that the proposed development would have an unacceptable noise impact on future residential development on the approved, adjoining lots which he referred to as the "future residential lots".
28 Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
29 Fifth, Sunbay Developments contends that it was not open to the member to conclude that the development would have an unacceptable noise impact, because there was no objection by the present owner of the adjoining lots and the approval of buildings on those lots would involve "building design, siting and scale considerations that will take account of the operation of the proposed development". Sunbay Developments also submits that the development of future residences was an irrelevant consideration given that it "bears the commercial risk that the proposed development will reduce the value of those neighbouring lots once subdivided (that is, the purchasers of that land will factor into the purchase price any perceived reduction in amenity or enjoyment of land)".
30 These contentions lack cogency in three respects. First, the fact that no objection is made by the present owner of a property which is objectively, detrimentally affected by a proposed development, while potentially a relevant consideration, does not obviate planning consideration of the impact and, where appropriate, refusal of an application in consequence of the impact. Planning law "is concerned with the use of land - and not with the identity of the user": per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. The identity of those who undertake development and those who are affected by it are likely to change during the lifetime of a development. The task of a planning consent authority, including the Tribunal on review, is to consider the objective impact of a development on the existing and, where relevant, likely future amenity of the locality, including impact on adjoining or adjacent properties, irrespective of current ownership arrangements.
31 Second, assessment of the impact of a development on the likely future amenity of the locality should not necessarily proceed on the assumption that the development is operating and, therefore, that likely future residences will be designed to take into account the operation of the development. Indeed, under DPS 2, such an approach is not open and would undermine the efficacy of the proper assessment of the proposal. An assessment of the impact of a proposed development on the likely future amenity of the locality involves an objective determination of the likely future amenity, on the assumption that the development does not operate, an objective assessment of the manner in which the development will affect likely future amenity and the degree of impact.
32 Third, the likelihood that, if the development were approved, purchasers of the approved, adjoining lots would take into account in the purchasing decision a perceived reduction in amenity or enjoyment, does not make the development of future residences an irrelevant consideration. This argument proceeds on the same misconception as that addressed in the preceding paragraph, namely, that the operation of the proposed development is an assumed fact in the assessment, whereas the assessment should ordinarily assume that the proposed development does not operate and that the likely future amenity of the locality is not affected by it.
33 In its written submissions in response to the Shire's written submissions, Sunbay Developments seeks to advance two fresh grounds not articulated or referred to in its "Grounds of Appeal" or submissions in chief. Seeking to raise fresh grounds by way of submissions in reply is inappropriate and unfair to the Shire. In any case, both grounds should be rejected.
34 First, Sunbay Developments contends that, on the proper interpretation of cl 5.10.1 of DPS 2, notwithstanding the definition of the term "amenity" which includes "the present and future amenity", the use of the word "preservation" of amenity has the result that "it is only existing amenity that is elevated to the status that requires 'due regard' being given to it for the reason that it is nonsensical to [speak] of preserving the amenity that may or may not ultimately arise in the future".
35 The verb "preserve" is relevantly defined in The Macquarie Dictionary (4th Edition, Macquarie, 2005) as "to ... make lasting", "to keep safe from harm or injury; save" and "maintain". It is not "nonsensical" to make lasting, keep safe from harm or injury or maintain the likely future amenity of a locality. Clause 5.10.1 requires "due regard" to be given to this consideration.
36 Second, Sunbay Developments submits that "the Tribunal in exercising ... overall discretion has placed such weight on the issue of future amenity of the relevant locality and as a consequence has failed to have due regard to the actual merits of the proposal contrary to the general proposition of law in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522". As I noted in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17], "the relative significance or weight be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the [member] to determine for himself, and do not ground any error of law" (citations omitted).
37 It follows that the member's consideration of the impact of the development on amenity did not involve any question of law. The conclusion to which he came on this issue and the significance which he accorded to it in the overall exercise of planning discretion was properly and reasonably open.