JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL 

STREAM	:	DEVELOPMENT & RESOURCES 

ACT	:	PLANNING AND DEVELOPMENT ACT 2005 (WA) 

CITATION	:	HOPE and CITY OF JOONDALUP [2007] WASAT 8 

MEMBER	:	MR D R PARRY (SENIOR MEMBER) 

HEARD	:	21 DECEMBER 2006 

DELIVERED	:	15 JANUARY 2007 

FILE NO/S	:	DR 307 of 2006 

BETWEEN	:	KAREN HOPE
Applicant
 
AND
 
CITY OF JOONDALUP
Respondent 

Catchwords:
Town planning - Development application - Change of use from single house to short stay accommodation - Accommodation for a single family with up to eight members for seven to 60 days - Low density residential area - Unlisted use - Whether proposed use is consistent with the objectives and purposes of the zone - Whether use is residential development - Meaning of "residential development" - Orderly and proper planning - Preservation of amenity of locality - Social impact - Social cohesion - Noise - Adverse planning precedent 
Legislation:
City of Joondalup District Planning Scheme No 2, cl 1.9.1, cl 1.9.3, cl 3.3, cl 3.4, cl 6.8, cl 6.8.1, Sch 1
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002) 
Result:
Application for review dismissed
Decision of respondent to refuse development approval affirmed 
Category:    A 

Representation:
Counsel:
Applicant	:	Mr I Rogers
Respondent	:	Mr LA Tsaknis 
Solicitors:
Applicant	:	Hardy Bowen
Respondent	:	Woodhouse Legal 

Case(s) referred to in decision(s):

Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269
Goldin v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40
The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:  
Summary of Tribunal's decision
1		A property owner sought development approval for a change of use in a low density residential area from single house to short stay accommodation for families of up to eight members for periods of seven to 60 days.
2		The Tribunal determined that the proposed use is not relevantly residential development, as it does not involve human habitation on a permanent basis.  The proposed use is, therefore, not consistent with the objectives and purposes of the subject residential zone, with the consequence that it is not permitted.
3		The Tribunal also determined that, if the proposed use were capable of approval, the application would warrant refusal in the exercise of discretion, because of its likely adverse impacts in terms of social cohesion and noise and because it would set an adverse planning precedent in the circumstances.
4		The application for review was dismissed and the decision to refuse development approval was affirmed.
Introduction
5		These proceedings involve an application brought by Ms Karen Hope, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Joondalup (City or Council) to refuse a development application for a change of use of Ms Hope's property at No 17 (Lot 102) Foston Drive, Duncraig (site) from single house to short stay accommodation (DA).  The site comprises a single storey house containing four bedrooms, games room, family/meals/kitchen and lounge/dining room, carport, swimming pool and garage/outbuilding.  The site has an area of 771 square metres and is zoned "Residential" under the City of Joondalup District Planning Scheme No 2 (DPS 2 or Scheme) with a residential density coding of "R20".
6		The site is located in a low density residential area comprising similarly sized and developed allotments.  The predominant land use in the locality of the site is single houses.  A school is located approximately 500 metres away.  The nearest commercial centre is located approximately 1 kilometre away.
7		Ms Hope described the proposed development as follows:
"It is my proposal to use the [site] as short stay accommodation ('the Proposed Use'), being the letting of the [site] to residential tenants for periods of short duration:
(a)	specifically and primarily to new migrant families arriving in Perth from overseas, particularly the United Kingdom and South Africa;
(b)	to overseas visitors;
(c)	to interstate families on holiday; and
(d)	to families relocating interstate,
seeking a form of accommodation that is:
(i)	less expensive and more personal than traditional holiday, resort or B&B accommodation available within the City of Joondalup;
(ii)	available for the exclusive use of those families;
(iii)	close to local facilities and amenities within the City of Joondalup; and
(iv)	amenable to promoting the integration of those families into Perth society and their local community, especially in relation to new migrant or relocating families."
8		For reasons set out below, Ms Hope's description of the people who would be accommodated as part of the proposed use as "residential tenants" is incorrect.  The correct description of the people who are proposed to be accommodated at the site is visitors or temporary occupants.
9		Ms Hope also provided the following details of the proposed use:
"(a)	it involves the exclusive use of the whole [site];
(b)	the maximum number of permitted visitors will be 8 persons per booking and there will be no unrelated visitors (ie visitors must be a family) staying at or sharing the [site], as only 1 booking will be in place at any one time;
(c)	permitted visitors will stay in the [site] for a minimum of 7 seven days and a maximum of 60 days;
(d)	visitors must agree to my management terms, which prescribe:
(A)	the maximum number of permitted visitors being 8 per booking;
(B)	parties and functions are not permitted;
(C)	smoking is not permitted inside the [building on the site];
(D)	vehicles shall be parked within the garage and driveway of the [site] only and not on the verge or road pavement;
(E)	the privacy, security and amenity of neighbours will be respected;
(F)	activities that have the potential to adversely affect the residential amenity of the area will not be undertaken;
(G)	all rubbish will be collected and the [site] kept in a clean and tidy manner and maintained to a standard reflective of the surrounding dwellings; and
(H)	any breach of the terms or excessive noise disturbance to neighbours may result in the termination of their stay and the loss of their bond."
10		There is no on site, resident manager proposed within the development.  Rather, Ms Hope, who lives 8 kilometres away and is self­employed, would come to the site as and when required.  Ms Hope gave evidence that she will exercise personal management and control over the site, "as it is in my best interests to do so to ensure that the residential amenity is maintained to a high standard and that neighbours in the vicinity are not adversely affected".  Ms Hope indicated that she has provided and will continue to provide all neighbours with her landline and mobile telephone numbers for them to contact her at any time during the day or night should there be disturbances at the site which affect them.
11		Ms Hope has identified what her counsel, Mr Ian Rogers, described as "a niche within the letting market in Perth in relation to new migrant families arriving in Perth especially from the UK and South Africa".  Ms Hope, a former migrant from the UK herself, gave evidence from her experience that:
"Immigrating to a foreign country can be a daunting experience.  Some families visit prior to permanent arrival to investigate and establish their initial arrangements; other families depend on coordinating these aspects on arrival.  Many families need to have at least some accommodation organised before they arrive to give them some stability, especially those with young children …
Immigrant families essentially want to establish their new life as quickly as possible, ideally in a residential area rather than staying in conventional holiday, resort or B&B accommodation …
Typically, new families will require furnished accommodation for a few weeks whilst they organise schools, secure work and decide where they ultimately prefer to live …
My Property aims to offer fully furnished, high quality, affordable and exclusive use accommodation to families in a family residential neighbourhood.
Having migrated from the UK, I can understand the apprehension and anxiety experienced by new arrivals and consequently part of the ethos behind my Proposed Use is to provide more than just the accommodation alone.  I meet the migrant families at the Perth international or domestic airport, supply groceries on their arrival, arrange car hire and generally welcome and settle them into their new surroundings.  I also provide initial advice and suggestions should they require help in adapting to general daily life in Perth and Australia."
12		Although Ms Hope proposes to primarily market accommodation at the site to immigrant families from the UK and South Africa, as noted earlier, the proposed use would also provide short stay accommodation to overseas visitors, interstate families on holiday and families relocating from interstate.
13		The DA was advertised for public comment for a period of 21 days.  Letters were sent to eight adjoining and nearby landowners, a sign was placed on the site and an advertisement was placed in a local newspaper.  Five written objections were received, including a petition with 10 signatures.  One of the objectors, Ms Simone Williams, who resides with her husband and three young children in an adjoining property, gave evidence in the Council's case.
14		The DA was recommended for refusal by Council's assessing officer.  On 19 September 2006, the City resolved as follows:
"1.	Determines under Clause 3.3 of [DPS 2] that:
(a)	Short Stay Accommodation is deemed to be an unlisted use; and
(b)	the proposed use does not meet the objectives and purposes of the Residential Zone, and therefore, is not a permitted land use.
2.	Subject to Part 1 above, REFUSES the application for planning approval received on 26 April 2006, submitted by Karen Hope for the proposed change of land use from a Single House to an unlisted land use on Lot 102 (17) Foston Drive Duncraig as:
(a)	the proposed unlisted use is not a permitted land use under Clause 3.3(c) of [DPS 2] as the proposed use is not consistent with the purpose and objectives of the Residential Zone;
(b)	having regard to the orderly and proper planning of the locality, the proposed unlisted use is considered inappropriate having regard to the proposed use and its location within a single residential area.
3.	Advises the submitters of its decision."

Issues
15		The following three issues arise for determination in the review:
1)	Is the proposed use consistent with the objectives and purposes of the Residential zone?
2)	Is the proposed use contrary to orderly and proper planning and the preservation of the amenity of the locality in consequence of its likely impacts in terms of social cohesion and noise?
3)	Would approval of the proposed use set an adverse planning precedent?
The Tribunal will address these issues in turn.
Is the proposed use consistent with the objectives and purposes of the zone?
16		It is common ground that the proposed short stay accommodation use is a so­called "unlisted use" for the purposes of the Scheme, because it is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use categories referred to in DPS 2.  Clause 3.3 of the Scheme, which is entitled "Unlisted uses", provides as follows:
"If the use of the land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
(a)	determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b)	determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the procedures set down for an 'A' use in Clause 6.6.3 in considering an application for planning approval; or
(c)	determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted."   
17		The objectives and purposes of the Residential zone are set out in cl 3.4 of the Scheme, which states as follows:
"The Residential Zone is intended primarily for residential development in an environment where high standards of amenity and safety predominate to ensure the health and welfare of the population.
Residential development is provided for at a range of densities with a variety of housing to meet the needs of different household types.  This is done through application of the Residential Planning Codes (R Codes), and the allocation of a residential density code to an area of land.
Cultural and recreational development may be located where the Council considers the same to be appropriate in residential neighbourhoods within the Residential Zone.
The objectives of the Residential Zone are to:
(a)	maintain the predominantly single residential character and amenity of established residential areas;
(b)	provide the opportunity for grouped and multiple dwellings in selected locations so that there is choice in the type of housing available within the City; and
(c)	provide the opportunity for aged persons housing in most residential areas in recognition of an increasing percentage of aged residents within the City."
18		Ms Hope contends that the proposed use is consistent with these objectives and purposes, and is therefore permitted under cl 3.3(a) of the Scheme.  In contrast, the City contends that the proposed use is not consistent with these objectives and purposes, and is therefore not permitted under cl 3.3(c).  For the reasons which follow, the Tribunal accepts the City's contention.
19		The expression "residential development", which is used in each of the first two paragraphs of cl 3.4 of the Scheme, is not defined in the Scheme or in the Residential Design Codes of Western Australia (2002) (Codes).  Clause 1.9.3 of the Scheme provides that words and expressions used in the Scheme, but not defined in Sch 1, elsewhere in the Scheme or in the Codes, shall have their normal and common meanings.  The adjective "residential" is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 1024 as "of or relating to residence or residences".  The noun "residence" is relevantly defined as "the place, especially the house, in which one resides; dwelling place; dwelling".  The verb "reside" is relevantly defined as "to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill. – phrase".  The noun "abode" is relevantly defined at page 3 as "a dwelling place; a habitation".  The words "dwelling place" and "habitation" are defined at page 445 and page 639, respectively, as "a place of residence or abode" and "a place of abode; dwelling".  The normal and common meaning of "residential development" is, therefore, development in which people dwell permanently or for a considerable time, or where people have their abode for a time.  Similarly, in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269, the Victorian Supreme Court, having referred to the dictionary definition of "residential" in the Oxford English Dictionary, concluded that:
"the phrase 'residential building' must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode."
20		Having set out this quotation from Derring Lane Pty Ltd v Port Philip City Council (No 2), the State Administrative Tribunal determined in The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 at [23] as follows:
"Similarly, in this instance 'residential' must be taken to mean the use of a building for one's usual place of abode on a permanent basis or for a considerable time."
21		However, the context in which the expression "residential development" appears in cl 3.4 of the Scheme emphasises that the expression relevantly involves permanent accommodation, rather than accommodation for a considerable time or an abode for a time.  The second paragraph of cl 3.4 states that "[r]esidential development is provided for at a range of densities" through the application of residential density codings under the Codes.  The objectives refer only to residential development in the form of single residential development, grouped and multiple dwellings and aged persons housing.  Under cl 1.9.1 and Sch 1 of the Scheme, the terms "aged or dependent person", "grouped dwelling" and "multiple dwelling" have the same meaning as set out in the Codes.  Table 1 of the Codes, which identifies the residential density codings, refers to only three types of residential development, namely, single house, grouped dwelling and multiple dwelling.  The definition of each of these terms in cl 2.2 of the Codes is posited on the development involving a "dwelling", which is defined as follows:
"a building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."  (Emphasis added.)
22		Similarly, cl 4.1.2 of the Codes, which concerns aged persons' housing, is posited on the housing involving a "dwelling". 
23		The short stay accommodation use proposed in the DA does not constitute "residential development" within the meaning of cl 3.4 of the Scheme.  Of its nature, short stay accommodation use for periods of seven to 60 days does not involve permanent accommodation.  Although the context indicates that "residential development" relevantly requires human habitation on a permanent basis, the proposed use would also not satisfy the ordinary, alternative meanings of residential development involving accommodation for a considerable time or an abode for a time.  Accommodation for a period of between seven and 60 days is not for a considerable time and involves a visit or temporary occupation, not residence, and is therefore not an abode.
24		Furthermore, although par 1 of cl 3.4 contemplates that other development may be possible in the zone, because it states that the zone "is intended primarily for residential development" (emphasis added), it is apparent from par 3 of the clause that the other types of development contemplated by the objectives and purposes of the zone are cultural and recreational development in appropriate locations.
25		A possible argument which could have been advanced by Ms Hope, but was not, is that the proposed use may be consistent with the objectives and purposes of the zone, because it is similar to a land use to which the Council may grant its approval under the zoning table for the Residential zone.  In particular, one of the land uses to which the Council may grant its approval in the zone is "residential building" which is defined as:
"A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
•	temporarily by two or more persons; or
•	permanently by seven or more persons,
who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school." (Emphasis added.)
26		If a proposed use may be consistent with the objectives and purposes of the zone, then the Council may exercise discretion and grant planning approval under cl 3.3(b).  However, as this argument was not advanced, and was not therefore responded to, the Tribunal does not express any conclusions in relation to it.  In any case, for reasons discussed in relation to the remaining uses, if the Council may exercise discretion and grant planning approval under cl 3.3(b), the Tribunal considers that the DA should be refused in the exercise of discretion.
27		Ms Hope advances essentially four arguments in support of her contention that the proposed use is consistent with the objectives and purposes of the zone.
28		First, Ms Hope submits that:
"the Proposed Use in no way changes the single residential character of the property or the immediate locality.  The Proposed Use amounts to a short term let of the Property to residential tenants for residential use.  The Property will remain and will be used as a dwelling as defined under the Residential Design Codes.  For this reason alone my application should be approved as, in my opinion, this land use is a permitted use under the City's planning scheme and in refusing my application the City has in effect acted beyond the authority conferred under its planning scheme."
29		However, as discussed earlier, the proposed use does not involve a single house, as it does not involve a "dwelling", which requires use for the purpose of human habitation on a permanent basis.  Occupation for a period of seven to 60 days does not constitute "residential use" and the occupants cannot reasonably be described as "residential tenants".  Development includes both the physical alteration of land and the use of land: University of Western Australia v City of Subiaco (1980) 52 LGRA 360.  Although the proposed use would take place within a physical structure, which would satisfy the definition of "dwelling" under the Codes ("[a] building … designed or intended to be used for the purpose of human habitation on a permanent basis … "), and hence, of "single house" ("[a] dwelling standing wholly on its own green title or survey-strata lot … "), the use itself would not satisfy the definition of "dwelling", and hence, of "single house", because it does not involve use "for the purpose of human habitation on a permanent basis … ".
30		Second, Ms Hope submits that the residential tenancies legislation does not impose a minimum period for the letting of residential property.  Ms Hope contends that although it is usual for leases to be for terms of between six to 12 months, it is also common for leases to be for a term of three months.  However, as Mr LA Tsaknis, counsel for the City, submits, the residential tenancies legislation does not create a land use right for the purposes of planning law.  Furthermore, although it is debatable whether occupation of a property under a three month lease involves human habitation on a permanent basis, it is plain that occupation for a period of between seven and 60 days does not involve human habitation on a permanent basis or residential development, but rather involves a visit or temporary occupation.
31		Third, Ms Hope submits that the proposal is "residential development", because for immigrant families, the site would be their primary place of residence while they remain there.  However, the fact that an immigrant family does not have a dwelling place or abode elsewhere does not mean that they relevantly reside at the site with the consequence that the proposed use involves residential development.  It is conceivable that, during the process of immigration, an immigrant family does not dwell permanently or for a considerable time or have an abode for a time anywhere; during this period they would stay or temporarily occupy the building on the site.  Furthermore, as noted earlier, the proposed development would not be restricted to immigrant families, but would also include overseas visitors and interstate families on holiday, who would maintain their place of residence elsewhere.
32		Finally, Ms Hope submits that residential development cannot require human habitation on a permanent basis, because a person renting a property, whether for three, six or 12 months, does not use the property on a permanent basis.  However, the fact that occupation of a property is limited to a fixed term does not mean that the property is not used by the occupant on a permanent basis.  Although it is a question of fact and degree as to what period of intended occupation satisfies a permanent basis, there can be little doubt that a property let for human habitation for six or 12 months would be used on a permanent basis.
33		As the proposed short stay accommodation use does not involve residential development or any other development contemplated by the objectives and purposes of the Residential zone, it is not consistent with the objectives and purposes and is, therefore, not permitted.  The application for review must be dismissed and the decision of the City to refuse development approval affirmed.
Is the proposed use contrary to orderly and proper planning and preservation of amenity?
34		In light of the Tribunal's finding in relation to the first issue, the second and third issues do not strictly arise for determination.  As the proposed development is not permitted, it is not capable of a merit assessment.  However, as considerable evidence and submission was directed to these issues, and in light of the Tribunal's observations at [25] ­ [26] in relation to a possible argument which was not advanced by Ms Hope, the Tribunal will address them.
35		The Tribunal considers that, if the proposed use were capable of approval under cl 3.3 of the Scheme, the development application would warrant refusal in the exercise of planning discretion under cl 6.8.  Among other considerations, cl 6.8.1 requires the Council (and the Tribunal on review) to have regard to "interests of orderly and proper planning and the preservation of the amenity of the relevant locality".  The Tribunal considers that the proposed use would be contrary to orderly and proper planning and the preservation of the amenity of the relevant locality in two respects.
36		First, the proposed use is likely to have an adverse impact in terms of social cohesion.  As noted earlier, the locality comprises a low density residential area of comparably sized and developed properties to the site.  Mr Simon Maughan, a planning officer of the City, considers "that the sense of community and security that comes from knowing your neighbours is an important factor for residents and that the transient nature of the proposed use has the potential to reduce both the actual and perceived level of safety of the area".  Ms Williams gave the following evidence:
"Particularly as we have a young family, stability with our neighbours is important to us.  We like knowing who our neighbours are.  That stability fosters a sense of community and safety.  Now we are in a constant state of flux, never knowing who our neighbours are, whether the cars that approach 17 Foston drive 'should' be there or even if the property is going to be occupied or not.  This raises serious safety issues for myself and [my husband] and this instability is not something we envisaged for our family life.  When we purchased the property we ensured that it was zoned residential and never believed we would have an issue with the property becoming short term rental accommodation, particularly as this is catered for in the coastal areas such as Hilarys.
 …
With a high turnover of families, the likelihood that we may encounter problems with a particular family increases.  Our family would have to live with the constant uncertainty of not knowing who your neighbour will be from one week to the next.  Also, it is much easier to raise any concern about what your neighbour is doing if you are familiar with your neighbour and have a relationship with them.  I feel very uncomfortable and it is disconcerting to have to raise something with a person you may never have met before, particularly at odd hours."
37		Ms Hope considers that the proposed use would not have a detrimental social impact, "given that the neighbourhood and its composition in which the property is situated will, as a result of normal market forces, be subject to fluctuation and change as a result of homes being bought and sold and leased, the result of which will be new families entering the neighbourhood".  Further, Mr Rogers submits, on behalf of Ms Hope, that the issue of social cohesion "begs the question of whether your neighbours wish to know you".  He submits that it is inevitable, as neighbourhoods fluctuate, that new owners may wish to keep to themselves, thereby compromising aspirations of social cohesion.  Furthermore, Mr Rogers observes that one cannot choose one's neighbours.  Finally, Mr Rogers submits that, even if Ms Hope were to lease the site out on a long term basis, there would always be a risk that the tenants would not get along with adjoining neighbours, thereby compromising social cohesion.
38		The Tribunal considers that the proposed use is likely to have an adverse impact in terms of social cohesion.  Although it is correct that the composition of a neighbourhood will change over time, it is extremely unlikely that the occupants of a single residential property in a low density residential area will change every seven to 60 days.  Although it is also correct that one cannot choose one's neighbours and that there is always a prospect of neighbours not getting along, there is common sense in Ms Williams' response during cross-examination that, even if one does not get along with one's neighbour, "at least you know".
39		The Tribunal considers Mr Maughan's assessment and Ms Williams' objection on this aspect are sensible and well founded.  The juxtaposition of a short stay accommodation use, even one restricted to families with eight members or less, within a low density residential area is contrary to orderly and proper planning in terms of social cohesion.
40		Second, the proposed use is likely to have a detrimental impact on surrounding properties in terms of noise.  Mr Maughan gave the following evidence:
"It is considered that adjoining properties will be exposed to greater levels of noise as a result of the proposed use.  Those utilising the house as holiday accommodation are likely to use the outdoor entertainment area more frequently and until later at night.  Those people visiting from country areas are more likely to have visitors in order to 'catch up' with friends and family in the short time they are in Perth.  It is considered only natural that people will want to take advantage of the property's entertainment facilities in the short time in which they have use of the property.
The result of the above is that under the proposed use, the property's outdoor entertaining areas are likely to be utilised more intensively than would be the case if the property were being resided in on a permanent basis, thus resulting in more noise and disturbance to neighbours."
41		Ms Williams is also concerned about the noise impact of the proposed use.  Ms Williams gave the following evidence:
"By the very nature of having three young children we are often at home and sleep is a critical part of our lives!  Having short term rental accommodation means that the noise is increased considerably, especially as the property is catered for families so often there will be a number of people residing at the property.  As the property is also catered to holiday makers, the level of noise is increased as the people staying there are in 'holiday mode'."
42		As noted earlier, Ms Hope gave evidence that she will exercise personal management and control over the use.  She proposes a condition of consent which would restrict the development approval to the period during which she owns the property.  Ms Hope also proposes conditions that her standard management statement shall be submitted to and approved by the City and signed and agreed to by the occupant and that she will develop a complaints procedure.
43		Mr Rogers submits, on behalf of Ms Hope, that there is likely to be a little more noise on the evidence than would otherwise be the case, but not sufficient noise to persuade the Tribunal that it is likely to interfere with the amenity of the neighbours.  Mr Rogers submits that it is possible, but unlikely, that immigrants will have a social network.  He also submits that the likely noise impact is acceptable, because category 1 home business is a permitted use subject to conditions, consulting rooms and category 2 home business is a use to which the Council may grant approval, and category 3 home business is a use to which the Council may grant approval after giving special notice.
44		The Tribunal considers that the proposed use, particularly in the absence of an on site, resident manager, is likely to give rise to adverse noise impacts such that approval of the application would be contrary to orderly and proper planning.
45		Temporary occupants of the site are unlikely to be subject to the same routine activities, particularly work and school related activities, which are typical for residents of low density residential areas.  If they do not have to get up to go to work or school, it is likely that occupants of the site will use its amenities, including the pool and outdoor entertaining area, at hours outside the norm in a suburban locality.  It is noted that an internet advertisement placed by Ms Hope refers to the outdoor area as "a perfect entertaining area which is adjacent to the fully fenced, glistening solar-heated swimming pool" and is available "for those long summer evenings".
46		It is a matter of conjecture whether new immigrants from the UK or South Africa would have friends or family already in Perth.  Certainly, given the relatively high turnover of occupants, there is a prospect that some temporary occupants of the site will have friends and family who will come to visit.
47		As Mr Tsaknis submits, people using the site as holiday accommodation are likely to use the outdoor entertaining area more frequently and until later at night.
48		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. 
49		The facts that Ms Hope will exercise personal management and control, lives only 8 kilometres away, has provided and will continue to provide her telephone numbers to neighbours, and proposes conditions including restricting the term of the development approval to her ownership of the property, do not satisfy the Tribunal that the noise impact of the development will be acceptable.  As Mr Tsaknis submits, the absence of an on site manager to monitor behaviour is critical.  In this regard, it is noted that whereas bed and breakfast use is a use to which the Council may grant its approval in the Residential zone, the definition of "bed and breakfast" requires that "the resident of the dwelling" provide the accommodation.  Bed and breakfast use, therefore, necessarily involves on site supervision of the people being accommodated.
50		Finally, the proposed use is not acceptable, simply because consulting rooms or home business are capable of approval.  Of the uses identified by Mr Rogers, only category 1 home business is permitted, although subject to conditions.  Category 1 home business involves an occupation carried on within a dwelling by a resident of the dwelling which, among other things, does not entail the retail sale, display or hire of any goods, does not cause injury to or prejudicially affect the amenity of the neighbourhood, involves only a limited area and does not attract customers or regular and frequent deliveries.  The other uses identified by Mr Rogers are capable of approval in the exercise of planning discretion having regard to the considerations set out in cl 6.8 of the Scheme.  Furthermore, the definitions of category 2 home business, category 3 home business and consulting rooms contain limitations on each use.  Finally, in the exercise of planning discretion, these uses are likely to be limited in their hours of operation, by the imposition of conditions to avoid impacts outside normal business hours.
Would approval of the proposed use set an adverse planning precedent?
51		Mr Maughan gave evidence that, although some of the 66 short term accommodation developments which Ms Hope had found advertised on the internet are located within the Residential zone, the Council has not granted any development approval for short term accommodation use within the zone.  Mr Maughan considers that, if approval to the proposed use were granted, "it is difficult to conceive a reason as to why [other landowners in the street or similar streets] should not be granted approval to use their property for short stay accommodation" and that this "would potentially have an adverse cumulative impact on the amenity of the locality".
52		Mr Rogers submits that each application for planning approval would need to be assessed on its own merits.  Approval of the proposed use would not, therefore, set a precedent, adverse or otherwise.
53		I addressed the issue of adverse planning precedent in detail in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] ­ [77].  At [74], I adopted the criteria stated by Lloyd J in the Land and Environment Court of New South Wales in Goldin v Minister for Transport (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
(1)	the proposed development or subdivision is not, in itself, unobjectionable; and
(2)	there is more than a mere chance or possibility that there may be later undistinguishable applications.
54		In this case, each of these criteria is met.  For reasons discussed earlier, the proposed development is likely to involve adverse social and noise impacts.  There is more than a mere chance or possibility that there may be later undistinguished applications, given that the evidence suggests that the fee for short term accommodation is substantial and the locality is comprised of many comparable properties.  Adverse planning precedent is, therefore, a relevant consideration.  The cumulative impact of developments such as the proposal in the low density residential area would be to undermine the purposes and objectives of the Residential zone.  In the circumstances of this case, therefore, the consideration of adverse planning precedent also warrants refusal of the application.
Conclusion
55		The Tribunal has determined that the proposed use of short stay accommodation of families of up to eight members for periods of seven to 60 days is not consistent with the objectives and purposes of the Residential zone.  In particular, whereas the Residential zone is intended primarily for residential development, short stay accommodation use is not residential development, as it does not involve permanent accommodation.  People who would be accommodated at the site could not properly be described as residents, but rather would be visitors or temporary occupants of the site.  In consequence, the proposed use is not permitted on the site and must be refused approval.
56		The Tribunal has also determined that, if the proposed use were capable of approval, the DA should properly be refused in the exercise of planning discretion.  In particular, the proposed use would be contrary to orderly and proper planning and the preservation of the amenity of the locality because of likely adverse impacts in terms of social cohesion and noise.  Furthermore, approval of the application would set an adverse planning precedent warranting refusal, because the cumulative impact of short term accommodation uses within the Residential zone would be to undermine the purposes and objectives of the zone.
Orders
57		The Tribunal makes the following orders:
1.	The application for review is dismissed.
2.	The decision of the respondent to refuse development approval for short stay accommodation at No 17 (Lot 102) Foston Drive, Duncraig is affirmed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER