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[2006] WASAT 303
General information, not legal advice.
State Administrative Tribunal (WA)
2006-09-29
Original judgment source is linked above.
ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION : ANTONAS and TOWN OF VINCENT [2006] WASAT 303
HEARD : 30 AUGUST 2006 - SUBMISSIONS IN RELATION TO DRAFT CONDITIONS FILED ON 1 SEPTEMBER 2006, 4 SEPTEMBER 2006, 15 SEPTEMBER 2006, 22 SEPTEMBER 2006 AND 27 SEPTEMBER 2006
Town planning - Development application - Two storey grouped dwelling at rear of existing dwelling - Housing density - Site currently coded R20 but will be coded R30 after 30 December 2007 - Proposed development consistent with subsisting survey-strata subdivision approval - Proposed minimum and average site area per dwelling significantly less than requirement for R20 code - Proposed minimum site area per dwelling complies with requirement for R30 code and average area 1% less than requirement for R30 code - Whether development capable of approval - Whether development involves rear battleaxe - Whether development conserves or enhances an existing dwelling worthy of retention - Meaning of "conserves" - Imposition of conditions to ensure that existing dwelling is conserved or enhanced - Circumstances in which notification on title of conditions of development approval is appropriate - Whether discretion available under Residential Design Codes cl 3.1.3 par A3 to allow reduction of average site area as well as minimum site area - Amenity - Amenity includes likely future amenity - Likely future amenity affected by recoding with effect from 31 December 2007 and survey-strata subdivision approval
Residential Design Codes of Western Australia (2002), cl 3.1.3 A3
Town of Vincent Town Planning Scheme No. 1, cl 2.2, cl 3.1.1, cl 3.1.2, cl 3.1.3, cl 3.8.1, cl 3.9.1, cl 19(2), cl 20(1), cl 20(2), cl 20(2)(b), cl 20(3), cl 20(4), cl 20(4)(c), cl 20(4)(c)(i), cl 38(5)
Development approval for grouped dwelling granted subject to conditions
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Forrest and Town of Cottesloe [2005] WASAT 311
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
Taylor and Town of Vincent [2004] WATPAT 149
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
Anthony James Hall and Anor and City of Subiaco [2004] WATPAT 199
City of Subiaco v Busen Pty Ltd [2005] WASC 230
Hughan and Town of Vincent [2006] WASAT 48
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90
Munro and Town of Vincent [2006] WASAT 103
Newman and Town of Cottesloe [2005] WASAT 83
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299
1 A two storey dwelling was proposed at the rear of an existing dwelling which was to be retained. The proposal involved a residential density approximately 50% greater than the current coding. The proposal was consistent with a subsisting survey-strata subdivision approval. The local planning scheme provided that, after 30 December 2007, development will be determined in accordance with a density coding 50% greater than the current coding.
2 The Tribunal determined that the development was capable of approval. If appropriately conditioned, the development conserved or enhanced an existing dwelling worthy of retention. A discretion was, therefore, available under the scheme to grant an increase in dwelling density by up to 50%. The Tribunal determined that the discretion should be exercised to allow an increase in density by 50%. The scheme also stated that provisions of the Residential Design Codes of Western Australia (2002) which related to the 50% higher density coding applied. This provision enabled a 1% variation in the average lot size required by the Residential Design Codes.
3 The Tribunal determined that the development would not have an adverse impact on the amenity of the area, and was consistent with the likely future amenity of the area, which was affected by the 50% greater density coding which would apply in 16 months and the survey-strata approval.
4 The Tribunal also determined that privacy and overshadowing impacts on an adjoining property were acceptable.
5 The Tribunal granted conditional development approval. The conditions required the retention and maintenance of the existing dwelling and that the landowner consent to a notification on title of that obligation.
6 These proceedings involve an application brought by Mr Angelo Antonas under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 252(1)) for review of the deemed refused of a development application in relation to No 81 (Lot 246) Auckland Street, North Perth (site).
7 The development application (DA) proposes demolition of a carport and garage, which serve an existing dwelling to be retained, and the erection of a two storey dwelling and attached double garage to the rear of the existing dwelling. Both dwellings are proposed to be served by a single brick-paved crossover. Vehicular and pedestrian access to the proposed dwelling would be via the existing driveway which is located between the southern boundary of the site and the existing dwelling. Car parking for the existing dwelling is proposed in the form of a double open car bay between the street alignment and the front verandah.
8 The development application proposes the removal of four mature trees and the relocation of a semi-mature street tree on the verge to enable construction of the crossover. However, during the hearing, Mr Antonas agreed to retain a large, mature eucalypt in the north-western corner of the site.
9 Reduced copies of the plans of the proposed development are contained in Attachment A to these reasons.
10 The site has a substantially regular shape, a frontage of 14.91 metres to Auckland Street, and a total area of 594 square metres. Adjoining the site to the south and west are comparably sized residential properties. Adjoining the site to the north is a council car park with dense and mature trees and other vegetation along the boundaries, including the common boundary with the site.
11 The existing house is an inter-war, single storey cottage with a hipped and gabled roof, which is fairly typical of the era, scale and character of houses in the street. Although the majority of properties in the street appear to comprise single houses, a number of properties have been redeveloped with one to two storey grouped dwellings, some retaining the original house at the front.
12 The site is zoned "Residential" and has a residential density coding of "R20" under the Town of Vincent Town Planning Scheme No 1 (LPS 1 or Scheme). However, cl 20(4) of LPS 1 provides, in part, as follows:
"Notwithstanding the provisions of the [Residential Design Codes of Western Australia (2002) (Codes)], the following special applications of the [Codes] apply:-
...
(c) North Perth Precinct P8 [which includes the site]
...
(ii) After 30 December 2007 development and subdivision of land codes R20 will be determined in accordance with the R30 code and shall be subject to all provisions relevant to that coding in the Mount Hawthorn Precinct."
13 Approximately four months after the lodgement of the DA with the Town of Vincent (Town), Mr Antonas applied to the Western Australian Planning Commission (Commission) for approval under s 20(1) of the TPD Act to a survey-strata subdivision of the site into two lots of 270 square metres and a common property lot of 54 square metres comprising the existing driveway. After initially refusing the application, the Commission reconsidered its decision and granted survey-strata subdivision approval, subject to 13 conditions. Condition 5 requires that Mr Antonas obtain development approval for the development of a house on each of the proposed lots prior to submission of the diagram or plan of survey. The DA is consistent with the approved survey-strata plan. The approved survey-strata plan is Attachment B to these reasons.
14 The Town has deferred consideration of the DA, on a number of occasions, over a period of three years. Most recently, it received a report from its officers recommending the grant of development approval, subject to three conditions. However, the Town has not made a determination in relation to the DA.
15 Although the nominated value of the proposed development is less than $250 000, the President of the Tribunal has formed the opinion, under s 238(4) of the PD Act, that the application for review is likely to raise complex or significant planning issues, and has, therefore, listed the determination of the application before me.
16 I undertook a view of the site, the adjoining property to the south and the street in the vicinity of the site, accompanied by representatives of the parties.
17 The following three principal issues arise for consideration in this review:
18 The Tribunal will address each of these issues in turn.
Is the proposed development capable of approval?
19 Clause 19(2) of LPS 1 states that, unless otherwise provided in the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of the Codes. Clause 20(1) of the Scheme states that the permitted site density per hectare under the Codes for any land is to be determined by reference to the Codes density number as illustrated on the Scheme Map for the land. As noted earlier, the site currently has a density coding of "R20", although cl 20(4)(c) of the Scheme provides, in effect, that the density coding will increase to "R30" after 30 December 2007.
20 Clause 3.1.1 of the Codes requires compliance with the minimum areas stipulated in Columns 3 and 4 of Table 1. The clause also states that the minimum areas stipulated in Table 1 are not able to be varied under the Codes except as set out under cl 3.1.2 and cl 3.1.3. The minimum and average site areas per dwelling stipulated in Column 3 of Table 1 is 440 square metres and 500 square metres for the R20 Code, respectively, and 270 square metres and 300 square metres for the R30 Code, respectively. The minimum lot area for a rear battleaxe stipulated in Column 4 of Table 1 is 540 square metres for the R20 Code and 420 square metres for the R30 Code.
21 The proposed minimum site area per dwelling is 270 square metres and the proposed average site area per dwelling is 297 square metres. The minimum site area is, therefore, deficient by 170 square metres, or approximately 38.6%, and the average site area is deficient by 203 square metres, or approximately 40.6%, in comparison to the requirements in the R20 Code.
22 Mr SJ Bain, a consultant town planner who gave evidence on behalf of the Town, considers that the proposed dwelling is a rear battleaxe. This is because, in Mr Bain's opinion, the driveway would only functionally serve the proposed dwelling and not the existing dwelling. It is not, therefore, a "common" driveway. If the proposed dwelling is a rear battleaxe, its area is deficient by 50%. If it is a rear battleaxe, Mr Bain also considers that it is not a grouped dwelling within the meaning of the Codes. Ms BK Callanan, counsel for the Town, submits, on this evidence, that the discretion to allow a variation to the minimum site area required under cl 3.1.3 of the Codes is not available in this case, because it is restricted to a variation in respect of grouped dwellings.
23 The Tribunal considers that the proposed dwelling is not a rear battleaxe, but rather is a grouped dwelling, within the meaning of the Codes.
24 A battleaxe lot or site is defined in cl 2.2 of the Codes as "a Single House lot or site that has a frontage to a public road only through a pedestrian or vehicular accessway that is part of the lot ... ". It is clear from the approved survey-strata plan in Attachment B that the proposed dwelling, which would be located on Lot 2, would not have a frontage to a public road through a pedestrian or vehicular accessway that is part of the lot. Lot 2 does not have a frontage to a public road and its access is via Lot 3. Moreover, the proposed dwelling is not a Single House, namely "a dwelling standing wholly on its own green title or survey-strata lot ... [excluding] dwellings on titles with areas held in common property". The existing dwelling and the proposed dwelling would be dwellings on titles with areas held in common property. The proposed dwelling is a grouped dwelling, namely "a dwelling that is one of a group of two or more dwellings on the same lot, such that no dwelling is placed wholly or partly vertically above another ... [including] a dwelling on a survey-strata with common property". Although Mr Bain is probably correct in his observation that Lot 3 in the approved survey-strata plan would not serve any necessary or functional purpose as far as the existing dwelling on approved Lot 1 is concerned, this does not alter the fact that the approved survey-strata plan contains common property over which pedestrians and vehicles entering and exiting Lot 2 must pass.
25 The Tribunal considers that the proposed development is capable of approval under cl 20(2) and cl 20(3) of the Scheme. Clause 20(2) provides, in part, and cl 20(3) provides as follows:
"(2) Subject to compliance with the procedures set out in the [Codes] for notifying affected owners and occupiers, the Council may grant an increase in the permitted dwelling density by up to 50% if -
(b) the proposed development conserves or enhances an existing dwelling or existing dwellings worthy of retention ...
(3) Where the Council allows an increase in the permitted dwelling density, the standards and provisions of the [Codes] which relate to that higher density are to apply."
26 It is common ground that, if the discretion under cl 20(2)(b) is available and is favourably exercised in relation to the DA, an increase in the permitted dwelling density by up to 50% translates to a dwelling density of up to R30. It is also common ground that there has been compliance with the procedures in the Codes for notifying affected owners and occupiers.
27 Mr Ilias Iliadas, the designing architect and a registered builder, gave evidence that the existing house is worthy of retention, because it is in a solid condition and in keeping with the character and streetscape of the area. He also noted that Mr Antonas intends to restore and refurbish the existing house. Mr Iliadis' evidence on this issue was not challenged. Mr Bain said only that the "conditions for the application of clause 20(2) have not been satisfied", but did not elaborate on this contention.
28 Mr Iliadas' evidence is supported by the desired future character statement in the Town's Policy No: 3.3.7 Eton-Locality Plan 7 (Eton Locality Plan), which applies to most of Auckland Street and areas to the east and west. The desired future character statement includes the following:
"The retention and/or restoration of established houses which are indicative of the era in which the Locality was developed and generally contribute to its existing character will be encouraged."
29 Similarly, Senior Member Jordan of the Town Planning Appeal Tribunal observed in Taylor and Town of Vincent [2004] WATPAT 149 at [17], in relation to cl 20(2)(b) of the Scheme, that "consideration can be given to whether the house might be worthy of retention in its own right, or as making a contribution to the streetscape".
30 The Tribunal finds that the existing dwelling is worthy of retention, as it is in sound condition and makes a positive contribution to the streetscape, being typical of the era, scale and character of original built form which remains the predominant built form in the streetscape.
31 Mr PJ McQueen, counsel who appeared with Mr MA Etherington on behalf of Mr Antonas, submits that conservation of a dwelling requires simply that the dwelling be retained. In contrast, Ms Callanan submits that "something more" than mere retention is required.
32 Conservation relevantly means preservation: see The Macquarie Dictionary (Macquarie, 4th Edition, 2005) at 313. Preservation relevantly means both keep in existence, that is retain, and keep up, that is maintain: at 1126.
33 It is therefore open to the Town (and the Tribunal on review) to grant an increase in the permitted dwelling density of up to R30, in the circumstances of this case, if appropriate conditions of approval were imposed. Appropriate conditions in this case would require that:
(i) the existing dwelling must be retained and maintained while the proposed dwelling remains on the site;
(ii) the existing dwelling must be restored and refurbished, as Mr Antonas intends, prior to occupation of the proposed dwelling, with details of the restoration and refurbishment to be provided to the Town before being undertaken; and
(iii) prior to the issue of the building licence, the proprietor of the site must provide a written consent to the Town pursuant to s 70A of the Transfer of Land Act 1893 (WA) (TL Act) to the notification on the title of the site and of Lots 1, 2 and 3 in the approved survey-strata plan of the continuing obligation of the proprietor for the time being of the land comprising the existing dwelling to comply with the condition in (i).
34 Each of these conditions has a planning purpose, fairly and reasonably relates to the development and is not unreasonable: Newbury District Council v Secretary of State for the Environment [1981] AC 578. The conditions ensure that the proposed development conserves, by retention and maintenance, and enhances, by restoration and refurbishment, the existing dwelling, and thereby enables the discretion in cl 20(2) of the Scheme to be exercised. In the absence of these conditions, the DA must be refused, as the discretion could not properly be exercised.
35 Section 70A of the TL Act provides, in part, as follows:
"(1) Where, in relation to land under the operation of this Act -
(a) the local government of the district in which the land is situated; or
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(a) a notification is lodged under subsection (1); and
(b) the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect. ... "
36 In Compliance Admin Services Pty Ltd v Town of Claremont (2004) 37 SR (WA) 28, the President of the Town Planning Appeal Tribunal was called upon to consider whether a condition of development approval should be imposed to the effect that a notification would be placed on the title of all approved single bedroom apartments under s 70A of the TL Act advising that the development approval is for a single bedroom apartment only and modifying the apartment to create an additional bedroom would be a contravention of the TPD Act. Other conditions of development approval specified that the apartments in question were one bedroom apartments and required that their internal room configuration be as detailed on the approved plans.
37 At [34] - [36] of the decision, the President observed as follows:
"Section 70A in so far as it deals with notification is concerned solely with that. It is not intended to create legal rights. It does not of itself effect planning approval. It does not change in any way, shape or form the statutory obligations imposed upon the Respondent in relation to its Scheme observance and enforcement.
Put shortly, the Appellant is necessarily limited to and bound by the terms of the present approval. Its successors in title are equally bound as a matter of law.
Notification on title cannot change that legal outcome."
38 The President determined that the condition in question should not be imposed. He did so, essentially, for the following reasons at [42]:
"However I am not satisfied on the material available to me that there exists a proper planning basis for the imposition of the condition proposed by the Respondent. The condition serves to do no more than recall on the title that which has already been approved. That cannot in my view be a proper basis upon which the specific powers of the s 70A are to be utilised."
39 As the State Administrative Tribunal (SAT) determined in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 at [31], for reasons of comity and consistency, a member of SAT should generally follow a decision of another member of the Tribunal, or a member of a former Tribunal that SAT has replaced, that is in point, unless satisfied that the earlier decision was clearly in error. I consider that the reasoning expressed in Compliance Admin Services Pty Ltd v Town of Claremont in the last sentence of [42] was clearly in error, because a condition of development approval which requires notification on title of the continuing effect of another condition can, in certain circumstances, have a proper planning purpose, be reasonably referable to the proposed development and be reasonable and appropriate.
40 In circumstances where a condition of development approval imposes a continuing obligation on the owner or occupier for the time being of the land, which affects the use or enjoyment of the land, and is unusual, it may be appropriate to impose a further condition requiring the proponent to provide written consent to the local government to the notification of the terms of the condition on the title under s 70A of the TL Act.
41 However, I consider that the actual decision in Compliance Admin Services Pty Ltd v Town of Claremont, that the condition in question did not relevantly have a proper planning purpose, was correct. In that case, the condition did not have a proper planning purpose and was not reasonable or appropriate, because it involved a notification on title of a static fact which would be obvious on inspection of the apartment, namely that the relevant approval was for a single bedroom apartment.
42 In this case, because a continuing obligation under a development approval, to retain and maintain the existing dwelling while the proposed dwelling remains on the site, affects the use and enjoyment of the land comprising the existing dwelling, and is unusual, it is appropriate to impose a condition facilitating notification of the condition on title.
43 It is not, however, necessary or reasonable to require, as the Town proposes, the proprietor to enter into an agreement with the Town that the proprietor and his successors conserve the existing dwelling to a standard to the reasonable satisfaction of the Town. Given that the obligation to retain and maintain the existing dwelling runs with the land, is sufficiently clear and can be enforced, a private agreement is not necessary or reasonable.
44 As noted earlier, the minimum site area proposed satisfies the R30 minimum site area requirement of 270 square metres, whereas the average area proposed is 3 square metres or 1% less than the average area required in that coding. However, the effect of cl 20(3) of the Scheme is that, where an increase in the permitted dwelling density is allowed, the provisions of the Codes which permit a variation in relation to that density apply.
45 Clause 3.1.3 of the Codes provides that a council may approve a minimum site area of a grouped dwelling on a site area less than that specified on Table 1, provided that the proposed variation would be no more than 5% less in area than that specified in Table 1, and one of five other criteria is met. One of these criteria is to "allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed". This criterion is satisfied in the circumstances of this case, as a reduction in the average site area by 1% is necessary to allow the site to be developed with grouped dwelling housing of the same type and form as exists on a number of lots in the street and which would not otherwise be able to be developed.
46 Ms Callanan submits that cl 3.1.3 only provides for variation in the minimum site area specified in Column 3 of Table 1, and does not permit variation in the average site area. This submission was previously advanced and rejected in Forrest and Town of Cottesloe [2005] WASAT 311 at [28]. The expression "the minimum site areas set out in Column 3 of Table 1", in cl 3.1.3, refers to both the minimum and average areas specified. Column 3 is headed "Minimum Site Area per dwelling" and specifies both "Min." and "Av." minimum site areas. Therefore, "the minimum site areas set out in Column 3 of Table 1" include both absolute minimum site area, which is designated by "Min.", and average minimum site area, which is designated by "Av.".
47 It follows that the DA is capable of approval under cl 20(2) and cl 20(3) of the Scheme. The Tribunal considers that the discretion under cl 20(2) should be exercised in the circumstances of this case to grant an increase in the permitted dwelling density by 50%, because the development, if appropriately conditioned, preserves an existing, sound dwelling which is typical of the era, scale and character of original dwellings in the street, which remain the predominant built form, and because of the Tribunal's findings in relation to issues 2 and 3 below. The Tribunal also considers that discretion should be exercised under cl 3.1.3 of the Codes to permit a 1% variation in the average site area required for a grouped dwelling in the R30 code, because it would allow land to be developed with housing of the same type and form as properties which have been developed with grouped dwellings, and because the impacts of the development would be essentially the same as a development which is compliant with the R30 density average site area.
Does the DA have an adverse impact on the amenity of the area so as to warrant refusal?
48 Mr Bain considers, and Ms Callanan submits, that in view of the current R20 coding of the site and the area, the Eton Locality Plan desired future character statement and the predominant single residential character of the locality, the proposed development is inconsistent with the existing and future amenity of the locality. Mr Bain considers that "there would be an expectation from the community that the site (and the surrounding area) would remain single residential". Mr Charlie Surace, whose home adjoins the site to the south and who was given leave to make a submission in relation to the application under s 242 of the PD Act, also considers that the proposal is inappropriate in light of the current zoning and density coding.
49 The desired future character statement in the Eton Locality Plan includes the following:
"Single houses will remain the predominant dwelling types within the Locality. On those larger lots which can accommodate additional housing, infill development will be favoured. Grouped Dwellings developments comprising two or more new dwellings are also appropriate.
The retention and/or restoration of established houses which are indicative of the era in which the Locality was developed and generally contribute to its character will be encouraged. An increase in housing density for new infill development will be permitted where certain criteria can be met.
New contemporary developments are encouraged provided that the design responds to the established character. ...
Infill development in the form of splitting the wider frontage lots down the middle is encouraged. Generally, any redevelopment is to respect and maintain the existing character of the area."
50 Mr Bain is of the opinion that the proposed development does not achieve this desired future character in that:
• with an area of 594 square metres, the site is not a "larger lot", as it falls within the typical range of 550 square metres to 650 square metres;
• the development proposes a new dwelling behind the existing dwelling and is, therefore, not infill that splits the lot down the middle; and
• in any case, the lot is not a "wider frontage lot", given that its width falls within the typical range of lot widths of between 12.5 metres and 18 to 20 metres.
51 Mr TG Moran, a consultant town planner who gave evidence on behalf of Mr Antonas, considers that the proposed grouped dwelling supports the desired future character of the Eton Locality, and will have minimal impact on the streetscape, adverse or otherwise. Mr Moran also considers that the proposal is consistent with the conservation of the amenities of the locality, as it retains the existing dwelling.
52 The term "amenity" is defined in Sch 1 of the Scheme to mean "all those factors which combine to form the character of the area to residents and passersby and shall include the present and likely future amenity".
53 The proposed development is consistent with the desired future character contemplated in the Eton Locality Plan. Importantly, the proposal would respect and maintain existing streetscape character by preserving a characteristic dwelling at the street frontage and by locating the second dwelling 20 - 25 metres from the frontage, where it will have minimal impact on streetscape and character. The desired future character statement recognises that grouped dwellings comprising two or more new dwellings are also appropriate. Although the site is not larger than typical sites in the locality, the desired future character statement refers implicitly to the discretion to increase housing density where a development conserves or enhances an existing dwelling. Although the site is not a wider frontage lot, in relation to which a splitting down the middle is appropriate and encouraged, the desired future character statement does not say or imply that grouped dwelling development of the nature proposed in the DA is contrary to the future desired character of the locality. Indeed, a number of grouped dwelling developments of the type proposed have been built or are under construction in the street. Moreover, the form of development proposed is more likely to maintain existing character by retaining an original house and placing the new built form to its rear.
54 Furthermore, the likely future amenity of the locality is a product not only of the current density coding and Eton Locality Plan, but also materially, of the fact that, in about 15 months, the site and surrounding locality will be, in effect recoded to R30, and of the existence of the survey-strata subdivision approval of the site. With the 1% variation in average site area under cl 3.1.3 of the Codes and a condition of approval that the western part of the proposed dwelling be redesigned to have a minimum setback of 2.3 metres from the western boundary, the DA is compliant with the Scheme and conforms to the provisions of the Codes in relation to the R30 coding. The Town has not raised any concern in relation to residential amenity impacts of the proposed development, including in relation to height, setback, privacy or overshadowing. The proposed development is, therefore, reasonably responsible to the R30 density coding which will apply to the site and the surrounding locality in 15 months.
55 The survey-strata approval is subsisting and operative: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197. It must be treated as valid unless and until quashed or declared invalid by a court of competent jurisdiction: Swadling & Anor v Sutherland Shire Council [1994] NSWLEC 45; (1994) 82 LGERA 431; Lakes Action Group Association (Inc) and Shire of Northam & Anor [2005] WASAT 8 at [15]. As Mr McQueen correctly submits, the survey-strata approval exists and contemplates grouped dwelling development of the site at a density of R30.
56 The proposed development is consistent with the survey-strata approval. The Tribunal accepts Mr Moran's opinion that the survey-strata approval creates a reasonable expectation for the approval of a grouped dwelling development of the nature proposed in the DA.
57 It follows that the DA would not have an adverse impact on the amenity of the area so as to warrant its refusal. If there is an expectation from the community, as Mr Bain considers, that the site and surrounding area will remain single residential, the expectation is misplaced given that the area will be, in effect, recoded to R30 in 15 months and that there is a subsisting and operative survey-strata subdivision approval which contemplates development of the nature proposed. In light of the Eton Locality Plan, there is certainly a reasonable expectation that, as the area is developed over time, built form at the street frontage will continue to reflect the era, scale and character of typical inter-war, single storey cottages. However, the proposed development is consistent with this expectation.
Are the privacy and overshadowing impacts on the property to the south unacceptable?
58 Mr Surace is concerned about the privacy and overshadowing impacts of the proposed dwelling on the rear living area of his house, a covered patio and rear garden. He is concerned that the overshadowing diagram submitted by Mr Antonas is not indicative of the true site levels and, therefore, underestimates the likely overshadowing caused by the dwelling. Although the Town's officers and Mr Bain are aware of Mr Surace's concerns, they do not consider that the impacts in question are unacceptable.
59 There are two parts of the second level of the proposed dwelling which could cause a potential overlooking problem. First, although the master bedroom does not have any windows or other openings facing towards Mr Surace's property, an east facing sliding door is proposed to open onto a small balcony set back approximately 2.8 metres from the common boundary. However, closed timber slat screening panels are proposed to be fixed to the southern edge of the balcony, and to project approximately 1.1 metres east of the eastern edge of the balcony. The effect of the timber slats, and a column at the eastern end of the slats, is to significantly reduce, if not eliminate, the possibility of viewing from the bedroom into Mr Surace's garden or patio area, and to significantly reduce the potential for over-viewing from the small balcony. Given the size of the balcony and that it is off a bedroom, the residual potential for overlooking is acceptable.
60 Second, there is potential for over-looking from an activities room, which is set back approximately 8.5 metres from the common boundary, and a 1.0 metre wide balcony off the activities room. However, the activities room and balcony conform to the acceptable development provision in cl 3.8.1 of the Codes. Development that conforms to the acceptable development provision is deemed to meet the relevant performance criteria which include avoiding direct over-looking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential properties.
61 Mr Iliadas prepared a shadow diagram of the impact of the proposed dwelling at midday on 21 June. Site levels on this drawing were obtained by a feature survey prepared by an independent land surveyor. Whereas the acceptable development provision in relation to solar access for adjoining sites in cl 3.9.1 of the Codes states that development shall be so designed that its shadow cast at midday on 21 June onto any adjoining property does not exceed 25% of the site area on adjoining properties coded R25 and lower, the proposed development would only overshadow 10% of the site area of Mr Surace's property. Development that complies with the acceptable development provision is deemed to meet the relevant performance criteria which states that "development designed with regard for solar access for neighbouring properties".
62 In Dumbleton & Anor and Town of Bassendean [2005] WASAT 145, the Tribunal, at [23], endorsed the approach and principle stated in Tangelo Design Consultants and Town of Vincent [2005] WASAT 67, at [42], as follows:
"In most planning assessments, the fact that a development conforms to a relevant provision of the [Codes] is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration."
63 Clause 38(5) of LPS 1 requires the Tribunal to have regard to, among other things, any submission accompanying or related to the application, the orderly and proper planning of the locality, the conservation of the amenities of the locality and the design, scale and relationship to existing buildings and surroundings of any proposed building or structure. Although conformity with the Codes in relation to privacy and overshadowing is not determinative of these considerations, the Tribunal considers that the impact of the proposed development on Mr Surace's property is acceptable. The limited potential for overlooking is consistent with reasonable expectations in an R20 coding and certainly in an R30 coding. Approximately half of the overshadowing of the rear garden which would occur at midday in mid-winter would be caused by a 1.8 metre high fence in any case. The shadow cast at midday in midwinter would occupy only approximately 31% of the rear garden area of Mr Surace's property.
64 The Tribunal has determined that the DA is capable of approval. Clause 20(2) of LPS 1 permits the Town (and the Tribunal on review) to grant an increase in the permitted dwelling density by up to 50%, which in the present case means up to a density coding of R30. The Tribunal has determined that this discretion should be exercised favourably in the circumstances of this case, because, if appropriately conditioned, the proposed development conserves and enhances an existing dwelling worthy of retention and would not have an adverse impact on the amenity of the area or an unacceptable impact on residential amenity. The Tribunal has also determined that it is appropriate, in the circumstances of this case, to vary the average site area specified in Table 1 of the Codes in relation to the R30 code by 1%. Clause 20(3) of LPS 1 has the effect that this variation provision, which relates to the higher density of R30, can be exercised.
65 The Tribunal has determined that the proposed development is consistent with the likely future amenity of the area which, in about 15 months, will be subject to a residential density coding of R30. Importantly, the built form at the street frontage will continue to reflect the era, scale and character of original built form and the new dwelling will be set back substantially from the street so as to have minimal impact on established character.
66 Finally, the Tribunal has considered the privacy and overshadowing impacts of the proposed development on the property to the south of the site. The Tribunal has determined that the proposed development conforms to the acceptable development provisions of the Codes in relation to privacy and overshadowing. Moreover, the privacy and overshadowing impacts of the development are acceptable on a merit assessment under LPS 1.
67 It follows that the application for review should be allowed and development approval granted subject to conditions.
2. Development approval for the demolition of a carport and a garage and for the erection of a grouped dwelling at No 81 (Lot 246) Auckland Street, North Perth is granted subject to the following conditions:
(i) The development shall be carried out in accordance with two sheets of plans drawn by Iliadas and Associates Architects Pty Ltd Job No IL126-02 Drawing No PO1 Issue 3 Revision B (site/floor plan) option B and Drawing No PO2 Issue 3 Revision A (upper floor plan, elevations and section), each dated 27 April 2006, except as varied by the following conditions.
(ii) The western part of the proposed dwelling shall be redesigned so as to have a minimum setback of 2.3 metres from the western boundary while maintaining the setbacks to the southern and northern boundaries shown on the plans referred to in condition (i). The redesign is to be shown on the plans submitted for the building licence.
(iii) Any new street/front wall, fence and gate between the Auckland Street boundary and the existing dwelling, including along the side boundaries within the front setback area, shall comply with the following:
(a) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(b) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;
(c) the maximum width, depth and diameter of posts and piers being 350 millimetres;
(d) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and
(e) the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right-of-way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level.
(iv) All external fixtures, such as television antennas (of a non-standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive.
(v) A detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Auckland Street verge adjacent to the subject property, shall be submitted to the Town of Vincent and approved prior to the issue of a building licence. All such works shall be undertaken prior to the first occupation of the proposed dwelling, and maintained thereafter by the owner(s)/occupier(s). The landscaping plan shall include the relocation or replacement of the existing street tree on the verge. If the street tree is relocated, but its health is not maintained in the relocated position, the applicant or the owner(s) of the property must plant an advanced replacement tree on the verge as nominated by the Town of Vincent. The tree in the north-western corner of the site shown as to be removed on the site plan shall be retained and shown as retained on the landscaping plan.
(vi) The existing dwelling shall be retained and maintained by the owner(s) of the land comprising the existing dwelling while the proposed grouped dwelling remains on the land comprising the proposed grouped dwelling.
(vii) The existing dwelling must be restored and refurbished prior to the occupation of the proposed grouped dwelling. The existing dwelling shall be painted externally in colours which are characteristic of the colours used in the era when the dwelling was built. The external colours of the proposed dwelling must complement the colours of the existing dwelling. Details of the restoration, refurbishment and external colours of the existing dwelling and of the external colours of the proposed grouped dwelling shall be provided to the Town of Vincent before being undertaken.
(viii) Prior to the issue of a building licence, the proprietor(s) of the land must provide a written consent to the Town of Vincent to the notification pursuant to s 70A of the Transfer of Land Act 1893 (WA) of the continuing obligation of the owner(s) for the time being of the land comprising the existing dwelling under condition (vi) to retain and maintain the existing dwelling while the proposed grouped dwelling which is the subject of this approval remains on the land comprising that dwelling.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
(1994) 82 LGERA 431