66 In essence, the application before the Tribunal, pursuant to cl 33(2) of TPS 1, is for approval for variation/departure from the acceptable development provisions of the Guidelines in respect to building height. The Tribunal may approve the variation with or without conditions, or may refuse to approve the variation. However, if the Tribunal is minded to approve the variation/discretion, it is obliged to satisfy itself that the discretion requested is one which it has the power to approve and the granting of that discretion would not compromise the objectives of the Codes or Planning Policy, in this case, being the Guidelines.
67 The relevant performance criteria require, among other things, consideration of amenity impacts on the adjoining properties. One of the arguments raised by both the owners of the adjoining properties and the respondent was that the amenity impacts of the application under review would not be substantially different to what was refused by the Town Planning Appeal Tribunal. This may well be the case, however, there has been a significant change in the acceptable building height requirements of the Guidelines for this locality, which as identified by the Town Planning Appeal Tribunal, is "a proper measure of orderly and proper planning in this area". Therefore, the extent that the proposed dwelling exceeds that "proper measure" is significantly reduced from what was considered by the Town Planning Appeal Tribunal. The compliant portion of the dwelling reflects orderly planning as it accords with proper planning for this locality and conforms with reasonable expectations. Save for the non-compliant portion, the development would be approved by a building licence.
68 The amenity impacts of the non-compliant portion of the building needs to be assessed as additional to what can reasonably be expected as acceptable development. Therefore, it is necessary to assess the cumulative impacts of the compliant and non-compliant portions of the dwelling on the adjoining properties. The evidence identified building bulk and loss of views as the most significant issues affecting the amenity of the adjoining properties. Although there was no technical analysis of sight lines, evidence was given by the two planning experts to the effect that the reduced amenity impact for No 5 and No 7 Tamala Road, and No 18 Yanagin Crescent by way of loss of views of significance would not result from the compliant portion of the proposed dwelling. Further, that the impacts of the additional non-compliant portion of the dwelling would have minimal, if no impact on No 18 Yanagin Crescent or No 7 Tamala Road and would only affect the view of No 5 Tamala Road to an open space area, which was not considered to be a view of significance. In respect to No 9 Tamala Road, the evidence showed that the bulk of the building affecting this property related to the compliant portion of the dwelling. On this evidence, the Tribunal concludes that the part of the proposal in relation to which variation/discretion from the acceptable development provision is sought will not result in any significant additional loss of views from the adjoining properties.
69 The proposed dwelling is likely to have its greatest impact on the outdoor areas of No 22 Yanagin Crescent. It was accepted that the impact of the proposed dwelling on No 22 Yanagin Crescent was largely a question of bulk. The areas outside the dwelling identified as likely to be affected by the non-compliant portion included the garage and carport area, which is situated along the common boundary with the subject land, and the outdoor living area located approximately 15 to 17 metres from the non-compliant wall. The non-compliant portion of the dwelling at it shortest distance is proposed to be setback approximately 5.0 metres from the common boundary adjacent to non-habitable areas. The Tribunal is of the view that the impact on this area is not so unreasonable to warrant refusal of the application. In respect to the outdoor living area at the rear of No 22 Yanagin Crescent, the applicants produced some recent photographs of development occurring onsite involving the erection of a patio (refer to Exhibit 15). The Tribunal considers that this structure will assist in ameliorating the impacts of the proposed dwelling on the outdoor living area of the adjoining property. Therefore, the Tribunal concludes that visual impact of the part of the proposal in relation to which variation/discretion is sought and the proposed dwelling as a whole on the outdoor living area of No 22 Yanagin Crescent is also not so unreasonable to warrant refusal of the application.
70 For the reasons stated above, the Tribunal is satisfied that the variation/discretion sought satisfies relevant performance criteria, does not compromise the objectives of the Guidelines, and is reflect of the type of development envisaged by the Precinct Statement for this locality.
71 As to the imposition of conditions, the respondent informed the Tribunal that it did not seek to impose any conditions on the application if approved.