HEARD : 20 JUNE 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 11 JULY 2005 AND 18 JULY 2005)

Town planning ­ Development ­ Two storey dwelling ­ Non­compliance with various Acceptable Development requirements of the Codes ­ Combination and extent of variations sought resulted in an over­development ­ Whether the application meets the Performance Criteria ­ Plot ratio ­ Building height ­ Setbacks ­ Overshadowing ­ Open space ­ Streetscape

Residential Design Codes of Western Australia 2002

Town of Cambridge Town Planning Scheme No 1, cl 5, cl 17, cl 18, cl 19, subclause 33(1)(e), subclause 33(2), subclause 8(3), subclause 38(4), cl 48, subclause 48(8)

Town Planning and Development Act 1928 (WA), s 8a(1)

Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71

Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4

1 Roy Sweetland applied to the State Administrative Tribunal for review of the decision of the Town of Cambridge refusing planning approval for the construction of a two storey "Single House" on Lot 157 (No 6) Kerr Street, West Leederville.

2 The design of the proposed development involves numerous departures from the Acceptable Development provisions of the Codes relating to such matters as plot ratio, setbacks, overshadowing, carport width, driveway width and location, paving area, wall height, open space and visual privacy. Such variations require the exercise of discretion under the Codes.

3 From the evidence presented, the Tribunal was not convinced that the proposed departures from the Acceptable Development provisions of the Codes satisfied either the General Objectives or all of the relevant Specific Objectives of the Codes and was of the opinion that approval to the variations sought would compromise the objectives of the Codes resulting in an outcome that would not accord with the principles of orderly and proper planning.

4 This is an application by Roy Sweetland (the applicant) for review of a decision of the Town of Cambridge (the respondent) to refuse planning approval for the construction of a two storey dwelling on Lot 157 (No 6) Kerr Street, West Leederville (the subject land).

5 The development application was refused by the respondent at its Ordinary Meeting of 22 March 2005. In refusing the application, the respondent gave the following reasons:

"(i) non­compliance with a number of acceptable development requirements as outlined in the R Codes and the Town of Cambridge Residential Design Guidelines as follows:-

(ii) the combined effect of the non-compliances [sic] outlined in (i) above result in an over development of the site and thereby impact adversely on the amenity of the area.

6 The applicant, on 12 April 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (the Act) to have the decision reviewed.

7 Lot 157 has a total area of 183 square metres and is rectangular in shape. The front and rear boundaries, which run north to south, are 9.050 metres in length and the side boundaries, which run east to west, are 20.116 metres in length.

8 The subject land is currently vacant. Until as recently as September 2004, the land formed part of Lot 159, at which time the Western Australian Planning Commission granted approval to subdivide Lot 159 longitudinally to create two identical lots of 183 square metres (Lot 158 and Lot 157).

9 Lot 157 has a slight slope upward from Kerr Street to the rear boundary and from south to north.

10 The proposal involves the construction of a two storey "Single House". The dwelling is approximately 155.84 square metres in area (excluding the carport) consisting of an open plan dining, kitchen and living area, laundry and store on the ground floor and three bedrooms and two bathrooms on the upper floor. A double carport, accessed off Kerr Street, is proposed within the primary street setback area. The dwelling is proposed to have a gabled roof pitched at 30 degrees.

11 The respondent's planning officers, as part of their assessment of the proposal, prepared a table to demonstrate non­compliance with the Acceptable Development provisions of the Residential Design Codes of Western Australia 2002 (the Codes) and with the Town of Cambridge Residential Design Guidelines (the Guidelines). The non­compliance aspects of the table are reproduced below:

Upper floor side setback (left/north) (Codes & Guidelines)

Minimum 3.8 metres for bedroom 2 and staircase wall

Ground floor side setback (right/south) (Codes & Guidelines)

Minimum 1.5 metres for dwelling

Minimum 1.0 metre for carport

Upper floor side setback (right/south) (Codes & Guidelines)

Minimum 4.5 metres from upper floor bedroom 1 window to left/northern side boundary and rear/eastern side boundary

4.1 metres for left/northern side boundary

3.8 metres to rear/eastern boundary, measured at a 45 degree angle

Minimum 4.5 metres from upper floor bedroom 2 window to left/northern side boundary

Minimum 4.5 metres from upper floor bedroom 3 window to right/southern side boundary

12 The only dispute raised in relation to the calculations contained in the above table related to the plot ratio figure. By way of explanation, Mr Allerding, the respondent's representative, told the Tribunal that the "Council apparently provided a preliminary assessment to the [applicant] which indicated 0.79:1, that they hadn't calculated ... correctly ... ". He maintained that the correct figure was 0.95:1, although he had not generated that calculation; it had been calculated by the respondent's planning officers as part of their formal assessment of the proposal. The applicant maintained at the hearing that the plot ratio of the development was 0.79:1. However, in the applicant's written response, received after the hearing, the applicant amended his position and asserted that the plot ratio of the development equated to 0.85:1, which was based on plans submitted showing floor area calculations. The Tribunal has confirmed these calculations.

13 The subject land is zoned "Urban" in the Metropolitan Region Scheme and residential development is an appropriate use within the "Urban" zone.

14 Development of the subject land is also governed by the Town of Cambridge Town Planning Scheme No 1 (TPS 1). Lot 157 is currently zoned "Residential" with a permitted site density of R60 as illustrated on the Scheme Maps.

15 Clause 5 sets out the objectives and intentions of TPS 1. A general objective of the scheme that is of particular relevance to this matter is:

"(3)(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-

(i) recognises the individual character and needs of localities within the Scheme Area; and

(ii) can respond readily to change".

16 Clause 17 of TPS 1, which reinforces the objective stated in cl 5, divides the Scheme Area into the Precincts set out in the Precinct Planning Policies contained in the Council's Policy Manual. The subject land is located in Precinct "P5 West Leederville". This precinct area is further divided into sub­precincts in the Residential Design Guidelines Precinct Statements, which identifies the subject land within "Sub Precinct 5B ­ Cambridge Street East".

17 In the "Zoning Table", contained in TPS 1, the use class "Dwelling (Single)" is classified as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.

18 Under subclause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single dwelling house on a lot in a zone where the proposed use is designated as a "P" use, except as otherwise provided for by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Codes or a Planning Policy must seek Council's approval for the variation (subclause 33(2)). Thus, the matter came to be determined by the respondent as the proposal involves numerous departures from the Acceptable Development provisions of the Codes relating to such matters as plot ratio, setbacks, overshadowing, carport width, driveway width and location, paving area, wall height, open space and visual privacy.

19 Before granting approval to the requested variations, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or Planning Policy (subclauses 33(2)(a) and 33(2)(b)). The Codes identify both "General Objectives" and "Specific Objectives" and require that in assessing and determining applications for residential development, regard must be had to both categories of objectives. Given the number of variations sought, the "General Objectives", in this instance, are of particular importance in ensuring that the overall development meets the desired goals for residential development. The relevant "General Objectives" are as follows:

"ii. to provide for local variations in neighbourhood character;

iii. to ensure appropriate standards of amenity for all dwellings;

...

v. to protect the amenity of adjoining residential properties;

... and

vii. to encourage environmentally sensitive design."

20 Clause 18 of TPS 1 requires the development of land to be in accordance with standards and requirements contained in the Scheme Text, Planning Policy and the Codes, unless otherwise consistent with a planning approval.

21 Pursuant to cl 19 of TPS 1, development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes, unless otherwise specified in the Scheme.

22 Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application either conditionally or subject to such conditions, as the Council considers appropriate. Without limiting the scope of the discretion to determine an application, subclause 38(4) sets out the matters to which regard is to be had in the determination of an application. The relevant matters relating to this application are as follows:

"(a) the provisions of this Scheme and of any other written law applying within the Scheme Area including the Metropolitan Region Scheme;

(e) any submission accompanying or related to the application;

(f) the orderly and proper planing of the locality;

(g) the conservation of the amenities of the locality; and

(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."

23 Clause 48 of TPS 1 empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme, which may be applied to all or part of the Scheme Area. The Guidelines referred to in the refusal of this application have been adopted by the respondent pursuant to cl 48.

24 Subclause 48(8) of TPS 1 provides that a planning policy prepared under cl 48 shall be consistent with the Scheme and where any inconsistencies arise, the provisions of the Scheme prevail.

25 The respondent argued that the overall combined effect of the non­complying matters outlined in the planning officer's report to Council (see above) would result in an over development of the site that would adversely impact on the amenity of the area. Mr Allerding identified the following non-compliance issues as the fundamental concerns relating to the development:

. overshadowing of adjoining lot (75 per cent proposed v 50 per cent required);

. building height (6.2 metres proposed v 6.0 metres required);

. front setback of carport (0.3 metres proposed v 2.0 metres required);

. carport width (65 per cent proposed v 50 per cent required); and

. open space (34 per cent proposed v 45 per cent required).

26 Mr Allerding argued that the combination and extent of variations sought resulted in an over development of a particularly small lot which would have a significant adverse impact on the adjoining lot to the south (Lot 156) and would not be consistent with the pattern of development in Kerr Street or the locality. Mr Allerding also addressed each variation individually.

27 In relation to plot ratio, Mr Allerding contended that the degree of variation sought to the plot ratio was significant and that it indicated that the bulk and scale of development was in excess of what a land parcel of 183 square metres in area is ordinarily intended to support, in terms of built form, under the Codes. He also produced a plan showing examples of the plot ratio calculations for some developments on lots in Kerr Street. From this information he asserted that the proposed development was not consistent with the nature and scale of other developments in Kerr Street.

28 Overshadowing of the adjoining lot to the south (Lot 156) relates to the height of the wall (6.0 metres to 6.2 metres) and the setback to the common boundary, which in this instance is nil. Mr Allerding asserted that as a result of the proposal, 75 per cent of Lot 156 would be in shadow at midday on 21 June of any year. He argued that the extent of overshadowing would significantly impact on the light and ventilation available to Lot 156, which would prejudice the nature and form of future development on the lot. The Tribunal requested that a shadow diagram be provided by the respondent demonstrating the extent of overshadowing for the proposed development and the change in the shadow cast if the dwelling was set back 1.6 metres in compliance with the requirements of the Codes. The shadow diagram showed that at midday on 21 June, the proposed development would cast a shadow covering approximately 77 per cent of Lot 156 and when set back the required 1.6 metres, the overshadowing would be reduced to 61 per cent. This figure may be a little higher, as the calculation also included setting the carport 1.6 metres from the boundary.

29 The argument presented by Mr Allerding concerning the setback and width of the carport focused on the structure's prominence within the street. He considered that the carport would dominate the front of the proposed development, which would be undesirable as it would significantly diminish the character of the streetscape. Mr Allerding asserted that within Kerr Street most of the dwellings either had no carport or, where a structure existed, it was either set back from the street, designed to accommodate a single car only, or did not exceed 50 per cent of the frontage of the lot. Mr Allerding further argued that the setback to the carport was inconsistent with the established line and pattern of setbacks in Kerr Street. Mrs Sweetland, under cross­examination, conceded that there weren't any double width carports built to the street setback in Kerr Street.

30 The open space deficiency was of concern to the respondent and the reasons asserted by Mr Allerding centred on the need for the provision of adequate open space, as the type of dwelling proposed indicated family use, and the public domain could not be ordinarily expected to compensate for a reduction in recreation space of over 20 per cent.

31 The applicant claimed that the proposed development had been designed in close consultation with planning officers of the Town of Cambridge, which was evidenced by the fact that the respondent's planning officers recommended approval to the proposed development.

32 The applicant contended that the variations sought were minor in nature and would have no adverse impact on any neighbouring property. The applicant further contended that given the size and dimensions of the subject lot, development would undoubtedly be two storey if it was to meet modern expectations for new housing and that full compliance with the Acceptable Development provisions of the Codes was not practical. The applicant considered the living area of the house to be modest and the outdoor area was sufficient to meet the needs of the future occupants. In regard to the carport, the applicant argued that the structure was open and permitted visual interaction between the street and the dwelling and would not adversely affect the streetscape of Kerr Street. A number of photographs were provided to the Tribunal to demonstrate the respondent's acceptance of carports within the front setback area within West Leederville and Kerr Street.

33 Mr Sweetland, in his written response, confirmed that a small portion of the southern boundary wall located at the front of the site measured 6.2 metres above natural ground level. The increased wall height was attributed to the sloping nature of the site, and he submitted that it was a very minor variation, which would not have any significant impact on the direct sun and ventilation to the Lot 156.

34 The applicant was of the view that the proposed development would have zero impact on Lot 156 in terms of overshadowing, as it was likely that future development on Lot 156 would abut the proposed parapet wall of the development. The applicant also pointed out that the owner of Lot 156 did not raise any objections to the proposed development.

35 It should be noted that there was very little evidence to support these assertions.

36 The proposed development requires a significant number of variations to the Acceptable Development provisions of the Codes. This in itself is not fatal to the application as the Codes are concerned with the fundamental aspects of good design and achieving the best planning outcome through a "performance" approach. As the former Town Planning Appeal Tribunal found, and this Tribunal agrees, where there is non­compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather, the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4. Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out as Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes.

37 From the evidence presented, the Tribunal is not convinced that the proposed development satisfies either the General Objectives or all of the relevant Specific Objectives of the Codes. The Tribunal is of the opinion that the proposed double carport is not consistent with the established line and pattern of setbacks in Kerr Street and its dominance in the street would detract from the streetscape, which does not satisfy Performance Criteria cl 3.2.3P3 of the Codes or meet the objective of Design Element 2, which is "[t]o contribute towards attractive streetscapes ... ".

38 In relation to plot ratio, building height, setbacks to the southern boundary and overshadowing, the Tribunal is cognizant of the coding of the subject land and the resultant size of the lot. However, the Tribunal does not consider the applicant has satisfactorily addressed the adverse impacts of the proposed development on Lot 156 or produced sufficient evidence to demonstrate that the Performance Criteria of the relevant Design Elements have been satisfied, but has simply relied on the fact that the current owner did not object to the proposed development and that the impacts would be ameliorated as future development of the vacant lot would probably abut the proposed boundary wall (which may not necessarily be the case as other design alternatives are available). The Tribunal is of the opinion that the proposed design of the dwelling does not fulfil the objectives or satisfy the Performance Criteria of the relevant Design Elements of the Codes as the impact of the building bulk on the adjoining property will have a significant adverse effect on the adjoining property. Furthermore, given the size of the lot and the type of dwelling (family use), the Tribunal in considering the issue of open space is not satisfied that the open space around the dwelling is sufficient in area to suit the needs of the future occupants of the dwelling. As such, this aspect of the design does not satisfy Performance Criteria cl 3.4.1P1 of the Codes.

39 One of the fundamental aims of the Codes is to minimise the adverse impact of proposed residential development on neighbouring residents. The Tribunal does not consider the design of this development achieves this goal and, as such, it is of the opinion that approval to the variations as sought would compromise the objectives of the Codes, resulting in an outcome that would not accord with the principles of orderly and proper planning.

40 For the above reasons the Tribunal makes the following orders:

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER