Town planning - Development application - Grouped dwelling - Dual Coding - Non-compliance with Acceptable Development provisions of the Codes - Boundary setbacks - Visual privacy - Storage area - Outdoor living area - Streetscape - Amenity impacts

Residential Design Codes of Western Australia (2002), cl 3.1.3 P2, cl 3.3.2 i, cl 3.3.2 A2, cl 3.3.2 A2 iii, cl 3.3.2 P2, cl 3.4.2 P2, cl 3.8.1 A1, cl 3.8.1 P1, cl 3.10.3 A3 1, cl 3.10.3 P3, Figure 2D

Town of Vincent Town Planning Scheme No 1, cl 6, cl 6(3)(c), cl 10, cl 18, cl 19, cl 20, cl 20(4)(c)(i), cl 32, cl 33, cl 38(3), cl 38(5), cl 47, cl 47(9)

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

2. Planning approval granted subject to conditions

1 John Hughan applied to the State Administrative Tribunal for review of a decision of the Town of Vincent refusing planning approval for additions, alteration and an additional two-storey grouped dwelling to an existing single house at No 36 Paddington Street, North Perth.

2 The subject land was located in an area coded R30/40 under the Town of Vincent Town Planning Scheme No 1 and application of the higher coding was subject to satisfying criteria set out in the Town of Vincent's Policy 3.3.18 - Knutsford Locality Policy Statement. Furthermore, the design of the proposed development involved a number of departures from the Acceptable Development provisions of the Residential Design Codes of Western Australia (2002) (Codes) relating to boundary setbacks, visual privacy, storage areas and the location of the outdoor living area for the existing dwelling. Approval of the application, therefore, required the exercise of discretion under the Codes.

3 The Tribunal determined that the proposed development was consistent with the planning intent for the area and satisfied the criteria set out under Policy 3.3.18, thereby permitting the application of the higher coding. The identified non-compliant matters were not considered to have a significant adverse affect on the amenity of the adjoining properties and as such, the application for review was allowed and planning approval granted subject to conditions.

4 This is an application by John Hughan (applicant) for review of a decision of the Town of Vincent (respondent) to refuse planning approval for "additions, alteration and an additional two-storey grouped dwelling to an existing single house" on Lot 500 (No 36) Paddington Street, North Perth (subject land).

5 The development application was refused by the respondent at its ordinary meeting of 12 July 2005. In refusing the application, the respondent gave the following reasons:

"1. The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.

2. The non-compliance with Setbacks, Outdoor Living Area, Privacy, Buildings on Boundary and Essential Facilities requirements of the Residential Design Codes and the Town's Policy relating to the Knutsford Locality, respectively.

4. The proposed subdivision does not comply with the requirements of either grouped or battleaxe subdivision."

"(i) the Council advises the Western Australian Planning Commission (WAPC) that the proposal does not meet the requirements for grouped dwellings as the proposed common property is not considered "necessary or functional", therefore resulting in the proposed survey strata subdivision being a battleaxe subdivision, that does not comply [with] the minimum site area requirements for a battleaxe subdivision; and

(ii) the Council advises the applicant that it is prepared to consider an application for a second dwelling on the site only when it can be demonstrated to meet the minimum requirements for a grouped dwelling."

7 The applicant, on 9 August 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) to have the decision relating to the development application reviewed.

8 The subject land is more particularly described as Lot 500 of Swan Location 685 on Diagram 69083, as comprised in Certificate of Title Volume 1712 Folio 033 and has a total area of 559 square metres. The registered proprietor of the subject land is Yokine Investment Pty Ltd of which the applicant is a director.

9 It would appear that the subject land at one time formed part of a larger lot that has been subdivided to create what are now Lot 500 and Lot 501. The subject lot is irregular in shape. Although both the eastern and western (side) boundaries are 46.66 metres in length, the eastern boundary deviates in a westerly direction at two junctions (at 19.93 metres and 25.66 metres) reducing the length of the rear (northern) boundary to 8.21 metres, whereas the front (southern) boundary is 16.31 metres in length.

10 There is currently an existing dwelling located on the south eastern portion of the subject land.

11 The proposal entails additions and alterations to the existing dwelling involving the construction of a laundry and store area at the rear of the building, as well as a double carport located in the primary street setback area. The development also includes the construction of an additional two-storey dwelling at the rear of the subject land. As a consequence of development, two trees are to be removed as well as two sheds demolished.

12 The respondent's planning officers, as part of their assessment of the proposed development prepared a table identifying the non-compliant elements of the proposal with the requirements of the Residential Design Codes of Western Australia (2002) (Codes). The non-compliant aspects of the table are reproduced below:

R40 - 2.54 dwellings (the subject site has a dual coding and the R40 is applied due to the retention of the existing dwelling)

Storage area with a minimum dimension of 1.5 metres and an internal area of at least 4 square metres.

Two separate storage areas, one with dimensions of 0.6 metre and 3.5 metres with internal area of 2.1 square metres, and another with dimensions of 1.1 metre and 2.4 metres and an internal area of 2.64 square metres.

Storage area with minimum dimension of 1.5 metres and 4 square metres.

Storage area with dimensions of 1 metre and 4 square metres.

13 Mr Meggitt, who represented and gave evidence on behalf of the respondent, generally endorsed this table. There was, however, one area of dispute relating to the setback requirements for the upper floor west and upper floor east (bedroom 1 and bedroom 3). Mr Meggitt contended that in addition to the departures identified by the respondent's planning officers there were other portions of the building that were non-compliant with the Acceptable Development provisions relating to setbacks. He produced the following table to highlight the areas of non-compliance:

14 The applicant disputed the claims made by Mr Meggitt and called evidence from Mr Robert Davey, who is a building designer, to challenge Mr Meggitt's assertions (see further below).

15 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS) and residential development is an appropriate use in the Urban zone.

16 Development of the subject land is also governed by the Town of Vincent Town Planning Scheme No 1 (TPS 1). The subject land is currently zoned "Residential" with a permitted site density of R30/40 as illustrated on the scheme maps.

17 Clause 6 sets out the "Objective and Intentions" of TPS 1. A general objective of the scheme that is of particular relevance to this matter is:

"6(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 zone area; and

18 Clause 10 of TPS 1, which reinforces the objective stated in cl 6, divides the scheme area into precincts and notes that for each precinct there is a planning policy contained in the Council's Policy Manual. The subject land is located in precinct "P8 North Perth" (North Perth Precinct P8).

19 The "Zone Table" contained in TPS 1 classifies the use class "grouped dwelling" as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.

20 Clause 32 and clause 33 of TPS 1 establish the need for planning approval. In this instance, although the proposed use is a "P" use in the "Residential" zone, it involves the carrying out of building work and, as such, is not a development that is exempt from obtaining planning approval.

21 Clause 18 of TPS 1 requires the development of land to be in accordance with the standards and requirements contained in the following documents:

"... Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential [Design] Codes."

22 Pursuant to cl 19 of TPS 1, the Codes are to be read as part of the Scheme and development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes unless otherwise provided for in the Scheme.

23 Clause 20 of TPS 1 provides for special application of the Codes and sets out in subclause (4)(c)(i) the criteria applicable to dual coding in North Perth Precinct P8, which reads as follows:

"20(4)(c)(i) Dual Coding: Within the area coded R30/40, development will only be permitted to R40 standards where the existing house is retained and where criteria specified in the precinct document is satisfied.

24 Subclause 38(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, subclause 38(5) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent 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;

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

(g) the orderly and proper planning of the locality; ... and

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

25 Clause 47 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme. These policies may be applied to all or part of the Scheme area. The following policies, referred to by the parties, have been formulated and adopted by the Council under this provision of the Scheme:

i) Policy No: 3.1.8 - North Perth Precinct - Scheme Map 8 (Policy 3.1.8) and;

ii) Policy No: 3.3.18 - Knutsford - Locality Plan 18 (Policy 3.3.18).

26 Policy 3.3.18 includes specific criteria relating to the application of dual coding in the Knutsford Locality [cl 20], and states:

In areas of split coding, where an established dwelling which contributes to the identifiable character of the Knutsford Locality is to be retained and/or restored, infill development to the rear of the lot may be permitted at the standards consistent with a higher density code subject to the development meeting the following criteria:

a) no reasonable significant adverse impact on adjacent residence in terms of privacy and amenity;

b) no unreasonable loss of healthy, mature trees; and

c) the design responds to the design and character of the existing dwelling on the lot and the streetscape in general."

27 Subclause 47(9) of the Scheme provides that a planning policy prepared under cl 47 shall be consistent with the Scheme Text and where any inconsistencies arise, the provisions of the Scheme Text prevail.

28 The respondent argued that the overall combined effect of the non-complying elements of the proposal would result in a development that would adversely impact on the amenity of the adjoining neighbours and that the resultant diminution of amenity would be contrary to the orderly and proper planning for the locality and the objectives of TPS 1. Mr Meggitt argued that the failure of the design of the proposal to meet the requirements of the Codes resulted in a building that was excessive in scale and bulk which negatively impacted on the amenity and privacy of the adjoining properties. He further contended that the configuration of the development failed to respond to the design and character of the existing dwelling, as well as, the streetscape and that the subsequent subdivision of the subject land would result in the creation of a de facto battleaxe lot. Mr Meggitt tried to present further argument relating to the subdivision of land but was reminded that the application for review before the Tribunal was for a development application for the construction of a grouped dwelling and that argument relating to the creation of a "common property lot" was not pertinent to this application.

29 The crux of the respondent's argument was that the proposed development failed to meet the criteria for permitting the use of the higher density code as set out in Policy 3.3.18, as the design of the proposed development failed to ameliorate the adverse impacts of the proposal on the adjoining properties, resulted in the removal of a tree listed in the Town's "Trees of Significance Inventory Database - Reference" and did not respond to the design and character of the existing dwelling on the lot and the streetscape in general.

30 The applicant contended that the proposed development met the particular criteria listed in Policy 3.3.18 and that the departures sought in relation to the Acceptable Development provisions of the Codes did not result in any undue impacts on the amenity of the adjoining properties. Furthermore, the applicant asserted that the scale and bulk of the building was of a form that might reasonably be expected in an area coded R30/40. In response to the removal of the tree, the applicant reiterated the comments put forward by the planning officers in their report to Council on 12 July 2005, which stated "there is a Eucalyptus species tree on site which is on the Town's Trees of Significance Inventory Database-Reference, but the Town's Parks Service have advised that the trees is not significant enough to warrant retention". Mr Hughan gave evidence suggesting that the tree had only been planted about eight years ago by the tenant. It was further agreed, during the site visit, that the subject tree was not of the "Eucalyptus species" as described in the respondent's inventory.

31 The respondent did not produce any evidence attempting to substantiate the inclusion of the subject tree in their inventory. The Tribunal acknowledges that the tree is listed in the Town's "Trees of Significance Inventory Database - Reference", however, the evidence before the Tribunal raises significant doubt about the efficacy of the inventory and as no other evidence has been led to challenge this evidence, the Tribunal accepts the comments made by the respondent's Park Services Division.

32 The non-compliant matters were individually addressed by the parties and are as follows:

33 Mr Meggitt asserted that in addition to the departures identified by the respondent's planning officers (refer to table above) there were other portions of the building that were non-compliant with the Acceptable Development provisions of "Element 3 - Boundary Setback" of the Codes. Mr Meggitt argued that the application of "Figure 2D - Measurements of Boundary Setbacks" of the Codes (see Appendix) had been incorrectly applied by the respondent's planning officers and that according to his calculations both the upper floor west and the upper floor east (bedroom 1 and bedroom 3) should be set back 1.9 metres from their respective boundaries. He contended that for the purpose of calculating "length of wall" as demonstrated in Figure 2D, both the upper floor eastern and western walls should be treated as one length of wall.

34 Mr Davey disputed Mr Meggitt's interpretation of Figure 2D. He contended that where the side of a building included two or more portions of wall without a major opening (referred to as "E" and "F" in Figure 2D) those portions of wall could be determined independent of each other provided they were separated by a distance of greater than 4.0 metres (referred to as "D" in Figure 2D) and that the setback of the separating portion of wall (D) was determined on the total length of all the walls.

35 The corresponding text for Figure 2D states:

"Figure 2D indicates the method for establishing setback measurements under Table 2a and 2b, subject to the privacy requirements of Element 8:

• where 'A' is more than three metres, 'B' shall be treated as a separate wall, providing that the length 'C' shall be the basis for determining the setback of the rest of the side of the building.

• where the side of the building includes two or more portions of a wall without a major opening (such as 'E' or 'F') their setbacks shall be determined independently of each other provided they are separated from one another by a distance ('D') of more than four metres (in the case of wall heights of six metres or less) and an additional one metre for every three metres increase in height.

• the setback of 'D' shall be determined on the basis of the total length ('C')."

36 The diagram illustrates two examples, the right side which relates to separate walls with major openings and the left side, separate walls without major openings. Mr Meggitt interpreted "A" as described in dot point 1 of the text as applying to both examples. On his interpretation, portion of wall "D" is required to be greater than 4.0 metres in length and set back 3.0 metre before portions of walls "E" and "F" can be treated as separate walls.

37 In considering both the text and the diagram in conjunction, it would appear that there is some potential for confusions as the letter "A" has been denoted on both sides of the diagram. However, on the construction of the text, it is clear the "A" is only applicable to the circumstances demonstrated in the right side as "B" is not reference in the example shown on the left side. This is further evident by the inclusion of dot point three which determines the setback of "D". The Tribunal agrees with the interpretation of Mr Davey and, as such, the Tribunal finds that the setbacks as shown in the proposed development for the upper floor west and the upper floor east (bedroom 1 and bedroom 3) are compliant with the Acceptable Development provisions relating to "Building Set back from the Boundary".

38 In regard to the departures relating to "Buildings on Boundary", Mr Meggitt contended that the design of the proposed development entailed the building been built to three boundaries. He advanced the argument that the departures sought further illustrated that the building was of a bulk that was unsuitable for the site. Mr Meggitt acknowledged that the Codes provided for buildings to be built up to one side boundary but asserted that the bulk of the building would negatively impact on the amenity of the adjoining properties thereby failing to satisfying the performance criteria as set out in cl 3.3.1 P2 of the Codes. The adverse impacts identified by Mr Meggitt included shading of outdoor areas, a reduction in the flow of breezes between the properties, a heighten sense of enclosure and the loss of established landscaping along the boundary of No 34 Paddington Street. Mr Meggitt did not produce any material evidence to substantiate these claims.

39 Mr Richard Sandell, a resident of No 34 Paddington Street, was called by the respondent to give evidence regarding the perceived impacts of the proposed development on the adjoining properties. In relation to boundary setbacks he raised concerns relating to the scale and bulk of the building. He considered that the design of the building in respect of its size, scale, lack of acceptable boundary setbacks and boundary walls on three boundaries, would have significant adverse impact of the amenity of adjoining properties. Particular concerns raised by Mr Sandell included the visual impact of the proposed dwelling as view from the adjoining properties, the destruction of mature gardens and the removal of a significant tree, loss of sunlight and breezes, the reduction of development options available to affected neighbours and safety hazards created during construction. Mr Sandell produced a number of computer generated images to visually demonstrate the imposing nature of the proposed two-storey dwelling as viewed from the adjoining properties and its affect on existing vegetation.

40 In response, the applicant maintained, through the evidence of Mr Davey, that the parapet wall on the eastern boundary of the subject land was fully compliant with the Acceptable Development provisions of the Codes as cl 3.3.2 A2 iii permits in areas coded R30 and higher "walls not higher than 3.5 metres with an average of 3 metres for 2/3 the length of the balance of the boundary behind the front setback to one side boundary". Mr Davey asserted that the parapet wall would not have any undue impact on the adjoining property as the height of the wall equated to the same height as the existing boundary fence (including lattice). However, in order to preserve the existing vegetation along the common boundary, which was a significant concern of the residents of No 34 Paddington Street, the applicant indicated a preparedness to off set the building from the boundary.

41 Mr Webb, an experienced town planning consultant representing the applicant and Mr Davey asserted that the walls referred to by Mr Meggitt as boundary wall on the western and northern boundaries of the subject land were masonry walls (fences) of up to and no more than 1.8 metres in height. Mr Davey described the western wall as a screen wall, separate from the columns associated with the carport. He said that the wall had been included purely for aesthetics reasons and could be substituted by fencing of an alternative material.

42 The Tribunal accepts that the eastern boundary wall when considered independently is compliant with subclause iii of cl 3.3.2 A2 of the Codes. Furthermore, the Tribunal accepts the applicant's argument that the northern and western brick walls are no more than dividing fences and therefore not boundary walls. However, these findings do not overcome the issue of the carport columns which support the upper floor of the building and are positioned "up to the boundary" (see cl 3.3.2 i of the Codes). The columns form part of the vertical external face of the building and therefore, by definition are considered to be a wall on the western boundary. The development when considered in its entirety does not comply with subclause iii of cl 3.3.2 A2 of the Codes and therefore must be assessed against the performance criteria specified in cl 3.3.2 P2, which states:

"P2 Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:

• otherwise enhance the amenity of the development; and

• not have any significant adverse effect on the amenity of the adjoining property; and

• ensure that direct sun to major opening to habitable rooms and outdoor living areas of adjoining properties is not restricted."

43 The focus of the respondent's argument in respect to the performance criteria centred on dot points four and five (see above). The Tribunal is of the view that the eastern boundary wall, if set off the boundary in order to retain the existing fence and vegetation, will have minimal impact on the adjoining property as the height of the proposed boundary wall is of a similar height as the existing boundary fence, which will effectively screen the boundary wall from view from the adjoining property.

44 Both Mr Meggitt and Mr Sandell claimed that the proposed dwelling will significantly reduce the sunlight and breezes to the adjoining properties. No material evidence was produced by either witness to show how or the extent to which the proposed setback departures would significantly reduce the sunlight and breezes to the adjoining properties. The evidence the Tribunal has before it shows that the proposed development is compliant with the Acceptable Development provisions of the Codes relating to "Element 9 - Design for Climate".

45 The columns of the carport are located on the western boundary while the part of the building that cantilevers over the carport is set back from the boundary in accordance the provisions of the Codes. This design helps to ameliorate the building bulk of the wall on the adjoining property. The Tribunal finds that the location of the columns of the carport will have little amenity impact on the adjoining property.

46 Mr Meggitt asserted that the privacy setback to bedroom 2 window was non-compliant with cl 3.8.1 A1 of the Codes, as the setback to the window was required to be 4.5 metres from the eastern boundary and only 3.5 metres had been provided. Mr Meggitt asserted that the proposed development failed to satisfy the performance criteria as specified in cl 3.8.1 P1 as direct overlooking occurred between active habitable spaces of the development site and the outdoor living areas of adjoining properties.

47 Mr Sandell contended that the main outdoor living area of the adjoining property at No 19 Clieveden Street would be overlooked from both bedroom 2 and bedroom 3 windows. Mr Sandell did not support the use of screening to restrict overlooking as he was concerned that the screening could be removed at a later date or by a new owner.

48 Mr Davey explained that the screen as shown on the plans would obscure the view from both bedroom 2 and bedroom 3. He conceded that the screening did not fully obscure overlooking within the cone of vision (as determined by the Codes) as there was about one square metre of the north-western corner of the adjoining property that lay inside the cone of vision that was not obscured by the screen. He considered that this minor overlooking would have minimal impact on the amenity of the adjoining property and that the screening provided satisfied the performance criteria as specified in cl 3.8.1 P1, particularly as the area affect was the rear yard of the adjoining property. Mr Davey, indicated that if this issue was of concern the solution was to simply extend the screen. As well, during the site viewing it was pointed out that an existing palm tree on the adjoining property would assist in screening the window.

49 Except for the window in bedroom 2, the proposed development complies with the Acceptable Development provisions relating to visual privacy. The proposed screen does not completely restrict views within the cone of vision and therefore is required to be assessed against the performance criteria specified in cl 3.8.1 P1. The aim of the provision is to avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas with adjoining properties taking account of the following:

"• the positioning of windows to habitable rooms on the development site and the adjoining property;

• the lesser need to prevent overlooking of extensive back gardens, front gardens or areas visible from the street."

50 Although the overlooking from window 2 will affect the back garden of the adjoining properties, it is considered appropriate, given the closeness of development in this locality to require the extension of the proposed screen to comply with the Acceptable Development provision.

51 Clause 3.10.3 A3.1 of the Codes specified the Acceptable Development provisions relating to storage areas. To comply with this requirement an enclosed, lockable storage area, constructed in a design and material matching the dwelling, accessible from outside the dwelling, with a minimum dimension of 1.5 metre with an internal area of at least 4 square metres is required to be provided for each grouped dwelling. The proposed storage arrangements for the proposed dwelling do not comply with this provision. It is proposed that two separate storage areas be provided, one with an internal dimension of 2.1 square metres (0.6 metres x 3.5 metres), the other with an internal dimension of 2.64 square metres (1.1 metres x 2.4 metres).

52 The failure of the development to fulfil this requirement was seen by Mr Meggitt as a further indicator that the scale of the proposed building was inappropriate relative to the size of the lot.

53 Mr Davey contended that the storage areas as shown on the plans satisfied the performance criteria specified in cl 3.10.3 P3. To dispel Mr Meggitt's claim he demonstrated, during the hearing, that there were two alternative design options available which would satisfy the Acceptable Development provision. Mr Webb, in closing submissions, indicated that the plans were able to be modified to comply with the Acceptable Development provision and, as such, did not oppose the imposition of the suggested draft condition referring to this element.

54 The concept of providing several smaller separate storage areas in lieu of one larger storage area may well be a suitable alternative, however, in this instance, insufficient evidence was led by the applicant to justify the proposed departure. Given the evidence of Mr Davey and the acceptance, by the applicant, of a condition imposing compliance with the Acceptable Development provision, this departure is no longer a live issue.

55 Mr Meggitt asserted that the proposed development would detract from the appearance of the streetscape as the outdoor living area and the double carport for the existing dwelling are located within the front setback area. Mr Meggitt submitted photographs of a number of dwellings in Paddington Street to illustrate that Paddington Street is characterised by "open front setback areas with low front fences and well landscaped gardens". He further asserted that generally car parking structures were located at the side or rear of the properties. He contended that the inclusion of such elements in the Paddington Street streetscape would diminish the character of the street, citing the existing developments at Nos 3 and 5 Paddington Street as examples of infill development that have detracted from the streetscape.

56 Mr Webb also produced photographs to demonstrate that double carports are a common element within the streetscape of Paddington Street, particularly within the immediate vicinity of the subject land. Mr Webb focused on the properties on either side of the subject land where car parking is located within the front setback area. He asserted that the proposed development was entirely consistent with both the immediate properties and many other examples in Paddington Street.

57 There was no evidence led by the respondent suggesting that the double carport was non-compliant with the Acceptable Development provisions of the Codes or that the location of the outdoor living area did not satisfy the performance criteria as specified under cl 3.4.2 P2 of the Codes. It would appear that the respondent relies on Policy 3.3.18 as providing a measure of orderly and proper planning for the area.

58 In order to gain a full appreciation of the streetscape of Paddington Street, a view was held on 17 November 2005. The parties agreed that the observations were to be treated as evidence before the Tribunal. The view confirmed that the character of Paddington Street is defined by the original dwellings, which generally establish an identifiable street setback pattern. The area between the dwelling and the street is characteristically open with low fences delineating the private and public interface. There are, however, a number of carport structures, paved areas and high screen walls located within the front setback area, particularly in the immediate vicinity of the subject land. The intrusion of a double carport in the front setback area will, to some extent, detract from the streetscape, as the visual relationship between the dwelling and the public realm will be interrupted by the introduction of a structure, which will partially obscure the view of the dwelling. However, the density of the area contemplates infill development and the proposed development accords with the configuration envisaged by Policy 3.3.18, that being "infill development to the rear of the lot". The design of the proposed carport reflects the details of the original dwelling and responds to the need to retain some interconnectivity with the street by ensuring that the carport is permeable on all sides, and through the provision of a relatively low front fence. The Tribunal finds that the inclusion of a double carport and outdoor living area for the existing dwelling within the front setback area will not significantly detract from the streetscape of Paddington Street to warrant refusal of the application.

59 The Tribunal considered the proposed development to be consistent with the planning intent for the area and satisfied the criteria set out under Policy 3.3.18, which supports the application of the higher coding. The identified non-compliant matters are not considered to have a significant adverse affect on the amenity of the adjoining properties and for the reasons set out above, the Tribunal considers the proposed development to be acceptable and worthy of conditional approval.

60 As required by a direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, which are as follows:

"(a) All external fixtures, such as television antennas (of a non-standard typed), 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;

(b) Subject to first obtaining the consent of the owner of Nos 34 and 38 Paddington Street and No 19 Clieveden Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing Nos 34 and 38 Paddington Street and No 19 Clieveden Street in a good and clean condition;

(c) Prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating any new street/front wall, fence and gate between the Paddington Street boundary and the main building, including along the side boundaries and the main building including along the side boundaries within the front setback area complying with the following:

(1) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;

(2) 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;

(3) the maximum width, depth and diameter of posts and piers being 350 millimetres;

(4) 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 per cent transparency; and

(5) 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.

The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies.

(d) Prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the following:

(1) a store with minimum internal area of 4 square metres with a minimum dimension of 1.5 metres being provided for both the existing and proposed dwelling;

(2) the BBQ/deck area wall on the western elevation being a minimum high of 1.6 metres above the respective finished floor level so that it is not considered to be a major opening as defined in the Residential Design Codes 2002;

(3) the 6 metres section of landscaping along the western boundary commencing at 4.5 metres south of the reserving area being removed and to form part of the driveway;

(4) the obscure glazing wing wall extension to bedroom 3 on the eastern wall of the upper floor, being non-openable and constructed of a permanent obscure material which does not include a self-adhesive material or other material that is easily removed; and

(5) the window in bedroom 2 on the eastern elevation, on the upper floor, being screened with a permanent obscure material and be non-openable to a minimum of 1.6 metres above the finished first floor level. A permanent obscure material does not include a self-adhesive material or other material that is easily removed. The whole window can be top hinged and the obscure portion of the window openable to a maximum of 20 degrees; OR the subject window not exceeding one square metre in aggregate in the respective subject wall, so that it is not considered to be a major opening as defined in the Residential Design Codes 2002; OR the obscure glazing screen wing wall extension to bedroom 3 on the eastern elevation of the upper floor (as outlined in condition (iv)(d) above) being extended a total distance of 3 metres along the eastern elevation on the upper floor from bedroom 3.

The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies;

(e) The carport for the existing dwelling shall be one hundred (100) per cent open on all sides and at all times (open type gate/panels are permitted), except where it abuts the front main building wall.

(f) A detailed landscaping plan including a list of plants and the landscaping and reticulation of the Paddington Street verge adjacent to the subject property, shall be submitted and approved prior to the issue of a Building Licence. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s)."

61 The applicant raised the following issues in respect to the draft conditions:

62 Condition (a) - the applicant is concerned that it is too open to a subjective and unreasonable interpretation and should incorporate the concept of reasonableness. The Tribunal does not consider this condition to be unreasonable as it is intended to ensure that external fixtures conform with the objective of Element 10 of the Codes.

63 Condition (b) - the applicant contended that the condition was neither reasonable nor appropriate. The need for this condition is resolved by the applicant's preparedness to set back the parapet wall from the eastern boundary and by the fact that the walls on the northern and western boundaries are dividing fences. An appropriate condition will be imposed by the Tribunal.

64 Condition (c) - the applicant did not oppose the spirit of the condition but expressed concern about requiring, "Revised Plans [being] submitted and Approved..." as the approval of plans is beyond the ability or power of the applicant to achieve. This concern can be easily overcome by requiring the Building Licence plans to reflect the requirements as specified. This approach would apply for condition (d) as well.

65 Condition (d) - the applicant initially disagreed with the inclusion of sub-condition 1 but later conceded to this requirements, if necessary. The Tribunal will require its inclusion as a part of the condition.

66 Condition (e) - the applicant generally agreed with this condition except for the requirement to be "one hundred (100) per cent open" as this necessarily excludes the supporting columns together with the gates and panels which the respondent advises, are permitted. This is a valid concern and as such the condition should be modified.

67 Condition (f) - the applicant objects to the part of the condition requiring the detailed landscape plan to be approved by the respondent prior to the issue of a Building Licence, and for the applicant to guarantee that the plants will continue to be maintained thereafter. The Tribunal considers this condition to be lawful and acceptable as it relates to an incidental aspect of the development.

2. Planning approval is granted for additions, alteration and an additional two-storey grouped dwelling to an existing single house on Lot 500 (No 36) Paddington Street, North Perth as detailed on Sheet 1 of 1 - Drawing No 27525 subject to the following conditions:

a) All external fixtures, such as television antennas (of a non-standard typed), 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;

b) The parapet wall located on the eastern boundary (common boundary with No 34 Paddington Street) shall be off set from the boundary to ensure the retention of the existing boundary fence and vegetation.

c) Any new street/front wall, fence and gate between the Paddington Street boundary and the main building, including along the side boundaries and the main building including along the side boundaries within the front setback area shall comply with the following and be reflected in the Building Licence plans:

(i) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;

(ii) 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;

(iii) the maximum width, depth and diameter of posts and piers being 350 millimetres;

(iv) 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 per cent transparency; and

(v) 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 metres above the adjacent footpath level.

d) The Building Licence plans shall reflect the following requirements:

(i) a store with minimum internal area of 4 square metres with a minimum dimension of 1.5 metres being provided for both the existing and proposed dwelling;

(ii) the BBQ/deck area wall on the western elevation being a minimum high of 1.6 metres above the respective finished floor level so that it is not considered to be a major opening as defined in the Residential Design Codes of Western Australia (2002);

(iii) the 6 metres section of landscaping along the western boundary commencing at 4.5 metres south of the reserving area being removed and to form part of the driveway;

(iv) the obscure glazing wing wall extension to bedroom 3 on the eastern wall of the upper floor, being non-openable and constructed of a permanent obscure material which does not include a self-adhesive material or other material that is easily removed; and

(v) the window in bedroom 2 on the eastern elevation, on the upper floor, being screened with a permanent obscure material and be non-openable to a minimum of 1.6 metres above the finished first floor level. A permanent obscure material does not include a self-adhesive material or other material that is easily removed. The whole window can be top hinged and the obscure portion of the window openable to a maximum of 20 degrees; OR the subject window not exceeding one square metre in aggregate in the respective subject wall, so that it is not considered to be a major opening as defined in the Residential Design Codes of Western Australia (2002); OR the obscure glazing screen wing wall extension to bedroom 3 on the eastern elevation of the upper floor (as outlined in condition (iv)(d) above) being extended a total distance of 3 metres along the eastern elevation on the upper floor from bedroom 3.

e) The carport for the existing dwelling shall at all times comply with the definition of carport as defined in the Residential Design Codes of Western Australia (2002).

f) A detailed landscaping plan including a list of plants and the landscaping and reticulation of the Paddington Street verge adjacent to the subject property, shall be submitted and approved prior to the issue of a Building Licence. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s).

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER