Town planning - Development application - Parapet wall on boundary - Scheme requirements - Neighbour objection - Residential Planning Codes - Local policy

Town Planning and Development Act 1928 (WA)

MR D BROWN (SESSIONAL MEMBER):

REASONS FOR DECISION

1 This is an appeal against the refusal of the City of Bayswater (the "respondent") of an application dated 3 September 2004 to build a second grouped dwelling (the "development") at Lot 4 (No 165A) Peninsula Road, Maylands (the "site").

2 The site currently contains a single dwelling and the application seeks approval to construct a two-storey dwelling at the rear of the site with access via a common property driveway on the northern boundary. The development will involve a parapet wall located on the northern boundary with a length of 6.29 metres and a height of 2.575 metres.

3 The site is zoned "Urban" in the Metropolitan Region Scheme and R30 in the City of Bayswater Town Planning Scheme No 24.

4 By notice dated 27 October 2004 the Respondent refused the application for reasons expressed as follows:

"1. The proposal does not accord with Town Planning Scheme No 21 (sic) cl 4.4.10 - 'Residential Dwellings - Zero Lot Lines' in that the written approval of affected landowners has not been obtained; and

2. The proposed parapet wall will detrimentally impact upon the amenity and visual impact of neighbouring properties."

5 The residential R30 zoning allows for a second grouped-dwelling to be built on the site.

6 The central issue in this appeal relates to the location of the garage wall on the boundary and its impact on the amenity of neighbours.

7 The Residential Design Codes (October 2002) (the "Codes") are incorporated into the scheme by reference and provide at s 3.3.2 the following objective:

"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overlooking on adjoining properties."

8 Under the heading "Buildings on Boundary" s 3.3.2 of the Codes states the following performance criteria:

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

• make effective use of space: or

• 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 openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."

9 More particularly, under the heading "Acceptable Development" s 3.3 states:

"Except where otherwise provided in an adopted Local Planning Policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9 (of the Codes):

"iii In areas coded R30 and higher, walls not higher than 3.5 metre with an average of 3 metre for 2/3 the length of the balance of the boundary behind the front setback, to one side boundary ... "

10 On the evidence of Ms Emma de Jager, a qualified town planner appearing for the applicant, the development satisfies the deemed to comply standards of s 3.3.2 and satisfies the overshadowing provisions of Element 9 of the Codes.

11 Mr Damien Martin, the respondent's Manager of Planning Services, and a town planner skilled in the matter before the Tribunal, confirmed that in terms of height and length of wall the proposed development is acceptable development for the purposes of the Codes.

12 The respondent's local planning policy TP-P 2.13 addresses "Boundary Walls in Residential Areas" and provides that:

"• A boundary wall shall not be deemed 'as of right' under the provisions of cl 3.3.2 of the [Codes]

• The applicant is required, in the first instance, to seek the adjoining land owner(s) written comments in relation to the proposed parapet wall; and

• where the proposed boundary wall does not comply with the Acceptable Development Criteria of the [Codes] (cl 3.3.2-A2) the proposal will be referred to the ... council ... for determination."

13 Mr Martin confirmed that there is nothing in the scheme or Respondent's policy TP-P 2.13 that would prevent the development being approved.

14 On the evidence the respondent's decision to refuse the application was based on the single objection of the adjoining neighbour who was concerned that there would be overlooking from the new development, and the bulk of which would have an adverse impact on their property.

15 The Tribunal had before it the plans of the development showing the placement and type of windows, and the evidence confirms that any overlooking would be minor, consistent with the requirements of the codes, and would have no unacceptable impact on the neighbour's amenity.

16 On the evidence there is nothing of an objective nature to suggest that the development would be contrary to the general provisions of the scheme or the specific standards of the Codes. In arriving at this conclusion I am mindful of the report to the respondent on this matter that recommended approval to the development and which shows that the development does in fact satisfy the "Acceptable Standards" of the Codes.

17 In the circumstances the application for planning approval dated 3 September 2004 and accompanying plans is approved subject to such conditions that the Respondent might reasonably apply to a development of this type.

18 If the parties cannot agree the conditions the matter will be determined by the Tribunal at a hearing at 10 am on 26 April 2005.

19 If the conditions are agreed the parties shall lodge a Minute of Consent Orders to that effect, without the need for further hearing.

I certify that this and the preceding five pages comprise the reasons for decision of the State Administrative Tribunal.

___________________

MR D BROWN

Member