Development application - Mixed-use development - High density zone - Compatibility with R­Codes - Streetscape - Street setback - Overshadowing - Whether a survey strata lot constituted an "adjoining property" under the R­Codes - Visual impact of boundary walls - Amenity impacts within reasonable contemplation of zoning and planning controls

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

1 These proceedings are an application for review of the decision of the Town of Vincent ("the respondent") made on 21 December 2004 to refuse to grant approval to a development application in relation to the property known as No 28 (Lot 56) Monger Street, Perth ("the site"). The development application proposes the demolition of an existing single­storey house and outbuildings and the erection of a 2 - 3 level above basement mixed-use development comprising two office units, three two­bedroom residential units, and five underground car parking spaces.

2 The respondent determined not to advertise the development application, as a development application for a similar proposal had been advertised earlier in 2004. That advertising resulted in three letters of objection, including one from each of the owners of two survey strata lots comprising semi­detached dwellings at Nos 22 ­ 24 Monger Street, which property adjoins the site to the east. Although the letters of objection formed part of the evidence, the respondent did not call the authors of the objections to give evidence at the hearing.

3 The development application was recommended for conditional development approval by the respondent's assessing officer in a report dated 14 December 2004. The conditions proposed by the officer included an increase of at least one car parking space. The respondent, however, resolved unanimously to refuse development approval for the following reasons:

"1 The application is not in keeping with the Residential Design Codes and the orderly and proper planning and preservation of the amenities of the locality.

3 Not in keeping with the streetscape and street setback policies.

4 Non­compliance as listed in the table and specifically the inability to provide sufficient parking.

4 The proposed development would present to Monger Street with a varied and articulated front setback. A 3.35m high rectangular masonry structure is proposed with two fin walls and a roof element with zero setback to the Monger Street frontage. This element is proposed to frame a "heritage icon sculptured plaque" mounted on a wall with a 900mm setback. A 3.35m high fin masonry wall is also proposed approximately 2.0m from the eastern boundary of the site with a zero setback to the Monger Street frontage. Between these projecting masonry elements with zero setback, there is proposed a planter box and awning above, each with a zero setback. Boundary walls/fences to a height of 1.8m are also proposed to project to the street frontage on the eastern and western boundaries of the site. Office 1 and a solid masonry balustrade of the terrace of residential unit 1 above are proposed to have a setback of 900mm from the street boundary. The floor level of Office 1 would be slightly below street level. The front or southern walls of residential unit 1 (which are on the second level of the development when viewed from the street) are proposed to be setback 4.619m and 5.669m from the street frontage. Residential unit 1 also contains an attic or loft level within the gabled roof-form with a setback of 9.169m from the front boundary of the site.

5 The other two residential units are located in the rear or northern part of the site. These units comprise two storeys and an attic or loft portion contained within the gabled roof-form. Each of these units has a roof terrace off the attic or loft. The maximum height of the roof of the proposed development is less than or equal to 9.0m above natural ground level.

6 The development has been carefully designed to avoid any privacy concern (between proposed units and between proposed units and adjoining properties) by the appropriate use of high sill heights, obscure glazing, and obscure "breeze block" screening.

7 The site is located on the northern side of Monger Street between William Street and Lindsay Street. It has a regular shape, with a width of 12.69m, a depth of 34.64m and an area of 438m2. Presently erected on the site is a rather dilapidated dwelling house and outbuildings. Although the house was probably built in the first decade of the 20th century, it has no individual heritage significance. It has a setback of 750mm to the wall of a roofed front verandah, and 2.2m to the front wall of the house. The side setback to the property to the east at Nos 22 ­ 24 Monger Street ranges from 2.5m to 2.97m. The setback to the property to the west at No 32 Monger Street ranges from 430mm to 1.0m.

8 The site falls approximately 2.4m from the northern or rear boundary to the southern or street boundary.

9 Consistently with adopted policies of the respondent, the immediate locality of the site is undergoing transition. These policies envisage that the area is to have a mixed residential­commercial character with a predominance of residential uses. In terms of both land use and built form, the subject locality is intended to provide a transition from more intense commercial development to the south to a lower­density residential precinct to the north.

10 As noted above, immediately adjoining the site to the east is an allotment comprising two semi­detached dwellings which form part of survey strata scheme. The building on that allotment is set back from the Monger Street frontage by approximately 1.7m to the front verandah and 3.4m to the front wall. Immediately adjoining the site to the west is a single dwelling house which has a minimum setback of 1.6m to the verandah and a variable setback of 4.4m to approximately 6.0m to the front wall of the building. To the north of the site, and of each of its neighbours, is the Acacia Hotel, which has a 7.4m high wall directly on the boundary rising to approximately 13.0m at a distance of 2.5m from the boundary. The hotel development presents with significant bulk and scale to the site and its neighbours to the east and west. It is visible above the buildings on the site and on neighbouring properties when viewed from Monger Street.

11 The immediate locality comprises predominantly single to two­storey residential and some commercial development. There is a three­storey commercial development diagonally across Monger Street from the site on the north­western corner of Monger Street and Money Street, although that property is differently zoned to the site and in a different designated precinct. As was common ground, there are a variety of street setbacks evident in the immediate locality, ranging from 0m ­ 6.0m. However, as was also common ground, the predominant front setback of buildings in the immediate locality is in the range of 2.0m ­ 3.0m.

12 The site and its immediate locality (other than the street block bounded by Monger, Money, William and Newcastle Streets) is zoned "Residential Commercial" and has a density coding of R80 under the Town of Vincent Town Planning Scheme Number 1 ("TPS 1"). Clause 10 of TPS 1 divides the Scheme area into precincts. The site and the surrounding area is within Precinct P13 ­ Beaufort Precinct.

13 Clause 18 of TPS 1 provides that, unless otherwise consistent with a planning approval, "the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies, and the Residential Planning Codes". Clause 19(2) of TPS 1 specifically provides that "the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes".

14 Clause 38(5) of TPS 1 sets out matters which the respondent, and the Tribunal on review, is required to have regard to in a planning assessment. These relevantly include the following:

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

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

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

15 Clause 47 of TPS 1 provides that the respondent may make planning policies which are to relate to an aspect or aspects of development control or any other matter relevant to the Scheme. In accordance with cl 47, the respondent formulated and adopted a number of policies which are relevant to the present application. As Mr Bain, who represented the respondent, submitted, the respondent has "a strong policy framework". In particular, five of the respondent's policies are of relevance in this review.

16 The Beaufort Precinct Policy (Policy No: 3.1.13) states in its introduction that: "New buildings should be of a scale compatible with the majority of existing buildings and comprise a consistent built form in relation to height, setbacks and street frontage". This policy provides that all buildings, other than in Charles Street, "are to be setback from the street alignment such distance as is generally consistent with buildings setback on adjacent land and in the immediate locality, and buildings are not required to have any other setbacks, except as required by the Policy relating to Non­Residential Development Uses in/or Adjacent to Residential Areas".

17 The Local Character Policy (Policy No: 3.2.1) states as follows:

"The Town of Vincent's intent in regards to Local Character is to:

i) Ensure that development is generally compatible with predominant, characteristic development in the Locality, in terms of street setback, street frontage treatment and rhythm, and scale (ie, bulk and height); ... [and]

iv) Encourage new development (including additions and alterations to existing development) to be contemporary, sympathetically and innovatively designed; ...

A detailed Residential Locality Statement for each of the thirty­one residential localities in the Town of Vincent is included in the Town of Vincent Policy Manual."

18 The Residential Locality Statement which is relevant to the site is the Lindsay Policy Statement (Policy No: 3.3.25). This policy states as follows:

"The desired future character is to introduce a mixture of residential and commercial uses into the Locality.

New contemporary developments are encouraged provided that the design responds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation.

Front setback areas are to be landscaped and, preferably, devoid of parking spaces. Where available, on­site parking is to be accessed from a right­of­way."

19 The Lindsay Policy Statement also provides, in relation to setbacks, that "maintaining existing front, side and rear setbacks is strongly encouraged".

20 The Building Scale Policy (Policy No: 3.2.8) contains provisions in relation to bulk and height. The height provision is consistent with the Residential Design Codes of Western Australia ("the R­Codes"). Finally, the Street Setbacks Policy (Policy No: 3.2.4) contains the following relevant provisions:

"Frontage street setback areas are an integral part of the streetscape, fundamental to the amenity and particular character of residential localities.

Front setbacks for new residential buildings are to conform to the adjoining existing houses, in order to reinforce the character of the streetscape and to address the traditional relationship of buildings to the street. ...

In nearly all streets in the Town of Vincent, there is a long established pattern of streetscapes and street setbacks. This pattern is to be continued, so that new development does not overpower the existing streetscape."

21 In opening for the respondent, Mr Bain stated that there were three key or determinative issues for determination in these proceedings, namely:

(2) Overshadowing of the adjoining property to the east.

(3) The visual impact of boundary walls on adjoining properties to the east and west.

22 Although the respondent did not press the first reason for refusal of the application, namely that the application is not in keeping with the R­Codes, given that cl 19(2) of TPS 1 requires that residential development conform to the provisions of those Codes, I have considered the question of conformity. In my opinion, the proposed development is in conformity with the R­Codes.

23 Part 4 of the R­Codes contains special provisions in relation to mixed­use development. It provides that development that complies with certain Acceptable Development criteria "is deemed to meet the relevant Performance Criteria" for such development. The Acceptable Development criteria are relevantly in the following terms:

"A1 The dwelling component of a mixed­use building development in accordance with:

(i) the relevant provisions, if any, of the Scheme;

(iii) to the extent that the Scheme allows, subject of the following:

• walls on boundary for 2/3 of boundary behind street setback up to 6m height;

• on­site car parking ­ as for Multiple Dwellings; may be reduced to one per dwelling where on­site parking required for other users is available outside normal business hours;

• outdoor living area ­ all dwellings required to have a balcony, or ground floor open space, not less than 1.5m depth and a minimum area of 4sqm [sic]

• plot ratio ­ as provided in Table 1, in addition to any ground level non­residential floor space."

24 The relevant plot ratio stated in Table 1 for the R80 Coding is 1.00.

25 The R­Codes, therefore, permit mixed­use development to be built to the street boundary. They also permit walls to be built on the side boundaries for two­thirds of the boundary behind the street setback and up to 6.0m in height. In this case, it was common ground that, although walls are proposed along most of the eastern and western boundaries of the site, these walls should only be considered to be "walls on boundary" within the meaning of the Acceptable Development criterion where the wall exceeds the height of a characteristic boundary fence. In my opinion, the Acceptable Development criterion permits both side boundary walls to occupy two­thirds of the boundaries behind the street setback. It was common ground that, on this basis, the development satisfied this criterion.

26 It was also common ground that the Acceptable Development criterion for on­site car parking in cl 3.5.1 of the R­Codes required two car parking spaces per dwelling, in addition to two for the office component of the development, that is, a total of eight spaces. However, as noted above, the Acceptable Development criterion for mixed­use development permits the number of car parking spaces required to be reduced to one per dwelling where on­site parking required for other users is available outside normal business hours. In the present case, the respondent's assessing officer recommended that a condition of approval require a sixth car parking space to be provided on site. The templates, which formed part of the evidence of Mr Emery for the applicant, demonstrated that it was possible to have a sixth car parking space in the proposed basement and for each space to be accessed so that vehicles could enter and exit the development in a forward direction. In my opinion, if a condition of development approval were imposed which required the provision of a sixth parking space and which made clear that the two office car spaces were to be made available for residential use outside normal business hours, the development would be in conformity with the car parking requirement in the R­Codes.

27 As the plot ratio of the development was approximately 0.9, it satisfied the maximum plot ratio of 1.00.

28 In relation to design for climate, cl 3.9.1 of the R­Codes provides as follows:

"Development that complies with the following is deemed to meet the relevant Performance Criteria:

A1 Notwithstanding the boundary setbacks in Element 3, development in Climatic Zones 4, 5 [which applies to the Perth region] and 6 of the State shall be so designed that its shadow cast at midday, 21 June onto any other adjoining property does not exceed the following limits.

• On adjoining properties coded R­IC or higher than R-40 - 50 per cent of the site area.

Note: In this context 'site area' refers to the surface of the adjoining lot without regard for any building on it but taking into account its natural ground levels."

29 Mr Bain gave evidence that the proposed development would overshadow 79 per cent of the survey strata lot on which stood the closest semi-detached dwelling to the east of the site. The term "adjoining property" is defined in cl 2.2 of the R­Codes as follows:

"Any lot:

• on which any dwelling for which provision is made in the Codes may be constructed under the Scheme; and

• which shares a boundary or portion of a boundary with a lot upon which there is a proposed residential development site ... "

30 The term "lot" is defined in cl 2.2 of the R­Codes "for Multiple or Grouped Dwellings, [as] the parent 'lot', inclusive of common areas, on which the strata scheme relates as defined under the Town Planning and Development Act." The term "grouped dwelling" is defined in the same clause as "a dwelling that is one of a group of two or more dwellings on the same lot ... ".

31 In consequence of these definitions, the Acceptable Development criterion for design for climate requires that the proposed development not overshadow by itself more than 50 per cent of the site area of the total area of the adjoining strata scheme. The shadow diagram in evidence demonstrates that this criterion is met.

32 Finally, the applicant conceded that there was a small non­compliance with one of the Acceptable Development criteria for height. In particular, whereas the Acceptable Development criteria in cl 3.7.1 of the R­Codes required that the top of the external wall of the development be no higher than 6.0m, the development proposed wall heights in certain locations of up to 6.3m. I am satisfied that, notwithstanding this non­compliance, the proposed development satisfied the objective of the building height requirements, namely "to ensure that the height of buildings is consistent with the desired scale within a given locality", and the performance criteria. These criteria required that "building height be consistent with the desired height of buildings within the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate, adequate direct sun to buildings and appurtenant open spaces; adequate daylight to major openings to habitable rooms; and access to views of significance". Although the proposed development would cast considerable shadow on the semi­detached dwelling immediately to the east, given the zoning, width and orientation of the site, the overshadowing impact in mid­winter is an inevitable consequence of reasonable development of the site consistent with the zoning and planning controls. Moreover, the sections of the proposed development which would cast the significant shadow on the property to the east are themselves compliant with the relevant height controls.

33 Mr Artur Kateiva was the designer of the proposed development. It was Mr Kateiva's evidence that "there is no established streetscape" in Monger Street, and that different land uses have produced "a variety of different style developments and additions ... resulting in a wide variety of reduced setbacks". Mr Graham Emery, a project manager and development consultant who gave evidence on behalf of the applicant, considered that "the minimal front and side setbacks and varying design styles in Monger Street result in an unusual and interesting mix of buildings". He stressed that the proposed front setback of 0.9m for the commercial component of the development was greater than that required by the R­Codes for mixed­use development. He gave evidence that "the upper level Multiple Dwelling has an articulated front façade with setbacks ranging from 4.62m to 5.67m above and behind the commercial component" and that "this setback exceeds by far the recently completed large two level building (front setback 1.0m) directly across the street".

34 Mr Trevor Moran, who is an experienced town planner, also gave evidence for the applicant. He noted that the R­Codes "are very specific" about mixed­use development and that although the respondent had an opportunity to vary the provisions of the R­Codes through Scheme provisions, it did not do so. He also noted that the respondent's local planning policies pre-dated the mixed­use provisions of the R­Codes and that neither the Beaufort Precinct Policy nor the Lindsay Policy Statement directly addressed mixed­use development. He considered that the proposed development "not only accords with the planning provisions of the R­Codes, but is an example of the type of innovative development not only anticipated, but encouraged by the Residential Design Codes for mixed-use development in inner city localities".

35 Mr Bain's evidence, for the respondent, recounted the provisions of the respondent's "strong policy framework" particularly in relation to street setback and streetscape. He considered that "the proposed development is not consistent with the pattern of development in the street" and in particular, that "the zero setback, as proposed in the subject development, is in stark contrast with the pattern in the street".

36 The Tribunal considers that the development, as presently proposed, would have an unacceptable impact on streetscape, in consequence of inadequate setbacks. As noted above, a number of elements of the proposal have a zero setback or 900mm setback to the street boundary. Although the R­Codes permit a minimum zero setback for mixed­use development, cl 38(5)(g) and cl 38(5)(i) of TPS 1 require the Tribunal to consider the orderly and proper planning of the locality and the design, scale and relationship to existing buildings and surroundings of any proposed building structure. Moreover, the Tribunal is required to have regard to any relevant planning policy of the respondent (TPS 1 cl 38(5)(b)). As noted above, the "strong policy framework" referred to by Mr Bain requires that "development is generally compatible with predominant, characteristic development in the Locality in terms of street setback" (Local Character Policy) and that "new development ... not overpower the existing streetscape" (Street Setbacks Policy).

37 Although I accept the applicant's submission that the front setbacks of the residential components of the development (with the exception of the solid balustrade to the terrace of Unit 1) are acceptable, the projecting 3.35m high masonry elements, Office 1 and solid balustrade above would, relevantly, "overpower the existing streetscape". While it is true that there is a wide variety of setbacks and building styles in the immediate locality, the proposed setback of these elements would be notably less than the predominant front setback of 2.0m to 3.0m in Monger Street.

38 In my opinion, a minimum setback equivalent to the front wall of the existing dwelling house on the site, namely 2.2m, would be appropriate for a development of the nature proposed and consistent with the applicable policies. Although the overall development is considerably larger than the existing dwelling house, the height of the office and balustrade of the residential unit's terrace above is approximately the same as the height of the front wall of the existing dwelling house. Moreover, the width of the office and balustrade above is approximately 5.5m, which is a little more than half of the width of the existing building.

39 During the hearing, I asked the applicant's witnesses whether the development could be approved subject to a condition that it be setback a minimum of 2.2m from the street frontage. Although the applicant's witnesses did not consider that this was necessary or desirable, they conceded that the development could be carried out subject to such a condition. Mr Bain considered that such a condition would result in a development which is more consistent with the established streetscape in that it could be seen as a replacement of the existing setback on the site.

40 I have determined that, if all above ground built form (other than a lightweight awning) were setback 2.2m from the frontage, the development would be consistent with the respondent's policy framework in relation to setbacks and would have an acceptable impact on the streetscape of Monger Street. Accordingly, in my opinion, the development application should be approved, subject to conditions which include a condition to this effect. In my opinion, the boundary walls/fences on the eastern and western boundaries of the site should also commence no less than 2.2m from the street boundary (with the possibility of a 1.0m high wall adjacent to the driveway if required for safety reasons). This would permit the establishment of a landscaped area for approximately half the width of the site in a central location 2.2m in depth so as to significantly soften the streetscape impact of the development. It would also permit a landscaped strip on the eastern boundary of the site right up to the street frontage. Finally, in my opinion, the western and southern balustrades of the terrace to Unit 1 should be of an open nature, such as the balustrade proposed in the development plans immediately adjacent to the living room of Unit 1, in order to reduce the bulk and scale of the development when viewed from the street. Conditions to this effect have been included in Annexure "A" to these reasons.

41 For reasons discussed above, the proposed development conforms to the design for climate Acceptable Development criteria set out in cl 3.9.1 of the R­Codes. Consequently, the development is "deemed to meet the relevant Performance Criteria", which include that the development be "designed with regard for solar access for neighbouring properties".

42 Nevertheless, cl 38(5)(h) of TPS 1 requires the Tribunal to have regard to "the conservation of the amenities of the locality". In most planning assessments, the fact that a development conforms to a relevant provision of the R­Codes 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.

43 The shadow diagram shows that the proposed development would overshadow approximately half of the rear garden of the immediately adjoining semi­detached dwelling at No 24 Monger Street on 22 June. Although a shadow diagram superimposed on the western elevation of the adjoining semi was not produced, it could be reasonably concluded, based on the extent of lateral shadow shown on the shadow diagram, that the west­facing windows of the adjoining semi would be overshadowed by the proposed development on 22 June.

44 However, it was common ground that, on 22 June, the shadow cast by the Acacia Hotel would, in any case, deny direct solar access to the rear yard of No 24 Monger Street.

45 Furthermore, although, given that the existing house on the site is single storey and setback 2.4 ­ 2.97m from the eastern boundary, the west­facing windows of No 24 Monger Street would presently receive direct solar access during mid­winter, I have determined that, in the particular circumstances of this case, the denial of solar access in consequence of the development is not unreasonable. This is because the parts of the proposed building which cast the shadow shown at 12 noon on 22 June in the shadow diagram are sections of roof which are compliant in all respects with the applicable planning controls. Although the extent of overshadowing on the adjoining survey strata lot to the east is very significant, it is within the reasonable contemplation of the zoning and planning controls, and is an inevitable consequence of development of a lot having the width and orientation of the site (and of adjoining and adjacent properties), consistently with the applicable zoning and planning controls.

46 Consequently, in my opinion, the significant overshadowing of the adjoining survey strata lot to the east does not warrant refusal of the development application in the circumstances of this case.

47 Although the Acceptable Development criteria in relation to mixed­use development set out in cl 4.2.1 of the R­Codes permits walls on boundaries for two­thirds of the boundary behind the street setback, cl 38(5)(g) and cl 38(5)(i) of TPS 1 require the Tribunal to have regard to the orderly and proper planning of the locality and the scale and relationship of any proposed building to existing buildings and surrounds. These considerations necessarily include an assessment of whether the boundary walls proposed would give rise to an unacceptable visual impact on the two immediately adjoining properties.

48 It was Mr Bain's evidence that the boundary wall, particularly on the east side of the development, "will tower­over and overshadow the adjoining property". I do not accept that this section of wall will, in itself, overshadow, given that the shadows would be cast by other sections of the proposed development and by the Acacia Hotel. However, the proposed building includes a section of boundary wall immediately adjacent to the rear garden areas of the two adjoining properties which is approximately 11.0m long and 3.0 ­ 3.5m high. In addition, a section of wall having a width of 3.7m and height of 2.75m is proposed with a setback of only 0.5m centrally above the 11.0m long boundary wall. The boundary walls proposed to adjoin the rear gardens of the adjoining properties would project 1.0 ­ 1.5m above the existing fence line.

49 In my opinion, although the visual impact of the proposed boundary walls, and wall section above, would be significant on the immediately adjoining properties, it is nevertheless within the reasonable contemplation of the zoning and planning controls applicable to the site and to the adjoining properties. The level of residential amenity that occupants of properties which are zoned and coded for high density residential development, and which adjoin land zoned and coded for such development, can reasonably expect, is necessarily less than that reasonably expected in a lower density residential precinct. Although the visual impact of the boundary walls might be unacceptable in a lower density residential precinct, or in circumstances where the affected property is differently zoned or has a lower density coding than the property the subject of an application, the amenity impacts in this case are, in my opinion, acceptable.

50 It was Mr Bain's evidence and submission that the development as presently proposed is inconsistent with the pattern of development and the strong policy framework which guides development in the locality. The Tribunal accepts this submission in consequence of the visual impact of the elements of the built form which are proposed to have zero or 900mm setbacks to the street. Such setbacks would be notably less than the predominant setback in the street, namely 2.0m ­ 3.0m, and would have a significant and detrimental impact on streetscape.

51 However, the Tribunal has determined that the proposed development warrants approval subject to conditions to the effect that no built form project above ground level closer than 2.2m to the street boundary (other than a lightweight awning and a 1.0m high wall adjacent to the driveway if required for safety reasons). Such a minimum setback would replicate the existing setback of the building proposed to be demolished. Although a minimum 2.2m setback is less than the minimum setback of the adjoining properties to the east and west, it is generally compatible with predominant, characteristic development in the immediate locality. Moreover, whereas the existing building has a setback of 2.2m to the front wall for a width of 9.6m, the width of the front element of the proposal which would project closest to the street is only 5.5m. This difference in width adequately compensates for the streetscape impact of the proposed two­storey element which is setback 4.619m and 5.669m from the street frontage. A 2.2m setback will also permit appropriate landscaping in accordance with the Lindsay Policy Statement.

52 Although the amenity impacts of overshadowing on the property to the east and of bulk and scale of boundary walls on the properties to the east and the west are significant, they are nevertheless acceptable, because of the zoning, width and orientation of the site and of the adjoining properties. The Tribunal has determined that the amenity impacts of the proposed development are within the reasonable contemplation of the zoning and planning controls which apply in the immediate locality.

53 The Tribunal makes the following orders:

1. The application for review of the respondent's decision to refuse development approval is upheld.

2. In accordance with the Town of Vincent Town Planning Scheme No 1 and the Metropolitan Region Scheme, development approval is granted to the demolition of all existing buildings and the erection of a 2 ­ 3 level mixed­used development above basement at No 28 (Lot 56) Monger Street, Perth, subject to the conditions in Annexure "A".

I certify that this and the preceding 17 pages comprise the reasons for decisions of the Tribunal.

_________________________________

1. The development shall be carried out in accordance with the plans drawn by Tangelo Design Consultants (A Kateiva) Job No Monger.03 sheets A01 revision E, A02 revision E and A03 revision E, each dated October 2004 and amended December 2004, except as varied by the following conditions of approval.

2. A total of six car parking bays shall be provided on­site in accordance with condition 18.

3. The breeze blocks shall be designed to provide permanent screening of the adjoining properties to meet the Acceptable Development privacy screening requirements of the Residential Design Codes.

4. The boundary walls/fences on the eastern and western boundaries of the site within 2.2m of the street frontage shall be deleted (a boundary wall with a maximum height of 1.0m on the western side boundary adjacent to the driveway may be erected if such a wall is necessary for safety reasons).

5. The raised planters, and all built form proposed between Office 1/terrace to Unit 1 and the street frontage of the site shall be deleted.

6. Office 1 and the terrace to Unit 1 shall be set back from the street frontage of the site such that the external part of the wall and window of Office 1 and the balustrade on the southern edge of the terrace of Unit 1 have a minimum setback of 2.2m from the street frontage of the site (a lightweight awning with a maximum width of 800mm may project above the front window of Office 1 into the 2.2m setback area).

7. The planter on the southern side of the terrace of Unit 1 (but not on the eastern side of that terrace) shall be deleted.

8. The solid balustrade along the southern and western edges of the terrace of Unit 1 shall be replaced by a balustrade which is open in appearance and the same as the balustrade immediately adjacent to the living room of Unit 1 shown on the front elevation in drawing A03 revision E of the approved plans (other than the eastern 700mm of the southern balustrade which is the side of the solid planter box on the eastern edge).

9. Prior to the issue of a Building Licence, revised plans shall be submitted to and approved by the Town depicting the changes required by conditions 2 ­ 8.

10. A Demolition Licence shall be obtained form the Town prior to the commencement of any demolition works on site.

11. An archival documented record of the place including photographs (internal, external and streetscape elevations), floor plans and elevations for the Town's Historical Archive Collection shall be submitted and approved prior to the issue of a Demolition Licence.

12. Prior to the issue of a Building Licence, designs for artwork(s) valued at a minimum of $5,500 shall be submitted to and approved by the Town. The artwork(s) shall be in accordance with the Town's Policy relating to Percent for Art Scheme and be developed in full consultation with the Town's Community Development and Administrative Services with reference to the Percent for Art Scheme Policy Guidelines for Developers. The artwork(s) shall be installed prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s).

13. A detailed schedule of external finishes (including materials and colour schemes and details) shall be submitted and approved prior to the issue of a Building Licence.

14. Subject to giving prior notice to the owners of No 32 and Nos 22 ­ 24 Monger Street and Nos 17 ­ 39 Robinson Avenue for entry onto their land the owners of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing No 32 and Nos 22 ­ 24 Monger Street and Nos 17 ­ 39 Robinson Avenue in a good and clean condition.

15. All signage shall be subject to a separate Planning Approval and Sign Licence application being submitted and approved by the Town prior to the erection of the signage.

16. Prior to the first occupation of the development, the applicant/owner(s) shall, in at least 12­point size writing, advise (prospective) purchasers of the residential units/dwellings that:

"The Town of Vincent will not issue a residential or visitor car parking permit to any owner or occupier of the residential units/dwellings. This is because at the time the planning application for development was submitted to the Town, the developer claimed that the on­site parking provided would adequately meet the current and future parking demands of the development."

17. Doors and windows and adjacent floor areas fronting Monger Street shall maintain an active and interactive relationship with the street.

18. A total of six car parking spaces shall be provided in the basement such that vehicles are able to enter the development, access each car space and exit the development in a forward direction. Prior to the first occupation of the development, four car parking spaces provided for the residential component of the development shall be clearly marked and signposted for the exclusive use of the residents of the development. Two of the car parking spaces provided for the residential component of the development shall be allocated and clearly marked and signposted for the exclusive use of a specified residential unit. Each of the other two car parking spaces provided for the residential component of the development shall be clearly marked and signposted for the exclusive use of one of the other two residential units. Two car parking spaces shall be provided for the commercial component of the development during normal business hours, shall be clearly marked and signposted for the exclusive use of the commercial component of the development during normal business hours, and shall each be clearly marked and signposted for the exclusive use of one of the two residential units, which are otherwise only allocated a single car parking space, outside normal business hours.

19. Prior to the issue of a Building Licence, a Construction Management Plan addressing noise, hours of construction, traffic and heavy vehicle access, dust and any other appropriate matters, shall be submitted to and approved by the Town.

20. The car parking area(s) on the subject land shall be sealed, drained, paved and line marked in accordance with the approved plans prior to the first occupation of the development and maintained thereafter by the owner(s)/occupier(s) to the satisfaction of the Town.

21. The residential component of the development shall be adequately sound insulated prior to the first occupation of the development. The necessary sound insulation shall be in accordance with the recommendations, developed in consultation with the Town, of an acoustic consultant registered to conduct noise surveys and assessments in accordance with the Environmental Protection Act 1986. The sound insulation recommendation shall be submitted to and approved by the Town prior to the issue of a Building Licence. The engagement of and the implementation of the recommendations of the acoustic consultant are to be at the applicant's/owner's cost.

22. Suitable management measures shall be implemented to ensure access is readily available for visitors for the commercial and residential tenancies at all times. Details of the management measures shall be submitted to and approved by the Town prior to the first occupation of the development.

23. A detailed landscaping plan, including a list of plants and landscaping and reticulation, of the Monger Street verge adjacent to the subject property and of the subject property on the western side of the driveway, on the eastern side of the pedestrian accessway and stairs and in the central 2.2m wide and 5.5m long setback area established by conditions 5 and 6, shall be submitted to and approved by the Town prior to the issue of a Building Licence. The landscaping plan shall include, in the 2.2m wide and 5.5m long central setback area established by conditions 5 and 6, plants and two trees, to be planted at an advanced stage, capable of reaching a mature height of 6.0m. The landscaping plan shall include plants and a suitable tree in the position shown on the architectural plans to the west of the driveway, to be planted at an advanced stage, and capable of reaching a mature height of 6.0m. The landscaping plan shall also include plants in the positions shown adjacent to the residential walkway access on the eastern side of the development to continue on the eastern boundary of the site up to the southern/street boundary. All landscaping works in the approved landscaping plan shall be carried out prior to the first occupation of the development, and shall be maintained thereafter by the owner(s)/occupier(s).