ALLAN and TOWN OF BASSENDEAN - [2019] WASAT 81

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ALLAN and TOWN OF BASSENDEAN [2019] WASAT 81
MEMBER:   MS R MOORE, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   7 OCTOBER 2019
FILE NO/S:   DR 109 of 2019
BETWEEN:   JENNIFER ALLAN
DARREN COUSINS
Applicants
AND
TOWN OF BASSENDEAN
Respondent

Catchwords:

Town planning - Development application - Refusal - Whether proposed dwelling complies with design principles of State Planning Policy 7.3 Residential Design Codes Volume 1 in relation to street setback, lot boundary setbacks and open space

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 61(1)(c)(vi), cl 67, Pt 1
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 2.1, cl 2.1.1, cl 2.4, cl 2.5, cl 2.5.1, cl 4.2.3, cl 5.1, cl 5.1.2, cl 5.1.3, cl 5.1.4, cl 5.3.7, cl 5.3.8
Town of Bassendean Local Planning Scheme No. 10, cl 3.2, cl 3.3, cl 4.2.2, cl 4.3.1.3, cl 4.8, Pt 4

Result:

Application for review dismissed

Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicants	:	Mr Alan Stewart
Respondent	:	In Person

Solicitors:

Applicants	:	Stewart Urban Planning (Agent)
Respondent	:	N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Ms Jennifer Allan and Mr Darren Cousins (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision made by the Town of Bassendean (respondent) on 10 May 2019 to refuse development approval for a single storey dwelling at No 112A (Lot 2 on Survey Strata Plan 79140) Hamilton Street in Bassendean (site).
Following an initial directions hearing, the Tribunal listed the matter to an on-site mediation which was ultimately unsuccessful. Then, at a further directions hearing on 26 July 2019, the Tribunal made orders requiring the parties to file an Agreed Statement of Issues for Determination and Facts, an Agreed Bundle of Documents, and to file and exchange written submissions. The matter was listed for a view of the site in the company of the parties and their representatives on 10 September 2019. The Tribunal ordered that pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) the matter was to be determined on the documents subject to any further order.
The parties filed the following documents upon which the Tribunal relies:
•Agreed Statement of Issues for Determination and Facts dated 16 August 2019 (SIF)
•Agreed Section 24 Bundle dated 16 August 2019 (section 24 bundle)
•Respondent's Written Submissions dated 23 August 2019 (R's submissions)
•Applicants' Written Submissions dated 26 August 2019 (A's submissions)
•Respondent's Written Submissions in Reply dated 4 September 2019 (R's reply)
•Applicants' Written Submissions in Reply dated 4 September 2019 (A's reply)

Site and locality

The applicants own both the subject site and the adjacent property to the south which is Lot 1 on Survey Strata Plan 79140 (No 112) Hamilton Street. Lot 1 and Lot 2 were created by the subdivision of an original corner lot (Lot 55 on Diagram 36649). Lot 1 contains the original dwelling and has a site area of 586m². The subject site is vacant and has a site area of 293m². It is irregular in shape and has a frontage of 16.26 metres to Hamilton Street and a 10.09 metre rear boundary.
The Tribunal had a view of the site, in the company of the parties, on the morning of 10 September 2019. The site view included a view of both the eastern and western sides of Hamilton St, between Reid Street to the south and Deakin Street to the north. Both parties provided aerial photographs of this section of Hamilton Street with a 6 metre setback line drawn onto the photograph to indicate the approximate setbacks along the street: R's submissions, Attachment 2 and A's reply, Annexure 2.
The aerial photographs and the site view indicate that most of the existing dwellings (six of the seven) on the western side of Hamilton Street are set back at least 6 metres from the front boundary, with the exception of the recently completed dwelling at No 100 Hamilton Street which has some building elements forward of the 6 metre setback line. The properties on the eastern side of Hamilton Street consist of two grouped dwelling developments, two single dwellings and two corner lots with Hamilton Street as their secondary street frontage. These properties are all set back at least 6 metres except for one of the grouped dwelling developments which has two dwellings set at an angle to the front boundary: R's submissions, para 12.
The respondent describes the existing street context as including predominantly single house building stock constructed in the 1970s and 1980s with some single storey grouped dwellings from the same era and from the 1990s: R's submissions, para 10.

Applicants' development proposal

The proposed development is a single storey dwelling with a double garage accessed from Hamilton Street. The dwelling has a 4.95 metre front setback and proposes five sections of walls on the boundary to the rear (western) and side (northern and southern) boundaries. The proposed dwelling contains three bedrooms, two bathrooms, a laundry and separate WC and an open plan kitchen/dining/family area with direct access to an outdoor living area and covered alfresco to the south-west.

Respondent's decision

On 10 May 2019, under delegated authority, the respondent refused to grant development approval for the proposed single storey dwelling for two reasons. The first was because of non-compliance with the provisions of State Planning Policy 7.3 Residential Design Codes Volume 1 (R Codes) particularly in terms of street setback, lot boundary setbacks, open space, site works and retaining walls. The second was that, having due regard to the matters set out in cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions), the respondent considered the proposal was not suitable for approval having regard to its relationship with the existing streetscape and the surrounding locality more generally.
The development application was accompanied by drawings of the proposed dwelling signed by the owners of neighbouring properties to the north (No 110 Hamilton Street) and to the west (No 13 Reid Street) indicating that they did not object to the proposed development.

Planning framework

The site is zoned Residential with a density coding of R20 under the Town of Bassendean Local Planning Scheme No. 10 (LPS 10 or Scheme).
The objectives of the Residential zone are set out in cl 3.2 of LPS 10 as follows:
a)to maintain lifelong or long-time residents as an integral component of the Bassendean community;
b)to continue and increase the attraction for young families to reside and raise their families in the Bassendean community;
c)to recognise the role of Bassendean as a middle metropolitan area that is well placed to contribute meaningfully to sustainable urban development for the Perth Region, and therefore facilitate the planned gradual increase in population growth in a manner that provides net environmental, social and economic benefit;
d)to make provision for housing types that respond to the demands of an ageing population and declining occupancy rates;
e)to limit non-residential activities to those of which the predominant function is to service the local residential neighbourhood and for self-employment or creative activities, provided such activities have no detrimental effect on the residential amenity;
f)to ensure that the density of development takes cognisance of the availability of reticulated sewerage, the effluent disposal characteristics of the land and other environmental factors; and
g)to ensure that subdivision and development comply with the Local Planning Strategy and the principles of any Local Planning Policy adopted by the Council.
Clause 3.3 of LPS 10 contains the Zoning Table which indicates that a Dwelling is a 'P' use in the Residential zone, meaning that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme.
Part 4 of LPS 10 contains the general requirements for development and provides at cl 4.2.2 that, unless otherwise provided for in the Scheme, residential development is to conform with the provisions of the R Codes.
Clause 4.3.1.3 of LPS 10 contains provisions relevant to the development or subdivision of corner lots as follows:
The Council may permit the development, or support the subdivision of an existing R17.5 or R20 coded corner lot to a maximum density of R25 provided the original lot has frontage to two constructed roads and any new lots created or new dwellings constructed shall have their own frontage to a constructed road.
Clause 4.8 of LPS 10 contains general development requirements for the Residential zone and requires the local government, when considering applications for development approval, to have regard to the Residential zone objectives and any relevant Town of Bassendean policy statement.
The deemed provisions provide at cl 61(1)(c)(vi) that development approval of the local government is not required for the erection of a single house on a lot if the R Codes apply and the development satisfies the deemed-to-comply requirements of the R Codes. It is common ground that the proposal does require development approval because there are some elements that do not satisfy the deemed-to-comply requirements of the R Codes.
Clause 67 of the deemed provisions lists the matters that local government is to have due regard to when considering an application for development approval and relevantly includes the following:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.
The deemed provisions provide at Pt 1 the following definition for amenity:
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]

Issues for determination by the Tribunal

As stated earlier, the Tribunal ordered the parties to file an agreed SIF. This statement, filed by the parties on 16 August 2019, set out six issues for determination by the Tribunal as follows:
(1)Whether the proposed dwelling satisfies the deemedto-comply requirements set out in C2.1 in cl 5.1.2 of the R Codes and if not, whether the proposed dwelling complies with the design principles set out in P2.1 and P2.2 in cl 5.1.2 in relation to street setbacks.
(2)Whether the proposed dwelling satisfies the deemedto-comply requirements set out in C3.1 and C3.2 in cl 5.1.3 of the R Codes and if not, whether the proposed dwelling complies with the design principles set out in P3.1 and P3.2 of cl 5.1.3 in relation to lot boundary setbacks.
(3)Whether the proposed dwelling satisfies the deemedto-comply requirements set out in C4 in cl 5.1.4 of the R Codes and if not, whether the proposed dwelling complies with the design principles set out in P4 of cl 5.1.4 in relation to open space.
(4)Whether the proposed dwelling satisfies the deemedto-comply requirements set out in C7.3 in cl 5.3.7 of the R Codes and if not, whether the proposed dwelling complies with the design principles set out in P7.1 and P7.2 of cl 5.3.7 in relation to site works.
(5)Whether the proposed dwelling satisfies the deemedto-comply requirements set out in C8 in cl 5.3.8 of the R Codes and if not, whether the proposed dwelling complies with the design principles set out in P8 of cl 5.3.8 in relation to retaining walls.
(6)Whether the proposed dwelling satisfies the relevant matters for consideration set out in cl 67 of the deemed provisions.
In relation to issues 4 and 5, the applicants submitted that a retaining wall was constructed along the rear western boundary and the site was filled to a level of 4.6 metres as part of the subdivision process for the creation of Survey Strata Plan 79140. This resulted in the natural ground level of the site being 4.6 metres for the purposes of assessing the proposal against the provisions of the R Codes: A's submissions, para 48.
It appears that the drawings submitted for development approval were based on a site feature survey that was prepared for the subdivision application and incorrectly showed the pre-subdivision ground levels. The applicants attached a revised set of drawings to their submissions in reply dated 4 September 2019 (A's Reply, Annexure 4) showing existing ground levels. It is these revised drawings that the parties have agreed are now the subject of these proceedings.
Subsequent to the site view on 10 September 2019, the Tribunal ordered, with the consent of the parties, that the applicants were to file and serve an up-to-date feature survey depicting the existing ground levels on the site. On 13 September 2019, after receipt of this, the respondent notified the Tribunal that it no longer wished to contest issues 4 and 5, relating to site works and retaining walls, as it was satisfied that these issues had been resolved by the provision of the revised feature survey.
Of the remaining four issues, three involve the assessment of specific design elements against the provisions of the R Codes. The specific design elements are street setback, lot boundary setback, and open space. All three design elements are included in cl 5.1 'Context' of the R Codes and have the same objectives:
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
(b)To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.
(c)To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.
(d)To ensure that open space (private and communal) is provided on site and:
•landscaped to establish streetscapes;
•provide a balanced setting and relationship to buildings; and
•provide privacy, direct sun and recreational opportunities.
(e)To ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing a transition, development achieves the desired future character of the area identified in local planning framework.
The fourth issue addresses the matters set out in cl 67 of the deemed provisions which relevantly include: the aims and provisions of the Scheme; the requirements of orderly and proper planning; the R Codes (as an approved State planning policy); the amenity of the locality; and the compatibility of the development to development on adjoining land and other land within the locality. Most of the discussion in relation to these matters will be undertaken in the discussion of the issues relating to street setback, lot boundary setback, and open space. The Tribunal will now address issues 1, 2 and 3.

Whether the proposal satisfies the deemed-to-comply requirements set out in C2.1 in cl 5.1.2 of the R Codes and if not, whether the proposal complies with the design principles set out in P2.1 and P2.2 in cl 5.1.2 in relation to street setback

The deemed-to-comply requirements set out in C2.1 of cl 5.1.2 of the R Codes are as follows:
Buildings set back from the primary street boundary:
i.in accordance with Table 1;
ii.corresponding to the average of the setback of existing dwellings on each adjacent property fronting the same street;
iii.reduced by up to 50 per cent provided that the area of any building, including a carport or garage, intruding into the setback area is compensated for by at least an equal area of open space between the setback line and line drawn parallel to it at twice the setback distance (refer Figure 2a, 2b and 2c);
iv.in the case of areas coded R15 or higher, where:
•a grouped dwelling has its main frontage to a secondary street;
•a single house results from subdivision of an original corner lot and has its frontage to the original secondary street; or
•a single house or grouped dwelling (where that grouped dwelling is not adjacent to the primary street), has its main frontage to a communal street, right-of-way or shared pedestrian or vehicle access way;
•the street setback may be reduced to 2.5m, or 1.5m to a porch, verandah, balcony or the equivalent (refer Figure 2b and 2d); and
v.to provide for registered easements for essential services.
The respondent submits that the proposal does not satisfy the deemedto-comply requirements set out in C2.1 in cl 5.1.2 of the R Codes because the proposed setback is not in accordance with Table 1 of the R Codes which it says requires an average of 6 metres and a minimum of 3 metres setback to the primary street: R's submissions, para 9.
In fact, Table 1 of the R Codes requires a minimum setback of 6 metres to the primary street and does not refer to an average setback at all. The only reference to an average setback is in C2.1(ii) which allows for a setback from the primary street boundary that corresponds to the average setback of existing dwellings on each adjacent property fronting the same street. The respondent is of the view that the original dwelling on the adjacent property to the south (No 112 Hamilton Street) has a setback of at least 6 metres. The Tribunal has not been provided with an actual measurement for either this setback or the front setback on the adjacent property to the north (No 114 Hamilton Street).
The applicants' position is that the proposal achieves an average front setback of 6 metres and satisfies the requirements set out in C2.1(iii) because the area of the dwelling in front of the required setback line is 5.17m² while the area of open space behind the setback line is 5.8m²: A's submissions, para 24. They also submit that the proposal satisfies C2.1(iv) because the proposal results from the subdivision of an original corner lot and has frontage to the original secondary street: A's submissions, para 25.
Under C2.1 of cl 5.1.2, the starting point for assessing building setbacks from the primary street boundary is Table 1 of the R Codes. Table 1 requires single houses or grouped dwellings on R20 coded sites to be setback a minimum of 6 metres from the primary street, which in this case, is Hamilton Street. The next consideration, at C2.1(ii), is the average setback of the existing buildings on the adjacent properties. As stated above, the Tribunal has not been provided with the measured setbacks of the two adjoining properties fronting Hamilton Street and therefore takes it that neither party considers that this will alter the setback calculation.

C2.1(iii) in cl 5.1.2 allows for the primary street setback to be reduced by up to 50% provided that any area of building intruding into the setback area is compensated for by at least an equal area of open space between the setback line and a line drawn parallel to it at twice the setback distance. This section of C2.1 appears to be what the respondent is referring to when it says Table 1 requires an average of 6 metres and a minimum of 3 metres setback. This is because the minimum setback required under Table 1 can be reduced by 50% to 3 metres provided there is compensating open space behind the 6 metre line.
As stated earlier, the applicants are of the view that they satisfy the deemed-to-comply provisions because they have calculated that there is 5.17m² of dwelling forward of the 6 metre line and 5.8m² of compensating open space behind the 6 metre line. The respondent disagrees and says that the applicants have included areas required for lot boundary setbacks and porch which should not be included in the compensating area calculation: R's reply, paras 1-5.
The Tribunal accepts the respondent's submissions in relation to the calculation of compensating areas of open space which accords with what is shown in Figure 2a of the R Codes, and finds that the applicants have misapplied the calculations of compensating areas by including areas required for side lot boundary setbacks and porch which should be excluded.
The Tribunal also accepts the submissions made by the respondent in respect of the interpretation of C2.1(iv) (R's reply, para 6), because even though the proposal results from the subdivision of an original corner lot, Hamilton Street is not the original secondary street. In this case, Reid Street was, and still is, the original secondary street. Hamilton Street is the original primary street for the parent lot as the original dwelling on the parent lot had its entrance and front door facing Hamilton Street. Since the subdivision into two survey strata lots, the original dwelling has been retained and continues to have its entrance and front door facing Hamilton Street and the proposed dwelling also has its entrance and front door facing Hamilton Street. The Tribunal therefore finds that C2.1(iv) does not apply in the circumstances of this case.
Having addressed the provisions set out in C2.1 for buildings set back from the primary street boundary, the Tribunal finds that the proposed street setbacks do not satisfy the requirements set out in C2.1 of cl 5.1.2 of the R Codes. The proposal therefore needs to be assessed in accordance with the design principles set out in P2.1 and P2.2 of cl 5.1.2 of the R Codes which state the following:
Buildings set back from street boundaries an appropriate distance to ensure they:
•contribute to, and are consistent with, an established streetscape;
•provide adequate privacy and open space for dwellings;
•accommodate site planning requirements such as parking, landscape and utilities; and
•allow safety clearances for easements for essential service corridors.
Buildings mass and form that:
•uses design features to affect the size and scale of the building;
•uses appropriate minor projections that do not detract from the character of the streetscape;
•minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
The respondent contends that the proposal does not comply with the design principles for street setbacks because the proposed setback is inconsistent with the existing established pattern of street setbacks and does not reflect the existing and predominant streetscape character within the immediate context of the site and locality: R's submissions, paras 13-14. The respondent submits that all lots on the western side of Hamilton Street (between Nos 100 to 112) meet or exceed the 6 metre average street setback with some maintaining a minimum street setback of at least 6 metres and that while some of these properties have carports or garages forward of the dwelling 'due to the open nature of the structures and the greater than required setback for the buildings in question, the impact these have on the street are negligible': R's submissions, para 11.
As stated earlier, the applicants' position is that the proposal achieves a 6 metre average street setback and satisfies the deemed-to-comply requirements for street setbacks but, in the event that the Tribunal finds otherwise, they submit that the proposal complies with the design principles for street setbacks. This is because they say the proposal closely conforms with the established pattern of street setbacks as evidenced by the aerial photograph which identifies other structures located forward of the 6 metre line on other properties in the street. The applicants argue that the dwelling achieves a street setback of 4.95 metres at the northern end of the façade and 5.89 metres at the southern end, which is similar to the reduced setbacks of some of the building elements shown on the aerial photograph: A's reply, para 4. They also contend that: the width of the garage door and its location behind the front wall of bedroom 1 enhances the appearance of the dwelling; there is a visible and clearly defined front door; there is adequate privacy and sufficient open space; and the open soft landscaping maximises casual surveillance and enhances the dwelling's setting: A's reply, para 4.
The Tribunal is not persuaded by these arguments and finds that the proposed front setback does not contribute to, nor is it consistent with, the established streetscape. The siting of the front wall to bedroom 1 at 4.95 metres from the Hamilton street boundary and the garage being setback a further 400 millimetres at 5.35 metres mean that the dwelling will sit forward of the other dwellings on the western side of Hamilton Street up to No 100 Hamilton Street. The Tribunal does not have the actual measured setback distance of No 100 Hamilton Street but it does appear from the aerial photograph that a part of the roof is forward of the 6 metre setback line which may be compensated by a greater southern side setback. Even taking No 100 Hamilton street into consideration the Tribunal is of the view that the street setback of the proposal does not comply with the design principles of the R Codes as it does not contribute to, nor is it consistent with, the established streetscape.

Whether the proposal satisfies the deemed-to-comply requirements set out in C3.1 and C3.2 in cl 5.1.3 of the R Codes and if not, whether the proposal complies with the design principles set out in P3.1 and P3.2 of cl 5.1.3 in relation to lot boundary setback

The deemed-to-comply requirements set out in C3.1 and C3.2 in cl 5.1.3 of the R Codes are as follows:
Buildings which are set back in accordance with the following provisions, subject to any additional measures in other elements of the R Codes:
i.buildings set back from lot boundaries in accordance with Table 1, Tables 2a and 2b (refer to Figure Series 3 and 4);
ii.unenclosed areas accessible for use as outdoor living areas, elevated 0.5m or more above natural ground level, set back as though they were major openings to habitable rooms with a wall height of 2.4m above their floor level;
iii.separate single house, grouped or multiple dwelling buildings on the same site, or facing portions of the same multiple dwelling buildings on the same site, or facing portions of the same multiple dwelling building, set back from each other as though there were a boundary between them;
iv.minor projections such as a chimney, other architectural feature or an eaves overhang not projecting more than 0.75m into a setback area; and
v.the stated setback distances may be reduced by half the width of an adjoining right-of-way, pedestrian access way, communal street or battleaxe lot access leg, to a maximum reduction of 2m (refer to figures 2b and 4f).
Walls may be built up to a lot boundary behind the street setback (specified in Table 1 and in accordance with clauses 5.1.2, 5.2.1 and 5.2.2), within the following limits and subject to the overshadowing provisions of clause 5.4.2 and Figure Series 11;
i.where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension;
ii.in areas coded R20 and R25, walls not higher than 3.5m with an average of 3m or less, up to a maximum length of the greater of 9m or one-third the length of the balance of the lot boundary behind the front setback, to one side boundary only;
iii.in areas coded R30 and higher, walls not higher than 3.5m with an average of 3m or less, for two-thirds the length of the balance of the lot boundary behind the front setback, to one side boundary only; or
iv.where both the subject site and the affected adjoining site are created in a plan of subdivision submitted concurrently with the development application.
There is also a note which explains that the term 'up to a lot boundary' means a wall on or less than 600 millimetres from any lot boundary (green title or survey strata lot), other than a street boundary: R Codes, page 20.
The respondent submits that the proposal does not satisfy the deemedto-comply provisions because the building has walls on more than one side boundary. Whereas, the applicants' approach to this issue is to contend that the proposal partially satisfies the deemed-to-comply requirements for some of the proposed lot boundary setbacks and that the others are to be assessed against the design principles.
The applicants submit that the northern side boundary wall satisfies the deemed-to-comply requirements in C3.2(ii) and that portions of the southern side boundary walls, to the garage and kitchen respectively, satisfy C3.1(i). The development proposal includes walls built up to the rear (western) boundary and on both side (northern and southern) boundaries. The applicants 'nominated' the northern side boundary to be the boundary wall that the deemed-to-comply provisions apply to and contended that the two sections of wall on this boundary, which have a combined length of 9.15 metres, satisfy the deemed-to-comply requirements set out in C3.2(ii). This is an incorrect application of the R Codes assessment process.
Clause 2.1 of the R Codes explains the R Codes Volume 1 approval process and at cl 2.1.1 provides a useful illustrated process flowchart. The flowchart indicates that if a proposal for residential development addresses one or more design principles of the R Codes then the proposal requires a judgement of merit and is to be assessed against its merit and the relevant design principles: R Codes, page 5.
Clause 2.4 of the R Codes addresses judging the merit of a proposal and states the following:
Where a proposal does not meet deemed-to-comply provision(s) of the R Codes Volume 1 and addresses design principle(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
Clause 2.5 explains that a decision-maker is to exercise its judgement in considering the merits of the proposal by having regard to objectives and balancing these with the consideration of the design principles. It goes on to say that the decision-maker, 'in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s)': R Codes, page 6.
It is clear that the correct approach is to assess each specific design element of the proposal against either the deemed-to-comply provisions or the design principles for that specific design element, taking into account the objectives for that design element. It is not appropriate to 'nominate' a particular lot boundary wall to be considered under the deemed-to-comply provisions and then to argue that other lot boundary setbacks are to be considered against the design principles. The lot boundary setbacks of a proposal either satisfy the deemed-to-comply provisions of the specific design element, in this case 'lot boundary setbacks', or the proposal is assessed against the design principles for that specific design element.
Further, in this case, the northern side boundary walls have a combined length of 9.15 metres which is greater than the maximum length of 9 metres allowed for in C3.2(ii). There are also walls to other side boundaries which do not satisfy the requirement in C3.2(ii) that walls may be built up to a lot boundary behind the street setback to one side boundary only.
The Tribunal therefore finds that the proposal does not satisfy the deemed-to-comply provisions for lot boundary setbacks and is to be assessed against the design principles set out in P3.1 and P3.2 of cl 5.1.3 which are as follows:
Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:
•reduce impacts of building bulk on adjoining properties;
•provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
•minimise the extent of overlooking and resultant loss of privacy on adjoining properties.
Buildings built up to boundaries (other than the street boundary) where this:
•makes more effective use of space for enhanced privacy for the occupant/s or outdoor living areas;
•does not compromise the design principle contained in clause 5.1.3 P3.1;
•does not have any adverse impact on the amenity of the adjoining property;
•ensures direct sun to major openings to habitable rooms and outdoor living areas for adjoining properties is not restricted; and
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
The respondent contends that the proposal does not comply with the lot boundary setback design principles as the building design does not allow for appropriate access to daylight, direct sun or ventilation primarily because the northern boundary walls limit access to sunlight for two of the three bedrooms and the only bedroom with northern light and solar access is encumbered by highlight windows due to its location adjacent to the drying court: R's submissions, paras 16-19.
As discussed earlier, the applicants have assessed the walls on (or up to) the boundaries as separate elements and contend that the northern side boundary wall satisfies the deemed-to-comply requirements for lot boundary setbacks with the exception of a 150 millimetre portion of wall. They argue that the northern side boundary walls comply with the design principles for the following reasons:
•there is a minor variation relating to a 150 millimetre portion of wall which will not have any adverse impact on the bulk of the development or the amenity of the neighbouring property;
•the setbacks make effective use of space for the occupants allowing for three full sized bedrooms;
•the walls are single storey without major openings and do not result in any overlooking of habitable rooms or outdoor living areas of the adjoining property to the north;
•there are no adverse impacts on the amenity of the adjoining property as a result of excessive building bulk, overshadowing or overlooking;
•the reduced side setback to bedroom 1 will not have any adverse impact on the streetscape; and
•the owners of the adjoining property have provided written support for the proposal: A's submissions, para 37.
They contend that the southern side boundary wall complies with the design principles for similar reasons:
•the irregular shape of the site's southern boundary makes it difficult to satisfy the deemed-to-comply provisions;
•there will not be any impact on the bulk of the building and the wall will maintain adequate sunlight and ventilation to the kitchen;
•there are no overlooking of habitable rooms or outdoor living areas;
•the setback makes effective use of space for enhanced privacy for the occupants;
•there will be no adverse impact on the amenity of the adjoining property as a result of excessive building bulk, overshadowing or overlooking; and
•the walls on the boundary are setback behind the street setback and will contribute positively to the streetscape: A's submissions, para 32.
In relation to the wall on the western boundary, the applicants contend that this wall complies with the design principles because: the variation is minor (300 millimetre in lieu of 1 metre); the wall will not have a significant adverse impact on the amenity of the adjoining property; it makes effective use of space allowing for three full-sized bedrooms; and the owners of the adjoining property have provided written support: A's submissions, para 39.
The Tribunal reiterates that this is an incorrect approach to the assessment of proposals under the R Codes. The reference to 'a minor variation' is also not correct because the specific design element either satisfies the deemed-to-comply requirements or it does not. If it does not, then it is to be assessed against the specific design element design principles, taking into account the relevant objectives.
The Tribunal does accept a number of the applicants' submissions in relation to the set back of the proposed walls on or up to the lot boundaries, particularly as the walls are to be single storey and will have limited impacts in terms of building bulk, overlooking or overshadowing of adjoining properties. However, the Tribunal is persuaded by the respondent's submissions in relation to the impact of the northern boundary walls on solar access and finds that the proposed lot boundary setbacks do not provide adequate direct sun or ventilation to the building and open spaces on the site. The northern elevation of the proposal is approximately 18 metres in length, 9.15 metres of which is located on the boundary with the remaining 8.84 metres set back 1 metre from the boundary. The proposed dwelling design results in no north-facing major openings to habitable rooms. The only north-facing openings are a highlight window to bedroom 2, and openings to the WC and laundry. The siting of bedroom 3, with boundary walls to both the northern side and western rear boundary, also means that the outdoor living area including the alfresco area have no opportunity for northern solar access. The Tribunal therefore finds that the proposed lot boundary setbacks do not comply with the design principles set out in P3.1 and P3.2 of cl 5.1.3 of the R Codes.

Whether the proposal satisfies the deemed-to-comply requirements set out in C4 in cl 5.1.4 of the R Codes and if not, whether the proposal complies with the design principles set out in P4 of cl 5.1.4 in relation to open space

The deemed-to-comply requirements for open space are set out in C4 of cl 5.1.4 of the R Codes and refer to the provisions of Table 1 which, for an R20 site, requires a minimum of 50% of the area of the site to be open space and a minimum of 30m² to be provided for an outdoor living area. It is common ground that the proposal includes the required minimum outdoor living area and that the proposal does not satisfy the deemed-to-comply 50% minimum site area for open space.
There is disagreement between the parties in regard to how much open space is provided by the proposal. The applicants are of the view that 133m² of open space is provided which equates to 45.4% of the site area: A's submissions, para 42. Whereas the respondent submits that 45.3% open space is provided and believes that the applicants have mistakenly included areas set aside for bin storage and porch in their calculations.

The Tribunal does not believe that anything of substance turns on whether the open space is calculated at either 45.4% or 45.3% as neither figure satisfies the deemed-to-comply figure of 50%. As set out in cl 2.5.1 of the R Codes, and discussed in more detail earlier in these reasons, if the proposal does not satisfy the deemed-to-comply requirements for a particular design element the proposal is to be assessed against the design principles for that element and the decisionmaker, in its assessment of the proposal, should not apply the corresponding deemed-to-comply provisions.
At this point it should be noted that the applicants contend that the applicable density code for the subject site is R25 because it was created by the subdivision of a R20 corner lot in accordance with cl 4.3.1.3 of LPS 10. This is an incorrect interpretation of cl 4.3.1.3. Clause 4.2.3 of the R Codes provides that the R Codes density applicable to land within the Scheme area is to be determined by reference to the R Codes density number on the Scheme Map. In this case that number is R20. Subdivision of the original corner lot has not changed that number. In reality, nothing turns on this because the open space requirements under Table 1 of the R Codes are exactly the same for R25 as they are for R20.
As the proposal does not satisfy the deemed-to-comply provisions for open space it is therefore to be assessed against the following design principles set out in P4 of cl 5.1.4 of the R Codes:
Development incorporates suitable open space for its context to:
•reflect the existing and/or desired streetscape character or as outlined under the local planning framework;
•provide access to natural sunlight for the dwelling;
•reduce building bulk on the site, consistent with the expectations of the applicable density code and/or as outlined in the local planning framework;
•provide an attractive setting for the buildings, landscape, vegetation and streetscape;
•provide opportunities for residents to use space external to the dwelling for outdoor pursuits and access within/around the site; and
•provide space for external fixtures and essential facilities.
The respondent contends that the proposal does not comply with the open space design principles because:
•the provision of 45.3% open space aligns with expectations for development at a R30 density code, not the R20 assigned to the subject site;
•the proposed open space is not consistent with, or complementary to, the open space provided on other sites in the surrounding and wider locality;
•the area available for functional purposes such as clothes drying and storage is constrained in terms of size and shape; and
•there are limited opportunities for soft landscaping in an area that is characterised by dwellings constructed within generously landscaped surrounds: R's submissions, paras 23-26.
The applicants contend that the proposal does satisfy the design principles because:
•the proposal provides a range of open space areas for occupants which can be used for a range of pursuits and purposes;
•the open front landscaped area provides an attractive setting for the building, reduces building bulk, reflects the existing and desired streetscape character, and maximises opportunities for passive surveillance;
•the amount and location (on four sides of the dwelling) of the open space provides access to sunlight and daylight throughout the dwelling;
•the two service courtyards provide space for essential facilities in a location that is screened from view; and
•the amount of open space provided is sufficient to reduce the bulk of the building relative to its location and applicable density code: A's submissions, para 43.
The Tribunal finds that the proposed open space does not comply with the design principles of the R Codes. This is primarily because of the design and location of the proposed open space rather than the actual amount. The Tribunal does not accept the applicants' contentions that the amount and location of the open space provides access to sunlight and daylight throughout the dwelling. While the proposed development provides for an efficient use of space given the irregular shape of the site, the Tribunal finds that the combination of northern boundary walls and the location of the drying and bin storage areas means there is little to no access to northern sun to the outdoor living area or to any major openings to habitable rooms within the dwelling.
The Tribunal accepts the applicants' submission that there are opportunities for soft landscaping in the front setback area notwithstanding the reduced front setback but the Tribunal does not understand the relevance of their submission that this proposal is to be compared with infill housing projects with screened outdoor living areas in the front setback area.
The applicants also contend that the reduced area of the site, being 293m² in lieu of 300m² which is the minimum site area for an R25 lot, makes it difficult to develop the site with 50% open space at the same time as providing high quality and affordable infill housing: A's submissions, para 43. This contention is not relevant in the assessment against the design principles because, as previously stated, the open space is to be assessed against the design principles not the amount required under the deemed-to-comply provisions. The Tribunal also finds that it is not appropriate, or even useful, to average the open space provision between Lot 1 and Lot 2, as suggested by the applicants: A's submissions, para 43. They are two separate survey strata lots with no common property and each lot is to be assessed separately under the R Codes.
The Tribunal finds that the proposed development does not comply with the design principles for open space because the proposal does not provide for appropriate access to natural sunlight for the occupants of the dwelling. The location of walls on the northern boundary, the location of the outdoor living area and related covered alfresco area to the south of bedroom 3, and the location of the drying and bin storage areas to the north, all combine to limit the access to natural sunlight to both the dwelling and the outdoor living areas. Outdoor living areas should be oriented to make the best use of northern sunlight (R Codes Explanatory Guidelines, page 21). In this case the Tribunal is more concerned with the quality of the open space provided than the quantity of open space provided.

Conclusion

The final issue identified by the parties for determination by the Tribunal is whether the proposed dwelling satisfies the relevant matters for consideration set out in cl 67 of the deemed provisions. The relevant matters for consideration set out in cl 67 of the deemed provisions include: the aims and provisions of the Scheme; the requirements of orderly and proper planning; the R Codes (which is an approved State planning policy); the amenity of the locality; and the compatibility of the development to development on adjoining land and other land within the locality. The Tribunal has addressed these considerations in the reasons above and determined that the proposal does not satisfy the deemed-to-comply requirements or comply with the design principles of the R Codes for street setbacks, lot boundary setbacks, and open space. The Tribunal therefore finds that the correct and preferable decision in this matter is that the proposed development is refused.

Orders

For these reasons the Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the respondent made on 10 May 2019 to refuse development approval for a single storey dwelling at No 112A (Lot 2 on Survey Strata Plan 79140) Hamilton Street, Bassendean is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
7 OCTOBER 2019