Andersoncooke Pty Ltd and Anor and City of South Perth

[2007] WASAT 74

ANDERSONCOOKE PTY LTD & ANOR and CITY OF SOUTH PERTH [2007] WASAT 74

Last Update :04/04/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 74
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:419/2006	Heard:	20 FEBRUARY 2007
Coram:	MS M CONNOR (MEMBER), MR P DE VILLIERS (SENIOR SESSIONAL MEMBER), MR R EASTON (SENIOR SESSIONAL MEMBER)	Delivered:	28/03/2007
No Pages:	30	Judgment Part:	1 of 1
Result:	Application for review allowed and conditional development approval granted
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ANDERSONCOOKE PTY LTD & ANOR and CITY OF SOUTH PERTH [2007] WASAT 74 MEMBER : MS M CONNOR (MEMBER)

MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD : 20 FEBRUARY 2007 DELIVERED : 28 MARCH 2007 FILE NO/S : DR 419 of 2006 BETWEEN : ANDERSONCOOKE PTY LTD

SEALCREST PTY LTD
Applicants

AND

CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning – Development application – Multiple dwelling development – 23 single bedroom dwellings – High density coding adjacent to low/medium density coding – Impacts of proposed development on Focus Areas in terms of streetscape, visual amenity and character – Whether sufficient resident and visitor car parking – Whether to permit the minimum site area to be reduced to allow for single bedroom dwellings – Shortfall in "Minimum Total" open space

(Page 2)

Legislation:

City of South Perth Town Planning Scheme No 5
City of South Perth Town Planning Scheme No 6, cl 1.6(1), cl 1.6(2), cl 1.6(2)(a), cl 1.6(2)(c), cl 1.6(2)(f), cl 3.2, cl 3.3(1), cl 3.3(5), cl 4.1(3), cl 6.3(1), cl 6.3(10), cl 6.3(10)(c), cl 6.3(11), cl 6.8, cl 6.8(2), cl 7.5, cl 7.5(a), cl 7.5(b), cl 7.5(c), cl 7.5(f), cl 7.5(i), cl 7.5(j), cl 7.5(k), cl 7.5(n), cl 7.5(s), cl 7.5(v), Sch 1, Table 6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(2),
Policy P3707 General Design Guidelines for Residential Development
Residential Design Codes of Western Australia 2002, cl 2.2, cl 3.1.3 A3, cl 3.1.3, cl 3.1.3 A3, cl 3.4.1 A1, cl 3.4.1 P1, cl 3.4.5 A5, cl 3.5.1 A1, cl 3.5.1 A1(iii), cl 3.10.1, Element 2, Element 3, Element 4, Table 1
Town Planning (Height of Obstructions at Corners) General By­laws 1975 (WA)

Result:

Application for review allowed and conditional development approval granted

Category: B

Representation:

Counsel:

Applicants : Mr M Hardy
Respondent : Mr A Roberts

Solicitors:

Applicants : Hardy Bowen
Respondent : McLeods

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

Canning Mews Pty Ltd and City of South Perth (2005) 41 SR (WA) 79

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Andersoncooke Pty Ltd and Sealcrest Pty Ltd applied to the State Administrative Tribunal for review of the decision of the City of South Perth refusing planning consent for the construction of 23 single bedroom dwellings on Lots 390 and 391 (No's 3 and 5) Barker Avenue, Como.

2 The principal issues identified were:

1. Whether the proposed development would have a significant and detrimental impact on the streetscape, visual amenity and character of Park Street, Barker Avenue and adjacent residential areas.

2. Whether the development provides sufficient resident and visitor car parking.

3. Whether the discretion to permit the minimum site area to be reduced by up to one third to allow 23 single bedroom dwellings under the Residential Design Codes of Western Australia 2002 should be exercised.

4. Whether the development should be permitted with the amount of open spaced proposed.

3 In relation to the first issue, the Tribunal considered that the proposed development made a positive contribution to the Barker Avenue focus area and the restricted length of the Park Street elevation, the setback to the southern boundary, the provision for tree planting and the treatment of the eastern end of the southern boundary all considerably mitigated the adverse impacts of a "high density" residential development on the Park Street focus area. The Tribunal considered that the impacts of the proposed development on the streetscape, visual amenity and character of the Barker Avenue and Park Street focus areas were acceptable.

4 As to whether the development provided sufficient resident and visitor parking, the Tribunal determined that, notwithstanding that each of the single bedroom dwellings had a plot ratio in excess of 60 square metre, the additional floor space would not warrant additional car parking bays to be provided and therefore, considered there was adequate car parking provided on site to satisfy the projected need for the proposed development.

(Page 4)

5 The Tribunal considered that the proposed development provided an alternate dwelling type that was consistent with the objectives of the City of South Perth Town Planning Scheme No 6 and satisfied the performance criteria under par 4 of cl 4.1.3 of the Residential Design Codes of Western Australia 2002.

6 In relation to the fourth issue, the Tribunal was satisfied that in the context of the proposed development the amount of open space provided satisfied the relevant performance criteria of the Codes.

7 The Tribunal determined that the application did not warrant refusal and that the discretion available under par A3 of cl 3.1.3 of the Codes should be exercised. The application for review was allowed and development approval was granted subject to conditions.

Introduction

8 Andersoncooke Pty Ltd and Sealcrest Pty Ltd (applicants) lodged a development application with the City of South Perth (respondent) on 9 August 2006 for the construction of 23 single bedroom dwellings on Lots 390 and 391 (No's 3 and 5) Barker Avenue, Como (subject land).

9 The development application was refused by the respondent at its ordinary meeting of 24 October 2006 for the following reasons:

"(1) The neighbour consultation process undertaken and a petition received, indicated widespread objection to the proposal on the grounds of a totally out of scale development of the existing adjoining dwellings and their current zoning.

(2) No traffic impact study had been undertaken. [The] [s]ite sits at the junction of a roundabout which has Brittain Street, Barker Avenue and Park Street feeding into a narrow neck of Barker Avenue before the traffic-controlled intersection of Barker Avenue and Canning Highway. The corner presently experiences traffic congestion and as this will only be exacerbated with such an intense development, the traffic studies should have formed part of the application.

(3) Insufficient manoeuvring width to Poppy Lane requiring excision of land and therefore reduction in development entitlements.

(Page 5)

(4) Insufficient visitor parking given no street parking allowed other than what is in front of the shops.

(5) The amenity impact of a three storey development, on the adjoining lower density R20-R30 dwellings."

10 The applicants, on 22 November 2006, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

11 The matter proceeded to hearing 20 February 2007. The Tribunal was assisted by a view of the subject land during the course of the hearing.

The subject land and site context

12 The subject land is more particularly described as portion Swan Location 41, Lots 390 and 391 on Plan 4740(1) comprised in Certificate of Title Vol 1006 Folio 226 and has a total area of 2077 square metres. The subject land is presently vacant and was previously used for a service station and as a trailer hire facility.

13 The subject land is contained within the street block bounded by Canning Highway, Barker Avenue, Park Street and Alston Avenue. A right-of-way, referred to as Poppy Lane, dissects the street block and runs adjacent to the western boundary of the subject land. The subject land is bounded on its north-eastern and eastern boundaries by Barker Avenue and Park Street respectively. The lot to the south of the subject land contains a single residential dwelling.

14 The land generally to the west of Poppy Lane has frontage to Canning Highway and contains a variety of built forms ranging from single storey commercial and residential buildings on original allotments to two storey residential developments. The commercial buildings are concentrated around the junction of Canning Highway and Barker Avenue, providing local retail facilities servicing the surrounding community. The commercial building that fronts onto Barker Avenue includes a fish and chip shop, a delicatessen, and hair salon. Directly adjacent to the shops are seven angled public car parking bays. On the north-east side of Barker Avenue, across from the subject land, the lots comprise a dental clinic and bridge club contained within single story buildings.

(Page 6)

15 Barker Avenue is classified as a local distributor in the Main Roads Functional Roads Hierarchy. It is constructed as a two lane divided carriageway with localised widening at Canning Highway to provide a two lane approach to the signal intersection. Park Street is an access street providing a link between Barker Avenue and Henley Street. It is constructed as a single carriageway two lane road.

16 The main aspect of the site is to the north where it faces across Barker Avenue to an existing single storey building used by the South Perth Bridge Club. This facility has a substantial parking area located to both the north and east of the building. A small public parking area comprising ten bays is located directly south of the bridge club facing the roundabout serving the intersection of Barker Avenue, Park Street and Brittain Street. A number of large trees on the southern side of the bridge club premises and newly planted street trees in the median of Barker Avenue provide some relief from, and character to, the somewhat mixed nature of the built fabric in the immediate locality.

17 Barker Avenue changes in nature and function east of the intersection with Brittain Street and Park Street. The streetscape along Barker Avenue beyond Park Street is a particularly coherent streetscape of single storey residences set well back from Barker Avenue. Park Street, south of Barker Avenue is a residential street of single storey residences characterised by generous setbacks on the western side and more limited setbacks, screen walls and side boundary conditions on the eastern side.

The proposal

18 The proposed development comprises 23 single bedroom dwellings on three levels. The building is configured as a non-symmetrical "L" with the long side facing Barker Avenue and the short side facing Park Street. The structure faces directly north leaving a triangular landscaped area between it and the Barker Avenue boundary. This area comprises a landscaped communal area and contains a BBQ area and lap pool.

19 Covered parking for 23 vehicles is provided at the rear of the premises accessed from the existing right-of-way (Poppy Lane). Three visitor parking bays are provided along Poppy Lane close to the Barker Avenue boundary.

20 The building comprises five dwellings on the ground floor and nine dwellings on each of the two upper levels. The apartments vary in size from 63.2 square metres to 71.5 square metres in size. Shared staircases located between each of the ground floor units serve four dwellings each

(Page 7)

on the upper levels. The structure has been actively articulated in terms of its built form.

Statutory planning framework

21 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Highway Commercial" with a permitted density of R80 under the City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme). As Table 1 – General Site Requirements (Table 1) to the Residential Design Codes of Western Australia (2002) (Codes) recognises, R80 is a "high density" coding.

22 The abutting right-of-way and the land north-west of the subject land fronting onto Canning Highway are also zoned "Highway Commercial" with a permitted site density of R80. The lots to the south of the "Highway Commercial" zone that front onto Canning Highway, are zoned "Residential" with a permitted site density of R60. The lots to the south of the subject land that front onto Park Street are zoned "Residential" with a permitted site density of R20/30. R20 is designated as a "low density" coding in Table 1, while R30 is a "medium density" coding.

23 The land directly adjacent to the subject land on the opposite side of Barker Avenue is zoned "Highway Commercial" with a permitted site density of R80. All of the lots fronting onto Park Street north of Saunders Street and south of Barker Avenue are zoned "Residential" with a permitted site density of R20/30, while the lots north-east of Barker Avenue, and more particularly those lots fronting onto Brittain Street, are zoned "Residential" with a permitted site density of R20.

24 Clause 3.3(1) of TPS 6 states that, subject to the provisions of the Scheme, the various purposes for which land may be used are set out in Table 1. Table 1 designates a "single bedroom dwelling" as a discretionary use in the "Highway Commercial" zone. Clause 3.3(5) provides that, in respect of a discretionary use:

"[I]n exercising its discretion as to whether or not planning approval ought to be granted, the Council shall have regard to the Scheme objectives listed in clause 1.6 and to any objectives for the precinct as stated within the relevant Precinct Plan and to such matters referred to in clause 7.5 as Council considers to be relevant in the circumstances.."

25 Clause 1.6(1) of TPS 6 states that: (Page 8)

"The overriding objective of the Scheme is to require and encourage performance-based development in each of the 14 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct."

26 Clause 1.6(2) sets out the general objectives of the Scheme. The particular objectives of the scheme of relevance to this matter are:

"(a) Maintain the City's predominantly residential character and amenity;

…

(c) Facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performance-based objectives which retain the desired streetscape character and, in the older areas of the district, the existing built form character;

… [and]

(f) Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development; ..."

27 Clause 7.5 of TPS 6 provides, in part, as follows:

"In considering an application for planning approval, the Council shall have due regard to, and may impose conditions with respect to, such of the following matters, as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application:

(a) the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;

(b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;

(Page 9)

(c) the provisions of the Residential Design Codes [of Western Australia 2002] and any other approved Statement of Planning Policy of the Commission prepared under Section 5AA of the Act;

…

(f) any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;

…

(i) the preservation of the amenity of the locality;

(j) all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;

…

(n) the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details;

...

(s) whether the proposed access and egress to and from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvre and parking of vehicles on the site;

… [and]

(v) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved; …"

28 The term "focus area" which is used in par (n) of cl 7.5 is defined in Schedule 1 of the Scheme to mean "the section of a street extending from one cross intersection to the next cross intersection, together with the (Page 10)

residential properties fronting onto both sides of that section of the street". The Tribunal considers that there are two focus areas which are relevant to this application; the Barker Avenue focus area which includes that area of Barker Avenue situated between Brittain/Park Street and Canning Highway and the Park Street focus area which extends from the site to Alston Avenue.

29 Clause 3.2 of TPS 6 creates 14 precincts including "Precinct 9: Como", of which the subject land forms part. It appears that the City's Precinct Plan for the "Como Precinct" remains in draft although, on Mr Allerding's evidence, it was prepared as part of the process of formulating TPS 6. The draft Precinct Plan is used by the City's officers as though it were an adopted policy.

30 The Draft Como Precinct Plan (draft Precinct Plan) states at page 4 as follows:

"Desired Future Character

To retain the opportunity for limited low and medium density development which also encourages retention of remaining character housing stock, through adoption of performance based controls and dual codings, having regard to the precinct's large lot sizes, accessibility and current diversity of dwelling styles and densities ...

Residential Controls

Objectives

… [and]

(iv) To encourage medium density housing being developed adjacent to Canning Highway amidst commercial development…"

31 The "Precinct Wide Controls" as contained in the Precinct Plan require regard to be had to "the impact of the proposal on adjoining residential amenity and the character of existing streetscapes".

32 The draft Precinct Plan does not anticipate residential development up to an R80 density, notwithstanding that the subject land is coded R80. The section titled "Commercial Control", which identifies the area on the "southern side of Barker Avenue between Canning Highway and Park Street" as a centre providing a variety of commercial and retail

(Page 11)

facilities, only addresses alternative options for the redevelopment of a site involving a commercial component and is therefore not relevant to this development.

33 Clause 4.1(3) of TPS 6 states that "unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes". The parties agreed that the variations sought from the acceptable development provisions of the Codes related to density, open space, car parking and setbacks to the right-of-way and a carport. The impacts of the proposed variations will be addressed below.

34 Clause 6.3(1) of the Scheme provides that car parking bays shall be provided in accordance with Table 6, which for residential development, including single bedroom dwellings, defers to that prescribed by the Codes.

35 The respondent also relied on "Policy P370T General Design Guidelines for Residential Development" (Policy P370T) and urged the Tribunal to take the same approach as that adopted in Canning Mews Pty Ltd and City of South Perth (2005) 41 SR (WA) 79 that notwithstanding that the policy was formulated for the purposes of City of South Perth Town Planning Scheme No 5, which TPS 6 repealed and replaced, it remains an operative policy of the City relating to design of residential development. This Tribunal is prepared to adopt the same approach but is mindful of the arguments presented by the applicants in that Policy P370T is eight years old and that it is not an operative policy for the purposes of TPS 6.

36 Policy P370T relates to all forms of residential development and has the following objectives:

"(a) To preserve or enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings.

(b) To enhance residential amenity standards generally … "

37 Policy P370T contains policy provisions including the following:

"3. STREETSCAPE CHARACTER
All residential development shall be designed in a manner that will preserve or enhance desired streetscape

(Page 12)

character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area. In assessing the design compatibility of a proposed development, the Council will have regard to the primary and secondary contributing elements as identified in the … definition of the term 'design compatibility'. …
6. BUILDING FORM AND SITE PLANNING
Drawings submitted in support of any proposed residential development are required to demonstrate compliance with the following:

(a) Scale

Building bulk shall be generally distributed to ensure that a proposed building will not have an overpowering impact on neighbours and the street. …"

38 The term "focus area" is defined in Policy P370T in the same terms as in TPS 6. The Policy also contains the following definitions:

"Amenity means those qualities and characteristics of a site and its neighbouring area that contribute to the comfort and pleasantness of the residential environment."

"Design compatibility means the extent to which a proposed residential building is visually in harmony with neighbouring existing buildings within the focus area. Primary elements contributing to design compatibility are generally scale; colour; form or shape; and rhythm. Secondary elements include construction materials; setbacks from the street and side boundaries; the extent and nature of site landscaping visible from the street; and architectural details."

"Scale means the perceived visual magnitude of a building in relation to neighbouring existing buildings within the focus area. The perceived scale is determined by the height and bulk of the proposed building and its spatial separation from the street and adjacent buildings."

(Page 13)

"Streetscape character means the dominant visual characteristics of a residential street environment formed by the inter-relationship between the principal elements within the street reserve and the adjacent residential properties. Principal elements contributing to streetscape character include street trees (species, size and spacing); fencing visible from the street; site landscaping in front of buildings (extent and characteristics); vehicle pavement visible from the street; building setbacks; and design compatibility between neighbouring buildings within the focus area. Building design compatibility is generally the most critical element in preserving or enhancing desired streetscape character."

Issues

39 The following four principal issues emerged for consideration in the review:

1. Whether the proposed development would have a significant and detrimental impact on the streetscape, visual amenity and character of Park Street, Barker Avenue and adjacent residential areas.

2. Whether the development provides sufficient resident and visitor car parking.

3. Whether the discretion to permit the minimum site area to be reduced by up to one third to allow 23 single bedroom dwellings under the Residential Design Codes should be exercised.

4. Whether the development should be permitted with the amount of open spaced proposed.

40 Further, in the respondent's initial "Statement of Issues, Fact and Contentions" an additional issue was identified as "whether the development will give rise to unacceptable traffic impacts". This issue was later deleted from the respondent's "Amended Statement of Issues, Facts and Contentions", although the respondent's witnesses Councillor Colin Cala, Mrs Yvette Hawley and Mr Peter Cox addressed this issue in their witness statements. The Tribunal allowed the evidence of these witnesses to remain part of the recordas the applicants had filed a witness statement from Mr Jonathan Riley, a consultant transport planning and traffic engineer, which dealt with the issues raised by the respondent's witnesses.

(Page 14)

41 The respondent's witnesses contended that the escalation in traffic movement from the proposed development would exacerbate the traffic problem experienced at the intersection of Barker Avenue, Brittain Street and Park Street resulting in further increased traffic delays.

42 Mr Riley was commissioned by the applicants to prepare a "Traffic and Parking Assessment". His assessment included the consideration of such matters as the site and surrounding road network; traffic generation and distribution; traffic impact; access; parking; and pedestrian, cyclists and public transport. To calculate the expected traffic movements per day of the proposed development, Mr Riley referred to data in the Road Traffic Authority's Land Use Traffic Generation, which suggests that a one bedroom apartment can be expected to generate between 0.24 and 0.29 peak hour trips per apartment. Based on this data, Mr Riley concluded that the proposed development would be expected to generate 55 vehicle movements per day and 6 vehicle movements during the peak period, thereby only increasing local traffic flows on Barker Avenue by 1.2% of the current daily flow. When compared with the previous use of the subject land, the expected vehicle movements per day of the proposed development equated to a 90% reduction. Mr Riley was of the opinion that the proposed development would improve traffic and improve safety for cyclists using the cycle lane on Barker Avenue.

43 The Tribunal prefers the evidence of Mr Riley over the respondent's witnesses on this issue, because of Mr Riley's qualifications and experience as a transport planning and traffic engineer.

Whether the proposed development would have a significant and detrimental impact on the streetscape, visual amenity and character of Park Street, Barker Avenue and adjacent residential areas

44 The respondent contended that the statutory framework applicable to the subject land and the surrounding locality emphasises the objective of ensuring that the built form of new development is compatible and will harmonise with existing residential areas in which the development is proposed. The respondent argued that the scale and bulk of the proposed development, particularly its frontage to Park Street, would significantly and detrimentally affect the streetscape, visual amenity and character of the Park Street focus area and the residential areas immediately to the east and south of the subject land.

45 The respondent submitted that the subject land is located within two focus areas; Barker Avenue from Canning Highway to Park Street, and Park Street from Barker Avenue to Alston Avenue and that these focus

(Page 15)

areas needed to be assessed separately. While it was conceded that the draft Precinct Plan did not address the R80 density coding or residential development within the "Highway Commercial" zone, the respondent argued that the "Desired Future Character" established by the draft Precinct Plan should be an important consideration.

46 Mr Roberts, counsel for the respondent, submitted that the Barker Avenue focus area is less sensitive than the Park Street focus area. He argued the latter was significantly affected by the proposed development. The existing residential dwellings were, he submitted, generally set back 10 metres from the front boundary and the proposed development was not consistent with these parameters. In this context, the proposed development would have an overpowering impact within the streetscape. Mr Roberts, however, did suggest that it may be possible to ameliorate this impact by reducing the height and increasing the setback from Park Street.

47 Mr Allerding, a town planning consultant called on behalf of the respondent, considered that the development's context from an urban design perspective is inconsistent with the Park Street focus area and that the proposed building form fronting Park Street would present with excessive and unsympathetic building bulk and scale to a low density residential precinct, and would thereby significantly and detrimentally affect the streetscape, visual amenity and character of Park Street.

48 Evidence was also called by the respondent from Councillor Cala and two local residents who expressed concern with the impact of the development on the existing streetscape. Councillor Cala suggested that due regard must be given to the visual harmony and streetscape character of the proposed development within the context of the neighbouring existing buildings within the focus area. He contended that the design of the proposed development was unsympathetic to the character of the neighbouring residences and failed to form a transition between the lower built form of the surrounding streets and the corner shops. The local residents argued that three storey development was not in accord with the clearly identified streetscape and was completely out of scale and character with the area and would have a detrimental effect on local amenity.

49 Mr Melson, an architect and town planning consultant called to given evidence by the applicants, suggested that the buildings were "designed to 'step' built setback at the corner of the site … to provide a frontage treatment (not 'side' building treatment) to the corner address and Park

(Page 16)

Street". He also noted that the building was "setback from the southern boundary frontage to Park Street to minimize any visual conflict with the existing 'cottage' dwelling adjacent".

50 In his closing submission Mr Hardy, counsel for the applicants, argued that the current application constituted a very different development to both that which previously occupied the site and the surrounding housing stock. He contended that while the density coding for the subject land did not establish a R80 density as of right, it created a reasonable expectation that "high density" development would occur on the land. He stressed that the topography was important in that there was no uniformity of view or sightlines; thus the impact of the development was dependent on the location from which it was viewed.

51 While he conceded that the development was larger in terms of built form than existing development in the locality he argued that this was not the only criteria by which the development should be assessed. The profile to Park Street is not a gross area or a blank facade. He submitted that the subject land would form a transition from the commercial uses on Canning Highway/Barker Avenue to the residential areas on Barker Avenue and Park Street.

52 As stated earlier, the Tribunal considers there to be two focus areas relevant to this application – Barker Avenue from Canning Highway to Park Street; and Park Street from Barker Avenue to Alston Avenue. The respondent conceded, and the Tribunal agrees, that the Barker Avenue focus area is less sensitive than the Park Street focus area.

53 The proposed development makes a positive contribution to the Barker Avenue focus area in terms of providing closure to the vistas as one approaches the Barker Avenue roundabout from both Brittain Street and the eastern section of Barker Avenue. The building is also actively articulated, breaking down its perceived bulk, and establishing a built form which mitigates unsympathetic contrasts of scale with the existing streetscape. In addition, the fact that the building is generally well set back from the Barker Avenue boundary provides some synergy with the landscaped front setbacks on the eastern approach.

54 In considering the extent to which the Park Street facade of the proposed building is in visual harmony with neighbouring existing buildings within the Park Street focus area, the Tribunal,as observed in Canning Mews "must give due weight to the reasonable contemplation of the different density coding of the site to the remainder of that focus area".

(Page 17)

In this instance, consideration should also be given to the fact that there is potential for the existing streetscape to materially alter as there is potential for adjoining properties to be redeveloped at a higher density than presently developed. Nevertheless, a degree of compatibility is required between the built form of the proposed development and the existing residential areas.

55 The respondent's characterisation of the Park Street focus area as "low density housing" and "single storey development set back 10 metres", while technically correct on the western side of the street, ignores the fact that the current planning provisions for the area, even without the benefit of the split zoning provisions of the Scheme, would facilitate two grouped dwellings on each existing lot. This is likely to result, as Mr Allerding conceded, in the construction of two storey residences set back approximately 6 metres from the front boundary. The site visit confirmed the likelihood of such an outcome.

56 While an existing streetscape of recognized quality and character may reasonably generate a requirement for a high degree of compatibility it would be difficult to defend such a requirement in Park Street. Of the five lots situated on the western side of Park Street, one block is vacant, and the dwelling immediately adjacent to the subject site does not appear to have been particularly well maintained. Of the remaining three lots, one has been developed for two grouped dwellings. Given the density coding for this area, it its likely that the character of the western side of Park Street will significantly alter as redevelopment of the lots occur. For this reason, it would seem that the relevant criterion is the "desired streetscape character" envisaged in an area of split R20/30 density coding rather than "the existing built form character". Such an interpretation is strengthened if the eastern side of the street is considered. The setbacks on this side of the street are considerably less than those which occur on the western side and much of the length of the streetscape is occupied by screen walls.

57 The plans for the proposed development confirm Mr Melson's contention that the proposed building provides "a frontage treatment (not 'side' building treatment) to the corner address and Park Street". The general articulation of the corner both horizontally and vertically suggest some effort was invested in responding to the challenge of the corner. In addition, the restricted length of the Park Street elevation, the setback to the southern boundary, the provision for tree planting, and the treatment of the eastern end of the southern boundary all considerably mitigate the

(Page 18)

adverse impacts of a "high density" residential development on the Park Street focus area.

58 Given the juxtaposition of a high density coding with a low density coding, and the strong likelihood of future two storey development within areas of the focus area immediately adjacent to the subject site, the Tribunal is of the view that the height transition from three storeys on the subject site to a likely two storeys on adjacent sites to the south is acceptable in terms of the Park Street streetscape. On the issue of the setback to Park Street, the Tribunal considers that given the different density coding of the subject land to the remainder of the Park Street focus area, the fact that the setbacks comply with the relevant Code provisions, and that the facade facing Park Street has been actively articulated both horizontally and vertically the proposed development provides an adequate degree of compatibility with the desired future character of the Park Street focus area, the proposed setback can be supported.

59 The Tribunal, therefore, considers that the impacts of the proposed development on streetscape, visual amenity and character of the Barker Avenue and Park Street focus areas are acceptable.

Whether the development provides sufficient resident and visitor car parking

60 The respondent contended that the number of car parking bays provided involves a departure from the acceptable development provisions of the Codes and that the variation sought does not satisfy the performance criteria as specified under cl 3.5.1 P1 of the Codes.

61 Mr Allerding, in his witness statement, asserted that as the proposed single bedroom dwellings had a plot ratio area in excess of 60 square metres, the relevant acceptable development provision of the Codes required the provision of 38 car parking bays. On his calculation, the proposed development had a shortfall of 12 car parking bays. A recalculation of floor area was carried out, between the experts, during the course of the hearing. Consequently, Mr Allerding revised the number of car parking bays required to be provided on site to 34 bays, which reduced the shortfall figure to eight (8) car parking bays.

62 He maintained that the number of car parking bays proposed did not satisfy the performance criteria as specified under cl 3.5.1 P1 of the Codes. Clause 3.5.1 P1 reads as follows:

(Page 19)

"P1 Adequate car parking provide on-site in accordance with projected need related to:
• the type, number and size of dwellings;

• the availability of on-street and other off-site parking;

• the location of the proposed development in relation to public transport and other facilities."

63 Mr Allerding argued that as the single bedroom dwellings were larger than "normal" ("normal" being associated with the maximum area specified in cl 4.1.3 of the Codes) they were more likely to accommodate more prospective residents per unit (that is, two instead of one), as well as, attracting more affluent purchasers who may well make more extensive use of motor vehicles. Based on these assumptions, he concluded that there was likely to be a higher demand and that the number of car parking bays provided on site did not satisfy the associated need.

64 Ms Emma de Jager, a town planning consultant called by the applicants to give evidence, considered the number of car parking bays provided on-site was appropriate and satisfied the performance criteria specified in the Codes for the following reasons:

"(a) the dwellings proposed are single bedroom dwelling and each dwelling will have its own private parking bay;

(b) adequate on street parking and other off site parking is available in close proximity to the development; and

(c) the proposed development is conveniently located adjacent to a primary public transport facilities (buses) servicing the area to provide ease of access to the city centre, regional shopping centres, and nearby educational facilities such as Curtin University."

65 Mr Riley, in his traffic and parking assessment report, refers to the issue of parking and considered the level of parking proposed for the development to be appropriate.

66 During the hearing, the Tribunal requested the expert planning witnesses to comment on the wording of acceptable development provision cl 3.5.1 A1(iii) dot point three of the Codes in the context of this development. This clause reads as follows:

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"• in the case of Single Bedroom Dwelling of not less than 60sqm of plot ratio area … – 0.75 space per dwelling." (emphasis added)

67 Mr Allerding considered there to be an error in the drafting of the provision and that the word "not" should not have been included in the clause. He was of the view that the provision as currently worded made no sense. Both Mr Melsom and Ms de Jager submitted that the proposed development complied with the acceptable development provision but when pressed conceded that there may have been an inconsistency within the Codes.

68 On literal reading of the wording of this clause the proposed development complies with the acceptable development provisions of the Codes. There appears, however, to be an inconsistency between the relationship of the size of single bedroom dwellings and the provision of car parking bays in the application of clauses 4.1.3 A3 and 3.5.1 A1(iii). No evidence was produced by the respondent to show that larger units require additional bays and there was no dispute between the parties that the proposed units would be used for anything other than single bedroom dwellings.

69 The Tribunal finds that each of the single bedroom dwellings satisfies the Performance Criteria, in that each dwelling provides limited accommodation, suitable for one or two persons. Furthermore, the Tribunal considers that the physical characteristics of each of the single bedroom dwellings as drawn are such that they could not be readily converted into a two bedroom unit. The Tribunal does not consider that the additional floor space would warrant additional car parking bays to be provided and therefore, considers there is adequate car parking provided on-site to satisfy the projected need for the proposed development.

Whether the discretion to permit the minimum site area to be reduced by up to one third to allow 23 single bedroom dwellings under the Residential Design Codes should be exercised

70 It was common ground that, based on the minimum site area per dwelling set out in Column 3 of Table 1 to the Codes, the subject land could accommodate 16 multiple dwellings. Clause 3.1.3 A3 of the Codes provides, in part, as follows:

"… [t]he following variations to the minimum site areas set out in Column 3 of Table 1 may be made:

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i. for the purposes of … a Single Bedroom Dwelling, the minimum site area may be reduced by up to one-third, in accordance with Section … 4.1.3; …"

71 If the Tribunal were to exercise the discretion under cl 3.1.3 A3 of the Codes the subject land could accommodate a maximum of 25 single bedroom dwellings. The proposed development comprises 23 single bedroom dwellings.

72 None of the proposed single bedroom dwellings has a plot ratio of 60 square metres or less. The acceptable development criterion in cl 4.1.3 of the Codes is, therefore, not met. However, as we said earlier, each of the single bedroom dwellings satisfies the Performance Criteria as the dwellings have been designed to "provide limited accommodation, suitable for one or two persons" and could not be readily converted into two bedroom units.

73 This issue was not actively pursued by the respondent. It was recognised that the proposed development provides an alternate dwelling type that is consistent with the objectives of the Scheme. The Tribunal considers that in this instance, the discretion available under par A3 of cl 3.1.3 should be exercised.

Whether the development should be permitted with the amount of open space proposed

74 The objective of Element 4 – Open Space (Element 4) of the Codes is:

"To ensure that private and communal open space is set aside and landscaped to provide for attractive streetscape, attractive settings to complement buildings, privacy, direct sun, and the recreational needs of residents."

75 Open space as defined under the Codes means:

"Generally that area of a lot which is not occupied by any building and includes:

• open areas of accessible and useable flat roofs and outdoor living areas above natural ground level;

• areas beneath eaves overhangs, verandahs or patios not more than 0.5 [metres] above natural ground level, unenclosed on at least two sides and covering no more

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than 10[%] of the site area or 50sqm [sic] which ever is the lesser;
• pergolas;

• uncovered driveway (including access aisles in parking areas and uncovered carbays;

but excludes:

• non-accessible roofs, verandahs and balconies over 0.5 [metres] above natural ground level;

• covered car-parking bays and walkways, areas for rubbish disposal, store, outbuildings or plant rooms."

76 Clause 3.4.1 A1 of the Codes specifies the acceptable development requirements for the provision of open space. Open space provided in accordance with Table 1 and Element 2 – Streetscape (Element 2) and Element 3 – Boundary Setbacks (Element 3) are deemed to meet the relevant Performance Criteria set out in cl 3.4.1 P1.

77 Column 7 of Table 1 relates to "Open Space" and sets out the requirements for "Minimum Total", "Minimum Communal" and "Minimum Outdoor Living". The requirement at issue in this review is the "Minimum Total", which specifies on a lot coded R80 the minimum total percentage of the site to be set aside for open space is 60%. According to the respondent, the percentage of the subject land set aside for open space equates to 51%, thus invoking assessment under the Performance Criteria. The respondent asserted that there was a deficiency of 189 square metres. The shortfall figure was not disputed by the applicants.

78 Clause 3.4.1 P1 of the Codes sets out the performance criteria, which reads as follows:

"Sufficient open space around buildings:

• to complement the building;

• to allow attractive streetscapes;

• to suit the future needs of residents, having regards to the type and density of the dwelling."

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79 The respondent contended that the shortfall results in a deficiency in open space provided within the Park Street frontage, which impacts upon the streetscape. The applicants submitted that the open space deficiency could be satisfied by removal of the carports over the proposed car parking bays and further argued that the generous space provided within the balcony areas and ground level courtyards more than covered any shortfall.

80 The respondent's argument that the shortfall results in a deficiency of open space within the Park Street frontage fails as the setback of the proposed development to Park Street complies with the setback requirements as specified in the Codes, and therefore there is no guarantee that an additional open space area would be located within this area of the site. The performance criteria require an assessment of the setting of the building in the context of the site and the streetscape and consideration as to whether the future needs of residents are met. The Tribunal is satisfied that the proposed development accords with the objectives of Elements 2 and 3of the Codes and that sufficient landscaping has been provided to compliment the building and allows for a sufficient landscape buffer between the building and the streets. Furthermore, open space fulfils multiple functions and the additional space incorporated within the balcony and courtyard areas, although not included in the total open space calculations, provides for greater useability of these areas by its occupants. The Tribunal considers that the increased areas in the private balconies and courtyard areas is, in this instance, an effective argument relating to meeting the needs of future residents. Therefore, the Tribunal is satisfied that in the context of this development the amount of open space provided satisfies the relevant performance criteria of the Codes and can be supported.

Whether, taking into consideration the determination of the foregoing issues, the proposed development should be approved in the exercise of planning discretion and, if so, subject to what conditions

81 For the above reasons, the Tribunal considers that approval for the construction of 23 single bedroom dwellings on Lots 390 and 391 (No's 3 and 5) Barker Avenue, Como, as shown on the plans SK 01 to SK 11 drawn by Hassell Architects, is warranted.

82 As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions to be imposed if the Tribunal considers that approval of the application subject to conditions is

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appropriate. The suggested 25 conditions were accepted by the applicants.

Orders

83 For the above reason the Tribunal makes the following orders:

1. The application for review is allowed.

2. Planning consent is granted for the construction of 23 single bedroom dwellings on Lots 390 and 391 (No's 3 and 5) Barker Avenue, Como, as shown on plans SK 01 to SK 11 drawn by Hassell Architect, subject to the following conditions:

(1) The car parking bays shall be marked on site as indicated on the approved site plan, in order to comply with the requirements of cl 6.3(10)(c) of Town Planning Scheme No 6 and such marking shall be subsequently maintained so that the delineation of parking bays remains clearly visible at all times.
(2) The designated visitor parking bays shall be clearly identified on site by means of a sign bearing the words "Visitors' Parking Only" in accordance with the requirements of cl 6.3(11) of Town Planning Scheme No 6.
(3) Hard standing areas approved for the purpose of car parking or vehicle access shall be maintained in good condition at all times, free of potholes and dust and shall be adequately drained in accordance with the requirements of cl 6.3(10) of Town Planning Scheme No 6.
(4) The portion of the right-of-way abutting the development site shall be constructed, kerbed, formed, graded and finished with hard standing

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bitumen surface to standards satisfactory to the Director, Infrastructure Services and sufficient to sustain the loadings of heavy service vehicles. Provision shall also be made to the satisfaction of the Director, Infrastructure Services for the disposal of surface water from the right-of-way.
(5) The portion of the right-of-way referred to in Condition 4 shall be maintained at all times in a condition to the satisfaction of the Director, Infrastructure Services and generally in accordance with the above specifications. If and when by reason of wear and tear it may become necessary to do so, that portion of the right-of-way shall be re-surfaced and re-formed with materials equivalent to those originally used.
(6) A clothes dryer shall be provided within the laundry of each dwelling.
(7) External clothes drying facilities shall be screened from view from the street or any other public place.
(8) The existing crossover shall be removed and the verge and kerbing shall be reinstated to the satisfaction of the Director, Infrastructure Services.
(9) Details of the proposed colours of the external materials shall be submitted for approval by the City, prior to the issuing of a building licence. The selected colours shall demonstrate compatibility with neighbouring buildings.

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(10) In accordance with the provisions of cl 6.8(2) of Town Planning Scheme No 6, all subsoil water and stormwater from the property shall be discharged into soak wells or sumps located on the site unless special arrangements can be made to the satisfaction of the Director, Infrastructure Services for discharge into the street drainage system.
(11) Unless otherwise approved, fences of brick, timber, capped manufactured pre-coloured metal sheet, capped corrugated fibre-cement sheet or brushwood construction, 1.8 metres in height, shall be provided along the west and south boundaries of the site. Any fencing forward of the building line shall not be of fibre-cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City. The fence height at any point shall be measured from the level of the ground adjacent to the fence. If the ground levels on each side of the fence are not the same at any point along the lot boundary, the fence height at that point shall be measured from the higher side.
(12) The existing boundary fencing shall not be removed, until such time as the required new fencing is to be erected.
(13) The existing boundary fencing shall not be removed, unless it is to be replaced immediately with a new fence.

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(14) Internal dividing fences visible from any driveway, common area or the front of any dwelling shall be constructed of a material approved by the City, other than fibre cement sheeting.
(15) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.
(16) Any required retaining walls along lot boundaries shall be constructed immediately after excavation or filling has been carried out.
(17) In accordance with the requirements of cl 3.4.5 A5 of the Residential Design Codes of Western Australia 2002, a landscaping plan shall be submitted for approval by the City prior to, or in conjunction with, the building licence application. No person shall occupy or use the land or any building the subject of this approval for the purpose for which this approval is given unless and until:
(i) the City has approved a landscaping plan; and
(ii) the landscaping has been completed in accordance with the plan approved by the City.
(18) All plumbing fittings on external walls shall be concealed from external view as required by cl 7.5(k) of Town Planning Scheme No 6.
(19) Lots 390 and 391 Barker Avenue shall be amalgamated on a compiled Diagram of Survey and

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application for a new Certificate of Title shall be lodged with the Land Titles Office. A building licence may not be issued until the new Certificate of Title is issued.
(20) The height of any fence, hedge, tree, or other obstruction within the area formed by 4.2 metre truncations at the corner of Barker Avenue and the right-of-way and also adjacent to the driveways where they meet the street boundary, shall not exceed the 0.75 metre limit imposed under the provisions of Town Planning (Height of Obstructions at Corners) General By-laws 1975, (as amended).
(21) A rubbish storage area large enough to accommodate sufficient 1100 litre bulk bins for the proposed dwellings shall be provided, located and screened from view from all units and the street. Such area shall be provided with a gate. Revised drawings of the rubbish storage issue shall be submitted prior to, or in conjunction with, the building licence application.
(22) Revised drawings shall be submitted, and such drawings shall incorporate the following:
(i) The plans and elevations drawings to provide consistent information when read in conjunction with each other.
(ii) The wall height of the proposed rubbish bins stores to be no higher than 2.4 metres in

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(Page 29)

accordance with cl 3.10.1 of the Residential Design Codes of Western Australia 2002.
(iii) The internal area of private storerooms shall be a minimum of 4 square metres.
(23) Lot 390 Barker Avenue shall be subdivided to create a 1.0 metre wide lot along the length of the right-of-way. This newly created lot shall be amalgamated with the right-of-way for the purpose of its widening. The applicants will be required to follow the necessary procedures in this regard in order to create the new Certificates of Titles to be issued.
(24) The developer shall meet the full cost of reinstating the existing crossovers, replacing the footpath and planting trees within the portions of Barker Avenue and Park Street adjoining the site. These street trees within the verge area adjoining the development site shall be provided in accordance with the City's Street Tree Management Plan.
(25) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER