ARNOLD and CITY OF SUBIACO

Case

[2013] WASAT 75

28 MAY 2013

No judgment structure available for this case.

ARNOLD and CITY OF SUBIACO [2013] WASAT 75
Last Update:  04/06/2013
ARNOLD and CITY OF SUBIACO [2013] WASAT 75
Jurisdiction: STATE ADMINISTRATIVE TRIBUNAL   Citation No: [2013] WASAT 75
Act: PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No: DR:347/2012   Heard: 11 APRIL 2013
Coram: MS M CONNOR (MEMBER), MS J BELL (SESSIONAL MEMBER)   Delivered: 28/05/2013
No of Pages: 17   Judgment Part: 1 of 1
Result: Application for review allowed
Decision of respondent set aside and conditional approval granted
Category: B
[Click here for Judgment in Adobe Acrobat Format ]
Parties: BROOKE ARNOLD
CITY OF SUBIACO

Catchwords: Town planning ­ Development application ­ Demolition of existing single storey dwelling and construction of two storey dwelling ­ Streetscape Policy ­ Whether the dwelling is compatible in terms of height, bulk and scale with rhythm and pattern of existing secondary streetscape and an acceptable interface between R50 and R20 coding ­ Discretion to vary maximum height standards where no undue adverse impact on adjoining residential land or amenity of locality and wall or overall height is compatible with surrounding residential development
Legislation: City of Subiaco Town Planning Scheme No 4, cl 7, cl 27(3), cl 27(4), cl 37, cl 38, cl 39(3), cl 41(2), cl 42, cl 42(2), cl 42A, cl 78, cl 78(8)
Planning and Development Act 2004 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)

Case References: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117



Orders: On the application heard on 11 April 2013 by Member Marie Connor and Sessional Member Judith Bell, it is on 28 May 2013 ordered that:
1. The application for review is allowed.
2. The decision of the respondent made on 25 September 2012 with respect to the development application for the demolition of the existing dwelling and the construction of a new two storey dwelling at No 78 (Lot 60) Onslow Road, Shenton Park is set aside and a decision is substituted that planning approval is granted for the demolition of the existing dwelling and the construction of a new two storey single house at No 78 (Lot 60) Onslow Road, Shenton Park, subject to the following conditions:
(i) The development is to be carried out in accordance with the plans and drawings prepared by Cross Design Group SK 01 to SK 05 Revision C included with the application for review (DR 347 of 2012).
(ii) Prior to the commencement of demolition, two copies of archival records consisting of the following information are to be submitted to the satisfaction of the Manager, Planning Services:
(a) a site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished;
(b) photographs of all four elevations of the building, its interior and any special architectural feature. These photographs are to be appropriately labelled and are to be provided in plastic archival sleeves;
(c) a plan of the floor layout of the existing building; and
(d) any available historical information on the building.
(iii) Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.
(iv) The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.
(v) Prior to occupation, brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development.
(vi) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.

Summary: Mr Arnold applied to the State Administrative Tribunal for review of a decision by the City of Subiaco refusing planning approval for the demolition of an existing dwelling and the construction of a new two storey dwelling at No 78 (Lot 60) Onslow Road, Shenton Park.
The principle issue that arose for determination in this matter was whether the proposed dwelling is consistent with orderly and proper planning and the conservation of the amenity of the locality, having regard to:
1) TPS 4, in particular cl 27(4)(h), cl 41(2)(a) to cl 41(2)(e), and cl 41(2)(g), and cl 42A;
2) Residential Design Codes of Western Australia (2010); and
3) the City of Subiaco Policy 3.1 Streetscape Policy.
As the proposed development exceeded the maximum overall height and wall heights for land with a density coding from R30 to R50, which included the subject land, an exercise of discretion was required to permit the two storey dwelling. In order for the Tribunal to exercise the power to vary the maximum height standards prescribed by the City of Subiaco Town Planning Scheme No 4, the Tribunal was required to be satisfied that there was no undue adverse impact on adjoining residential sites or the general amenity of the locality. The Tribunal was further required to have regard to the general objectives of the Streetscape Policy as applied to the secondary street, Stanmore Street. This required the Tribunal to be satisfied that the proposed dwelling was consistent with the streetscape and neighbourhood character of the locality and that adequate consideration had been given to the impact of the bulk and scale of the new dwelling on the rhythm and pattern of the secondary street frontage.
The Tribunal was satisfied that the dwelling was compatible in terms of height, bulk and scale with the development pattern and characteristics of residential development in the wider area. The Tribunal was further satisfied that any adverse impact on the Stanmore Street streetscape had been minimised through increased separation and careful articulation of design elements and that the dwelling provided an acceptable transition between the R50 and R20 Codes. The Tribunal determined that discretion should be exercised to allow the dwelling and to grant conditional development approval.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ARNOLD and CITY OF SUBIACO [2013] WASAT 75 MEMBER : MS M CONNOR (MEMBER)
                  MS J BELL (SESSIONAL MEMBER)
HEARD : 11 APRIL 2013 DELIVERED : 28 MAY 2013 FILE NO/S : DR 347 of 2012 BETWEEN : BROOKE ARNOLD
                  Applicant

                  AND

                  CITY OF SUBIACO
                  Respondent

Catchwords:

Town planning ­ Development application ­ Demolition of existing single storey dwelling and construction of two storey dwelling ­ Streetscape Policy ­ Whether the dwelling is compatible in terms of height, bulk and scale with rhythm and pattern of existing secondary streetscape and an acceptable interface between R50 and R20 coding ­ Discretion to vary maximum height standards where no undue adverse impact on adjoining residential land or amenity of locality and wall or overall height is compatible with surrounding residential development

(Page 2)

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 7, cl 27(3), cl 27(4), cl 37, cl 38, cl 39(3), cl 41(2), cl 42, cl 42(2), cl 42A, cl 78, cl 78(8)
Planning and Development Act 2004 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)

Result:

Application for review allowed
Decision of respondent set aside and conditional approval granted

Summary of Tribunal's decision:

Mr Arnold applied to the State Administrative Tribunal for review of a decision by the City of Subiaco refusing planning approval for the demolition of an existing dwelling and the construction of a new two storey dwelling at No 78 (Lot 60) Onslow Road, Shenton Park.
The principle issue that arose for determination in this matter was whether the proposed dwelling is consistent with orderly and proper planning and the conservation of the amenity of the locality, having regard to:

      1) TPS 4, in particular cl 27(4)(h), cl 41(2)(a) to cl 41(2)(e), and cl 41(2)(g), and cl 42A;
      2) Residential Design Codes of Western Australia (2010); and
      3) the City of Subiaco Policy 3.1 Streetscape Policy.
As the proposed development exceeded the maximum overall height and wall heights for land with a density coding from R30 to R50, which included the subject land, an exercise of discretion was required to permit the two storey dwelling. In order for the Tribunal to exercise the power to vary the maximum height standards prescribed by the City of Subiaco Town Planning Scheme No 4, the Tribunal was required to be satisfied that there was no undue adverse impact on adjoining residential sites or the general amenity of the locality. The Tribunal was further required to have regard to the general objectives of the Streetscape Policy as applied to the secondary street, Stanmore Street. This required the Tribunal to be satisfied that the proposed dwelling was consistent with the streetscape and neighbourhood character of the locality and that adequate consideration had been given to the impact of the bulk and scale of the new dwelling on the rhythm and pattern of the secondary street frontage.
The Tribunal was satisfied that the dwelling was compatible in terms of height, bulk and scale with the development pattern and characteristics of residential development in the wider area. The Tribunal was further satisfied that any adverse impact on the Stanmore Street streetscape had been minimised

(Page 3)

through increased separation and careful articulation of design elements and that the dwelling provided an acceptable transition between the R50 and R20 Codes. The Tribunal determined that discretion should be exercised to allow the dwelling and to grant conditional development approval.

Category: B

Representation:

Counsel:


    Applicant : Self-represented
    Respondent : Mr J Algeri (Acting as Agent)

Solicitors:

    Applicant : N/A
    Respondent : Algeri Planning & Appeals (Town Planners)



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

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117


(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 Mr Brooke Arnold (applicant) made application to the City of Subiaco (respondent, Council or City) on 30 April 2012 for the demolition of the existing dwelling and construction of a new two storey dwelling at No 78 (Lot 60) Onslow Road, Shenton Park (subject land).

2 The application was refused by the respondent on 25 September 2012 for the following reasons:

          1. The proposal would not satisfy Clauses 42(2) and 42A of Town Planning Scheme No. 4 in that the proposed wall height for the Stanmore Street elevation would have an undue adverse impact on the amenity of the locality and would not enhance the streetscape.

          2. The proposal would not satisfy Clause 5.1.5 of Local Planning Policy 3.1 - Streetscape Policy as the bulk, scale and mass of the Stanmore Street elevation of the dwelling would not be compatible with the character of Stanmore Street.

          3. The proposal would not satisfy Clauses 5.3.1 and 5.3.4 of Local Planning Policy 3.1 - Streetscape Policy as the Stanmore Street elevation of the proposed dwelling would not be comparable in scale and proportion to the remainder of Stanmore Street.

3 On 19 October 2012, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

4 In February 2013, the parties engaged in a mediation process facilitated by a Tribunal member but were unable to reach a resolution. The matter proceeded to full hearing on 11 April 2013.


Subject land

5 The subject land is referred to as No 78 (Lot 60) Onslow Road, Shenton Park and is approximately 450 square metres in area. The lot is a rectangular corner property abutting a 5 metre right of way on the northern boundary with approximate frontages of 12.35 metres to Onslow Road and 36.65 metres to Stanmore Street. There is an existing single dwelling on the lot and a freestanding single level double carport accessed from the right of way.

(Page 5)

Proposal

6 The proposed development involves the demolition of the existing single storey dwelling, retention of the existing carport and the construction of a new contemporary two storey single dwelling.

7 The new dwelling has a gabled and pitched roof form and incorporates a two storey facade to both streets with the two storey element extending for the entire length of the dwelling. The building is set back 4 metres from Onslow Road, between 1.2 metres and 1.5 metres from Stanmore Street, and 10.883 metres from the rear right of way. The main entrance to the dwelling is on Stanmore Street and a low perimeter screen wall, with infill panels, is proposed along both street frontages.


Planning framework

8 The subject land is zoned Residential with a density coding of R50 under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme). Clause 37 of TPS 4 divides the Scheme area into precincts and notes that for each precinct there is a planning policy contained in the respondent's policy manual. The subject land is located in Precinct 10 - Shenton Park (Shenton Park Precinct).

9 Clause 7 sets out the 'Objectives and Intentions' of TPS 4. The general objectives of the Scheme that are of particular relevance to this application are:

          b) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, employment, education, leisure, transport and access opportunities; and

          f) to coordinate and ensure that development is of a high quality and is completed in an efficient and environmentally responsible manner which:

              i) makes optimum use of the City's infrastructure and resources;

              ii) promotes an energy-efficient environment; and

              iii) respects the natural environment.

(Page 6)

10 Clause 41(2) of the Scheme sets out the aims and objectives of the Residential zone and requires that regard be given to the specified objectives when considering an application for development approval. The parties identified the following objectives as relevant considerations in the determination of this matter:

          (a) the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;

          (b) the protection of residential areas from any interaction between different intensities of uses or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;

          (c) the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;

          (d) the protection of the privacy of indoor and outdoor living spaces of dwellings;

          (e) the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;

          ...

          (g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping[.]

11 Clause 38 of the Scheme requires that '[u]nless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Residential [Design] Codes'. In addition, cl 39(3) of TPS 4 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design] Codes is to conform to the provisions of those Codes'.

12 Clause 42 of TPS 4 sets out provisions for variations to the Residential Design Codes of Western Australia (2010) (Codes) with respect to the residential purposes dealt with by those Codes. Clause 42(2) of TPS 4 is relevant to this matter and provides as follows:

          Notwithstanding any provisions of the Residential Design Codes or adopted planning policy to the contrary, buildings on land within the residential zone having an R code density of R30, R40, R50 and R60 shall not exceed 9 metres overall height and 6 metres wall height.

(Page 7)

13 Clause 42A of TPS 4 provides the authority for the Council to refuse or approve an application where the wall and/or overall height does not comply with the provisions of cl 42. As the proposed development exceeds the overall height and wall heights as specified in cl 42(2) of the Scheme, an exercise of discretion is required to permit the two storey development. This discretion can only be exercised as follows:

          (a) if the [decision­maker] is satisfied that:
              (i) the non-compliance will have no undue adverse effect on any adjoining residential land or the amenity of the locality; or

              (ii) the wall or overall height which is non compliant is compatible with the wall and overall heights of surrounding developments that are designed for residential purposes and are considered by the Council to enhance the streetscape;

          (b) the wall/overall height which is non-compliant:
              (i) meets the Acceptable Development standards of the Residential Design Codes in relation to setbacks; or

              (ii) is necessitated by a sloping site and would be unlikely to occur if the site had been level; or

              (iii) is the result of a irregular roof design and is unlikely to have occurred if the proposed development had a conventionally shaped roof.

14 The Scheme clarifies that for the purpose of this clause, the expression 'surrounding development' may be defined in a planning policy and 'conventionally shaped roof' means a uniform flat, pitched, hipped, or skillion roof.

15 Clause 27(3) of the Scheme provides the authority for the Council to refuse or approve any application. Without limiting the scope of the discretion to determine an application, cl 27(4) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:

          • the provisions of this Scheme (subclause (a));

          • any relevant planning policy (subclause (b));

(Page 8)
          • the orderly and proper planning of the locality (subclause (f));

          • the conservation of the amenity of the locality (subclause (g)); and

          • the design, scale and relationship to existing buildings and surroundings of any proposed building or structure (subclause (h)).

16 Clause 78 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme. These policies may be applied to all or part of the Scheme area. The planning policy of the respondent that is relevant to this review is the City's Policy 3.1 ­ Streetscape Policy (Streetscape Policy). According to the respondent, this policy has been formulated and adopted by the Council in accordance with the provisions of cl 78 of the Scheme.

17 Clause 78(8) of the Scheme provides that a planning policy prepared under cl 78 shall be consistent with the Scheme and where any inconsistencies arise, the Scheme prevails. Clause 27(4)(b) of the Scheme requires consideration of planning policy in the determination of an application.

18 The Streetscape Policy aims to 'protect and reinforce the existing development patterns identified in different parts of Subiaco through appropriate design whilst also encouraging innovative housing design that meets the needs of a changing community'. A core principle for this policy is 'that development is to be consistent with the streetscape and neighbourhood character of its locality (ie height, front setbacks, side setbacks and bulk)', which is to be determined with reference to 'surrounding development' as defined in the policy. In relation to scale and proportion, new development is to have a comparable scale and proportion to surrounding development as viewed from the street. In the case of corner lots, the policy sets out the following additional issues for consideration:

          • the minimisation of bulk and scale impact of development on secondary street frontages as much as practical; and

          • the need for development to respect the existing rhythm and pattern of the secondary street streetscape, having regard to scale, proportion, building form and orientation.

(Page 9)

Issues

19 The issues as identified in the statement of issues, facts and contentions of the parties were reframed by the experts in their conferral. The joint witness statement of the experts (joint statement) cites the agreed issues relating to the review and these were confirmed in the opening and closing addresses of the respondent. This clarifies that the issue under review by the Tribunal relates only to the consideration of streetscape as applied to Stanmore Street. In essence, the issue to be determined by the Tribunal is whether the dwelling is consistent with orderly and proper planning and the conservation of the amenity of the locality, having regard to:

          1) TPS 4, in particular cl 27(4)(h), cl 41(2)(a) to cl 41(2)(e), and cl 41(2)(g), and cl 42A;

          2) the Codes; and

          3) the Streetscape Policy.

20 With respect to the Codes, the experts agreed that there are no issues that arise, other than to the extent of 'Element 6.2.7 - Building Design', which refers to the consideration of adopted local planning policies with respect to building design. The local planning policy that may apply under this element was identified as the Streetscape Policy and is discussed below.

21 The respondent contended that the proposed new dwelling failed to satisfy principal objectives of the Streetscape Policy for the following reasons. Firstly, it has not given adequate consideration to the design, scale and relationship of existing buildings and surroundings on Stanmore Street and the minimisation of impact of the bulk and scale of the new dwelling on the streetscape of Stanmore Street. Secondly, the proposed dwelling will not be consistent with the existing streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping, and will not respect the existing rhythm and pattern of the Stanmore Street streetscape, having regard to scale, proportion, building form and orientation. The respondent submitted that for these reasons, the discretion available under cl 42A of TPS 4 to permit a variation to the overall height and wall height of a building should not be exercised and the proposed development should be refused.


Experts called by the parties

22 In relation to this issue, the Tribunal had the benefit of expert evidence from the following witnesses:

(Page 10)
          • Mr Stephen Allerding, a consultant town planner, who gave evidence for the applicant; and

          • Ms Gemma Smith, a heritage consultant, who gave evidence for the respondent.

23 Although the expert witnesses have different professional qualifications, it was agreed that their professional expertise and skills in providing evidence with regard to the issue under review were comparable.


Discussion of the case

24 The experts assisted the Tribunal by considering the proposed dwelling in the context of the planning framework, identifying the matters agreed, not agreed and the reasons for any disagreement in the joint statement, and giving evidence concurrently at the hearing. The issue is discussed under two principal components: firstly, the compatibility of the dwelling with the existing secondary streetscape and the interface between the R50 and R20 coding and, secondly, the impact of the height of the dwelling on the amenity of the area.


Whether the dwelling is compatible with the existing secondary streetscape and provides an acceptable transition between the R50 and R20 codings

25 Ms Smith contended that the scale and massing of the proposed dwelling was not sympathetic with the traditional and coherent character of the Stanmore Street streetscape which, she submitted, presents as a single level development to the street frontage with two level development set well back from the street. Although she accepted that more intensive development is to be expected on a R50 coded site, she considered the design of the proposed dwelling had placed more emphasis on the development standards of the R50 coding and less on the design criteria of the Streetscape Policy and, as such, was not compatible with the scale and nature of development in Stanmore Street.

26 In discussing the scale and proportion of the building, Ms Smith considered that a strong relationship existed between the proposed dwelling and the two storey townhouse development located on the south­eastern corner of Onslow Road and Stanmore Street (existing townhouse development). However, she contended that there was less of a relationship with the portion of that development facing Stanmore Street, where the massing had been effectively broken down by the urban form, and no coherent relationship with the remaining dwellings

(Page 11)
      on Stanmore Street. She considered the orientation of the dwelling towards Stanmore Street, together with the 1.5 metres (side) setback, created an adverse impact on the streetscape. She gave oral evidence that it would have been preferable to reduce the visual interaction on the Stanmore Street elevation and relocate the dwelling entrance to the primary street frontage of Onslow Road. She also expressed the view that the screening nature of the street trees should not be an influencing factor in the determination of this matter.
27 Mr Allerding referred initially to the decision to develop the site for a single dwelling, rather than pursue the alternative of subdivision and development of grouped or multiple dwellings permitted under the R50 coding. He pointed out that this alternative had the potential for greater impact on Stanmore Street in terms of bulk and scale. He told the Tribunal that the design of the Stanmore Street elevation, which included the orientation of the dwelling entrance to Stanmore Street, was to improve surveillance and contribute to activation along the secondary street. In his view, the inclusion of a stone chimney, an alfresco area and permeable fencing on the Stanmore Street elevation created an attractive facade to the secondary street which contributed to the visual harmony of the Stanmore Street streetscape. He questioned the relative merits of orienting the entrance to the dwelling to Onslow Road and incorporating a less activated facade on Stanmore Street and argued that this would be a far less desirable outcome from a streetscape perspective. He agreed that neither street trees nor buildings can be regarded as permanent features, but emphasised the commitment by the City to the protection and enhancement of streetscapes through the retention and replacement of street trees. He contended that the impact of the dwelling on Stanmore Street had been further minimised by incorporating a pitched and gabled roof, preserving the single storey carport on the northern part of the site and providing a rear setback well in excess of the Codes' requirements. He also pointed out that the height of the building reflected the slope of the site from north to south, complied with the maximum scheme requirements on the northern part of the site closest to Stanmore Street and only marginally exceeded the requirements on the southern and lower part of the site towards Onslow Road.

28 Mr Allerding argued that the bulk and scale of the proposed dwelling was compatible with the existing townhouse development and the adjacent two storey dwelling located to the north of the subject land and reflected the rhythm and pattern of the streetscape of Stanmore Street. Finally, he submitted that the Streetscape Policy did not provide specific direction on how to deal with the interface between low and high density

(Page 12)
      sites, that there should be reasonable freedom for innovative design on an R50 coded site and that the policy should not be applied in an inflexible manner.
29 The constraints for design on lots with two street frontages is recognised by providing for reduced street setbacks on the secondary street in the Codes and incorporating design principles in both the Scheme and Streetscape Policy to minimise the impact of development on the secondary street streetscape.

30 The evidence also highlighted the key issue of design considerations where there is an interface between different codings. The Tribunal notes, with one exception, that there is no specific design guidance in the Scheme or Streetscape Policy for development on adjoining lots or lots in close proximity with different density codings. Section 5.2(1)(c) of the Streetscape Policy provides for the waiving of the requirement for development on a R50 site to comply with the prevailing setback in areas typified by development at a lower density. It was also apparent, from the view that there was no consistent approach to the transitional interface between other corner lots on Onslow Road in the locality with similar coding differences.

31 The transitional/interface principle was referred to in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 where the court said, at [25]:

          As a matter of principle, at a zone interface … any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone.
32 In this instance, the subject site is coded R50 and all lots on Stanmore Street are coded R20 with the exception of the R80 lot on the opposite corner accommodating the townhouse development. As the development requirements for the R20 and R50 Codes are significantly different for minimum lot sizes, provision of private open space, and front and side setbacks, the different intentions and expectations for development outcomes require due consideration when such an interface is present.

33 The Tribunal notes that although the dwelling is larger in scale and proportion than many of the single level dwellings on Stanmore Street, the subject lot has some particular circumstances which require consideration in the review. The subject lot is located on the corner of Onslow Road

(Page 13)
      which has a mixed residential and commercial character, is coded for medium density development and has a substantial frontage to Stanmore Street facing an existing two level townhouse development on an R80 coded site. The Tribunal is satisfied that the impact of the bulk and scale of the dwelling will be significantly minimised by the provision of a larger rear setback increasing the separation from surrounding development, and also by the variety of design elements and their integration into the eastern facade facing Stanmore Street. With regard to the issue of the interface between the codings, the Tribunal notes that the subject lot does not adjoin lots with a lower coding and is separated by Stanmore Street and a 5 metre wide right of way. The proposed development and the existing townhouse development across Stanmore Street will frame the entry to the street and reflect the existing rhythm and pattern of the secondary street streetscape which has been largely established by the townhouse development. Furthermore, the Tribunal is satisfied that the scale and proportion of the dwelling is compatible with the nature and character of surrounding development and that its building form and orientation provide a reasonable and balanced response between the development expectation of the higher and lower Codes.



Whether the impact of the height of the dwelling has an adverse effect on the amenity of the area

34 Clause 42(2) of the Scheme specifies that buildings on land within the Residential zone with a density coded R30 to R50 shall not exceed 9 metres overall height and 6 metres wall height. The parties agreed that portion of the proposed dwelling exceeds these specified requirements and, during the hearing, the experts were asked to mark on an elevation plan the area of exceedence (refer Exhibit 11). Mr Allerding identified two possible points where the infraction may have commenced. The first point was based on the natural ground level as shown on the elevation plan and commenced at the northern side of the proposed chimney (approximately 11.3 metres from the gable end adjacent to Onslow Road). This point was termed by Mr Allerding as 'the worst case scenario'. The second point was calculated using the survey data available from the site plan to estimate the point of infraction along the Stanmore Street elevation. This was estimated to be approximately 6.7 metres from the gable end adjacent to Onslow Road. The second scenario was considered by both experts to be the more likely point of infraction.

35 In order for the Tribunal on review to exercise the power to vary the maximum height standards as specified in cl 42(2) of TPS 4, it must be

(Page 14)
      satisfied that there is no undue adverse impact on the adjoining residential land or the amenity of the locality or that the non­compliant component of the development is compatible with the wall and overall heights of surrounding developments designed for residential purposes and considered to enhance the streetscape. The Tribunal must also be satisfied that the wall/overall height meets one of the criteria set out in subclause 42A(1)(b). In this instance, the proposed development satisfies subclause 42A(1)(b)(i).
36 During the hearing, the experts agreed on the policy interpretation of 'surrounding development' in the Streetscape Policy but expressed a different view of what should be regarded as 'locality' as referred to in Clause 42A(a)(i) of TPS 4. Ms Smith identified a locality bounded by Keightley Road, Onslow Road, Waverley Street and Cross Street which, in her view, provided an appropriate context for the consideration of the streetscape issue. Mr Allerding considered that the issue should be considered within a larger locality bounded by Keightley Road, Onslow Road, Thomas Street and Derby Road, a subset of the Shenton Park Precinct.

37 Ms Smith described the character of the locality by reference to a number of distinct areas, the first being the land west of the subject land along Onslow Road, which she described as maintaining its original subdivision pattern with early 20th century buildings, and noted that even although some of the buildings had been converted to commercial use, their residential characteristics were still obvious from the street. For the area east of the subject land along Onslow Road, she acknowledged that there had been substantial redevelopment in the form of townhouse and multiple dwelling complexes reflecting the higher density coding prescribed to this area. With regard to Stanmore Street, she referred to the preservation of the original subdivision pattern and the predominance of original building stock, noting some redevelopment, including the adaption of original dwellings with second storey additions apparent to the rear of those dwellings. However, overall she considered Stanmore Street to be a highly intact single storey streetscape retaining many of its original characteristics, which was complemented by verge and road widths treatments, existing street trees and landscaping, and the use of building and fencing materials.

38 Mr Allerding referred to the mixture and diversity of residential development throughout the locality in terms of dwelling types, the age and condition of the dwellings, setbacks, design finishes and general

(Page 15)
      presentation to the streetscape, as well as the visibility of upper level developments in the locality.
39 During the view, the Tribunal observed the diversity in the scale and nature of residential accommodation in the area referred to by Mr Allerding in his evidence. An established pattern of single and two level residential development in both the R20 and higher coded areas was also noted, as was the substantial two level development to the north of the subject site across the right of way and the townhouse development across Stanmore Street. In considering the issue of height of the dwelling, the Tribunal is satisfied that the wall and overall height of the dwelling reflects the needs of a sloping site and is compatible with wall and overall heights of residential development in the surrounding area which contribute to the quality of the current streetscape. The Tribunal is also of the view that in the context of both localities identified by the experts, the height of the dwelling is consistent with the development pattern and characteristics identified in these localities, and that there will not be an adverse impact on the general amenity of the locality.


Conclusion

40 The relevant considerations in the determination of this matter are the interrelated issues of potential impact of the development on the character of the area, its specific impact on the secondary street, and the interface between the medium density coding along Onslow Road and the lower density coding of surrounding development to the north. On the evidence, the Tribunal is satisfied that the dwelling is compatible in terms of height, bulk and scale with the characteristics of the wider area, has minimised any adverse impact on the Stanmore Street streetscape through increased separation and careful articulation of design elements and provides an acceptable transition between the R50 and R20 Codes. In the circumstances of this case, it is appropriate that the discretion available under cl 42(a) of TPS 4 be exercised.

41 For the above reasons, the Tribunal is satisfied that the proposed dwelling will not prejudice orderly and proper planning of the locality and is consistent with the conservation of the amenity of the locality and, as such, planning approval is warranted, subject to conditions.


Conditions

42 As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers

(Page 16)
      that approval of the application, subject to conditions, is appropriate. A document containing six conditions was filed by the respondent.
43 The applicant accepted draft conditions 1, 3, 4, 5 and 6, and provided argument as to why the remaining condition should not be imposed or, alternatively, modified. In the course of the hearing, the respondent discussed the matter with the applicant and agreement was reached to the deletion of paragraph (c) of Condition 2 and replacement with the following:
          c) a plan of the floor layout of the existing building.
44 The Tribunal considers the substituted paragraph appropriate.


Orders

45 For the above reasons, the Tribunal makes the following orders:

          1. The application for review is allowed.

          2. The decision of the respondent made on 25 September 2012 with respect to the development application for the demolition of the existing dwelling and the construction of a new two storey dwelling at No 78 (Lot 60) Onslow Road, Shenton Park is set aside and a decision is substituted that planning approval is granted for the demolition of the existing dwelling and the construction of a new two storey single house at No 78 (Lot 60) Onslow Road, Shenton Park, subject to the following conditions:

              i) The development is to be carried out in accordance with the plans and drawings prepared by Cross Design Group SK 01 to SK 05 Revision C included with the application for review (DR 347 of 2012).

              ii) Prior to the commencement of demolition, two copies of archival records consisting of the following information are to be submitted to the satisfaction of the Manager, Planning Services:

                  a) a site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished;
(Page 17)
                  b) photographs of all four elevations of the building, its interior and any special architectural feature. These photographs are to be appropriately labelled and are to be provided in plastic archival sleeves;

                  c) a plan of the floor layout of the existing building; and

                  d) any available historical information on the building.

              iii) Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.

              iv) The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.

              v) Prior to occupation, brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development.

              vi) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.

      I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

      ___________________________________

      MS M CONNOR, MEMBER


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