Atkinson and ORS and Town Of Vincent

[2007] WASAT 121

ATKINSON & ORS and TOWN OF VINCENT [2007] WASAT 121

Last Update :25/05/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 121
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:312/2006	Heard:	23 FEBRUARY 2007 WRITTEN SUBMISSIONS 6 MARCH 2007 & 9 MARCH 2007
Coram:	MR J JORDAN (MEMBER)	Delivered:	22/05/2007
No Pages:	18	Judgment Part:	1 of 1
Result:	The application for review be allowed The respondent's approval to commence development be amended by replacing the approved plans with plans identified as Drawing DA 3, dated 31 October 2006, and deleting condition (viii)(b)
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ATKINSON & ORS and TOWN OF VINCENT [2007] WASAT 121 MEMBER : MR J JORDAN (MEMBER) HEARD : 23 FEBRUARY 2007

WRITTEN SUBMISSIONS 6 MARCH 2007 & 9 MARCH 2007

DELIVERED : 22 MAY 2007 FILE NO/S : DR 312 of 2006 BETWEEN : WAYNE ATKINSON

MILENKO KOVAC
LJILJANA KOVAC
Applicants

AND

TOWN OF VINCENT
Respondent

Catchwords:

Town planning - Condition of development approval - Group dwelling development - Requirement that garages for front units be behind the main building line and vehicular access to all four dwellings be from a single shared driveway - Proposed that two front dwellings each have a separate crossover - Local government policy to minimise crossovers - Extent of frontage given over to crossovers restricted - Existing streetscape

(Page 2)

Legislation:

Metropolitan Region Scheme
Residential Design Codes of Western Australia (2002), cl 3.2.8 A8, cl 3.5.4, cl 3.2.3A3.1, cl 3.5.4 A4.1, cl 3.5.4 A4.2, cl 3.5.4 P4
State Administrative Tribunal Act 2004 (WA), s 29(3)
Town of Vincent Town Planning Scheme No 1, cl 18, cl 19(2), cl 38, cl 47

Result:

The application for review be allowed
The respondent's approval to commence development be amended by replacing the approved plans with plans identified as Drawing DA 3, dated 31 October 2006, and deleting condition (viii)(b)

Category: B

Representation:

Counsel:

Applicants : Mr D Caddy (Acting as Agent)
Respondent : Mr S Bain (Acting as Agent)

Solicitors:

Applicants : The Planning Group (Town Planners)
Respondent : Town of Vincent

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

Antonas and Town of Vincent [2006] WASAT 303
Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2006) 143 LGERA 277
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Pearl Bay Enterprises Pty Ltd and Shire of Harvey [2007] WASAT 68
Randall and Town of Vincent [2005] WASAT 147

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Town of Vincent granted conditional planning approval for the development of four grouped dwellings at Lot 46 and Lot 47 Byron Street, Leederville. Two of the dwellings would front Byron Street and it was proposed that each of these dwellings have an individual crossover to Byron Street. A separate driveway between the two front dwellings was to provide access to two dwellings at the rear.

2 Condition viii(b) of the conditions imposed by the Town of Vincent required the plans to be amended so the garage of each of the two front dwellings was located behind the main building and access to the garages for all four dwellings was from the shared central driveway.

3 The Tribunal found that while there was support in the relevant planning policies for the condition imposed, the policies also allowed that the development be considered in the local context. The Tribunal concluded that the development proposed would not have an impact on the existing streetscape that would warrant the imposition of the condition.

4 The Tribunal allowed the application for review and condition viii(b) has been deleted from the approval.

Introduction

5 These proceedings involve an application by Dr Wayne Atkinson, Mr Milenko Kovac and Ms Ljiljana Kovac (applicants) against a condition of approval imposed by the Town of Vincent (respondent) on a planning approval granted for the development of four grouped dwellings at Lot 46 and Lot 47 (No 8 and No 10) Byron Street, Leederville (subject land).

Site and locality

6 Lot 46 and Lot 47 of the subject land each have a 12.07 metre frontage to the eastern side of Byron Street and an area of 607 square metres. The subject land is now vacant, a house previously on Lot 46 and a domestic garage previously on Lot 47 having been demolished.

7 Byron Street is fronted by some 10 lots each side of the street. All but one of these 20 lots has a frontage of 12.07 metres. An aerial

(Page 4)

photograph provided by the respondent and photographs of every house in the street provided by the applicants show that each of the 18 lots other than the subject land currently has on it a single house. The photographs show that all houses but one have a crossover to the street and parking at either the side of the house or in the front setback. The house that is the exception has hard standing for parking on the verge at the front of the house.

Background

8 In March 2006, the applicants lodged two applications for the subject land. One application was with the Western Australian Planning Commission (Commission). This was for approval to amalgamate Lot 46 and Lot 47 and resubdivide into four survey strata lots. Proposed were two lots of 270 square metres each with a 10.07 metre frontage to Byron Street, between these, a 4 metre wide driveway as a common property lot and at the rear, with access from the driveway, a 270 square metre lot and a 268 square metre lot. The survey strata subdivision (reference 407-06) was granted conditional approval by the Commission on 9 October 2006. This approval is yet to be acted upon.

9 The second application was to the respondent for planning approval for four grouped dwellings. This was granted conditional planning approval by the respondent on 5 September 2006. Condition viii(b) of that approval is now the subject of this application before the Tribunal.

Proposed development

10 Subsequent to the application for review being filed, there were further exchanges between the parties. At the hearing it was common ground that the development proposal before the Tribunal and which the respondent wanted approved was as shown on Drawing DA 3, dated 31 October2006. These amended the original drawings in respect of design detail at the front of the two front dwellings with the overall development being essentially the same.

11 The drawings before the Tribunal showed four two storey grouped dwellings. Two dwellings, identified as Unit 1 and Unit 2, would have frontage to the eastern side of Byron Street. Between the front dwellings would be a 4 metre wide access leg containing a 3 metre wide common driveway to two dwellings at the rear.

12 The western elevation shows that the front dwellings would each be 10.07 metres wide and a mirror image of each other. Each would have a

(Page 5)

double garage, one with a parapet on the northern boundary of the subject land, the other on the southern boundary. The garages would each have a 4.8 metre wide door described as a "fully glazed sectional lift door". Next to the garage would be a front entrance 2.5 metres wide with a portico and double front doors. The remainder of the frontage would be a 1.25 metre wide wall extending to the central driveway set back about 3 metres from the front of the dwelling, and containing a full height window providing light to the stairs to the first floor. At the first floor level, partially above the garage and front doors, would be a 5 metre wide balcony with doors to two bedrooms behind.

13 The plans included a 3 metre wide crossover on the verge to the driveway in front of each of the garages of the front dwellings and a third crossover to the central driveway to the two rear dwellings. The driveways of the front dwellings were shown as widening from 3 metres at the front boundary to 4.8 metres at the garages and constructed of slabs set in grass. Each dwelling and its associated private open space would occupy an area corresponding to the proposed four survey strata lots the subject of the contemporaneous application to the Commission. There would be no access to the front dwellings from the central driveway.

Is the development grouped dwellings?

14 In his closing submission, Mr Simon Bain, the planning consultant who acted as agent for the respondent, raised as an issue whether the development applied for was grouped dwellings. He referred to the definition of grouped dwelling in the Residential Design Codes of Western Australia (2002) (Codes) that requires grouped dwellings to have "common property" and the definition for a single house where there was no requirement for "common property".

15 Mr Bain argued that, as the two front dwellings would not have access from the common property lot of the central driveway approved by the Commission, they would not have "common property" and so would technically be single houses. It was his submission that the development was not capable of being approved in the form applied for and condition viii(b), which required access to the two front dwellings being from the central driveway, was required to ensure the development resulted in grouped dwellings.

16 This issue was addressed by the Tribunal in Antonas and Town of Vincent [2006] WASAT 303. That matter concerned development on an approved survey strata subdivision. On Lot 1, at the road frontage, was an existing dwelling. Adjacent to that was a driveway, Lot 3, in the form of

(Page 6)

common property and at the rear was Lot 2 with frontage only to the common property and via which it would gain access to the street. The house on Lot 1 had a crossover direct to the street and made no use of the common property.

17 In Antonas and Town of Vincent, at [24], Senior Member Mr D Parry found that the existing dwelling and the proposed dwelling would be "one of a group of two or more dwellings on the same lot" and were dwellings "on a survey strata with common property", as required in the definition of a grouped dwelling in the Codes, even though common property Lot 3 in the approved survey strata plan would not serve any necessary or functional purpose as far as the existing dwelling on approved Lot 1 was concerned.

18 In the matter now before the Tribunal, if the survey strata lots were to be created, the proposed common property lot, which contains the driveway, would not serve any necessary or functional purpose as far as the proposed dwellings on the two front lots were concerned. This, however, would not alter the fact that the front dwellings would be on a survey strata with common property and so, consistent with the definition in the Codes, would be grouped dwellings.

Planning framework

19 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" with a density coding of R30 under Town of Vincent Town Planning Scheme No 1 (TPS 1).

20 Clause 18 of TPS 1 states:

"Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential Planning Codes."

21 The residential planning codes referred to are the Codes. Clause 19(2) of TPS 1 states:

"Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."

(Page 7)

22 Clause 47 of TPS 1 enables the respondent to make planning policies and cl 38, which sets out general provisions with respect to determining applications, requires that regard be had to any relevant planning policy. Policies prepared by the respondent relevant to this matter are:

• Policy 3.2.6 – Vehicular Access (vehicular access policy); and

• Policy 3.3.12 – Leeder – Locality Plan 12 (Leeder policy).

23 Section 2 of the vehicular access policy is concerned with street crossovers and makes reference to matters to be considered when they are proposed, including:

• being located to maximise the number of kerbside parking spaces;

• the visual quality of the street, particularly the proportion of frontage taken up by crossovers; and

• being located safely relative to obstructions such as street signs and trees and the ability to move in forward gear.

24 The vehicular access policy includes a table setting out performance criteria and acceptable development standards for development proposals. These are referred to in the discussion below.

25 The Codes address vehicular access at cl 3.5.4, which refers to both crossovers and driveways. Under performance criteria it states:

"P4 Vehicular Access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape."

26 The acceptable development criteria related to access state:

"A4.1 Access to on-site parking to be provided, where available, solely from a right of way available for the use of the relevant lot ... or from a secondary street where a right of way does not exist.

A4.2 Primary or secondary street driveways, where their provision is necessary, are limited as follows:

(Page 8)

• driveways serving four dwellings or less not narrower than 3 [metres] at the street frontage;

• subject to a minimum width of 3 [metres], driveways not to occupy more than 40[%] of the frontage of a property, excluding any part of that frontage required for an access leg to a battleaxe lot;

• no single driveways wider than 6 [metres] and driveways in aggregate no greater than 9 [metres] for any one property."

Condition in contention

27 The application to the Tribunal is for review of condition viii(b) of the respondent's approval of the proposed development. The condition reads:

"viii) Prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the following:
(a) ...

(b) the garages for Units 1 and 2 being located behind the main building, and vehicular access to all four (4) dwellings being from a single shared driveway".

Refusal of the application if condition viii(b) is required

28 In this matter, it is clear the respondent viewed condition viii(b) as one considered necessary in the proper performance of its planning function of approving development consistent with the planning framework. The difficulty faced by the Tribunal in considering this matter is that where a condition has the effect of significantly altering a development from that applied for or where a consent is purportedly granted but in terms which lack certainty or finality, there is, in substance, no effective consent to the application: Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2006) 143 LGERA 277 [24] – [25] citing Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

29 The development that would result from condition viii(b) would differ significantly from the development the subject of the application,

(Page 9)

and in addition, the terms of the condition are so uncertain as to make it unclear as to what different form of development would ultimately be acceptable.

30 Senior Member Parry in Randall and Town of Vincent[2005] WASAT 147 at [14], referred to Mison v Randwick Municipal Council and stated:

" … I indicated to Mr Bain that conditions (a), (b) and (d), as imposed by the respondent, appeared to have the effect that the development approval lacked finality and/or certainty, such that the Tribunal could not, irrespective of the merits of the argument between the parties, lawfully impose conditions in that form."

31 Section 29(3) of the State Administrative Tribunal Act 2004 (WA) provides that for an application for review:

"(3) The Tribunal may —
(a) affirm the decision that is being reviewed;

(b) vary the decision that is being reviewed; or

(c) set aside the decision that is being reviewed and —

(i) substitute its own decision; or

(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate."

32 Consistent with the findings in Randall and Town of Vincent and Kindimindi v Lane Cove Council, if the Tribunal, in considering the development proposal de novo, is of the view that a condition such as condition viii(b) is necessary, then the Tribunal must substitute its own decision of refusing the application. The Tribunal cannot endorse an approval subject to a condition that will result in a development different from that applied for and uncertain as to its ultimate form: refer also Pearl Bay Enterprises Pty Ltd and Shire of Harvey [2007] WASAT 68 at [58]. (Page 10)

On the other hand, if the Tribunal is of the view that the development applied for is acceptable without condition viii(b), then the development could be allowed on that basis.

The issues

33 The issues that arise for determination in this review are, in the context of the planning framework:

i) whether the crossovers to the two front dwellings are acceptable;

ii) whether the driveways of the two front dwellings can be supported; and

iii) whether the proposed garages and the access to them can be allowed as proposed, or must be relocated to behind the main building with access off the central driveway.

34 It does not follow that acceptance of one of these aspects of the proposed development means the acceptance of the next must follow. It is necessary to consider whether the impact of all or part of the development proposed is sufficient to warrant condition viii(b) being imposed.

The crossovers

35 Crossover is not defined in the planning documents but, for the purposes of the review, is considered to be the paved area in the verge of the road reserve between the carriageway and the property boundary used by vehicles to gain access to the property.

36 The Codes, at cl 3.5.4 P4 state under "Performance Criteria":

"Vehicular Access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape."

37 The respondent's vehicular access policy states under "Performance Criteria" that new development is to meet the criterion:

"P1 Minimise the number of vehicle access points to frontage streets."

38 Under the heading "Acceptable Development" of the vehicular access policy it states: (Page 11)

"Development which complies with the following will generally be approved:

A1.1 Access to on-site parking provided, where available, solely from a right of way, or from a secondary street where a right of way does not exist.

...

A1.3 Frontage or secondary street crossovers, where necessary to be provided, limited as follows:

• not more than one crossover to any one property with a frontage less than 25 metres.

• crossovers serving four dwellings or less not narrower than 3 metres.

• subject to a minimum width of 3 metres, crossovers do not occupy more than 25[%] of the street frontage of a property; and

• no single crossover wider than 6 [metres] and in aggregate no greater than 9 metres for any one property.

A1.4 Crossovers located, where possible, so that the kerb distance between crossovers is a multiple of parking bays."

39 Mr Bain said the development would not satisfy the performance criterion of either the Codes or the vehicular access policy as the number of crossovers and vehicle access points to frontage streets, respectively, was not minimised, being three instead of the possible one. He also referred to non-compliance with the vehicular access policy Acceptable Development requirement at cl A1.3. Proposed were three crossovers, not one, in a frontage of 24.14 metres and the crossovers would occupy 37.28% of the street frontage, not the stipulated 25%.

40 Mr Bain cited that part of the performance criterion at cl 3.5.4 P4 of the Codes and the objectives of the vehicular access policy which referred to the need for the number of crossovers to not detract from the streetscape. He submitted that the three crossovers would reduce the amount of landscaping in the verge and would be contrary to the pattern of development in the street where there was a single driveway for each

(Page 12)

dwelling. This, he considered, would have a negative impact on the local amenity.

41 Councillor D Maier and two neighbours, Mr A Quick and Mr B Derbyshire, made submissions on behalf of the respondent. They said that the additional crossovers would reduce available street parking bays and so be in conflict with that requirement of cl A1.4 of the vehicular access policy.

42 All witnesses for the respondent referred to the Acceptable Development provisions, cl 3.5.4 A4.1 of the Codes and cl A1.1 of the vehicular access policy which would allow development to be approved where access to on-site parking is provided solely from a right of way, or from a secondary street where a right of way does not exist. The point made was that dwellings with access only from the central driveway would be consistent with the intent of this standard.

43 Mr David Caddy, a planning consultant who appeared for the applicant, said that having just a single driveway would require removal of the existing driveways serving the subject land. He argued that each dwelling in Byron Street had a driveway and the provision of an individual driveway to each of the front dwellings ensures that the existing streetscape would be maintained. This, he argued, would be consistent with not detracting from the streetscape as required under the Performance Criteria of cl 3.5.4 of the Codes and protecting the character of the locality as required at s 2 of the Leeder policy.

44 Mr Caddy pointed out that the width of crossovers does not aggregate greater than 9 metres as preferred in cl A1.3 of the vehicular access policy. He said the spacing of the crossovers provided for on-street parking between each.

45 Mr Caddy noted that the performance criterion of both the Codes and the vehicular access policy required that the number of crossovers be minimised. In his submission, three was the minimum number that could be achieved, because having just the central driveway would create design problems with slope of the access leg, the development standards of the Codes, turning circles and safety and access conflicts.

46 On the need in the performance criterion for crossovers to be safe in use, the respondent said safety would be compromised; the applicants said it would be enhanced. No evidence was provided to support either contention. Given the limited size of the development, the Tribunal is

(Page 13)

inclined to the view that the safety situation after development would be much the same as that posed by every other house in the street.

47 The respondent's two policies and the Codes encourage having regard to the existing streetscape. Examination of the photographs by the Tribunal revealed that a characteristic of the street is that for all but one of the houses there is a crossover, and in four instances, it is a double crossover. A crossover to each of the proposed front houses would be consistent with the character of the street.

48 There is, however, a third crossover proposed and, on the face of it, this might be considered to be in conflict with the intent of the performance criterion of the vehicular access policy and the Codes of minimising crossovers. The single crossover would, however, serve two new houses that have been allowed consistent with the density coding for the locality under TPS 1. The view along Byron Street as revealed in the photographs is one of crossovers with, on average, 3 metres in every 12 metres given over to a crossover. The removal of crossovers would enhance any streetscape, but in the context of the existing streetscape, it is considered that the additional crossover is not, of itself, a reason for refusing the development applied for.

Driveways in the front setback areas

49 In considering the use made of the front setback of the development, it is to be noted that at Part 2 of the Codes "driveway" is defined as:

"The paved vehicle accessway [sic] between the parking area of a dwelling and the property boundary."

50 Frontage is defined as:

"The width of a lot at the primary street setback line, provided that in the case of battleaxe or other irregularly shaped lots, it shall be as determined by the Council."

51 The Leeder policy at s 2 under "Desired Future Character" has the objective that the character of the locality was to be protected. Preferred was that buildings be set back from all boundaries in landscaped gardens and that front setback areas be landscaped and, preferably, devoid of parking spaces. In Mr Bain's opinion, the locality was characterised by landscaped front setback areas and he referred to photographs included with his witness statement.

(Page 14)

52 Mr Bain said that the driveways of the two front dwellings would widen from 3 metres at the front boundary to 4.8 metres at the 4 metre building setback line. These two driveways and the 3 metre central driveway totalled 12.6 metres, or 52.19% of the 24.14 metre wide frontage of the property. Mr Bain pointed out that, as required by the definition of frontage in the Codes, the width of driveway at the street setback line was calculated as a proportion of frontage, that is, both widths measured at the street setback line. This width of driveway, he said, would be contrary to the intent of the Leeder policy and cl 3.5.4 A4.2 of the Codes that set as an acceptable standard that driveways not occupy more than 40% of the frontage of the property.

53 Mr Caddy had a different method of assessing the proportion of frontage occupied by driveway. He noted the width of the subject land at the setback line, 24.14 metres, which by definition is the frontage. He then took the width of driveway at the street alignment, 9 metres, and calculated that as a proportion of the frontage. The proportion was 37.5%, which Mr Caddy said was below the 40% standard of the Codes.

54 Mr Caddy went on to also say that the driveway of the proposed development was to be constructed out of 0.4 metre by 0.4 metre concrete pavers with lawn in between. That is, not a completely paved structure. The aggregate length of the pavers at the front setback line would amount to seven pavers by 0.4 metres, or 2.8 metres for each front dwelling. With the 3 metre wide central driveway, the total length of frontage occupied by the driveways would therefore be 8.6 metres or 35.6% of the frontage of the property. If also measured in this way, the development would again comply with the requirements of the Codes.

55 Mr Caddy further argued by reference to the photographs that the houses in the street with a crossover provided paved areas for car parking in the front setback area. While not consistent with the objective of the Leeder policy, this was the streetscape of Byron Street.

56 The Tribunal considers that the proportion of driveway is to be calculated using the frontage of the property as defined and the width of driveway at the same location, that is, at the setback line which is the method of the respondent. It is difficult to see how regard can be had to the impact of a driveway that fans out from the front boundary to the building line, if the width of driveway at the property boundary only were considered. In that regard, the respondent's 52.19% is preferred. The applicants' proposed driveway construction using slabs with grass between is noted, but, for the purpose of assessing the merit of the

(Page 15)

proposal, the Tribunal has had regard to the area of the setback to be given over for use by vehicles for the purpose of access.

57 The Tribunal has also noted that, somewhat confusingly, at cl 3.2.8 A8 of the Codes for streetscape elements under the Acceptable Development standards, it provides that garage doors not occupy more than 50% of the frontage. A driveway would logically be the same width as the garage doors at that point. This is difficult to reconcile with the requirement that the driveway not occupy more than 40% of the frontage. In this regard, the applicants' 52.19%, while not close to the driveway width standard, is close to the standard for garage doors.

58 If the garages can be allowed, then there is an argument for allowing the width of driveway proposed. If the garages are to be relocated, then the need for a driveway in the front setback comes into question.

59 The Tribunal's examination of the photographs has led to a leaning toward Mr Caddy's interpretation of the streetscape character. As stated above, each lot caters for vehicles with a driveway, or a paved area in the front yard for the parking of cars. This is in addition to the crossover and paved verge parking at some lots. This view is preferred to that of Cr Maier who made the comment that the car does not dominate the streetscape.

Location of the proposed garages

60 As noted above, cl 3.2.8 A8 of the "Streetscape Element" of the Codes states that acceptable development is a garage door not occupying more than 50% of the frontage at the setback line. The explanatory sketch at page 51 of the Codes shows that the frontage is from boundary to boundary. On the subject land, the garages would be 48% of each of the proposed survey strata lots.

61 At cl 3.2.3 A3.1 of the Codes, acceptable development is a garage located behind the street setback line. The proposed garage complies with this standard.

62 The respondent has looked elsewhere for planning support for relocation of the garages. Councillor Maier provided the submissions on this aspect of the matter. He referred to the objective under "Desired Future Character" at s 2 of the Leeder policy that the character of the existing locality was to be protected. Councillor Maier said the proposed design with two double garage doors dominating the streetscape at eye level would have a negative impact on the streetscape which was

(Page 16)

described as "highly intact" in the heritage assessment attached to the officer's report to the respondent at the application stage. Councillor Maier said a key element was that houses were fronted by habitable rooms and therefore there was an interactive feel to the street. The two neighbours, Mr Quick and Mr Derbyshire, shared this opinion.

63 Mr Caddy pointed out that the respondent granted planning consent for the demolition of the house on the subject land and that has now occurred. This, he said, indicated there was no strong evidence that Byron Street was an intact streetscape. Mr Caddy emphasised there was no heritage listing of any houses in Byron Street, or of the street itself, and the Leeder policy allowed development of houses of contemporary design.

64 Mr Caddy also said that the respondent had recommended approval of the survey strata lots to the Commission. He asserted, without supporting evidence, that relocating the garages would require changes to the approved lots which would then not comply with the lot size standards of the Codes.

65 The Tribunal notes that s 2 of the Leeder policy says that new contemporary developments are encouraged, provided that the design responds to the established character. Important elements were identified as building location and orientation.

66 The Leeder policy also states at s 2 that "where available, on-site parking is to be accessed from a right-of-way". This preference for vehicle access to parking from a right of way is consistent with cl 3.5.4 A4.1 of the Codes and cl A1.1 of the respondent's vehicular access policy, referred to above.

67 It is common ground that the street and the houses in it are not on any register of heritage places. The Tribunal notes that the heritage assessment of 6 May 2006, to which the respondent refers, says of the streetscape, at cl 3.2, that a number of the houses have undergone alterations and additions including the construction of carports that conceal some of the facades. The report concluded, and the respondent accepted, that the proposal to demolish the existing house and allow the subject land to be redeveloped could be supported.

68 This leaves consideration of the form of contemporary design that might be allowed. There is no common right of way providing alternative access to lots in Byron Street. In this instance, the grouped dwelling development would provide a central driveway with potential to provide

(Page 17)

access to all the proposed dwellings. The Tribunal notes that for the redevelopment of single lots, it would be necessary to include vehicle access from Byron Street and parking at the front of the lot. This is demonstrated by the recent development at No 3 Byron Street where a double garage with a door at the building setback line at the end of a driveway has been built.

69 The Tribunal has not been persuaded that, with consistent application of the policies, the ultimate character of Byron Street will be a street of few crossovers, little parking in front yards and access to parking only from other than the primary street.

Conclusion

70 The Tribunal is not convinced by the applicants' submission that a development with vehicle access to the front units from the central driveway would require the development standards of the Codes to be unreasonably compromised. The applicants, however, have not applied for such a development and it is necessary to determine whether the proposed development can be allowed.

71 The Codes and relevant policies of the respondent encourage, as a standard approach, minimising of the number of crossovers, landscaping rather than parking in the front setback and access to vehicle parking to be from other than the primary street. The respondent's policies also encourage development consistent with the character of the street. In this regard, the evidence shows Byron Street has a streetscape in which crossovers, driveways and vehicle parking are significant characteristics.

72 In respect of the proposed development, the Tribunal has formed the view that the respondent has placed too narrow an interpretation on the policies. This is not a street with an existing right of way servicing lots. It is also not a street where individual houses are of sufficient heritage value that redevelopment potential can be disregarded. Some developments utilising more than one lot might result in an internal common access; others, where a single existing lot is involved, will not. Investigation has revealed that redevelopment of lots that have vehicle access from the primary street, via a crossover and a driveway will not be out of character with the street. There is an argument that double garage doors have little aesthetic appeal, but for contemporary accommodation, the Codes set standards for garage doors and the proposed development is consistent with those standards.

(Page 18)

73 In weighing this matter, the Tribunal was conscious that the respondent would clearly prefer different access and parking arrangements for the development and was able to identify policy provisions to support its preference. The policies also allow, however, that regard be had to the particular location. In considering the issues, the Tribunal has concluded that the development proposed would not have an impact on the existing streetscape that would warrant the imposition of condition viii(b) and thereby the refusal of the application.

74 The Tribunal has therefore concluded that the application for review can be allowed and condition viii(b) deleted from the schedule of conditions imposed by the respondent.

Orders

1. The application for review be allowed.

2. The respondent's approval to commence development, issued 5 September 2006, be amended by:

a) deleting the words "and the attached plans dated 09/08/06" from the first paragraph;

b) deleting condition (viii)(b); and

c) adding new condition (x) to read:

"(x) approved is the development shown on the plans identified as Drawing DA 3, dated 31 October 2006."

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER