Aydogan and Town of Cambridge & Anor - [2006] WASAT 122

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: AYDOGAN and TOWN OF CAMBRIDGE & ANOR [2006] WASAT 122

MEMBER: MS M CONNOR (MEMBER)

HEARD: 24 NOVEMBER 2005, 29 NOVEMBER 2005 AND 16 FEBRUARY 2006

DELIVERED : 16 MAY 2006

FILE NO/S: DR 423 of 2005

BETWEEN: SALIH AND KENAN AYDOGAN
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
DION WARR
Second Respondent

Catchwords:

Town planning – Development application – Alteration and additions to existing dwelling – Exercise of discretion/variation in relation to the departure from an acceptable development provision of the Town of Cambridge Residential Design Guidelines – Whether existing ground levels are those approved – Amenity impacts – Loss of significant views – Bulk and scale

Legislation:

Metropolitan Region Scheme
State Administrative Tribunal Act 2004, s 37
Town of Cambridge Residential Design Guidelines, cl 2.3(P1), cl 2.3(A1.2iii)
Town of Cambridge Town Planning Scheme No 1, cl 5, cl 5(3)(c), cl 17, cl 18, cl 19, cl 33(1)(e), cl 33(2), cl 33(1)(e), cl 33(2)(a), cl 33(2)(b), cl 38(3), cl 48,
Town Planning and Development Act 1928 (WA), s 8A(1), s 62

Result:

The application for review is upheld
The application made pursuant to cl 33(2) of the Town of Cambridge Town Planning Scheme No 1 for the exercise of discretion/variation in relation to the departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines in relation to building height of proposed alterations and additions at Lot 42 (No 20) Yanagin Crescent, City Beach, is approved

Category: B

Representation:

Counsel:

Applicants:     Mr G Mohen
Respondent:     Mr C Slarke
Second Respondent       :     Selfrepresented

Solicitors:

Applicants:     Friedman Lurie Singh & D'Angelo
Respondent:     McLeods
Second Respondent       :     N/A

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

Aydogan & Ors v Town of Cambridge [2004] WATPAT 110
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

Case(s) also cited:

Arseven, S v Town of Vincent [2003] WATPAT 83
Baccala v City of Fremantle (2005) 39 SR (WA) 21
Bordin, G and Anor v City of Bunbury [2003] WATPAT 10
Chen and Town of Cambridge & Anor [2003] WATPAT 4
Christian and Town of Vincent [2005] WASAT 229
Gishubl, G v City of Subiaco [2003] WATPAT 61
Kaard and City of Nedlands [2005] WASAT 2
Lex Kingdon and City of South Perth [2005] WASAT 11
Mentink and City of Bayswater [2005] WASAT 46
Newman and Town of Cottesloe [2005] WASAT 83
Pouleris and Town of Cambridge [2005] WASAT 108
Saunders and City of Nedlands [2005] WASAT 190
Sweetland and Townof Cambridge [2005] WASAT 278
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
Trickey and City of Subiaco [2005] WASAT 256

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Salih and Kenan Aydogan applied to the State Administrative Tribunal for review of the decision of the Town of Cambridge refusing planning approval for alteration and additions (including an upper level) to the existing dwelling at No 20 Yanagin Crescent, City Beach.
The design of the proposed development involved a departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines in relation to building height. Approval of the application, therefore, required the exercise of discretion under the "Guidelines".
An application was made by Mr Warr, who had an interest in No 18 Yanagin Crescent to intervene in the proceedings primarily in relation to the determination of natural ground level. This issue had previously been addressed by the former Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge [2004] WATPAT 110. Mr Warr asserted that he could demonstrate that the decision of the former Tribunal was in error. The State Administrative Tribunal granted Mr Warr's application to intervene, as the issue sought to be raised would not be heard as the respondent was bound to follow the decision of the former Town Planning Appeal Tribunal.
The State Administrative Tribunal was not satisfied that Mr Warr's submission had cast any serious doubt on the correctness of the Town Planning Appeal Tribunal's decision. Accordingly, the State Administrative Tribunal found that for reasons of comity and consistency as expressed at [31] of The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, the decision of the Town Planning Appeal Tribunal on this issue was to be followed.
The departure raised planning issues relating to amenity, loss of views of significance and bulk and scale. The State Administrative Tribunal was satisfied that the variation/discretion sought satisfied the relevant performance criteria, did not compromise the objective of the Guidelines, and reflected the type of development envisaged by the Precinct Statement for the City Beach locality.

Introduction

This is an application by Salih and Kenan Aydogan (applicants) for review of a decision of the Town of Cambridge (respondent) to refuse planning approval for alterations and additions (including an upper level) to the existing dwelling at Lot 42 (No 20) Yanagin Crescent, City Beach (subject land).
The development application was refused by the respondent at its ordinary meeting of 22 March 2005. In refusing the application, the respondent gave the following reasons:
"(i)the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Part 3.7 Element 7 – Building Height;
(ii)the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Town of Cambridge Residential Design Guidelines Section 7 – Building Height and Bulk;
(iii)The level of non‑compliance outlined above will resulting an adverse impact on the amenity (with particular regard to views of significance of adjoining landowners); and
(iv)four of the five adjoining landowners strongly object to the proposal."
The applicants, on 26 April 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) to have the decision reviewed.
On 19 August 2005, Mr Dion Warr applied to the Tribunal for leave to make a submission in relation to this matter. At a directions hearing on 30 August 2005, the Tribunal found that Mr Warr had sufficient interest in the matter and was granted leave pursuant to s 62 of the TPD Act to make a written submission in relation to the application. Mr Warr subsequently provided a written submission to the Tribunal and the parties, which will be addressed further below.
Furthermore, during the hearing of this matter, Mr Warr made application under s 37 of the State Administrative Tribunal Act2004 (SAT Act) to intervene in the proceedings in relation to the determination of natural ground level (NGL) and in respect to height controls. He claimed that he could "prove beyond reasonable doubt" that the existing levels had not been approved by the respondent, which would show that the decision of the previous Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge was clearly in error.
The Tribunal, on 29 November 2005, considered his application to intervene and gave oral reasons as follows:
"For the reasons cited in Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 the Tribunal would follow the decision of the former Tribunal unless it was shown that the decision was clearly in error. Mr Warr has asserted in his application that he can demonstrate that the decision was in error. Given the position of the respondent in relation to NGL, [that it] is bound to follow the decision of the former Tribunal, the issue sought to be raised by Mr Warr will not be heard unless Mr Warr is given leave to intervene. In order for the Tribunal to come to the correct and preferable decision in relation to the question of determining NGL I will allow Mr Warr to intervene on this issue.
In respect to the height controls I have noted Mr Warr's comments and will consider them as an alternative argument in his submission under s 62 of the Town Planning and Development Act in determining the application. However, I do not see the need for Mr Warr to intervene on that issue."

Subject land

The subject land is more particularly described as Lot 42 on Diagram 33217, comprised in Certificate of Title Volume 1265 Folio 514, and is 1128 square metres in area.
The subject land is located on the north‑eastern side of Yanagin Crescent. There is approximately a 10.0 metre gradient between the lowest point of the land (on the street boundary in the north‑west corner) and the highest point (on the rear boundary in the south‑east corner) of the lot.
The existing dwelling on the site includes a garage and entry area at the first level, which is cut into the site, and a second level comprised of living areas, bedrooms and a balcony that extends the full length of the front facade of the dwelling.
The existing dwelling is setback approximately 23 metres from the front boundary and presents as a two level building with a flat roof when viewed from the street. Viewed from the rear, the dwelling presents as a single level.

The nature of the proposal

The proposed development involves the following works:
i)additions and alterations to the first level in order to support the proposed additions to the upper levels;
ii)additions and alterations to the existing second level including the demolition of various walls to accommodate three bedrooms, a kitchen/breakfast room, a dining room, and a living room opening onto a large balcony facing Yanagin Crescent; and
iii)a new third level that overlays most of the entire extended second level comprised of a further two bedrooms, a fitness room, a lounge/bar, and a living room opening onto another balcony facing Yanagin Crescent. A smaller balcony and atrium are proposed to the rear of the dwelling.
The dwelling will present as a three level, flat roof building from the street whereas, due to the level of the subject land, it will present as a two level building from the rear.

Planning Framework

The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with a permitted site density of R12.5 under the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme).
Clause 5 sets out the "Objectives and Intentions" of TPS 1. A general objective of the scheme that is of particular relevance to this matter is:
"5(3)(c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-
(i)recognises the individual character and needs of localities within the Scheme Area; and
(ii)can respond readily to change."
Clause 17 of TPS 1, which reinforces the objective stated in cl 5, divides the Scheme Area into Precincts. The subject land is located in Precinct "P1 City Beach". This Precinct is further divided into sub‑precincts in the Residential Design Guidelines Precinct Statements (Precinct Statements) which identifies the subject land within "Sub Precinct P1A City Beach Proper".
The "Zoning Table" contained in TPS 1 classifies the use class "Dwelling (Single)" as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.
Under sub‑clause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single dwelling house on a lot in a zone where the proposed use is designated as a "P" use, except where otherwise provided by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Residential Design Codes of Western Australia 2002 (Codes) or a planning policy must seek Council's approval for the variation (sub‑clause 33(2)). This application requires a departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines (June 2005) (Guidelines) in regards to building height.
Before granting approval to the requested variations, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or planning policy (subclauses 33(2)(a) and 33(2)(b)).
Clause 18 of TPS 1 requires the development of land to be in accordance with standards and requirements contained in the Scheme text, planning policy and the Codes, unless otherwise consistent with a planning approval.
Pursuant to cl 19 of TPS 1, development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes, unless otherwise specified in TPS 1.
Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Without limiting the scope of the discretion to determine an application, subclause 38(4) sets out the matters to which regard is to be had in the determination of an application. The relevant matters relating to this application are as follows:
"(a)the provisions of this Scheme and of any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b)any relevant Planning Policy;
…
(e)any submission accompanying or related to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenities of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Clause 48 of TPS 1 empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to TPS 1, which may be applied to all or part of the Scheme Area. The Guidelines referred to in the refusal of this application is a local planning policy that has been adopted by the respondent pursuant to cl 48.
The Guidelines fall into two separate parts being:
i)the "Precinct Statements" which describe the character of each precinct and the respondent's aspirations for each; and
ii)the "Development Requirements" which sets out the detailed objective and requirements, in addition to the Codes, which are to apply to new development.
Of relevance to this matter are the "Development Requirements" which provide alternative requirements to the Codes for specific "Design Elements". Of particular relevance are the requirements relating to "Building Height".
The aim of this element is "[t]o avoid excessive disruptions in building height which could result in an adverse impact on the streetscape and amenity of neighbouring properties".
The acceptable development provision specified for "City Beach (excluding Windarra Sub‑Precinct)" relating to residential development incorporating a skillion, curved or flat roof is as follow:
"2.3(A1.2iii)Top of a skillion, curved or flat roof that does not exceed 7.5 metres in height."
Development that complies with this requirement it is deemed to meet the relevant performance criteria. If development departs from the acceptable development provision then it is required to satisfy the following performance criteria:
"2.3(P1)• Buildings which respect the scale of buildings generally in their vicinity, in terms of their height and bulk and remain subservient to the green streetscape;
•Buildings which are respectful of the predominant character and style of the existing development within the locality;
•Where the front of the building facing the street is broken up, presenting a varied and interesting façade to the street, rather than a continuous wall; and
•Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms; and
•access to views of significance."

Planning issues

As noted earlier, Mr Warr was given leave to make a submission under s 62 of the TPD Act. His submission effectively sought the deletion of the third level of the proposed dwelling. He contested the decision of the former Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge in regards to the determination of NGL and asserted that the non‑compliant portion of the proposed dwelling was significantly greater than that agreed by the applicants and the respondent in these proceedings. He also made submissions on interpretation of the height limits described in the previous Guidelines and those adopted in 2005 and on the impacts of the proposed dwelling on adjoining properties. During the course of the hearing Mr Warr also applied for leave to intervene. His application was granted for the reasons stated above at [11].
The application for leave to intervene raised a critical issue in these proceedings, that being, whether the existing levels on the site are those approved in the 1963 plan. The 1963 plan is a site plan showing the levels approved by the respondent in 1963. The outcome of this question affects the levels that should be used in determining NGL and the point from where building height should be measured which in turn affects the level non‑compliance with the requirements.
This issue had previously been addressed by the former Town Planning Appeals Tribunal in Aydogan & Ors v Town of Cambridge, in proceedings relating to the refusal of the Town of Cambridge to allow additions and alterations to a house on the subject land. For the purpose of this application, the applicants and the respondent followed the decision of the Town Planning Appeal Tribunal in respect to this issue, agreeing to proceed on the basis that NGL is to be taken to be the existing ground levels.
Mr Warr asserted that he could "prove beyond reasonable doubt" that the existing levels on site had not been approved by the respondent and that the existing levels were built higher than those approved by the respondent. He contended that this evidence would show that the decision of the previous Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge was clearly in error.
During the hearing of the Aydogan & Ors v Town of Cambridge appeal, the Town Planning Appeal Tribunal heard from Messrs Bowyer and McMullen, both licensed surveyors, in relation to determining NGL. It would seem that the member preferred Mr McMullen's evidence, but given the level of uncertainty in converting the 1963 contours to AHD, the unreliability of the 1963 and 1967 contour plans and evidence that various earthworks had occurred as result of the construction of the house which brought into question the reliability of using existing levels, the Town Planning Appeal Tribunal found:
"In absence of a reasonable degree of certainty on this point it would, in my view, be dangerous to conclude that the house was not built as approved. In the circumstances, I am prepared to accept that the ground level proposed (and approved) in the 1963 plan can reasonably be adopted as natural ground level for the purpose of determining the allowable height of the development."
Given the significance of the issue, the Tribunal gave leave for Mr Warr to intervene in relation to the question of determining NGL. As demonstration of his ability to comment on this issue, Mr Warr relied on:
•his trade certificate qualifications as a greenkeeper, which included a module on "Site Preparation"; and
•his experience as a golf course manager, which involves working with levels and height on a continual basis.

It is noted that Mr Warr did not call a surveyor or other qualified witness to give evidence on this issue.
In his submission, Mr Warr put forward two hypotheses and tested their feasibility. In doing so, Mr Warr claimed that he had proven that the existing second storey finish floor level (FFL) has not been constructed in accordance with the 1963 foot contour. Hypothesis No 1 was "that the second storey FFL was built in accordance with the depicted topography (levels) shown on the 1963 contour plan" and Hypothesis No 2 was "that John McMullens [sic] findings are correct". His premises were based on the 1963 and 1967 contour plans. He used a process of "Fitting" to achieve the elevation of the 1963 depicted topography and produced photographs purporting to project:
•the levels that the land used to be if the second FFL was built as per the 1963 plan approved by the respondent;
•the levels as they exist today; and
•the levels as they were in 1963 per Mr John McMullen's findings.
Mr Warr also submitted further additional evidence and photographs to substantiate his claims by attempting to demonstrate where NGL use to be on the southern boundary of No 18 Yanagin Crescent.
The Tribunal is not satisfied that Mr Warr's submission has cast any serious doubt on the correctness of the Town Planning Appeal Tribunal's determination on NGL. Mr Warr does not have the qualifications or experience to question the evidence of the surveyors who gave evidence at the previous hearing or make competent comment or analysis of the surveying evidence given to the Town Planning Appeal Tribunal. Furthermore, his evidence is premised on the 1963 and 1967 contour plans of which the reliability remains in doubt. Therefore, the Tribunal finds that for reasons of comity and consistency as expressed at [31] of The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, the decision of the Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge in respect to determining NGL is to be followed. Accordingly, for the purpose of measuring the height of the building, the existing levels constituted NGL (refer to document 67 of the Exhibit 1).
It is also appropriate to point out that there are differences between the application considered by the Town Planning Appeal Tribunal and the application now under review. Firstly, there have been a number of modifications made to the design of the dwelling, the most significant being that the height of building has been reduced by 0.25 metres. In addition, the height limits as specified under the Guidelines have been increased by a metre, from 6.5 metres to 7.5 metres.
The three principal planning issues identified by the respondent were as follows:
1.the building as proposed is inconsistent with the principles of orderly and proper planning as it exceeds the prescribed height limits by a significant amount over a large part of the building;
2.the development does not meet the relevant performance criteria against which any variation to the height limits are to be assessed; and
3.the building will have an unacceptable and adverse amenity impact on its neighbours, particularly through the impact of bulk and scale and reducing access to view.
It was common ground that the maximum allowable building height for a dwelling with a flat roof in this locality is 7.5 metres above the NGL. The Tribunal accepts this position. The applicants and the respondent also agreed on the portion of the dwelling that departed from the acceptable development provisions of the Guidelines in respect to building height (non‑compliant portion). This area was identified as a portion of the building on the third level situated over the existing garage and stairwell. Attachment 2 of Mr Allerding's supplementary witness statement illustrates the parts of the northern and western elevations which depart from the acceptable development provision (see Annexures 1 and 2 to these reasons). Annexure 1, referred to as the "front view (west)", shows a section that is 1.5 metres in height by 13.5 meters in length. Annexure 2, referred as "left side view (north)" indicates that the building is over height for approximately 11.3 metres of its length. It highlights the whole length of the wall and not just the part above 7.5 metres.
The respondent submitted that the Guidelines provide a proper measure of orderly and proper planning and the requirement to follow the natural or approved terrain, and limit building height aims at minimise impacts on neighbours. The respondent contended that the proposed development exceeded the prescribed height limits by a significant amount over a large part of the building and that the extent of non‑compliance with the guidelines was not consistent with orderly and proper planning.
The applicants argued that a significant proportion of the proposed dwelling was compliant with the acceptable development provisions of the Codes and the Guidelines, and that the area identified as non‑compliant was quite insignificant in proportion to the overall development.
The Tribunal is not so concerned as to the mathematical calculation of the total area of the non‑compliant portion in relation to the overall development, but rather with whether the departure satisfies the performance criteria set out in the Guidelines and in doing so, does not compromise the objective of the planning policy.
It was common ground between the applicants and the respondent that the performance criteria at issue was the fourth dot point, which reads:
"•Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms; and
•access to views of significance."
The salient words in the context of this matter being "the need to protect the amenities of adjoining properties". The respondent also submitted that the three dot points of this criterion were inclusive and not a complete list, and therefore open to the decision‑maker to consider other relevant amenity consideration in determining whether the performance criteria has been satisfied. The Tribunal concurs with this view.
The respondent's argument was not limited to the non‑compliant portion of the dwelling, but encompassed the cumulative impacts of the overall development on the adjoining properties.
The respondent contended that the proposed development would have unreasonable impacts on the amenity of the owners of the adjoining properties and that the amenity impacts of the new proposal would not be substantially different to what was refused by the Town Planning Appeal Tribunal. In support of the argument, the respondent called the following neighbours to give evidence relating to the perceived impacts of the proposal on their respective properties:
•Mr White – No 22 Yanagin Crescent;
•Mr Warr – No 18 Yanagin Crescent;
•Mr Porter – No 5 Tamala Road; and
•Mr Todd – No 9 Tamala Road.
A witness statement for Mr Dowling of No 7 Tamala Road was tendered at the hearing, without objection from the applicants.
The witnesses expressed concern on a range of issues relating to height, bulk and scale, streetscape, setbacks, privacy and loss of significant views. Their standpoint in regards to these issues were somewhat different from the respondent, in that their perceived impacts were taken from a stance which did not accept that the existing levels constituted NGL. Therefore, they considered the extent of non‑compliance of the proposal with the statutory requirements was much greater than the respondent. A series of photographs were produced to demonstrate the impacts of the building on each of the objectors' properties.
Mr Steven Allerding, a town planning consultant, was also called by the respondent to give evidence in these proceedings. On the issue of streetscape, Mr Allerding did not consider the proposed dwelling to be out of keeping with the streetscape or other buildings in the locality as a whole. However, in considering the impact of the proposed development on adjoining properties, Mr Allerding did not consider that the reduction in building height of 0.25 metres responded to the issues noted by the Town Planning Appeal Tribunal in Aydogan & Ors v Town of Cambridge at [40]:
"… have a significant and adverse impact on views and, through increased bulk and scale, over a considerable area, would have a similar impact on the amenity of adjoining houses."
Mr Allerding acknowledged that due to the change in the Guidelines, the south and east elevations of the proposed development complied with the acceptable development provision of these Guidelines. However, he did not consider that this changed the practical impacts associated with the height of the development and its impacts on access to views of significance. Nor did it respond to the need to consider amenity impacts, which he considered the respondent was obliged to consider under cl 38(4) of TPS 1.
Mr Allerding asserted that the development's impact on views affected properties predominantly located to the south, east and north of the subject land. He did not consider that the reduction in building height of 0.25 metres would have a noticeable reduction in the loss of views from No 5 Tamala Road and No 18 Yanagin Crescent and prospective views from No 7 Tamala Road. He did not consider the loss of views to be an issue for No 22 Yanagin Crescent or No 9 Tamala Road, but identified the bulk and scale of the dwelling to be an issue for these properties, due to the slope of the land.
Counsel for the respondent sought to argue the principle elucidated in Dumbleton & Anor and Town of Bassendean[2005] WASAT 145 where the Tribunal found as follows:
"On the proper construction of TPS3, the conformity of a residential development with all applicable provisions of the R‑Codes does not mandate approval. The respondent, and the Tribunal on review, retains residual discretion under the terms of the Scheme, taking into consideration the specified matters set out in cl 5.3.1. However, the fact that a development conforms to a relevant provision of the R‑Codes is likely to be significant in relation to a related required matter for consideration under a town planning scheme."
The Dumbleton & Anor and Town of Bassendean decision is not on point in these proceedings, because this application was made pursuant to cl 33(2) for the "exercise of discretion or variation under the Planning Policy …". The variation needed and applied for requires the Tribunal to be satisfied that the performance criteria are met, which goes to protecting the amenity of adjoining properties. The Dumbleton principle applies where a development conforms to a relevant provision of the Codes. The proposal in this case, does not conform to the acceptable development provisions. Further, if the Tribunal finds that the proposal conforms to the performance criteria, the amenity considerations in this case under the performance criteria are identical to the conservation of the amenities of the locality under cl 38(4) of TPS 1.
In response, the applicants called Mr Pandevski, a town planning consultant, to give evidence on the likely impacts of the proposed development. Mr Pandevski considered the locality of City Beach to be in a transitional phase where original modest single storey dwellings were being redeveloped, predominantly with dwellings of two or three storeys in height. He referred to the respondent's Residential Design Guidelines – Precinct Statement which supported this view. A series of photographs were provided to show the nature of development within this locality. Mr Pandevski was of the view that the proposed dwelling was consistent with the size and scale of dwellings in the vicinity of the subject land and comparable with others in the locality.
In assessing the impacts of the proposed development on adjoining properties, Mr Pandevski focused on the portion of the dwelling that was non‑compliant with the acceptable development provisions of the Guidelines. He held the view that the proposed dwelling would not result in an adverse impact on the amenity of the adjoining properties for the following reasons:
•the orientation of the subject land will ensure that the non‑compliant portion of the development will not overshadow any portion of any adjoining property. Therefore, there is no impact on the ability of adjoining properties to obtain direct and unrestricted access to sun/day light;
•the non‑compliant portion of the development will not deprive adjoining properties of access to views of significance as it is not in the direct line of sight between adjoining properties and the view of significance, being the ocean. The direct line of sight is either to the side of that view, lower than the view, or located in a position generally located behind the compliant wall height section of the proposed dwelling;
•the application meets the relevant requirements relating to setbacks from boundaries and visual privacy; and
•the non‑compliant portion of the dwelling will not have a detrimental visual impact from indoor living areas of No 22 Yanagin Crescent as the residence on that property does not have any major opening facing the subject land and a covered garage and carport are located on the southern boundary. The primary outdoor living area will not be affected by the proposed development as it is located in the north east corner of the property and is approximately 15.0 (horizontal) metres from the northern external wall of the proposed second storey "Bar" and approximately 17.0 (horizontal) metres from the external wall of the proposed second storey "Living Room".
The applicants contended that the non‑compliant portion of the dwelling would add very minimal additional impact to the compliant part of the dwelling. It was submitted that if the design of the dwelling was modified to be totally compliant with the requirements of the planning instruments, it would make almost no difference to all the issues being complained of by the owners of the adjoining properties. Furthermore, the applicants asserted that the recommendation of the respondent's planning officers supporting the application corroborate the view that the effect on amenity of the neighbours was not a significant issue. The applicants submitted that the planning officer's recommendation should be given significant weight in determining this matter.
The respondent agreed that the recommendation of approval by the respondent's planning officers was a relevant consideration, but only one matter of relevance for the Tribunal among many others, and that the views of the officers are secondary to the evidence and submissions made during the hearing.
The Town Planning Appeal Tribunal, in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, previously deliberated on the weight to be accorded to recommendations of planning officers which differ from the respondent's determination of an application. The Town Planning Appeal Tribunal found:
"Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees.
It is accepted, without demure, that of course the decision at all times remains the Respondent's. When, however, the matter is addressed by the Tribunal on appeal there is proper scope to consider the reflective advice provided to the Respondent in the course of its consideration on and deliberations about the relevant application. It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard ought to be had as a matter to be considered in the determination of this appeal. To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal."
This decision given has clear guidance on the weight to be given in such instances and it is considered appropriate that this Tribunal adopts the approach as outlined in Dalla Riva (Australia) Pty Ltd v Town of Vincent.

Consideration of planning issues

In essence, the application before the Tribunal, pursuant to cl 33(2) of TPS 1, is for approval for variation/departure from the acceptable development provisions of the Guidelines in respect to building height. The Tribunal may approve the variation with or without conditions, or may refuse to approve the variation. However, if the Tribunal is minded to approve the variation/discretion, it is obliged to satisfy itself that the discretion requested is one which it has the power to approve and the granting of that discretion would not compromise the objectives of the Codes or Planning Policy, in this case, being the Guidelines.
The relevant performance criteria require, among other things, consideration of amenity impacts on the adjoining properties. One of the arguments raised by both the owners of the adjoining properties and the respondent was that the amenity impacts of the application under review would not be substantially different to what was refused by the Town Planning Appeal Tribunal. This may well be the case, however, there has been a significant change in the acceptable building height requirements of the Guidelines for this locality, which as identified by the Town Planning Appeal Tribunal, is "a proper measure of orderly and proper planning in this area". Therefore, the extent that the proposed dwelling exceeds that "proper measure" is significantly reduced from what was considered by the Town Planning Appeal Tribunal. The compliant portion of the dwelling reflects orderly planning as it accords with proper planning for this locality and conforms with reasonable expectations. Save for the non‑compliant portion, the development would be approved by a building licence.
The amenity impacts of the non‑compliant portion of the building needs to be assessed as additional to what can reasonably be expected as acceptable development. Therefore, it is necessary to assess the cumulative impacts of the compliant and non‑compliant portions of the dwelling on the adjoining properties. The evidence identified building bulk and loss of views as the most significant issues affecting the amenity of the adjoining properties. Although there was no technical analysis of sight lines, evidence was given by the two planning experts to the effect that the reduced amenity impact for No 5 and No 7 Tamala Road, and No 18 Yanagin Crescent by way of loss of views of significance would not result from the compliant portion of the proposed dwelling. Further, that the impacts of the additional non‑compliant portion of the dwelling would have minimal, if no impact on No 18 Yanagin Crescent or No 7 Tamala Road and would only affect the view of No 5 Tamala Road to an open space area, which was not considered to be a view of significance. In respect to No 9 Tamala Road, the evidence showed that the bulk of the building affecting this property related to the compliant portion of the dwelling. On this evidence, the Tribunal concludes that the part of the proposal in relation to which variation/discretion from the acceptable development provision is sought will not result in any significant additional loss of views from the adjoining properties.
The proposed dwelling is likely to have its greatest impact on the outdoor areas of No 22 Yanagin Crescent. It was accepted that the impact of the proposed dwelling on No 22 Yanagin Crescent was largely a question of bulk. The areas outside the dwelling identified as likely to be affected by the non‑compliant portion included the garage and carport area, which is situated along the common boundary with the subject land, and the outdoor living area located approximately 15 to 17 metres from the non‑compliant wall. The non‑compliant portion of the dwelling at it shortest distance is proposed to be setback approximately 5.0 metres from the common boundary adjacent to non‑habitable areas. The Tribunal is of the view that the impact on this area is not so unreasonable to warrant refusal of the application. In respect to the outdoor living area at the rear of No 22 Yanagin Crescent, the applicants produced some recent photographs of development occurring onsite involving the erection of a patio (refer to Exhibit 15). The Tribunal considers that this structure will assist in ameliorating the impacts of the proposed dwelling on the outdoor living area of the adjoining property. Therefore, the Tribunal concludes that visual impact of the part of the proposal in relation to which variation/discretion is sought and the proposed dwelling as a whole on the outdoor living area of No 22 Yanagin Crescent is also not so unreasonable to warrant refusal of the application.

For the reasons stated above, the Tribunal is satisfied that the variation/discretion sought satisfies relevant performance criteria, does not compromise the objectives of the Guidelines, and is reflect of the type of development envisaged by the Precinct Statement for this locality.
As to the imposition of conditions, the respondent informed the Tribunal that it did not seek to impose any conditions on the application if approved.

Orders

The orders of the Tribunal are:
1.The application for review is upheld.
2.The application made pursuant to cl 33(2) of the Town of Cambridge Town Planning Scheme No 1 for the exercise of discretion/variation in relation to the departure from the acceptable development provisions of the Town of Cambridge Residential Design Guidelines in relation to building height of proposed alteration and additions at Lot 42 (No 20) Yanagin Crescent, City Beach, is approved.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER

Annexure 1

Annexure 2