BERGER and TOWN OF CAMBRIDGE

[2007] WASAT 174

BERGER and TOWN OF CAMBRIDGE [2007] WASAT 174

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 174
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:418/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR R EASTON (SENIOR SESSIONAL MEMBER)	Delivered:	4/07/07
No of pages:	17	Judgment Part:	1 of 1
Result:	The application for review is allowed
Category:	B
PDF Version

Parties:	DORON BERGER TOWN OF CAMBRIDGE
Catchwords:	Boundary wall Amenity Performance criteria Sunlight Overshadowing
Legislation:	Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of WA (2002), cl 3.3.2, cl 3.3.2 (A2), cl 3.3.2 (P2) Residential Design Guidelines, cl 2.2 A1.1, cl 2.2, A1.2 Town of Cambridge Town Planning Scheme No 1, cl 17, cl 18, s 2
Case References:	Nil
Orders	1. The application for review is allowed.,2. The decision of the Town of Cambridge to grant conditional approval for the application is varied by deleting the condition requiring the dining room to be set back 1 metre from the boundary.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BERGER and TOWN OF CAMBRIDGE [2007] WASAT 174 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 4 JULY 2007 FILE NO/S : DR 418 of 2006 BETWEEN : DORON BERGER

Applicant

AND

TOWN OF CAMBRIDGE
Respondent

Catchwords:

Boundary wall - Amenity - Performance criteria - Sunlight - Overshadowing

Legislation:

Planning and Development Act 2005 (WA), s 252(1)

Residential Design Codes of WA (2002), cl 3.3.2, cl 3.3.2 (A2), cl 3.3.2 (P2)
Residential Design Guidelines, cl 2.2 A1.1, cl 2.2, A1.2
Town of Cambridge Town Planning Scheme No 1, cl 17, cl 18, s 2

(Page 2)

Result:

The application for review is allowed

Category: B

Representation:

Counsel:

Applicant : Mr A Stewart (Acting as Agent)
Respondent : Mr S Allerding (Acting as Agent)

Solicitors:

Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : Allerding Associates (Town Planners)

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

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This matter initially involved an application for review of the Town of Cambridge's refusal of a development application for a new two-storey dwelling with undercroft at No 11 (Lot 138) Peasholm Street, City Beach.

2 After mediation, the Town of Cambridge approved revised plans subject to the dining room wall being set back 1 metre from the side boundary.

3 The applicant sought and obtained leave to amend the application. The amended application sought deletion of the condition that required the dining room to be set back 1 metre from the boundary.

4 The respondent argued that the boundary wall would have an adverse impact on the amenity of the adjoining neighbour.

5 The applicant argued that boundary wall would not have an adverse impact on amenity and that the impact of the boundary wall was only marginally different to an acceptable fence because the neighbour's property is higher than the applicant's property.

6 The Tribunal determined that the proposed boundary wall complied with performance criteria and that any impact on amenity would be minor.

7 The application for review of the respondent's decision was successful.

Introduction

8 This application for review is against the Town of Cambridge's condition of approval of a two-storey dwelling with undercroft. The condition requires "the dining room, as shown on the submitted plans, being set back 1 metre from the side boundary."

9 These proceedings initially involved an application brought by Doron Berger (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Cambridge (respondent or Town) on 24 October 2006 to refuse development approval for a two storey residence with undercroft at Lot 138 (No 11) Peasholm Street, City Beach.

(Page 4)

10 After mediation, revised plans were submitted to the Town. The revised plans were discussed at a Council meeting on 27 February 2007 and approved subject to "the dining room, as shown on the submitted plans, being set back 1 metre from the side boundary."

11 At a subsequent mediation, the parties agreed the setback condition was the only matter to be determined by the Tribunal. The applicant lodged an application to amend the application for review such that the application is against the condition rather than the refusal.

12 The Tribunal agrees with the parties that there is only one issue to be determined. The issue is whether the wall built up to the boundary on the eastern side of the property meet(s) the performance criteria of the Town of Cambridge's Residential Design Guidelines.

Subject land

13 The subject land is described as Lot 178 (No 11) Peasholm Street, City Beach on Plan 11327. The lot has a 25.66 metre frontage to the street and then reduces in width to less than 18 metres at the rear boundary. The site has an area of 817 square metres.

14 There is a fall across the site both from the rear (south) to the front (north) and from the east side boundary to the west side boundary. The maximum fall is almost 5 metres, from 43.17 metres at the rear south-east corner to 38.38 metres at the front north-west corner.

15 The contentious boundary wall is located on the east side boundary. Ground levels on this boundary vary from 40.46 metres at the front to 43.17 metres at the rear. However, at the rear boundary, the levels are starting to fall again. The peak level on the east boundary is just over 44 metres. The boundary levels appear to be relatively flat at approximately 44 metres in the vicinity of the proposed boundary wall.

The neighbouring property

16 The neighbouring property affected by the proposed boundary wall is on the east side of the subject lot. The property contains an existing two-storey dwelling.

17 There are two significant levels on the neighbouring property. One is the ground floor level which the submitted evidence shows as 45.0 metres.

(Page 5)

18 The other significant level is the existing finished ground/paving level in the vicinity of the boundary wall. The east elevation shows the neighbour's ground level as approximately 44.0 metres. However a hand-drawn sketch showing a section through the dining room; the boundary wall; and the adjoining two-storey dwelling; shows the neighbour's ground level as approximately 44.5 metres where it adjoins the proposed boundary wall. The Tribunal has used 44.0 metres because this level is consistent with the majority of the evidence.

19 The ground floor level of the neighbour's dwelling (45 metres) is 1 metre higher than the neighbour's finished ground level of 44.0 metres. The difference between these two levels is significant to the assessment of amenity.

20 The submitted plans show the neighbour's dwelling is set back from the common boundary by approximately 2.5 metres. However, Mr Allerding (a town planner acting for the respondent) states the setback is 1.5 metres, and Mr Stewart (a town planner acting for the applicant) states the setback is 3 metres.

The proposal

21 The proposal is described as a two-storey dwelling with undercroft. The plans and the front (north) elevation show it as a three-storey dwelling. However, because of the varying falls across the site it will generally present as a two-storey dwelling from the three adjoining neighbouring properties.

22 This changing impact of the topography on scale is most notable with reference to the affected neighbour to the east. When viewed from the ground floor level of this neighbour's dwelling, the proposal has the scale of less than a two-storey dwelling.

23 The proposed finished floor levels of the applicant's dwelling are:

• 40 metres for the basement;

• 42.7 metres for the ground floor; and

• 46.10 metres for the upper floor.

24 The ground floor level of the affected neighbour's dwelling is:

• 45 metres.

(Page 6)

25 From these levels and the drawings, it is apparent that the top floor of the proposal is 1.10 metres higher than the neighbour's ground floor and at least 1.40 metres lower than the neighbour's top floor.

26 Another significant level is the level at the top of the proposed boundary wall. This level is 46.60 metres. The boundary wall to the dining room scales as approximately 6.2 metres long.

27 As an extension of the dining room boundary wall, there is an associated screen wall on the boundary to the courtyard adjoining the dining room. The level at the top of this wall scales at 46.10 metres and it scales at 3.7 metres long.

28 Therefore, if the boundary wall includes the attached wall to the courtyard, the wall has a total scaled length of 9.9 metres with a finished level varying between 46.6 metres and 46.10 metres.

29 The condition requires only the dining room to be set back 1 metre from the side boundary. There is no mention of the associated screen wall. However, the total amenity impact should include consideration of the attached screen wall. The logic of this is apparent when examining the east elevation where the dining room and screen wall appear as one integrated visual element.

30 The actual height of this wall depends on the existing ground level. There is some uncertainty, but a conservative level is 44 metres, thus giving the proposed boundary wall a height of approximately 2.6 metres for a length of 6.15 metres and a height of 2.1 metres for a length of 3.65 metres.

31 The neighbour's witness statement makes reference to the impact of the proposal on sunlight to various rooms of his house that are near the common boundary. It is therefore relevant to consider the relative height of the proposed boundary wall compared to the neighbour's ground floor level.

32 With the neighbour's ground floor at 45.0 metres and the maximum height of the proposed wall being 46.6 metres, the proposed wall will be 1.6 metres above the neighbour's ground floor level.

Legislative Framework

33 The site is zoned "Residential R20" under the Town of Cambridge's Town Planning Scheme No 1 (TPS 1). It is located within Precinct P1 as identified in cl 17 of TPS 1.

(Page 7)

34 Clause 18 of TPS 1 requires "the development of land ... to be in accordance with the standards and requirements contained in this Scheme Text, the Planning Policies and the Residential Design Codes."

35 The most relevant section of the Residential Design Codes of WA (2002) (Codes) for this review is cl 3.3.2 - Buildings on Boundary. Sub-clause P2 sets out Performance Criteria. Sub-clause A2 describes Acceptable Development which is deemed to comply with Performance Criteria. There is a significant qualification in the opening words of cl A2 which state that Acceptable Development standards apply "except where otherwise provided for in an adopted Local Planning Policy".

36 The Town has adopted (March 2007) a Local Planning Policy, the "Residential Design Guidelines" (Guidelines). For Precinct P1, the Guidelines describe acceptable development standards for boundary walls. These vary significantly from the Codes.

37 The Guidelines describe acceptable development for boundary walls in cl 2.2 A1.1 as:

"Walls that are built up to the boundary behind the front setback line where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension."

38 There is no abutting wall. Therefore, the proposed dining room wall must be assessed in accordance with performance criteria which are common to both the Codes and the Guidelines. Relevant performance criteria will be described later when they are applied to the assessment of the dining room's boundary wall.

39 Before proceeding further, the matter of the screen wall must be considered. The only other acceptable development for boundary walls in the Guidelines is described in cl 2.2 A.1.2. This standard applies to screen walls providing privacy, subject to various requirements. This clause is mentioned because it applies to the screen wall attached to the dining room. This screen wall is not part of the contentious condition. It appears that the screen wall complies with acceptable development standards. Nevertheless, although the screen wall can be and has been approved, it is attached to the dining room's boundary wall. Whereas the screen wall is deemed to meet performance criteria, this wall will have an impact on assessing the dining room's boundary wall in terms of the performance criteria.

(Page 8)

40 Furthermore, the applicant refers to various clauses in Policy 2.1 of the Town of Cambridge's Town Planning Scheme Policy Manual. This policy is part of s 2 General Planning Procedures. Policy 2.1 is headed "Minor Use and Development Exempt from Planning Approval". The applicant argues that the screen wall is exempt from planning approval. It is not necessary for the Tribunal to determine whether or not an exemption exists for the screen wall. The setback of the screen wall is not an issue in this review. The only relevance the screen wall has is its contribution to the amenity impact of the dining room's boundary wall. However, the policy has relevance because it indicates an acceptable height for structures on the boundary.

41 Policy 2.1 provides an exemption from planning approval for a

"boundary fence where the overall height measured from natural ground level, including any retaining wall, is less than:

• 2.4 metres if situated behind the front setback area."

Summary of the applicant's argument

42 Mr Stewart is the expert witness for the applicant. After noting that the proposed boundary wall complies with acceptable development standards of the Codes, Mr Stewart concedes that proposal does not meet acceptable development standards of the Guidelines and that it must be assessed under the performance criteria.

43 The performance criteria list five items.

"Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:

• make effective use of space; or

• enhance privacy; or

• otherwise enhance the amenity of the development; and

• not have any significant adverse impact on the amenity of the adjoining property; and

• ensure that direct sunlight to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."

(Page 9)

44 The first three items on this list deal with the amenity of the proposed development. It is only necessary to comply with one of these three items. The remaining two items deal with the neighbour's amenity, and compliance is required with both of these items.

45 Mr Stewart argues that the 1 metre setback would not create a useable space because a required retaining wall would reduce the width of the space and make it difficult to use for any practical purpose.

46 It is further argued that the privacy is enhanced because of the nil setback. Mr Stewart claims the nil setback would require the front window to the dining room to be replaced with a major opening on the side wall. The resultant window on the side would result in loss of privacy to the owner because the adjoining neighbour's property is considerably higher and the neighbour would be able to look down into the dining room.

47 The third of the optional requirements relates to the enhancement of amenity of the development. Mr Stewart argues that the width of the dining room is appropriate for the scale of the proposed dwelling, and that a reduction of width will reduce the functional ability of the room to "accommodate a table and space around the table for seating and access".

48 The applicant's remaining arguments on performance criteria relate to the impact on the neighbour. The arguments are detailed and summarised as follows.

49 A boundary fence up to 2.4 metres is exempt from planning approval. The proposed boundary wall, based on the applicant's calculations, will be 2.6 metres above the neighbour's ground level. The height of 2.4 metres is deemed acceptable by Council's policy. The argument is that the additional 200 millimetres does not have a significant impact on the neighbour.

50 The neighbour's dwelling (according to Mr Stewart's witness statement) is set back 3 metres from the boundary, and there are no doors opening onto this space. This space is not used as a courtyard, and there is no apparent reason why the boundary wall could have on adverse impact on an external space that appears to be used for circulation rather than external activities.

51 It is further argued that even if the space was an intensely used external courtyard, the additional 200 millimetres of wall height (compared to an acceptable fence height) is unlikely to cause a negative

(Page 10)

impact on amenity. Indeed, that lack of setback ensures there are no windows on the side of the dining room, thus eliminating usual concerns about amenity issues such as loss of privacy.

52 Finally, the applicant argues that there is unlikely to be any additional impact on loss of sunlight. The wall is on the west side of the neighbour. Any loss of sunlight will be restricted to the afternoon. However, the applicant states this will not be a problem because any shadow projected by the boundary wall will be contained within the shadow cast by the top floor level (which complies with acceptable development standards).

Summary of the respondent's argument

53 The respondent also argues that the problem centres on the performance standards for boundary walls. The respondent does not debate compliance with the first three criteria which deal with amenity for the development site, but rather, focuses on the two criteria that deal with the neighbour's amenity.

54 Whereas the plans and the applicant's witness both indicate the neighbour's house is set back 2.5 to 3 metres from the side boundary, the respondent indicates the setback is 1.5 metres. The area is described as an access way that adjoins several habitable rooms.

55 Performance criterion 4 requires the boundary wall not to have an adverse impact on the neighbour's amenity. Mr Allerding, for the respondent, notes that the height difference between the two properties will minimise the impact of the boundary wall on the neighbour. In his witness statement, Mr Allerding continues:

"Whilst habitable rooms are located adjacent to the parapet wall, the outdoor space of the eastern property is of a non habitable nature (i.e. a walkway). Whilst it is noted that the neighbour has indicated that the parapet wall will have an impact in terms of it not complying with acceptable development criteria, although it is like [sic] to have some impacts on the neighbouring property, it is not considered in this instance to be 'significant and adverse' having regard to Council's adopted Performance Criteria."

56 However, the respondent does not concede the fifth performance criterion which requires "that direct sun [light] to major openings in
(Page 11)

habitable rooms and outdoor living areas of adjoining properties is not restricted".

57 Mr Allerding notes that the purpose of the Council's design guidelines is to ensure that buildings are offset from boundaries so as to minimise any adverse impact on neighbours. After analysing the height difference and noting the impact of the top floor of the proposed dwelling (set back 2.6 metres from the boundary), Mr Allerding concludes that the boundary wall will cause some restriction of sunlight to some habitable rooms.

58 Mr Allerding relies to some extent on the witness statement of the neighbour, Su Ming Low, whose main concerns include:

"B. The proposed parapet wall will diminish the sunlight (morning) and view and ventilation into the kitchen, dining room (eastern and northern aspects) and to a certain extent, the main living room of my residence. I have always enjoyed the natural sunlight and the open view from these rooms and the proposed parapet wall will affect my use and enjoyment of these rooms which I spend a considerable time in.

...

D. The proposed parapet wall would also impact on the building bulk which would have a 'walled-in' effect."

59 The witness also raised a few other issues such as loss of privacy resulting from the boundary wall and loss of sunlight to the first floor bedroom. They are irrelevant because they are factually incorrect. Nevertheless, they indicate the depth of the neighbour's concern.

Findings

60 Some of the evidence is inconsistent. The applicant indicates the neighbour's house is set back 3 metres in a witness statement, and the plans show the setback as 2.4 metres. However, the respondent states the setback is 1.5 metres.

61 Because of the neighbour's expressed concerns, the Tribunal decided to assume a worst case scenario, and if there was an unacceptable loss of amenity, to then examine whether alternative evidence would reduce the amenity loss to acceptable levels. Therefore, in terms of external spaces, the worst case is the evidence which states the setback is 3 metres.

(Page 12)

However, in terms of loss of sunlight to windows, the worst case is the evidence which states the setback is 1.5 metres.

62 The question of acceptability of the parapet wall is determined on the basis of the five performance criteria. For the parapet wall to be acceptable, it is not necessary to meet all five criteria. It is only necessary to comply with one of the first three criteria plus both of the last two. The first three criteria relate to amenity of the proposed dwelling. The last two criteria relate to amenity of the neighbour.

Amenity of the Proposed Dwelling

63 The first criterion is where the boundary wall is desirable to make effective use of space. The applicant successfully argued that the 1 metre setback would be ineffective use of space because, after the width of the retaining wall is deducted, the remaining space is too narrow to be useable. Arguing that a 1 metre setback is ineffective is not exactly the same as arguing that a nil setback is effective use of space. If that was the case, then every nil setback would be effective provided there was another means of access to the rear of the property. A nil setback to at least one side boundary is effective use of space on some small inner urban sites. However, this is a relatively large suburban site. It is possible to argue that the setback is an effective use of space in that it provides a setting for the dwelling, and space around the dwelling.

64 The Tribunal is not convinced that this criterion is met based on the evidence presented.

65 The second criterion is where the boundary wall is desirable to enhance privacy. The applicant presented arguments that a setback would require windows on the side wall, thus reducing privacy.

66 The Tribunal is not convinced on this criterion. There are two windows proposed for the dining room. The front facing window would become narrow but it would remain effective both for light and ventilation. The rear facing window/door is shown as 4.8 metres wide. After a 1 metre reduction, an opening of 3.8 metres should be sufficient for light and ventilation without requiring a major opening on the side wall.

67 The third criterion is where the boundary wall is desirable to otherwise enhance the amenity of the development. The Tribunal agrees with the applicant that the nil setback enables the dining room to have a width and scale which is appropriate and consistent with the other rooms

(Page 13)

in the dwelling. There is a degree of symmetry in the proposed dining room which, if reduced in width, would cause the fireplace to appear unbalanced. Furthermore, reduction in the width would leave a functional window facing the street. However, the nil setback allows a larger window that is more suited to the style of the front elevation.

68 The Tribunal finds that the proposed boundary wall meets the third of the performance criteria. Therefore, the application passes the first test because the proposal meets, as required, at least one of the first three criteria.

Amenity impact of the neighbour

69 The final two performance criteria concern the neighbour's amenity. The application must meet both of the criteria.

70 The first of these (criterion 4) requires that the boundary wall not have a significant adverse impact on the adjoining property. To fail, the impact must be both adverse and significant.

71 The wall has potential impact on the external and internal areas of the neighbour's property.

72 The width of the external area between the neighbour's house and the boundary wall is not clear. In the evidence, it varies from 1.5 metres (respondent) to 2.4 metres (plans) and to 3 metres (applicant). The worst case is a setback of 3 metres where there would be potential for external living. The evidence is that at the moment, the area (of whatever width) is an access way. The boundary wall is 2.6 metres higher than existing ground level for a length of 6.15 metres. It may screen some afternoon sunlight. However, the screening will be only marginally greater than the shadow cast by a permitted boundary fence. Furthermore, any shadow is likely to be contained within the shadow cast by the top floor of the proposed development. Therefore, even if the area is 3 metres wide and even if is has potential use as an external living area, any increase in shadow attributable to the boundary wall (over a permitted fence height) will be marginal and will only occur at limited times of the day.

73 In terms of bulk, the wall is only 6.15 metres long and only 200 millimetres higher than the height of a permitted fence in this locality. In terms of the dominant visual elements in this vicinity - the applicant's top floor and the neighbour's own side wall (two storeys high) - the proposed boundary wall will not contribute unreasonably to the scale and bulk on this side of the neighbour's dwelling.

(Page 14)

74 The boundary wall is attached to a screen wall which will be 2.1 metres above the neighbour's ground level and 3.65 metres long. This will not make any significant difference, especially when compared to reasonable expectations that the minimum height of a fence on the boundary is 1.8 metres to ensure privacy.

75 The test for performance criterion 4 is whether the impact will be adverse and significant. It is difficult to make a case for an adverse impact. Even if the impact is adverse, it will not be significant.

76 The final test is criterion 5, where the boundary wall must not restrict direct sunlight to outdoor living areas and major openings in habitable rooms. External living areas have already been assessed. The worst case scenario for impact on major openings to the neighbour's house is to consider the evidence of a 1.5 metre setback rather than a 3 metre setback; the closer the neighbour's house to the boundary wall, the greater the impact of the shadows.

77 There is a problem with the wording of this criterion which is identical to the fifth criterion (cl 3.3.2 P2) in the Codes. A literal reading is that any restriction, no matter how minor, is not acceptable. In such an interpretation, any boundary wall is likely to cause some restriction of sunlight at some time of the day at some time of the year, especially near sunrise and sunset in June. The word "restriction" needs to be qualified. If it is qualified with "significant" (as in criterion 4), the neighbour is potentially disadvantaged. If it is qualified with "unreasonable", there is more scope to protect a sensitive neighbour.

78 The only way to prove this matter would be to require many shadow diagrams for various times of the day and for a range of days representing different sun angles during the year. Although some specific evidence on afternoon shadows would have been useful, there is sufficient information to assess the impact on amenity.

79 The location of the boundary wall on the neighbour's west boundary means that any overshadowing will be restricted to afternoons. Also the neighbour's ground floor level is 1 metre above ground level. Therefore, the boundary wall is only 1.6 metres above the neighbour's floor level.

80 Even if the worst case scenario of a 1.5 metre setback is assumed, the sun would need to be below a 45^o angle for the shadow to reach over the sill of any of the neighbour's windows that extend to floor level.

(Page 15)

81 However, it is most likely that for most of the time the shadow of the boundary wall will be contained within in the shadow of the top floor of the applicant's dwelling. During summer, as the sun moves to the south, there may be some independent shadow from the boundary wall. However, as the sun angle is higher during summer, any overshadowing would be restricted to late afternoon when the angle dropped below 45^o. This is not likely to be a problem because, for the shadow of the boundary wall to appear separately from the top floor shadow, the sun would need to be to the south (where the top floor has its greatest setback). The shadow would then be cast in a northerly direction. An examination of the site plan and the photograph of the neighbour's side wall indicate the potential northerly tending (late afternoon) shadow is restricted to one window – the window closest to the street. This window is recessed and hard against a projecting wall. The neighbour's projecting wall will cast a shadow on this window if the sun is at a low angle in the south.

82 It is difficult to see how the boundary wall could cast an independent shadow onto the windows to the neighbour's habitable rooms. Even if there are small time frames during some days of the year when the proposed boundary wall casts an independent shadow, such overshadowing would be minor.

The boundary wall and other concessions

83 Although the Tribunal has found that the boundary wall will only have an insignificant impact (if any) on the neighbour, the boundary wall cannot be considered in isolation.

84 The decision of Council to approve the proposal with the condition requiring the dining room to be set back 1 metre stated:

"Council approves the application for a two-storey dwelling with undercroft, noting variations [to] wall height, privacy and side and rear setback provisions … "

85 Although Council approved the several noted variations, it did so because the dining room was set back 1 metre from the boundary. The question is: whether the dining room setback is so significant that without the setback the Council may not have approved the other variations? The respondent has not presented arguments on this matter.

86 The report to Council included a table summarising the concessions and included discussion on the various concessions. Most of the concessions are independent in that they involve different parts of the

(Page 16)

house. For example excess height involves the front north-west corner; privacy involves the rear. None of the concessions combine with the boundary wall to increase the impact on the amenity of the neighbour.

87 If the boundary wall's amenity impact on the neighbour was close to significant and if other concessions also had an adverse impact on the neighbour, then the combined impact of various amenity issues may cause the boundary wall to cross a threshold of acceptability. However, the report does not identify any other significant amenity impacts on the neighbour. Therefore the condition can be considered in isolation.

Conclusion

88 The proposed boundary wall does not comply with the respondent's acceptable development standards. It is, therefore, necessary to comply with performance criteria. To be acceptable, the boundary wall must meet one of the first three criteria dealing with amenity on the applicant's property and it must meet both of the criteria dealing with amenity on the neighbour's property.

89 The Tribunal finds that the boundary wall met one of the criteria relating to the applicant's property. The Tribunal accepted the argument that the increased width improved the amenity of the dining room and provided a room that was consistent with the scale of other rooms in the dwelling.

90 There was some conflict in the evidence concerning the setback of the neighbour's dwelling, and uncertainty concerning whether the affected windows extended down to floor level. The Tribunal examined worst case scenarios. It assumed windows extended to floor level and it assumed, when assessing sunlight to habitable rooms, that the setback was only 1.5 metres. However, when assessing potential impact on external living areas, the Tribunal assumed a side setback of 3 metres, hence considering the impact on a potential courtyard in lieu of a passageway had the setback been 1.5 metres.

91 Despite examining worst case scenarios, the Tribunal found there would not be any unreasonable limitation of sunlight to the windows of habitable rooms. Any restriction would generally be limited to late afternoons during summer. On most occasions, any overshadowing was likely to be contained within the shadow of the applicant's top floor. Similarly, the Tribunal found that the impact on the amenity of the neighbour would be minor and not close to the threshold test of significant adverse impact on amenity.

(Page 17)

92 The Tribunal finds that the wall built up to the boundary on the eastern side of the property meets the performance criteria of the Town of Cambridge's Residential Design Guidelines.

Orders

93 The Tribunal makes the following orders:

1. The application for review is allowed.

2. The decision of the Town of Cambridge to grant conditional approval for the application is varied by deleting the condition requiring the dining room to be set back 1 metre from the boundary.

I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR R EASTON, SENIOR SESSIONAL MEMBER