BIGDEAL INVESTMENTS PTY LTD and TOWN OF CAMBRIDGE

Case •

[2017] WASAT 122

•

13 SEPTEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : BIGDEAL INVESTMENTS PTY LTD and TOWN
OF CAMBRIDGE [2017] WASAT 122
MEMBER : MR M SPILLANE (SENIOR MEMBER)
MR P DE VILLIERS (MEMBER)
HEARD : 23 & 24 MAY AND 1 JUNE 2017
DELIVERED : 13 SEPTEMBER 2017
FILE NO/S : DR 339 of 2016
BETWEEN : BIGDEAL INVESTMENTS PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords: 

Multiple dwellings - Ocean Mia Design Guidelines - Density - Building footprint - Bulk and scale

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015

(WA), cl 22, cl 38(4), cl 56, cl 56(2), cl 57, Pt 4, Pt 7

cl 3, cl 67, cl 67(g), cl 79(1), cl 79(2), Sch 2, Pt 9
Planning and Development Act 2005 (WA), s 257B
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 - Residential Design Codes, cl 6.1.1, cl 6.3.3

[2017] WASAT 122

Result:

Decision of respondent dated 1 March 2017 is affirmed

Application for review is dismissed

Summary of Tribunal's decision:

Bigdeal Investments Pty Ltd applied to the Town of Cambridge for approval for a development of 31 multiple dwellings at Lot 501 Omaroo Terrace in the Ocean Mia estate in City Beach.

As no decision had been made at the end of the required statutory period Bigdeal Investments filed an application with the Tribunal on the basis of a deemed refusal.

Following mediation the Town of Cambridge was invited to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) and on 1 March 2017 Council considered the matter and resolved to refuse the application.

The matter then went to final hearing before the Tribunal on 23 and 24 May and 1 June 2017 with four principle issues to be determined, namely:

1) Traffic and parking;
2) Preservation of a Tuart tree;
3) Density of the development; and
4) The bulk and scale of the proposed development.

Having considered all of the evidence and submissions the Tribunal concluded that the issues of traffic and parking, and the preservation of the Tuart tree on Balandi Way could be satisfactorily dealt with by way of conditions if the application was to be ultimately approved.

In respect of density the Tribunal found the proposed development was not objectionable. However, the Tribunal found that the form, scale and appearance of the building that fronted Omaroo Terrace was not in keeping with the streetscape in general and in particular the streetscape as it impacted on the neighbours living directly opposite to it.

In the circumstances, for that reason only the Tribunal affirmed the Town of Cambridge's decision to refuse the development and dismissed the application for review.

[2017] WASAT 122

Category: B

Representation:

Counsel:

Applicant : Mr M Hotchkin
Respondent : C Slarke

Solicitors:

Applicant : Hotchkin Hanly
Respondent : McLeods Barristers and Solicitors

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

Clive Elliott Jennings & Co Lty Ltd v Western Australian Planning

Commission [2002] 122 LGERA 433

Puma Energy Australia and City of Cockburn [2016] WASAT 36

Tah Land Pty Ltd v Western Australian Planning Commission

[2009] WASC 196

[2017] WASAT 122

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1              On 11 November 2016 the Tribunal received an application for

review on behalf of Bigdeal Investments Pty Ltd (applicant) in respect of a deemed refusal by the Town of Cambridge (respondent/Council) for a proposed development of 31 multiple dwelling at Lot 501 Omaroo Terrace in the Ocean Mia estate, City Beach.

2              Following mediation in the Tribunal Council was invited to

reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and by decision of 1 March 2017 it refused the application for the reasons that:

i)          it is inconsistent with the Ocean Mia Development Guidelines;

ii)         it does not meet traffic concerns;

iii)        the proposal does not comply with the building footprint standard in the Ocean Mia Design Guidelines and therefore does not meet the one of the objectives of the guidelines being to provide a measure of certainty as to what can be expected from development within the area;

iv)        the proposal does not comply with the objective and design principle of 6.1.1 of the Residential Design Codes in relation to building size in that the bulk and scale of the development (building footprint) is not consistent with the Ocean Mia Design Guidelines and is therefore not consistent with the existing or future desired built form of the locality;

v)         the applicant has not satisfactorily demonstrated that the proposed development will not adversely affect the existing mature tree along the Balandi Way frontage.

  1. Pursuant to s 31(3) of the SAT Act that decision of 1 March 2017 was then the decision under review before the Tribunal which went to hearing on 23 and 24 May and 1 June 2017.

Site and locality

4              The subject site comprises No 15 (Lot 501) Omaroo Terrace, City

Beach. The lot is roughly triangular in shape and comprises an area of

2

3,189m .

5              The land slopes from the south down to the north with the highest

point in the south-west corner at approximately 58 metres AHD and the

[2017] WASAT 122

lowest point adjacent to the northern frontage to Omaroo Terrace at approximately 49 metres AHD. The lot is currently undeveloped but contains a single substantive tree close to the centre of the south-east boundary.

  1. The site is generally surrounded by large double story single houses developed as part of the Ocean Mia estate.

The proposed development

  1. The proposed development comprises a multiple dwelling development with the following elements:

•

31 units comprising three single bedroom units and 28 two bedroom units. The single bedroom units have floor areas ranging from 60m² to 73m² while the two bedroom units have floor areas ranging from 81m² to 99m².

•

In broad terms these units are distributed in two buildings; one in the northern lower portion of the land and a smaller second building located on the southern and higher portion of the subject land. The building on the lower portion of the land essentially comprises a three story structure facing Omaroo Terrace comprising 19 units with an additional two units located to the rear of the building on the western side of the site. The building on the southern portion of the land contains a further 10 residential units on three floors. The lower of the three floors also contains a communal gym.

•

Car parking provision for the development comprises a basement carpark accessed from Omaroo Terrace close to the intersection of Balandi Way containing 19 bays and a second parking area accessed from Balandi Way comprising 36 bays of which 28 are allocated for tenant parking and eight for visitor car parking. Of the tenant bays 18 comprise covered bays located below the smaller building at the southern portion of the site of which 10 are tandem bays.

•

The primary pedestrian entrance to the development is located on Omaroo Terrace adjacent to the northern

[2017] WASAT 122

boundary. The southern building has a less prominent

entrance from Magellan Avenue.

Council's consideration

8              Council considered the development application at its meeting of

27 September 2016. The officer recommendation at that time was that the development be approved subject to conditions, but Council resolved that the item be deferred for a maximum of three months, to enable the applicant to amend the proposal taking into account the Council's desire for fewer dwellings, more car parking, landscaping and open space, and compliance with the 'building footprint' standard of the Ocean Mia Design Guidelines (Guidelines).

9              It was following that resolution that the applicant commenced a

review in the Tribunal and the parties participated in mediation. The applicant prepared amended plans (dated 27 January 2017 and 24 February 2017) which were considered by the Council at its meeting of 1 March 2017 with Council administrative staff again recommending approval, however the Council did not accept the administration's recommendation for approval, and instead resolved to refuse the application for the reasons outlined above.

Planning Framework

Local Planning Scheme

10            The subject site is zoned 'Residential' under the Town of Cambridge Local Planning Scheme No. 1 (LPS 1 or Scheme) with a residential density code of R30/40. The subject site is located in Precinct P1 City Beach and within Special Control Area No 1 - Kalinda Development Area (SCA 1).

  1. The general objectives of LPS 1 are set out in cl 5(3) and include the

    following:

(a)

To cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing[;]

…

(c)

to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-

[2017] WASAT 122

(i)           recognises the individual character and needs of localities within the Scheme Area; and

(ii)          can respond readily to change[.]

12            Clause 12 of LPS 1 establishes that Multiple Dwellings are a 'D' use

within Residential R40, R40/60 and R60 Zones; and an 'X' use within Residential R12.5, R15, R20 and R30 Zones. The Scheme is silent as to the permissibility of multiple dwellings in R 30/40 zones.

13            Clause 18 of LPS 1 requires that '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 Planning Policies and the Residential Design Codes', while cl 19(3) further requires that 'Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes'.

14            Clause 22 deals with the conservation of trees and provides that

'In determining an application for planning approval under Part 4, the Council may have regard to any trees or other vegetation which Council considers worthy of retention'.

15            Part 7 of the Scheme sets out provisions relating to Special Control

areas. Clause 56 of the Scheme identifies Special Control Areas within the Scheme area and states that these areas require comprehensive planning and are areas for which specific controls to guide and coordinate subdivision and development are needed. As previously mentioned, the subject land is located in SCA 1. Further, cl 56(2) provides that 'Subject to any Scheme provision to the contrary, the provisions of Part 7 which apply to a Special Control Area are in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme'.

  1. Clause 57 of the Scheme sets out the provisions relating to SCA 1, which is described as follows:

    Kalinda Development Area - The area consists of the Ocean Mia development in City Beach which is the area generally bound by The Boulevard, Kalinda Drive and Alkoomie Terrace as well as the former quarry site at Lot 9001 Alkoomie Terrace.

17            The purpose of the Special Control Area is to facilitate detailed site

planning for development and subdivision for the Kalinda Development Area which includes a Residential zoned area known as Ocean Mia

[2017] WASAT 122

(the former bowling club and scout hall site) and a Development zoned
area (former quarry site).

  1. The objectives for SCA 1 are set out in cl 57(3) of the Scheme as

    follows:

(a)

In the area including the former bowling club site and scout hall site (the Residential zoned area):-

(i)

to facilitate development of the land predominantly for residential purposes, but generally in accordance with the use permissibility designations applicable to the Residential Zone in the Zoning Table;

(ii)

to facilitate development in accordance with a split residential density coding of R30/40; and

(iii)

ensuring that the split residential density coding of R30/40 produces a spread of residential densities and styles by requiring the preparation and approval of an Structure Plan prior to the Council:

A. considering recommending subdivision; or
B. approving development within the area.

(iv)         ensuring that development of the site satisfies all necessary environmental requirements.

  1. Clause 57(4) of the Scheme provides the following relevant additional provisions relating to SCA 1:

(a) In addition to the matters referred to in Clause 67 of Schedule 2 - Deemed provisions for Local Planning Schemes of the Planning and Development Regulations 2015, the Council shall have regard to the objectives set out in the preceding sub-clause (3) when considering recommending subdivision; or approving development on land within SCA No. 1.
(b) Where a provision of this clause 57 is inconsistent with any other provision of the Scheme, the provisions of this clause shall prevail, except where the deemed provisions set out in Schedule 2 (deemed provisions), in which case the deemed provision prevails and the other provision, to the extent of the inconsistency, is to no effect.
(c) Structure Plan for Residential zoned area

…

[2017] WASAT 122

(ii)          A proposed Structure Plan for the Residential zoned area shall not be submitted to the Council unless it provides for land areas which achieve an average density of R35 and do not allow for development at a density greater than R40.

…

(v)

The Structure Plan is to incorporate design guidelines to guide residential development in the Residential zoned area. The design guidelines are to indicate the extent of variations from the Codes may be approved by the Council.

…

(g) When determining development applications within SCA No. 1, due regard is to be given to the future land use indicated in the Structure Plan dealing with SCA No. 1.

20            Clause 38(4) of the Scheme sets out matters to be considered in

determining an application. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36 found that pursuant to s 257B of the Planning and Development Act 2005 (WA), cl 67 of Sch 2 of the

Planning and Development (Local Planning Schemes) Regualtions 2015

(WA) (LPS Regulations) (deemed provisions) is deemed to form part of the scheme. If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of any inconsistency of no effect. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of matters to the extent that, in the opinion of the local government (and the Tribunal on review), are relevant to the development of the subject of the application. The pertinent matters relating to this application are as follows:

• the aims and provisions of the Scheme (subclause (a));

•

the requirements of orderly and proper planning (subclause (b));

•

any local planning policy for the Scheme area (subclause (g));

•

any structure plan that relates to the development (subclause (h));

[2017] WASAT 122

• the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development (subclause (m));
• the amenity of the locality including the character of the locality (subclause (n));
• the adequacy of -

i)       the proposed means of access to and egress from the site; and

ii) arrangements for the loading, unloading,

manoeuvring and parking of vehicles
(subclause (s));
• the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety (subclause (t));
•
any submissions received on the application

(subclause (y)); and

• any other planning considerations the local government considers appropriate (subclause (zb)).

21 Clause 67(g) of deemed provisions refers to any local planning

policy for the Scheme area. Subclause 3(5) of the deemed provisions, in making a decision the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with the Scheme.

22            Further, cl 3 of the deemed provisions empowers the Council to

make planning policies in respect to any matters relating to planning and development of the Scheme area. These policies may apply generally or in respect of a particular class or classes of matters specified in the policy and may apply to all or part of the Scheme area. Sub-Clause 3(3) of the deemed provisions provides as follows:

[2017] WASAT 122

A local planning policy must be based on sound town planning principles and may address either strategic or operational considerations in relation to the matters to which the policy applies.

  1. The respondent has adopted the Guidelines (see below) which are to be considered as a local planning policy of the respondent.

Outline Development Plan/Structure Plan

24            In April 2006 the respondent prepared an Outline Development Plan

(ODP) for Lots 723 and 724 The Boulevard, City Beach. The lot the
subject of this review falls within the area covered by the ODP.

25            Pursuant to reg 79(1) and reg 79(2) of Pt 9 of the LPS Regulations

the ODP continues in force and is to be taken to be a structure plan. A decision-maker assessing an application for development approval in an area covered by a structure plan, that has been approved by the Western Australian Planning Commission (which is the case in this instance), is 'to have due regard to, but is not bound by, the structure plan when deciding the application' (cl 27 of the deemed provisions).

26            The ODP identifies the subject lot as Residential 'Grouped

Dwelling 1'. The section of the ODP which deals with 'Lot Layout for housing diversity and density' establishes (page 38) an R40 coding for the 'Group' lots.

27            The text suggests '… two group housing sites are proposed that can

either be developed as grouped housing or multiple dwelling. The multiple dwelling option is favoured as it enables the development to

more easily take up the large level differences on these sites …'.

28            The ODP also identifies 26 dwellings for the two 'Group' sites.

In this regard, it should be noted that the amendments to the State Planning Policy 3.1 - Residential Design Codes (R-Codes) gazetted in 2010 removed the requirement for a minimum site area per dwelling for multiple dwellings. Thus plot ratio, rather than the number of dwellings in combination with plot ratio, became the effective control on the bulk and scale on a development site.

Ocean Mia Design Guidelines

29            In June 2006 the respondent adopted the Guidelines which included

'development standards specific to the subdivision design and the
character of the area'.

[2017] WASAT 122

  1. The objectives of the Guidelines included the following:

1) To provide a residential development which has a high architectural quality and is responsive to its location.
2) To allow for residences that are capable of meeting the expectations of owners that will reflect the quality and value of the land.
6) To provide measures which will ensure compatibility between neighbouring development, within the confines of the density of the land development.
7) To provide a measure of certainty as to what can be expected from neighbourhood development.

  1. The Guidelines identify the subject lot as a 'Multiple Dwelling Lot' and the provision for building heights states:

    'Three and four [storey] buildings are permitted for the larger multiple [dwelling] lots (Types 6 &7), where building forms can be built into the existing landforms without seeming incongruous with the forms of individual residences'.

32            The specific provisions for the subject site (Type 6 - Multiple

Dwelling Lot) states that 'the proposed dwellings will be multi storey and will be stepped into the existing topography', and that 'the building footprints for each level are to be based on a proportion of the building zone, which is inside the setback'.

  1. The plan diagram of the site, included in the Guidelines (page 29), provides the following:

• building setbacks;
• divides the site into a northern and a southern portion;
• identifies a single vehicular access point off Omaroo Terrace;
• requires that an existing tree to be retained (with no development to occur beneath the canopy); and
• establishes parameters for building footprints.

  1. In regard to building footprints the following provisions are set out:

[2017] WASAT 122

• ground level building footprint not to exceed more than 60% of the building zone;
• first and second level building footprints not to exceed more than 50% of the building zone; and
• third and fourth level building footprints not to exceed more than 20% of the building zone.

35            The provisions for the subject lot also include an 'indicative'

development diagram to 'illustrate the potential building envelope determined by the site specific setbacks'. This establishes a maximum height of 66 metres AHD on the southern portion of the site and a maximus height of 59 metres AHD on the northern portion of the site.

36            The development diagram essentially illustrates a built form

separated into a northern and a southern section. While both sections are illustrated as stepping back from all boundaries the northern block is stepped both vertically and horizontally from the Omaroo Terrace boundary.

37            Finally, cl 19(3) of the Scheme requires that unless otherwise

provided for in the Scheme the development of land for any of the residential purposes dealt with by the R-Codes shall conform to the provisions of those Codes.

  1. In terms of the development the subject of this review the substantive applicable provisions of the R-Codes include the following:

• Cl 6.1.1 - Building size; and
• Cl 6.3.3 - Parking.

Issues

  1. It was clear from the evidence of the various experts and the parties' submissions that the principle issues to be determined were:

• Issue 1 - Traffic and parking;
• Issue 2 - Preservation of the Tuart tree on Balandi Way;
• Issue 3 - Density; and
• Issue 4 - Bulk and scale.

[2017] WASAT 122

Evidence

  1. The Tribunal received evidence from the following experts.

    On behalf of the applicant:

    Mr Greg Rowe - a planner;

    Mr Ian Birch - a planner;

    Mr Ronnie Jee - an architect;

    Ms Heidi Herget-Lansdell - re Traffic and Parking; and

    Mr Luke Lumbus - an arborist.

    On behalf of the respondent:

    Mr Joe Algeri - a planner;

    Mr Malcom MacKay - an architect and urban designer;

    Mr Sam Laybutt - re Traffic and Parking; and

    Mr Bradley Bowden - an arborist.

41            The Tribunal also received written submissions from approximately

ten residents all of whom live in the Ocean Mia estate in the immediate vicinity of the proposed development and all of whom opposed the development.

Consideration

Issue 1 - Traffic and parking

42            Apart from their individual statements of evidence the traffic experts

had undertaken a joint conferral following which they filed a joint
statement dated 19 May 2017.

  1. In that joint statement the experts dealt with the principle concerns under traffic and parking and stated:

    On-site parking

    2.1 The proposed on-site car parking supply meets the deemed-to-comply provisions of Part 6 of the R-Codes for an R40 zoning[.]

[2017] WASAT 122

Omaroo Terrace crossover

2.2

The experts agree that while the proposed crossover lies within a prohibited location (less that 6m setback from the tangent point) as outlined by AS 2890.1, both experts agree that if the crossover were located to just beyond the prohibited location that the impact to the risk profile of the road network assocatiated with site-generated traffic and sightlines would be minimal. It is agreed that the safety concerns would be minimal at the proposal location subject to roadside obstructions such as on-street car parking and vegetation located such that sightlines are maximised. Therefore the impact to the risk profile is low and the location of the crossover is considered to be a low-risk departure from Australian Standards.

Traffic volume

2.4 The experts agree that traffic volumes, if doubled as a result of the proposal, on the boundary road network adjacent to the site would still allow for sufficient residual practical capacity and acceptable traffic operations on Omaroo Terrace, Majalin Avenue, Alkoomie Terrace and Balandi Way.

44            In oral evidence Mr Laybutt did raise some concerns, none of which

in the Tribunal's view should allow an expert to retreat from their clearly
stated agreed position outlined above.

45            In any event following extensive examination by both counsel the

Tribunal was of the view that both experts still largely supported the agreed position as set out above.

46            The experts did disagree on the potential for the development to

result in overflow car parking demand, the quantum of visitor parking that might be required and the level of risk associated with the proposed Balandi Way crossover.

  1. However, in closing counsel for the respondent in dealing with traffic and parking stated:

    Finally, parking access and traffic. The issues raised on these topics by the respondent, according to the evidence, are not in isolation reasons to justify refusal[.]

48            On the evidence before it the Tribunal entirely agrees with that

summation and is satisfied that if approval was given to the proposed development , traffic or parking issues could be adequately dealt with by the imposition of well drafted conditions.

[2017] WASAT 122

Issue 2 - Preservation of the Tuart tree on Balandi Way

  1. At page 29 of the Guidelines there are two diagrams of Lot 501. At the top of the page in what is best described as a site plan there is a note pointing to the location of a tree which states:

    Tree to be retained
    No development to occur beneath canopy

    And on the lower part of the page where there is an indicative building envelope diagram which the Tribunal will deal with later, on which there is a depiction of a tree standing beside a building.

50            At the beginning of the oral evidence of the arborists Mr Lumbus and

Mr Bowden, counsel for the respondent sought to clarify what the actual issue was and stated:

Well, if I can perhaps clarify, the Town isn't saying that is an absolute requirement that no development can occur beneath the canopy in any

circumstances. …

The critical issue is whether or not it’s accepted or the measures proposed

by Mr Lumbus are likely to be adequate and effective.

(T:95; 23.05.17)

Following that counsel for the applicant in attempting to refine the issue stated:

The question is can the works take place and the development be completed in a manner which, properly supervised, will not result in any harm to the tree - in unacceptable harm to the tree.

In reply to the question from the Tribunal:

… would you agree with that?

Counsel for the applicant stated:

Yes, I think that's a fair statement[.]

(T:95-95; 23.05.17)

51            Both experts were questioned at some length by counsel in respect of

the plan proposed by Mr Lumbus to protect the tree, both during
development and following it.

52            In closing, counsel for the respondent submitted that the Tribunal

'should not be confident that the plan (as proposed by Mr Lumbus) would be adequate to retain the tree in the longer term' and that 'the conditions

[2017] WASAT 122

with respect to the tree are not adequate of themselves to be confident that
the tree will survive the development work under the canopy'.

53            Counsel for the applicant on the other hand submitted that the matter

could be adequately managed by way of a condition involving a Tree
Management Plan.

54            The Tribunal noted that Mr Bowden took a very conservative

approach to any development which might come within a radius of around
seven metres from the tree.

55            Yet in his own report there was a picture of another tree that was

described as a healthy Tuart tree adjacent to a bus stop on The Boulevard which is a busy nearby street which clearly showed development under the tree canopy.

56            The Tribunal is satisfied that although both arborists were attempting

to give the best evidence on how the tree should be managed the Tribunal found Mr Lumbus' evidence to be more helpful and practical and would be confident that if approval were to be given for development properly crafted conditions could ensure the safety of the tree during construction and its ongoing health into the future.

Issue 3 - Density

57            A number of local residents made submissions on the proposed

development. A consistent concern raised in these submissions was over
the number of dwellings proposed on the subject land.

58            They clearly did not accept that the proposed development was

medium density and repeatedly described it as either high density or seriously high density and in some cases including calculations as to why the number of dwellings should be limited to 20 rather than the 31 proposed which they submitted was far above what should be allowed.

59            The ODP endorsed by the respondent in April 2006 established two

grouped dwelling sites. The ODP suggested that the number of dwellings to be provided on these two lots would be 26 dwellings at a density of R 40.

60            The Guidelines of June 2006 states that the subject site 'has been

created for medium-density dwellings, and must accommodate a
minimum of 15 dwellings'.

[2017] WASAT 122

61            These documents understandably created an expectation for residents

in the area that the number of dwellings to be developed on the subject lot, while it was likely to be more than fifteen, would be substantially less than the 31 units currently proposed.

  1. At the time the R-Codes required a minimum site area per dwelling for multiple dwellings in the medium density codes from R35 to R60. Essentially this meant that the control on density was established by restricting the number of dwellings on a site. The resulting number of dwellings was simply derived from the site area and the relevant R-coding.

63            However, in 2010 the state government amended the R-Codes.

The relevant amendment altered the method by which the density of multiple dwelling was controlled. The outcome was that the control on density for multiple dwellings was established by plot ratio controls rather than the control of dwelling numbers.

64            For completion the Tribunal asked each of the experts, both planning

and architectural, all of whom have detailed and lengthy experience in the classification of density, what was the proper density description for the proposed development. Unanimously they confirmed without hesitation that it was medium density with some commenting that it was in fact at the lower end of medium density.

65            While the number of dwellings on the site may raise other issues, and

in the current proceeding the local residents did raise both parking and access issues which are logically associated with the number of dwellings and area addresses in these reasons, the current planning framework does not require an assessment, in and of itself, of the number of dwellings proposed on the site.

66            Further the respondent's own planners at page 7 of the development

committee minutes dated 28 September 2016 under the heading 'Number
of dwellings' stated:

The Design Guidelines state that the lot was created for medium-density dwellings and must accommodate a minimum of 15 dwellings. A minimum number was imposed on the development by the (then) Minister for Planning when approving the TPS zoning for Ocean Mia, to ensure that the subdivision achieved a reasonable number of dwellings, taking proper advantage of an infill opportunity in an established low density residential area.

[2017] WASAT 122

… The intent of the multiple dwelling sites was to accommodate some of

that additional density requirement to achieve the split coding of R30/40
across the whole site.

67            Therefore that based on all of the evidence before it that the Tribunal

finds that the proposed application clearly falls within the description of
medium density and is not and should not be described as high density.

68            An issue that was also raised by Mr MacKay was the Design WA

suit of policy documents and guidelines including Draft State Planning
Policy No 7 - Design of the Built Environment.

69            However it was clear that the documents are in the early stages of

consultation and given that the draft policy and guidelines was not pressed by either party during the hearing, the Tribunal is of the view that in the context of the current application there is no need for the Tribunal to consider that issue further at this time.

Issue 4 - Bulk and scale

70            Of the four issues outlined this was clearly the principle issue for

consideration before the Tribunal and in their joint statement of 18 May 2007 all three planners, namely Messrs Algeri, Birch and Rowe, agreed that the two things that had most effect on bulk and scale and needed to be considered against the Guidelines were:

a) the extent of the building footprint and its effect; and
b) the notion of any stepping requirements for the development and any resultant effects.

71            Lot 501 is zoned 'Residential' with an R coding of R30/40 under

LPS 1. The planning experts agreed that 'the site is to be regarded as an
R40 coded site'.

72            Table 4 of the R-Codes establishes a maximum plot ratio of 0.6 for

multiple dwellings on an R40 coded site. In its Statement of Issues, Facts and Contentions the respondent submitted the plot ratio of the proposed development as 0.87. The applicant in response did not challenge the figure but submitted:

It is irrelevant and inappropriate to apply an R40 densit code to the subject site when the point of the Design Guidelines is to enable multiple dwellings to be developed on the site without regard to any density code.

[2017] WASAT 122

  1. It is clear that the proposed development does not meet the deemed-to-comply plot ratio provision of Table 4 of the R-Codes.

74            Where a deemed-to-comply provision is not met by a proposed

development the proposal is to be assessed against the relevant specific design principle. The relevant design principle to assess a proposal which does not comply with the deemed-to-comply requirements of cl 6.1.1 'Building Size' is as follows:

Development of the building is at a bulk and scale indicated in the local planning framework and is consistent with the existing or future desired built form of the locality.

75            In terms of the local planning framework the primary focus of the

joint witness statement of the planning experts was on the Guidelines and the Tribunal accepts that these Guidelines constitute the relevant provisions against which the proposal should be assessed in terms of bulk and scale.

Building footprint

76            The building footprint took on importance because it was seen by the

experts as the method by which the bulk and scale of the development should be assessed, as restricting the size of the building footprint would effectively limit the size of the building that could be built.

77            The building footprint was therefore dealt with in some significant

detail at the hearing and Mr Rowe and Mr Algeri both produced detailed calculations in respect of what they calculated the building footprint to be.

78            The term itself was not defined either in the Guidelines or any other

planning instrument relevant to the matter, however page 29 of the Guidelines which dealt specifically with Lot 501 the site the subject of this application, under the heading 'building footprints' stated:

Ground floor level building footprint not to exceed more than 60% of the building zone.

First and second level building footprints not to exceed more than 50% of the building zone.

Third and fourth level footprint not to exceed more than 20% of the building zone.

It was agreed by all parties that the building zone was the area hatched in blue on the diagram at the top of page 29 which contained a southern and

[2017] WASAT 122

northern portion and which the Tribunal referred to earlier in relation to
the tree that was to be retained.

79            Attached as 'Annexure 1' is a copy of page 29 of the Guidelines the

upper portion of which refers to both the commentary on 'building footprints' and the diagram referring to the southern and northern portions of the building zone referred to above. That diagram also specifies the site setbacks.

80            The principle difference between the parties was in how the footprint

should be measured. The applicant argued that the built form that was contained below ground level or could not be seen should not be included in the calculation of building footprint while the respondent took a different view.

  1. In summarising their different approaches in their joint statement the planners stated:

    … Mr Rowe and Mr Birch agree that when measuring the building

    footprint for each level only those portion of the building that will be
    clearly visible should be included in the calculation.

82            Mr Algeri on behalf of the respondent explained that in his view the

building footprint calculation should be carried out as set out in paragraph 23 of the respondent's Statement of Issues, Facts and Contentions dated 5 April 2017 the footprint should be measured by:

(a) the area of lot covered by any roofed areas of the building; and
(b) the floor levels … shown on the Applicant's plans.

83            Helpfully, Mr Rowe and Mr Algeri produced a document dated

31 May 2017 which was an assessment of the building footprint on a floor by floor analysis. Table 1 contained Mr Rowe's calculations, Table 2 contained Mr Algeri's calculations and Table 3 set out the differences between both. Those tables filed with the Tribunal on 31 May 2017 are attached as 'Annexure 2'.

84            Mr Algeri and Mr Rowe also differed as to whether in calculating the

building footprint the site should be divided into two parts, that is, the northern portion and the southern portion as described in the plan at the top of Annexure 1.

85            There was however agreement between the planning experts that the

calculation of the building footprint was to inform an assessment of bulk

[2017] WASAT 122

and scale which counsel for the applicant submitted was the same function
that plot ratio was used for in the R-Codes.

  1. At paragraph 9 of their joint statement under the heading 'footprint calculation' the architects Mr Jee and Mr MacKay stated:

    Both experts agree that the method of calculating building footprint is different from the calculation of plot ratio, insofar as the notion of building footprint is more aligned to a gross measurement, whereas plot ratio is a net measurement.

  1. It would appear therefore that although building footprint and plot ratio are seeking to control bulk and scale they are not similar methods.

88            Fortunately there appeared to be agreement between the parties that

the definition of 'footprint' set out in the Macquarie Dictionary, (online edition) as handed up by counsel for the respondent was relevant. Counsel for the applicant in closing stated:

The definition of Macquarie that my learned friend handed up, we don't cavil with. It refers to surface and we say that's our point. It's not below ground. It's a surface treatment that one is looking at in order to determine what bulk and scale is above the surface[.]

The Macquarie Dictionary definition of 'footprint' referred to states:

the surface area covered by a structure or device, as a building on an area of
land[.]

  1. Another useful definition of 'footprint' is found in the Dictionary of

    th

Architectural and Building Technology, (4 ed, 2004) which states:

Footprint The projected area of a building or equipment on a horizontal surface.

90            The Tribunal accepts both to be reasonable definitions of building

footprint which would be the area of land covered by the building but
would not include separate parking lots and other non-building facilities.

91            Keeping that definition in mind, it is difficult to reconcile why

Mr Rowe for the applicant in measuring the various levels excluded many of the balconies. As in the Tribunal's view they would be part of the building covering the land below.

  1. A further reason as to why balconies should be included is the inference that might be taken from page 7 of the Guidelines which states:

    Any balcony shall be incorporated within the defined building envelope.

[2017] WASAT 122

93            The Tribunal acknowledges that at that point the Guidelines were

addressing single residences and were referring to the indicative diagrams for each of the single residences which had a 'potential building envelope'.

  1. However, it is noted that the diagram on page 29 for Lot 501 (Attachment 1) has the very same wording in that it states:

    This development diagram is indicative only and is designed to illustrate the potential building envelope determined by the site specific setbacks.

95            The Tribunal therefore questions why the Guidelines would

specifically include balconies within the building envelope for a single residence but on Mr Rowe's interpretation exclude balconies from the building footprint for Lot 501.

96            The Tribunal recognises that 'building footprint' is not the same as

'building envelope' but the reference at page 7 does at least show an intention in the Guidelines in respect of balconies and they would in any event be part of the building covering the land below, albeit in some cases as a projected area.

Footprint Analysis

97            Looking therefore at Mr Rowe's and Mr Algeri's calculations in

Tables 1 and 2. As explained earlier, Mr Rowe and Mr Algeri calculated the footprint of each floor level in the proposed development.

98            In Mr Rowe's assessment (Table 1) each of the floors levels with the

exception of the first and second levels complies with the building footprint area percentages established in the Guidelines for the Type 6 Multiple Dwelling Lot. The extent of non-compliance on the first and second levels is marginal (0.21% and 3.22%). In addition, in Mr Rowe's view, the total footprint for the development complies with the relevant provision.

  1. In Mr Algeri's assessment (Table 2) each of the floors levels and the total do not comply with the relevant provisions.

100          Table 3 of their analysis seeks to clarify the differences between their

respective assessments. These inclusions/exclusions can be briefly set out
as follows:

•

Ground level: Courtyards under balconies and areas above the 52.2 contour;

[2017] WASAT 122

• First level: Tenant parking under sunshade roofing, car bays under the floor above, areas above the 55.0 contour and covered walkways;
• Second Level: Covered walkways and a balcony;
• Third level: All balconies; and
• Fourth level : All balconies.

101          The substantive aspects at issue between the experts are whether

walkways, balconies, areas below natural ground level, car parking under sunshade roofing or under an upper floor should, or should not, be included in the building footprint calculation.

Tribunal's considerations on footprint

102          For the reasons set out above the Tribunal finds that the area of

balconies should be included in the area of the building footprint. In addition the portions of courtyards under cover of balconies would fall within the ambit of the definition of 'building' in the R-Codes and should also be included.

103          In regard to areas below natural ground level the Tribunal prefers the

evidence of Mr Rowe and Mr Birch and finds that these parking areas should be excluded from the building footprint. The reason for this finding is that the performance criteria of cl 6.1.1 of the R-Codes seeks to ensure development is consistent with the built form of the locality and structures below natural ground level will not logically infringe this criteria.

104          However, and drawing on the same logic, parking areas above

natural ground level and effectively enclosed by having built form above them will be perceived from outside the site and should be included. This would not apply to car parking areas simply covered by sunshade roofing, as sunshade roofing would not fall within the ambit of the definition of 'building' in the R-Codes and should be excluded.

105          Having made those determinations and having no evidentiary basis

to prefer the calculations of one expert over the other the Tribunal conservatively chose and added in the lower of each of the figures provided by the experts to their agreed figures.

  1. The outcomes of this assessment are set out in the chart following.

[2017] WASAT 122

107          The additional areas in column 2 of the chart are in each case as

explained the lower of the figures for each floor provided by Mr Rowe
and Mr Algeri.

108          The description of the additional areas the Tribunal believes should

be included in the footprint calculation at each level can be identified as
follows.

109          At ground level (RL 49b) the additional 55 sq m in the second

column is identified as (1) being the covered courtyards on that level and
not included in Mr Rowe's calculation.

110          The same method can then be used at each level to identify the area

the Tribunal has included by comparing the number, for example (2), (3)
and so on as against the following key:

(1) Covered courtyards to be included in footprint (55 sq m)

(2) Area above natural ground level (218 sq m) and covered

balconies to be included in footprint (58 sq m)

(3) Covered walkways (137 sq m) and covered balconies to be

included in footprint (7 sq m)

(4) Covered balconies to be included in footprint (47 sq m)

(5) Covered balconies to be included in footprint (47 sq m)

111          Taking those additional areas at each level and applying them to the

calcuations in Table 3 the Tribunal calculates the position to be as
follows:

Additional

Areas Accepted

Level Revised % Guideline Compliance

by the Tribunal

footprint

RL 49b 55 sq m (1) 1172.1 sqm 50.5% 60% Complies
(Ground Level)
RL 52 276.0 sq m (2) 1442.7 sqm 62.2% 50% Non-compliant
(First Level)
RL 55 144.0 sq m (3) 1380.0 sqm 59.5% 50% Non-compliant
(Second Level)

[2017] WASAT 122

Rl 58 47 0 sq m (4) 503.0 sqm 21.7% 20% Non-compliant
(Third Level)
RL 61 47.0 sq m (5) 503.0 sqm 21.7% 20% Non-compliant
(Third Level)
Total 569.0 sq m 5000.8 sqm 4643 sqm Non-compliant

112          It is evident based on this assessment that all levels other than the

ground level are non-compliant with the building footprint area percentages established in the Guidelines for the Type 6 Multiple Dwelling Lot. In coming to this conclusion it should be noted that the third and fourth levels only marginally exceed the Guidelines for those levels. More importantly however, the overall figure is non-compliant.

113          An anomaly that is evident in the distribution of the building

footprint as measured is the increase from the ground level to the first and second level, which is clearly inconsistent with the logic of 'stepping in' as you go up which underpins the building footprint provisions of the Guidelines. That therefore brings us to the second issue.

Stepping

  1. At paragraph 4.3.1. of their joint statement the planning witnesses

    stated:

    The experts agree that the OMDG with respect to "stepping" of development on the subject site is indicative only for a Type 6 lot and that the schematic drawing on page 29 of the OMDG is not a prescriptive depiction of the required built form outcome.

  2. The architectural experts at paragraph 16 of their joint statement

    stated:

    Both experts agree that the building should have a stepped form and that the diagram in the OMDGs is only indicative.

    It was there however that the agreement ended. The applicant's experts argued that the:

    … notion of stepping of built form on the subject site … is for the "built

    form" to step or graduate up the site from north to the south, rather than
    any requirement at individual levels "offset" from each other.

116          The respondent's expert on the other hand had the view that the

Guidelines infer and state a stepped back approach and that the

[2017] WASAT 122

progressive scaling down of the proportional building footprint allocation
as the building rises infers stepping back.

Mr Algeri referred in particular to the statement under 'building heights' at page 7 of the Guidelines which stated:

Three and four level buildings are permitted for the larger multiple housing lots (Types 6 & 7), where building forms can be built into the existing landforms without seeming incongruous with the forms of individual residences.

117          It was apparent to the Tribunal that a significant area of difference

between the parties and indeed an issue raised repeatedly by the residents
was the presentation of the proposed development to Omaroo Terrace.

118          The respondent argued that as presently proposed the development

presented an unacceptable bulk and scale to Omaroo Terrace and it was clearly an issue that also occupied the minds of the respondent's Council as seen from the various minutes filed in the section 24 bundle.

  1. At paragraph 96 of his statement of evidence dated 5 May 2017 Mr Algeri commented on the issue of bulk and scale and stated:

    … I am of the view that allowing a development which exceeds the

    building footprint provisions and is not stepped back as indicated in the OMDGs, would have adverse impacts in terms of its bulk and scale, and therefore, be incompatible with its setting (whether considered in the immediate streetscape or the Ocean Mia Estate more generally).

  2. Mr Rowe in answers to questions as to the bulk and scale of the building as against Omaroo Terrace stated:

    … The architectural form, I don't find it in any way particularly

    problematic on the front elevation so it addresses the street fairly well.

    …

    … I don't find the building offensive in any way when we talk about

    design or we're now in the bulk and scale territory. In fact it's quite typical of a lot of contemporary multiple dwelling developments that you see scattered around the metropolitan area. But this is the only one thus far in the Ocean Mia Estate which has far more specific - I won't use the word controls - but guidelines as to how one should develop on a certain type of lot.

    (T:181; 24.05.17)

  3. The architectural experts both commented on the issue at paragraph 25 of their joint statement and said:

[2017] WASAT 122

Both experts agreed that there would be merit in further articulating the Omaroo Terrace elevation to create a finer-grained composition of elements to further break up the Omaroo elevation. RJ is of the view that it could be achieved with minor adjustments during the detailed design process leading to Building Permit. MM is of the view that it should be addressed as part of the Development Application.

122          Further, Mr Jee for the applicant at paragraph 13.5 of his statement

under the heading 'Built form' in commenting on the issue of stepping
stated:

In terms of built form the two multiple dwellings lots in the Ocean Mia Estate do not have requirements in the OMDG that are applicable to the single residential design, however, the indicative development diagrams in the Design Guidelines show a distinctly stepped form. The Guidelines state that the dwellings will be multi-storey and stepped into the existing topography. This 'stepped' requirement relates to the two different height limits of the lot, and there are no specific setbacks for the upper floors that are different to the ground floor.

123          The Tribunal does not entirely agree with that assessment. The fact

that the building footprint for the site specifically reduces the size of the first and second levels by 10% from the ground floor and the third and fourth levels by 40% from the ground floor and the development diagram for the lot on page 29 although indicative only and designed to illustrate the potential building envelope shows a distinctly stepped form building and must mean something.

124          Is there a mandatory requirement for stepping of the building? No.

Is there an expectation of stepping of the building? In the Tribunal's view, yes, but that view is supported by what the Tribunal sees as objective criteria contained in the Guidelines that have over time been used to carefully craft a particular outcome in the Ocean Mia estate.

125          Counsel for the applicant in opening acknowledged that the

Guidelines as a planning instrument 'carries a great deal of weight' (T:38; 23.05.17) and correctly pointed out that the vast majority of the general Guidelines were directed to single residences and the reference to Building Heights at page 7 of the Guidelines was one of the few places where the Guidelines expressly referred to multiple dwellings.

126          Counsel further submitted that reliance on the General Guidelines as

a definite direction as to what should be expected in a multiple dwelling development is misconceived and submitted what the applicant believed the stepping back requirements to be, stating:

[2017] WASAT 122

… the first thing that you are constrained by is 60 per cent of the building

zone at ground level. Then you have the first and second levels and this is a response to the stepping back point. You can see that the first and

second levels have the same proportion, 50 per cent. You’re not required

to step back from the first level to the second level.

It's both the same proportion of the building zone. So we don't know where noticeable stepping back was required. It's not in any text anywhere in terms of the extent to which you have to do it or how noticeable it must be. That is a complete creation, we say, of the imagination of the respondent's experts.

(T:41; 23.05.17)

127          It is the Guidelines which the structure plan and the Scheme both

contemplate should be the primary vehicle for development control of the built form to be constructed in the Ocean Mia estate and with a total of 69 lots in the entire estate and only two being multiple dwelling lots it is not surprising that the Guidelines are weighted towards control of the single residences.

  1. The introduction to the Guidelines state:

    The development site is located in City Beach, bounded by The Boulevard and Kalinda Drive, immediately west of Bold Park. The architectural styles in the area range from houses constructed in Floreat in the 1930s through to the contemporary development in City Beach. The area also features buildings designed in the Modernist style, dating from the 1950/60s. Set in open gardens these residences contribute to the existing urban setting.

    These guidelines include development standards specific to the subdivision design and the character of the area in general. They provide a degree of certainty for property owners as to what they can expect for their own home, as well as for those being built around them.

    Some of the standards are prescriptive, to which Council will adhere. Other provisions within the guidelines are set down to encourage property owners to think about the area in which they have chosen to build; their street; their neighbours; as well as to pursue sustainable building principles.

    Unless otherwise determined by the Council, development must be in accordance with these guidelines.

  2. In closing counsel for the applicant in commenting on the size of the building and the application of the Guidelines stated:

[2017] WASAT 122

So we go back to the OMDGs and the ODP, the structure plan for that area. That tells you what was planned and nowhere in there does it say how big or otherwise the development should be, other than the height limits and the percentages of the building zone that ought to be constructed at each level. I should pause here and just say it needs to be kept in mind

these are design guidelines. They’re not written law, so obviously there is

no need to slavishly follow it, so long as its purpose and intent is followed,

consistent with orderly and proper planning.

(T:259; 01.06.17)

130          The Tribunal accepts that the Guidelines as a policy should not be

inflexibly applied or as submitted by counsel for the applicant 'slavishly followed (see Clive Elliott Jennings & Co Lty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 at [24] and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196).

131          In the Tribunal's view the Guidelines are not prescriptive however

they are persuasive and would appear to have guided development in the Ocean Mia estate to-date where apart from the two multiple dwelling lots development is almost complete.

132          The Tribunal recognises that this application is the first for a multiple

dwelling lots in the Ocean Mia estate and as counsel for the applicant pointed out the only 'Specific Guideline' relating to Lot 501 is contained at page 7 of the General Guidelines which states:

… building forms can be built into the existing landforms without seeming

incongruous with the forms of individual residences.

  1. The Tribunal also notes the applicant's contention at paragraph 7(a) of its Statement of Issues, Facts and Contentions that:

a) the purpose of controlling building mass as a proportion a development bears to the "building zone" is to address visual amenity from outside the site.

134          What is clear from the evidence and confirmed by the site visit is that

nearly all of the single residential built form in the Ocean Mia estate to-date is in stepped form as required by the Guidelines at page 6. The reason for that requirement was stated as:

... This will reduce the apparent scale of the new residences when viewed from the street, and encourages the creation of stepped-form buildings that respond to the sloping topography of the site.

[2017] WASAT 122

135          The Tribunal recognises that that specific requirement was aimed at

single residence development and not at the multiple dwelling lots which as contended by the applicant were included to introduce a higher level of density into a low density residential area.

136          It is of relevance however that every indicative diagram in the

Guidelines both for single residences and for the multiple dwelling sites show stepped form buildings.

137          What the Specific Guidelines for multiple dwelling lots does state is

that 'proposed dwellings will be multi storey and will be stepped into the existing topography which falls dramatically to the north' and as referred to earlier, the building footprints set out at page 29 of the Guidelines get progressively smaller as they get higher.

138          Further, the indicative diagram at the bottom of page 29 attached as

Annexure 1 which is designed to illustrate the potential building envelope and which sets specific height limits for both the southern portion and the northern portion of the site, shows a stepped form building.

139          Therefore a stepped form of development although not mandated for

the multiple dwelling sites was clearly the preferred form of design
throughout the estate.

Tribunal's consideration on bulk and scale

140          In the Tribunal's view the requirement of the building footprint to

reduce its size as the building rises while also setting a maximum height limit was no doubt done with a view to limiting the size of the building as a way of ameliorating the bulk and scale of what is going to be the largest building in an estate which has been inspired, guided and built based on Guidelines that clearly encourage a stepped form.

141          As stated above, the Tribunal's view of building footprint and the

calculations set out in the Tribunal's opinion show that the overall figure
for the building footprint is non-compliant.

  1. As that is the method the Guidelines used to measure bulk and scale one must then turn to the development as proposed.

143          It is clear from the evidence and submissions received that it was the

building's presentation to Omaroo Terrace which attracted the most
comment and indeed objection in respect of the issue of bulk and scale.

[2017] WASAT 122

144          This then raises the impact of the proposed development on the

immediate streetscape of Omaroo Terrace and the streetscape of the locality as against the existing double storey buildings which have been approved and built in line with long established guidelines.

145          It is in the Tribunal's view important to note that one of the few

specific guidelines that apply to multiple dwelling lots at page 7 of the
Guidelines states:

Three and four level buildings are permitted for larger multiple housing lots (Type 6 and 7) however building forms can be built into the existing landforms without seeming incongruous with the forms of individual residences.

  1. Mr Algeri was not satisfied this would be the case in respect of the impact of the proposed development on Omaroo Terrace when he stated:

    … I am of the view that allowing a development which exceeds the

    building footprint provisions and is not stepped back as indicated in the OMDGs, would have adverse impacts in terms of its bulk and scale, and therefore, be incompatible with its setting (whether considered in the immediate streetscape or the Ocean Mia Estate more generally).

147          Indeed, as outlined earlier, both of the architectural experts agreed

that there would be merit in further articulating the Omaroo Terrace elevation. Although Mr Jee believed that could be achieved with minor adjustments during the detailed design process leading to building permit Mr MacKay was of the view that it should be addressed at the development application stage.

148          The Tribunal largely agrees with Mr Algeri and Mr MacKay in this

regard and finds that the proposed development would adversely impact in terms of bulk and scale on Omaroo Terrace and be incompatible with its immediate streetscape and the Ocean Mia estate generally.

149          In the Tribunal's opinion that view is supported by the illustrations of

the completed development on the coversheet of the plans which were referred to in evidence and which show a presentation of the proposed development to Omaroo Terrace as effectively that of three, three storey buildings running the length of Omaroo Terrace with little relief.

150          The Tribunal is of the view that some amelioration of the bulk and

scale of the building to Omaroo Terrace is necessary (be it stepping back or otherwise) in order to reduce the impact on the streetscape and

[2017] WASAT 122

particularly on those single residences directly facing the development on
the opposite side of Omaroo Terrace.

151          The face of the development to Omaroo Terrace as currently

proposed will in the Tribunal's view be incongruous with the forms of individual residences both in Omaroo Terrace and generally in the Ocean Mia estate and as the building footprint is exceeded the adjustments to the design that are necessary are not in the Tribunal's view ones that could or should be undertaken at the building permit stage but should be considered at the development application stage.

152          A reduction in the size of the building to come within the building

footprint will not only assist in reducing the general bulk and scale but could also add relief to the Omaroo Terrace elevation and reduce pressure on the area of the Tuart tree.

Conclusion

153          As outlined earlier the Tribunal is of the view that the issues of

traffic and parking and the preservation of the Tuart tree can be satisfactorily dealt with by way of conditions and the density of the proposed development is not objectionable.

154          However, for the reasons outlined above in respect of the bulk and

scale of the building, the Tribunal is not prepared to approve the
development as currently proposed.

  1. The Tribunal will therefore affirm the decision of the respondent dated 1 March 2017 and dismiss the application for review.

Orders

1.        The respondent's decision of 1 March 2017 is affirmed.

2.        The application for review is dismissed.

I certify that this and the preceding [155] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR M SPILLANE, SENIOR MEMBER

[2017] WASAT 122

[2017] WASAT 122

[2017] WASAT 122

Actions
Download as PDF Download as Word Document
Cases Cited

0

Statutory Material Cited

7