BOYD and TOWN OF VINCENT
[2007] WASAT 35
•8 FEBRUARY 2007
BOYD and TOWN OF VINCENT [2007] WASAT 35
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 35 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:222/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 7/02/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | JASON BOYD TOWN OF VINCENT |
Catchwords: | Outbuilding Undesirable precedent Amenity Addition to a single house Orderly and proper planning Covered way Loft |
Legislation: | Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 1.1.2, cl 3.3.1 A1(v), cl 3.10.1 A1, cl 3.10.1 P1 State Administrative Tribunal Act 2004 (WA), s 31 Town of Vincent Town Planning Scheme No 1, cl 19(1), cl 19(2), cl 38(5), cl 38(5)(g), cl 38(5)(h), cl 38(5)(i), Sch 1 |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988, 21 October 1988) Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) |
Orders | On the application determined by Senior Sessional Member Lloyd Graham on 8 February 2007, it is ordered that:,1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOYD and TOWN OF VINCENT [2007] WASAT 35 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 FEBRUARY 2007 FILE NO/S : DR 222 of 2006 BETWEEN : JASON BOYD
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Outbuilding - Undesirable precedent - Amenity - Addition to a single house - Orderly and proper planning - Covered way - Loft
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 1.1.2, cl 3.3.1 A1(v), cl 3.10.1 A1, cl 3.10.1 P1
State Administrative Tribunal Act 2004 (WA), s 31
Town of Vincent Town Planning Scheme No 1, cl 19(1), cl 19(2), cl 38(5), cl 38(5)(g), cl 38(5)(h), cl 38(5)(i), Sch 1
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Ms M A Hegarty (Acting as Agent)
Respondent : Mr S J Bain (Acting as Agent)
Solicitors:
Applicant : Roberts Day Planning and Design (Town Planners)
Respondent : SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988, 21 October 1988)
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Vincent to refuse an application to demolish an existing "outbuilding" and construct a garage/workshop and loft in its place.
2 In assessing this matter, the Tribunal has had regard to the background to the proposal and the existing statutory and policy provisions, with particular emphasis on the Residential Design Codes of Western Australia (2002). The matters of undesirable precedent and amenity were examined.
3 In its consideration of the matter, the Tribunal accepts that the proposed development is an "outbuilding" and not an addition to a single house and, having regard to its height and bulk on the subject land, would set an undesirable precedent for other similar sized and dimensioned lots. Also, it would not be in the interests of orderly and proper planning as the development proposal goes well beyond the intent of the Codes with respect to outbuildings.
4 The application for review is dismissed.
Introduction
5 The application for review, dated 5 July 2006, was lodged by Ms Maureen Hegarty of Roberts Day Town Planning and Design on behalf of Mr Jason Boyd (applicant) against a decision of the Town of Vincent (respondent) on 7 June 2006 to refuse a planning application of 6 December 2005 for the demolition of an existing "outbuilding" and the construction of a garage/workshop as an addition to the existing residence.
6 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (the Act) which provides for a review of a decision under a local planning scheme.
7 The refusal to commence development was based on the following reasons:
"1. Development will set an undesirable precedent.
(Page 4)
- 2. The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality."
8 At a directions hearing before Member Peter McNab of the Tribunal on 2 August 2006 the respondent was invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), to reconsider its decision under review.
9 On 5 September 2006 the respondent advised that the matter had again been considered at the Council's Ordinary Meeting of 22 August 2006 and that they had resolved to refuse the development proposal for the same two reasons previously determined on 7 June 2006.
10 At a further directions hearing before Member Peter McNab on 4 October 2006 it was ordered that the matter be determined solely on the papers.
Subject land and legislative framework
11 The subject land can be described as Lot 6 (No 5) St Alban's Avenue, Highgate, on Deposited Plan 2447. It has an area of 632 square metres with a 13.1 metre frontage and two rights-of-way; one to its eastern side and the other to the rear.
12 The site contains an existing single dwelling constructed in 1899. It is listed on the Town of Vincent's Municipal Heritage Inventory and is recommended for conservation. There are two existing outbuildings at the rear; one of which (a garage) is proposed to be demolished to make way for the proposed structure.
13 The general locality is characterised by single storey homes on small lots with narrow frontages in the order of 10 to 12 metres wide.
14 The subject land is zoned "residential" under the Town of Vincent Town Planning Scheme No 1 (TPS 1). It has a density coding of R 80.
15 The matter is subject to the relevant provisions of the Residential Design Codes of Western Australia (2002) (Codes) as well as the Town of Vincent's Planning and Building Policy Manual (Policy No 3.1.12). The subject land falls within the Hyde Park Precinct of the policy manual.
16 The Town of Vincent Planning and Building Policy Manual - Residential Design Guidelines (Guidelines) is also relevant, and the land is subject to its St Albans Policy Statement (Policy No 3.3.26).
(Page 5)
Respondent's position
17 The respondent's position is outlined in the witness statement dated 22 September 2006 of Mr Simon John Bain, a qualified town planner, of SJB Town Planning and Urban Design. He argues:
(a) The Codes define an "outbuilding" as:
"An enclosed non-habitable structure that is required to meet the standards of the Building Code of Australia and is detached from any dwelling."
(b) The proposed building was previously designed to be detached from the dwelling. However, although it is now proposed to connect it to the dwelling, the predominant use is still an "outbuilding".
(c) Clause 3.10.1 A1 of the Codes sets out the standards for outbuildings. The proposed development does not comply with the Acceptable Development standards in that:
(i) the development is now proposed to be attached to the dwelling;
(ii) the building could be used for habitable purposes given that it contains a toilet and bathroom facilities;
(iii) the floor area is 96.8422 square metres (exceeding 60 square metres) and occupies 15.32% of the site;
(iv) the wall heights are 3.0 – 6.8 metres (not 2.4 metres); and
(v) the ridge height is 6.8 metres (not 4.2 metres).
(d) The development does not comply with the Performance Criteria in that:
(i) The locality is comprised of predominantly single residential buildings with many of the original houses remaining. There are few outbuildings of the scale proposed.
(ii) There was an objection to the proposal, following advertisement, along the following lines:
- • North setback should be 1.5 metres or compliant with building on boundary requirements of the Codes.
(Page 6)
- • Concern that the storage area will be used as habitable space with a consequential effect on privacy.
• Concern that the development will set an undesirable precedent.
(e) Clause 38(5)(g), cl 38(5)(h) and cl 38(5)(i) of TPS 1 require the orderly and proper planning, preservation of the amenities of the locality and the design, scale and relationship to existing buildings and surrounds of any proposed building or structure to be considered.
(f) The proposed development is incompatible with the current character and pattern of development of the area and will have an adverse impact on the amenity of the surrounding residential properties.
(g) Residents of the area would have an expectation that the development would have a residential amenity consistent with current amenity.
(h) The issues raised by the objector are important considerations given that the development, and the expectation of residents, would be that the area would not contain oversized outbuildings.
18 The applicant's position is outlined in the grounds for review. It broadly states:
(a) The respondent's refusal of the application is not substantiated as to why the proposed development will set an undesirable precedent, or why it is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.
(b) The respondent has approved two similar applications in the last 12 months.
(c) The quality and standard of the proposed development is far superior to that which exists in the immediate vicinity, and a refusal based on setting an "undesirable precedent" is not valid.
(d) The proposed development complies with the relevant requirements of TPS 1 and associated policies.
(Page 7)
- (e) The officer report recommended conditional approval and there were no "non-compliant requirements" identified in the document.
(f) The use class of the proposal is classified as a "single house", which is a permitted use in the "residential" zone.
Planning issues
19 The principal planning issues are:
(a) Should the proposal be classified as an "outbuilding" or an "addition" to an existing home?
(b) Would the development set an undesirable precedent?
(c) Would the proposed development be consistent with orderly and proper planning and preserve the amenity of the locality?
Assessment of proposal
Background
20 A history of the application is contained in the application for review, and includes a chronological list of events extending from July 2004 through to June 2006.
21 Included in this background is an earlier application for a similar proposal dated 10 January 2005 which was refused by the respondent on 27 July 2005. It appears that the refusal was based on the grounds that the structure was an "outbuilding" as it was not connected to the main dwelling, and that it exceeded the upper limit size for an "outbuilding".
22 Under the current (second) proposal it appears to the Tribunal that the provision of a proposed "covered way" linking the proposed development to an existing brick and iron garage, and then on to the existing brick and iron residence is designed to effect a reclassification of the proposed development from that of an "outbuilding" to that of an "addition" to an existing home. Such a reclassification would avoid the restriction of the upper size limit of an "outbuilding".
The proposed development
23 The proposed development is explained in the application for review, and is clarified in a series of plans prepared by Roger Hearne – Architect. The information highlights that:
(Page 8)
- (a) An existing outbuilding (colorbond and iron garage) towards the rear of the site would be removed and replaced with the proposed new building designed to complement the existing heritage residence. The new building (garage/workshop) would be linked to the main residence by a covered walkway.
(b) The garage/workshop is to have a random pattern face limestone finish with recycled red brick feature detailing on the capping, sills and arches. The structure is intended to be reminiscent of an era when horse drawn carriages and carriage houses with hay lofts were common.
(c) The proposed building has a ground level to accommodate three vehicles, and there would be a single hoist provided. There is a toilet and shower area and a staircase leading to a "loft" area above.
(d) The building has a nil setback to the rear right-of-way and a 1.05 metre setback from a side (eastern) right-of-way. The building would have two roller doors facing the side right-of-way.
24 From a site plan and shadow diagram (scale 1:200) dated November 2005 the following is clear:
(a) The shadow cast at midday on June 21 does not affect adjoining property, other than the eastern right-of-way.
(b) The south wall of the proposed garage/workshop is approximately 17 metres from the northern wall of the existing dwelling. The two structures are joined by a proposed "covered way", but there is an existing brick and iron garage notated and superimposed between them.
(c) A smaller scale diagram on the same plan notates the existing brick and iron garage between the proposed garage/workshop and the existing dwelling as an "existing carport". There is no further information available to the Tribunal to clarify whether the structure is a garage or carport other than a reference to it as a garage in the witness statement of Mr Bain and some associated photographs which appear to show the structure as a garage.
(Page 9)
- (d) The floor area of the existing house is shown as 161 square metres and the proposed garage/workshop as 94 square metres.
Statutory and policy provisions
25 Clause 19(1) and cl 19(2) of TPS 1 state:
"(1) The Residential Planning Codes are to be read as part of this Scheme and will be made available for inspection with the Scheme for determining residential densities.
(2) Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."
26 Under cl 38(5) of TPS 1 the Council is required, when determining an application, to have regard to:
(a) the provisions of the Scheme;
(b) any relevant planning policy;
(c) the Scheme map;
(d) any Statement of Planning Policy of the Western Australian Planning Commission;
(e) any submission accompanying or related to the application;
(f) the orderly or proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
27 The matter of "amenity" is defined in Sch 1 as:
"... all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity".
28 Under Policy 3.1.12 it states:
"1) Residential Area
(Page 10)
- All residential development is to comply with the Policies relating to Residential Design Guidelines ..."
29 Under Policy 3.3.26, which is a Residential Design Guideline for the St Albans locality, it states:
(a) "The area contains much of its original housing stock and thus the retention/restoration of existing dwellings is favoured and encouraged".
(b) "New contemporary developments are encouraged provided that the design responds to the established character".
(c) "A general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally setback a minimum of 6 metres from the street and the amenity of the area if protected in terms of privacy, scale and bulk".
30 Under the Codes the following definitions are relevant to this matter:
(a) "Ancillary Accommodation
Self-contained living accommodation on the same lot as a Single House that may be attached or detached from the Single House occupied by members of the same family as the occupiers of the main dwelling."
(b) "Building
Any structure whether fixed or moveable, temporary or permanent, placed or erected upon land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools."
(c) "Dwelling
A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."
(Page 11)
- (d) "Garage
Any roofed structure, other than a carport, designed to accommodate one or more motor vehicles."
(e) "Incidental Development
Development which is associated with or attached to a dwelling and incidental to its main residential functions."
(f) "Outbuilding
An enclosed non-habitable structure that is required to meet the standards of the Building Code of Australia and is detached from any dwelling."
(g) "Single House
A dwelling standing wholly on its own green title or survey-strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property."
31 What is clear to the Tribunal is that in the St Albans locality there is an intent by the Council to promote the retention and restoration of the existing housing stock, and that new development is encouraged to respond to the established character. Two storey development, including a loft, is also supported.
32 What is also clear is that development in the Town is to conform to the Codes. In this case the proposed development is for a building with a predominant garage-type use that is incidental to the main residence on the subject land. However, whether the development should be considered as an "outbuilding", or simply an "addition" to a single house (dwelling), requires further consideration.
The Codes – outbuildings
33 Under Element 10 – Incidental Development the concept of outbuildings is described:
"All outbuildings could, in theory, be regarded as buildings and made to comply with the same design guidelines as the main building or buildings. But Australia, at least, has a long
(Page 12)
- tradition of backyard sheds, workshops, garages and other buildings, including outside laundries and toilets, and these have always been regarded in a different light to the houses they serve.
...
This means that any outbuilding that is to be exempt from the standards of the dwelling should be:
• relatively small in area;
• relatively low in height;
• sited so as to preserve the use and amenity of open space;
• set back sufficiently from boundaries;
• confined to Single Houses and Grouped Dwellings; and
• excluded from street setback areas.
...
While outbuildings of less than 60sqm in area (or 10% of the site which ever is the lesser) and no more than 2.4m in wall height are Acceptable Developments, they are still required to be sited in accordance with the side setback requirements of Element 3 and the open space requirements of Table 1."
34 At 3.10.1 A1 the Acceptable Development provisions are listed. These include that an "outbuilding" is not to be attached to the dwelling, is non-habitable and does not exceed 60 square metres in area or 10% in aggregate of the site area, whichever is the lesser.
35 At [17(c)] Mr Bain has outlined the significant differences between the proposed development and the Acceptable Development provisions.
36 At 3.10.1 P1 the Performance Criteria for outbuildings is expressed in this way:
"P1 Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties."
37 This matter is also addressed by Mr Bain in his par 22 to par 27 under "Amenity of Locality" and are dealt with later in this review.
(Page 13)
The Codes – Single House
38 This matter was addressed by Mrs Hegarty, a qualified town planner, for the applicant in her statement of evidence dated 14 November 2006. She argues:
"The Single House requirements of the Residential Design Codes 2002 are applicable to the proposed development and the requirements relating to outbuilding are not applicable as the Town of Vincent has classified and determined the proposal as "Demolition of Existing Outbuilding and Construction of Garage/Workshop Additions to Existing Single House."
39 In substantiating her position she argues on the basis of setbacks, the claim that the use of the upper storage area could be used as habitable space and undesirable precedent. These three points were the substance of a neighbour's objection to the development as outlined in [17(d)(ii)] above.
40 The specific arguments of Ms Hegarty are:
(a) The proposed additions comply with the setback requirements of the Codes. Clause 3.3.1 A1(v) allows the stated setback distance to be reduced by half the width of an adjoining right-of-way to a maximum reduction of 2 metres. In this instance the stated setback distance is 1.5 metres, therefore a nil setback to the north (rear right-of-way) complies.
(b) The proposal is an addition to a single residence and is not intended to be used solely for storage. Its primary function is garage/workshop and is not habitable space. However, revised plans show all dormer windows as obscure glass to address privacy concerns even though additions to existing houses would not generally be prevented from being used as habitable space.
(c) Given the R 80 coding and size of the lot, a total of three separate dwellings (habitable space) could be developed on the lot with at least one being located at the rear in a similar position to the proposed additions.
41 The matter of undesirable precedent as raised by the objector is dealt with below.
(Page 14)
Undesirable precedent
42 In her submissions, Ms Hegarty alludes to two comparable examples to the proposed development that have recently been approved by the respondent.
(a) A two storey garage, workshop and ancillary accommodation to an existing house at Lot 177 (No 72) Matlock Street, Mount Hawthorn with approximate ground floor dimensions of 10 metres by 7.2 metres. The plan includes a garage, workshop, ante-room and toilet on the ground floor and ancillary accommodation with an open plan room and kitchenette and bathroom on the first floor.
(b) A two storey garage and loft area at No 95 (Lot 75 and Part Lot 76) Chelmsford Road, Mount Lawley. The ground floor dimensions for the garage were set at 6.1 metres by 6.5 metres.
43 In both examples Ms Hegarty points to areas of non-compliance relating to boundary setbacks, floor area, provision of access between a garage and ancillary accommodation, retaining and fill and fencing.
44 In his submissions Mr Bain argues:
"Precedent in itself is not a reason for refusal. However, should a development be approved that is not consistent with the amenity of a locality then there will be increased pressure for similar proposals to be approved."
45 The Tribunal accepts that an applicant, as in this case, will often quote circumstances where a previous approval at another location is used to advance their own proposals. However, each case needs to be considered on its particular merits and it is rare that two cases, and their specific circumstances, are exactly the same.
46 As pointed out in Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988, 21 October 1988), precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account.
47 That is to say that even if the circumstances in two separate cases were such that the precedent argument carried weight, there is always the possibility that more important planning argument demands a refusal.
(Page 15)
The matter of amenity
48 The matter of amenity is addressed briefly by the parties in their submissions.
49 The respondent, through Mr Bain, argues that the proposed development is incompatible with the current character and pattern of development of the area and will have an adverse impact on the amenity of the surrounding residential properties.
50 The applicant, through Ms Hegarty, argues:
"... it is my view that the application can only be seen to be entirely consistent with the orderly and proper planning of the area and will in fact improve and contribute positively to the amenity of the locality. The standard of development proposed is such that it will set a desirable example for others to follow."
51 From an examination of photographs attached to Mr Bain's witness statement it is clear that the existing rights-of-way are both paved and in good condition but the associated rear fencing, particularly on the subject land and along the rear (northern) right-of-way, is generally of low quality and poorly maintained.
52 In Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) at P5 amenity is described as:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
53 In the view of the Tribunal, and based on the information before it, the quality of the residential environment and streetscape appears good in amenity terms, but is substantially diminished along the rear right-of-way in particular, due to deteriorating rear fencing.
Conclusions
54 The application for review has been lodged against a decision of the respondent to refuse an application to demolish an existing "outbuilding" and construct a garage/workshop and loft in its place as an addition to the existing residence. The reasons for refusal were that the development would set an undesirable precedent and would not be consistent with the orderly and proper planning and preservation of the amenities of the locality.
(Page 16)
55 In assessing this matter, the Tribunal has had regard to the background to the proposal and the existing statutory and policy provisions, with particular emphasis on the Codes. The matters of undesirable precedent and amenity have also been examined.
56 One difficulty faced by the Tribunal is that an earlier application in January 2005 was refused by the respondent having considered the development as an "outbuilding". However, although the current proposal has again been refused, it has been done so on the basis that the proposed development is an ″addition″ to a single house.
57 Somewhat incongruously the application for review is now being contested by the respondent, through its planning consultant, on the basis that the proposed development is an "outbuilding", and the matter of whether it is an addition to a single house seems to have been put to one side.
58 This whole issue appears to revolve around the point that by providing a so-called "covered way" linking the proposed development to an existing brick and iron garage and then on to the existing residence that this will in effect reclassify the proposed development from an "outbuilding" to that of an "addition" to a single house.
59 Although it is not altogether clear from the information before the Tribunal whether the existing structure between the proposed development and the existing residence is a garage or carport it would make little or no sense for a "covered way" to meet the north solid brick wall of the garage as shown on plan with no direct access from that point onto the existing residence. However, with no clear information before the Tribunal as to whether the structure is a solid garage or a roofed carport the discussion on direct access is hypothetical.
60 What is clear in the Codes (Element 10 – Incidental Development) is that outbuildings are intended to include such activities as garages, workshops and toilets and that is precisely what the proposed development contemplates in the planning application. The simple addition of a "covered way" linking the proposed development via a garage or carport to the existing residence some 17 metres away does not change the fact that the proposed development is still an "outbuilding", and should be assessed on that basis. In that sense the Tribunal would agree with Mr Bain for the respondent.
61 What is also clear is that the proposed development does not meet all of the Acceptable Development provisions of the Codes under
(Page 17)
- cl 3.10.1 A1; particularly in terms of area and building height, but whether it meets the less specific Performance Criteria is another matter.
62 As explained in the Codes under cl 1.1.2:
"... the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
63 In this case the Performance Criteria under cl 3.10.1 P1 are concerned with streetscape, and the visual amenity of residents or neighbouring properties.
64 In assessing these matters within an overall context there is an intent by Council in the St Albans locality to promote the retention and restoration of the existing housing stock, and that new development is encouraged to respond to the established character. Two storey developments, including a loft, are also supported.
65 In that sense the existing residence is to remain, the proposed development is sympathetic to the existing character and includes a loft.
66 On the other hand development within the Town is required to conform to the Codes, and the Tribunal is required to have due regard to them. However, it is not bound by the Codes in its final determination.
67 As explained on page 88 of the Codes in relation to visual amenity of neighbours, an "outbuilding" should be relatively small in area and relatively low in height, and some guidance as to what that means is given in the Acceptable Development provisions at 60 square metres and a 4.2 metre ridge height respectively.
68 The difficulty here is the provision of a "loft" which lifts the height of the building to 6.8 metres and the possibility of its use as a habitable room; which is specifically excluded in outbuildings by the Codes.
69 The possibility of the "loft" being used as a habitable room was raised by an objector on the basis of loss of privacy and was alluded to by Ms Hegarty in a response to the respondent's draft "without prejudice" conditions of approval of 31 October 2006. She advised:
"As the proposal is an addition to a single house and as the site could be developed with 3 individual dwellings it is considered unreasonable to impose a condition prohibiting its use for the purposes of accommodation or habitation."
(Page 18)
70 On the matter of amenity the Tribunal accepts that the demolition of the existing rear "outbuilding" and peripheral fencing and its replacement by a new structure would be an improvement and would not affect the streetscape. But a 6.8 metre high building relative to the height of the existing residence and occupying almost the whole width of the site would be excessive.
71 In that sense the Tribunal accepts that, having regard to the particular circumstances of this case, the height and bulk of the development would set an undesirable precedent in this locality and would not be in the interests of orderly and proper planning as it goes well beyond the intent of the Codes with respect to outbuildings.
72 However, what must also be said is that a revised proposal that does not include a "loft", but is designed in the same traditional style with a maximum ridge height of 4.5 metres to 5.0 metres to accommodate a smaller garage/workshop with hoist may well satisfy the respondent when assessed against the Performance Criteria of 3.10.1 P1 of the Codes.
Orders
73 For the foregoing reasons the orders of the Tribunal are as follows:
1. The application for review is dismissed.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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