CASSIDY and CITY OF SUBIACO

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CASSIDY and CITY OF SUBIACO [2011] WASAT 63

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 22 MARCH 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 22 MARCH 2011

FILE NO/S: DR 310 of 2010

BETWEEN: BRAD CASSIDY
FLEUR CASSIDY
Applicants
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning Development application Alterations and additions to early 20th century single storey house Second level addition Starting point under Scheme in that development should be limited to single storey Discretion to allow second level where 'no undue adverse impact on adjoining residential sites or the general amenity of the locality' Policy to guide discretion states development 'to be designed so as to appear as a predominantly single storey house ... This excludes a requirement for any two-storey development to be located in the middle third of the lot' 26 square metres or 45% of floor space of proposed second level in rear third of lot Impact on adjoining property Boundary wall Whether performance criteria satisfied for boundary wall

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 28(3), cl 39(3), cl 41, cl 41(2), cl 42(1)(b), cl 78
Planning and Development Act 2005 (WA), s 252(1)

Result:

Development approval granted

Category: B

Representation:

Counsel:

Applicants: Mr D Lewis (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: Allerding & Associates (Town Planners)

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

Citigate Properties Pty Ltd and City of Bunbury [2009] WASAT 249

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Cassidy sought development approval for alterations and additions to their early 20th century house in Shenton Park, including a second level addition with a floor area of 57 square metres. Although the application was recommended for approval by the City of Subiaco's town planning officers, it was refused. Mr and Mrs Cassidy sought review of this decision by the Tribunal.
The key issues in dispute related to a boundary wall abutting the rear courtyard of an adjoining property and the second level of the proposal. While the second level complied with a policy requirement limiting it to a maximum of 15% of the site area, it did not fully comply with another policy provision that it should be located in the middle third of the lot. Approximately 26 square metres or 45% of the second level addition would be located in the rear third of the lot.
Following the hearing, the Tribunal gave an oral decision in which it determined that discretion should be exercised to allow the proposed upper level and to grant development approval. The Tribunal decided that the proposed boundary wall would not have any significant adverse impact on the amenity of the adjoining property because it would be viewed in the context of an existing limestone boundary wall and a pergola structure with an opaque roof on that property, it would not extend to abut the northernmost part of the courtyard of the adjoining property, and because of the setback of internal habitable areas of the adjoining property.
The Tribunal found that there were cogent reasons, in the circumstances of this case, to depart from the strict application of the middle third policy. In particular, the proposed second level satisfies the intent of the middle third policy, because the development is designed to appear as a predominantly single storey house and is consistent with the character and scale of existing, predominantly single storey, development. Furthermore, while the same secondlevel accommodation as is proposed could be located substantially within the middle third of the lot, this would make the second level far more prominent in the streetscape, contrary to the objective and intent of the policy. The proposed second level would also not have any undue adverse impacts on the amenity of the adjoining property because of the existing structures on the adjoining property and the staggered setbacks and careful design of the proposed development.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

This is an application for review brought by Mr Brad and Mrs Fleur Cassidy pursuant to s 252(1) of the Planning and Development Act 2005 (WA) in relation to the decision of the City of Subiaco (City or Council) to refuse Mr and Mrs Cassidy's development application for twostorey alterations and additions to their dwelling at No 145 Keightley Road, Shenton Park (site). The development application was lodged on 28 October 2009 seeking approval for the demolition of a portion of the dwelling and other structures on the site and proposed alterations and twostorey additions at the rear of the dwelling.
The proposed additions and alterations include internal modifications and additions to the ground floor involving an open plan living/kitchen/dining area and two bedrooms and two bathrooms, and a third bedroom and bathroom on the upper floor. A basement cellar, store and double garage with a right of way access are also proposed. The right of way appears as a public laneway.
The development application was referred by the City to adjoining landowners for comment and three objections were received, including an objection from the owners of the adjoining property to the east at No 143 Keightley Road, Mr and Mrs McGilvray.
The City's Manager of Planning Services prepared a report for the Development and Community Services Committee meeting on 7 September 2010 recommending that the proposed development should be approved subject to five conditions which were acceptable to Mr and Mrs Cassidy. However, the Development and Community Services Committee decided to refuse the application for the following four reasons:
1)The proposal is inconsistent with cl 28(3) of the City's Town Planning Scheme No 4 (TPS 4 or Scheme) as the proposal is contrary to the proper and orderly planning of the locality, the preservation of the amenity of the locality, the planning objectives of the zone, and would have an undue adverse impact on the inhabitants of the locality and the likely future development of the locality.
2)The proposal does not satisfy the aims and objectives of the Residential zone as outlined within cl 41(2) of TPS 4 in particular, cl 41(2)(f) and cl 41(2)(g) relating to enhancement of the amenity of the neighbourhood and the capability with the established streetscape.
3)The proposal does not satisfy performance criteria 6.3.2 of the Residential Design Codes of Western Australia 2008 (Codes) relating to buildings on boundary.
4)The proposal does not satisfy cl 6.3 of the City's Streetscape Policy relating to the location of the upper floor.
The application for review by the Tribunal was lodged on 7 October 2009.

Planning framework

The site is zoned Residential R20 under TPS 4 and located within the Shenton Park precinct. Clause 27(4) of TPS 4 states that, in determining an application, the Council is to have regard to:
(a)the provisions of this Scheme and any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policies;
(c)a statement of planning policy of the Western Australian Planning Commission;
(d)any planning study approved by the Council;
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and [sic]
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure; [and]
(i)the conservation of places and areas of cultural significance …

Clause 41 of TPS 4 identifies the aims and objectives of the Residential zone. The City has in particular emphasised the following two aims and objectives as pertinent to this application:
…
(f)To enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmental sound design principles and the preservation of the character of the existing housing stock.
(g)To ensure compatibility of the development with the established streetscape taking into consideration setbacks, roof pitches, materials, designs and landscaping.
TPS 4 defines the term 'amenity' as 'all those factors which combine to form the character of an area and include the current and likely future amenity'. Clause 42(1) of TPS 4 states as follows:
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
As Mr Stephen Allerding, a consultant town planner who both represented and gave evidence on behalf of the City, said, cl 42(1) of TPS 4 is unusual in planning schemes. In effect, it creates a 'starting position' under which development on land zoned Residential and coded R15 or R20, including the site, is to have a maximum of one storey. However, cl 42(1)(b) of TPS 4 confers a discretion on the Council to, in effect, permit twostorey development where the Council:
… is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
Clause 78 of TPS 4 allows the Council to make planning policies. Of particular relevance to this application is Policy 3.1 Streetscape Policy (Streetscape Policy). The Streetscape Policy informs the exercise of discretion under cl 42(1)(b) of the Scheme. The introduction to the Streetscape Policy states:
In established areas there appears to be a consensus that new development should follow the characteristic patterns of housing types, street setbacks, scale, front gardens and street rhythm.
The Streetscape Policy has the following four objectives:
1)[t]o ensure that new development is consistent with the character and in particular the scale of existing residential development;
2)[t]o ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances;
3)[t]o encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and
4)[t]o protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy.
Clause 2 of the Streetscape Policy defines the term 'character', as used in the policy, as follows:
… the qualitative interplay of built form, vegetation and topographic characteristics in both the private and public domains that make one place different from another. Character is generally limited to height, front setbacks, side setbacks and bulk and does not relate to colours and finishes.
Furthermore, in relation to character, cl 3 of the Streetscape Policy states:
… The concept of "character" is identified as an intrinsic component of the definition of amenity contained within the Scheme.
The Scheme definition clearly compels the City to consider the implications of proposed development upon the character of a given area.
… the Scheme is unusual in that it limits the asofright height of new development to effectively single storey within the low density Residential zones. The primary objective of this height limit is the protection and enhancement of the existing character of residential areas.
Clause 6.2 of the Streetscape Policy provides development standards for 'houses of increased height', meaning houses greater than or including components greater than single storey. It states that the Council may approve development of increased height provided that 'there will be no adverse impact on adjoining residential sites or the general amenity of the locality'. Clause 6.3 of the Streetscape Policy states as follows in relation to 'increased height' in R15 and R20 coded areas:
In order to fulfil the requirements of this policy the City will require a building of increased height to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%). This includes a requirement for any two storey development to be located in the middle third of the lot.
It is acknowledged that there are circumstances where the site may not permit two storey development to be located in the middle third of the lot (i.e. lots of reduced length). The primary concern of the City is to maintain an attractive streetscape. As such, the City may permit two storey development located outside the middle third of the lot where more than 50% of properties within a 50m radius exhibit similar development.
It is preferred that the second level development should be contained within the roof space where there is no two storey development in the surrounding development. The City is unlikely to support a second storey element where the proposal is considered to impact on the amenity of adjoining properties …
Clause 6.4 of the Streetscape Policy provides design standards for houses of 'increased height'. In particular, cl 6.4 contains the following development standard:
Maximum floor area of the footprint of the portion of the building of increased height is not to exceed 15% of the site area. Loft development or development contained wholly within the roof space (i.e. wall height and ridge height not exceeding 3.6 metres and 6.5 metres respectively) will not be included within the calculation of the maximum floor area of the footprint. Dormer windows may be supported subject to the requirements of the Residential Design Codes and are considered as architectural features for the purposes of this policy.
It is common ground that the proposed development is a development 'of increased height' for the purposes of the Streetscape Policy. It is also common ground that although the proposed floor area of the footprint of the second level does not exceed 15% of the site area (it is approximately 13.65% of the site area), the development does not comply with the policy provision in cl 6.3 of the Streetscape Policy that any twostorey development is 'to be located in the middle third of the lot'. In particular, of the 57 square metres of floor space proposed within the upper floor of the development, approximately 26 square metres or approximately 45% is proposed in the rear third of the lot, and approximately 31 square metres or approximately 55% is located in the middle third of the lot.
Clause 39(3) of TPS 4 states as follows:
Unless otherwise provided for in the Scheme, the development of any land for any of the residential purposes dealt with by the … Codes is to conform to the provisions of those Codes.
The proposed development does not conform to the acceptable development provision in cl 6.3.2 A2 of the Codes which provides an acceptable development provision in relation to 'buildings on boundary' as part of Element 6.3 boundary set-back requirements as follows:
iiin areas coded R20 and R25, walls not higher than 3 m with an average of 2.7 m up to 9 m in length up to one side boundary only; …
The proposed development does not conform to cl 6.3.2 A2 of the Codes in the following three respects:
Firstly, whereas the acceptable development provision contemplates boundary development 'to one side boundary only', the proposed development includes boundary walls on both the eastern and western side boundaries, although the proposed boundary wall on the western side boundary abuts an existing boundary wall matching it on the eastern boundary of the adjoining property to the west at No 147 Keightley Road. No issue is taken by the City in relation to that wall. Secondly, the proposed eastern boundary wall, while complying with the maximum length of 9 metres contemplated in the acceptable development provision, has a maximum height of 3.2 metres or 3.4 metres, whereas the maximum height contemplated by the acceptable development provision is 3 metres. Thirdly, the average height of the eastern boundary wall as proposed is 3 metres, whereas the acceptable development provision contemplates an average of 2.7 metres as a maximum.
The objective of Element 6.3 Boundary setback requirements of the Codes is as follows:
To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties.
The corresponding performance criteria to the acceptable development provision in cl 6.3.2 P2 is as follows:
Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
Towards the end of the hearing, Mr Dean Lewis, the designing architect and Mr and Mrs Cassidy's representative and expert witness, indicated that the proposal could be modified in the plans submitted for the building licence, such that the eastern boundary wall is reduced in height to a maximum of 3 metres with an average of 2.7 metres. The eastern boundary wall encompasses the garage and laundry. However, even if this amendment were made, the development would not conform to the acceptable development provision because it would involve two side boundary walls. While Mr Lewis indicated that, if necessary, Mr and Mrs Cassidy would accept the setting back of the western boundary wall, such an amendment would have no benefit to anyone and would not make effective use of the space of the site.
For reasons to which I will come in relation to the first issue below, I consider that the performance criteria in cl 6.3.2 P2 of the Codes relating to buildings on boundary are satisfied in the circumstances of this case, even as the application is currently proposed. However, the amendment discussed with Mr Lewis would clearly have a benefit in terms of the amenity of the adjoining property to the east and, as it can be accommodated without comprising the development in any substantial way, it should be imposed by way of condition.

Issues

The following five issues require determination:
1)Does the proposed development conform to the performance criteria in cl 6.3.2 P2 of the Codes relating to buildings on boundary?
2)Should the application be approved with upper level development outside the middle third of the lot in relation to Council's Streetscape Policy?
3)Does the proposed development meet the aims and objectives of the Residential zone?
4)Should the variations sought be granted giving due consideration to the existing streetscape and amenity of the locality and its inhabitants?
5)Would approval of the application be in accordance with orderly and proper planning?
I will address each of these issues in turn.

Issue 1 Does the proposed development conform to the performance criteria in cl 6.3.2 P2 of the Codes?

Mr Lewis gave the following evidence in relation to this issue:
6.0The proposed boundary walls are capable of approval as they satisfy the Performance Criteria of the Residential Design Codes for the following reasons:
6.1The boundary walls will make effective use of the available space on the subject site and will enhance the amenity of the development[.]
6.2The eastern boundary wall exceeds the Acceptable Development criteria requirements by 0.2m and 0.3m relating to the maximum and average height respectively, as is necessitated due to the sloping site. The scale of this departure from the Acceptable Development requirements is considered minor[,] and no significant adverse impact on the amenity of the adjoining property to the east is anticipated[.]
6.3The proposed boundary wall to be constructed along the western boundary is to match the existing boundary wall constructed on the adjoining property and will consequently have no impact on the amenity of the adjoining property[.]
6.4Due to the site orientation and the proposed boundary walls being constructed up to the eastern and western boundaries, direct sun to major openings and outdoor living areas of the adjoining properties will still be available.
Mr Allerding agreed that the eastern boundary wall makes effective use of space, will not interfere with privacy and enhances the amenity of the development. I find that the proposed boundary walls therefore satisfy the first three bullet points of the performance criteria. However, Mr Allerding considered that the proposed eastern boundary wall would not satisfy the fourth bullet point because of its impacts on the internal and external rear areas of the property at No 143 Keightley Road, which is the residence of Mr and Mrs McGilvray. Mr Allerding gave the following evidence in this regard:
… the extent of scale and additional bulk presented by the boundary wall along this portion of the adjoining property, the primary indoor and outdoor habitable spaces, when combined with the effect of the upper level development, will have an adverse and undue impact by further enclosing the area in terms of bulk and scale. Whilst also contributing to the loss of some solar access (direct sunlight in the afternoon period)[,] the primary other concern other than the visual bulk and scale effect of the wall is loss of ventilation currently afforded to the property and its inhabitants.
It is the impact of bulk created by the extent of scale and location of the boundary wall adjacent to the indoor and outdoor living areas which will present significant adverse impact on the amenity of the adjoining property. The boundary wall will further enclose the neighbour's private open space and resulting in a restriction of ventilation to indoor habitable rooms and outdoor living areas to the adjoining property. This is exacerbated due to the affected areas being the neighbour's primary indoor habitable rooms and sole outdoor living area and private open space.
In relation to the fifth bullet point of the performance criteria, Mr Allerding accepted that while the proposed boundary wall on the eastern side would have some impact in terms of restricting solar access, he did 'not consider this aspect as a key impact for the purposes of this assessment'. The key impact therefore, in Mr Allerding's opinion, is bulk and scale of the proposed eastern boundary wall and its particular effect on the sole outdoor living area and the principal indoor living areas of Mr and Mrs McGilvray's house.
The courtyard area of No 143 Keightley Road comprises two areas a lower area at the same level as the house and an upper area at the same level as the carport and lane. The carport at No 143 Keightley Road is higher than the level of the proposed garage at the site because of the fall in the general topography from east to west. There is also a substantial pergola structure that occupies most of the lower part of the courtyard of No 143 Keightley Road, which has a translucent but opaque perspex cover. The cover allows sunlight and daylight penetration but does not allow viewing through it.
Having carefully reviewed the plans and having viewed the site from Mr and Mrs McGilvray's courtyard and internal living areas, I prefer Mr Lewis' evidence over Mr Allerding's in this respect and find that the proposed boundary wall will not have any significant adverse effect on the amenity of adjoining properties, and in particular the adjoining property at No 143 Keightley Road, for the following reasons.
There is an existing 200 millimetre thick limestone wall with six 380 millimetre thick piers that abut the common boundary with the site. The proposed boundary wall would abut part but not all of the limestone wall. The proposed boundary wall would exceed the height of the limestone wall by 600 millimetres for 1.2 metres from its southern end, by 900 millimetres for 1.9 metres, and by 1.3 metres for its remaining 5.9 metres. The visual impact of the proposed wall in perspective would, in fact, be less than these heights would suggest, particularly when a person would be close to the common boundary, because of the thickness of the limestone wall and the piers. In my view therefore, the proposed boundary wall on the eastern side of the development would not have a significant adverse impact on the courtyard area at No 143 Keightley Road in terms of bulk and scale because it would not materially increase the scale of boundary walls when viewed from this area. Furthermore, the proposed boundary wall would not extend to abut the northernmost part of the courtyard of the adjoining property.
From the internal parts of No 143 Keightley Road, the proposed boundary wall will not have any significant impact on amenity in terms of bulk and scale, both because it would be seen in the context of the existing boundary wall and pergola structure, including the opaque roof cover, and because of the degree of separation. From the master bedroom there is a setback of at least 4 metres from the proposed boundary wall. From the meals room there is a setback of at least 2.5 metres and from the family room there is a setback of at least 6.5 metres.
In my opinion, for these reasons, the proposed boundary wall would also not have any significant adverse effect on the amenity of the adjoining property at No 143 Keightley Road in terms of access to daylight and ventilation.
However, as I mentioned earlier, Mr Lewis indicated that it would be possible to redesign the eastern part of the development to reduce the height of the boundary wall by 200 millimetres without compromising the design of the development. In my view therefore, the application should be conditioned to require the reduction in height of the boundary wall, as suggested by Mr Lewis.

Issue 2 Should the application be approved with upper level development outside the middle third of the lot?

The Tribunal has discussed the function of planning policy in planning assessments in a number of decisions summarised in Citigate Properties Pty Ltd and City of Bunbury [2009] WASAT 249 at [49] [50]. I incorporate those paragraphs into these reasons. The principles can be summarised in the following three propositions:
1)planning policy has to be considered as a fundamental element in or a focal point of the decisionmaking process;
2)the existence of a policy cannot replace the discretion of the decisionmaker in the sense that it is to be inflexibly applied regardless of the merits of the particular case; and
3)there must generally be a cogent reason to depart from a sound planning policy that has been regularly applied.
In my view, in the circumstances of this case there are cogent reasons to depart from the strict application of the Streetscape Policy in terms of the requirement in cl 6.3 for any twostorey development 'to be located in the middle third of the lot'. It is apparent from cl 6.3 of the Streetscape Policy that this provision is intended to ensure that 'a building of increased height [is] designed as to appear as a predominately single[]storey house' as viewed from the primary street when the surrounding development is predominately single storey. While it appears that about 20% of houses within 50 metres of the site have twostorey elements, the surrounding development is predominately single storey, both in terms of this numerical standard in cl 6.3 of the Streetscape Policy and as a matter of planning assessment. As noted earlier, the first objective of the Streetscape Policy is 'to ensure that new development is consistent with the character and in particular the scale of existing residential development'. The three dimensional perspective prepared by Mr Lewis demonstrates that the proposed development is designed so as to appear as a predominantly singlestorey house and is consistent with the character and scale of the existing, predominantly single storey, residential development. Therefore, while the development does not fully comply with the middle third policy, it satisfies the intent of the policy.
Furthermore, the length of the proposed upper level, which is approximately 13.8 metres north/south, could be substantially accommodated within the middle third of the lot, as the lot has a length of approximately 37 metres. However, as Mr Lewis pointed out and as is clear from the line of sight diagram presented, moving the proposed upper level forward such that it substantially complied with the middle third requirement would make the upper level far more prominent within the streetscape. Therefore, in the circumstances of this case, requiring compliance with the middle third policy would transform a development that satisfies the first objective of the Streetscape Policy and the intent of the middle third requirement into a development that does not comply with that objective and the intent of that part of the policy.
As noted earlier, another objective of the Streetscape Policy is 'to protect the amenity for adjacent properties with reference particularly to solar access, day lighting and privacy'. The city called Mr Peter McGilvray to give evidence in its case. Mr McGilvray referred to his objection to the Council made in late 2009. The development the subject of the application was amended in August 2010 to reduce the extent of the proposed upper level. Mr McGilvray recognised that the plans of the proposal have been amended but said that his concerns expressed in his objection still remain. In particular, he said:
In regard to those plans being considered by the Tribunal, I am still concerned about the potential for loss of ventilation, loss of afternoon sun and access to sunlight to our rear living area and also the bulk and scale of the proposal especially when viewed from my patio, living, dining and master bedroom. …
In oral evidence, Mr McGilvray explained that the reference to his 'patio' is to the rear courtyard and the references to the 'living' and 'dining' areas are references to the family and meals room. Mr Allerding gave evidence that, in his opinion:
The combined impact of this upper level development adjacent to the neighbour's primary indoor and outdoor habitable space creates further bulk and scale that gives rise to adverse amenity impacts in terms of restriction on solar access and adequate ventilation to indoor habitable rooms, outdoor living areas and private open space.
However, in my view and having carefully considered the plans and viewed the site from Mr and Mrs McGilvray's property, the careful design of the proposed upper level achieves the objective to protect the amenity of adjacent and adjoining properties. As Mr Lewis pointed out, the proposed upper level has been carefully articulated by setbacks ranging from 1.57 metres to the common boundary in the southernmost part to 2.88 metres where it is opposite the meals and family room of Mr and Mrs McGilvray's property.
From the rear part of the courtyard of No 143 Keightley Road, the uppermost level of the proposal would be visible because of the increased height of that part of the courtyard. However, the overall height of the second level would be mitigated because of the level of the viewer. Furthermore, the uppermost level would be set back from the upper courtyard of the adjoining property by at least approximately 3 metres increasing to up to 8 or 9 metres. In relation to the majority of the lower part of the courtyard, the effect of the existing limestone wall, the proposed boundary wall and the opaque roofed pergola would be such that it is unlikely that the uppermost level of the proposal would be visible. From the northernmost section of the lower courtyard of No 143 Keightley Road, which is between the meals room of No 143 Keightley Road and the common boundary, the proposed upper level of the development would be seen between the top of the limestone wall and the edge of the opaque roofed pergola, but would be set back by 2.88 metres from the boundary. Because the existing structures at No 143 Keightley Road and the staggered setbacks and careful design of the proposed development, the second level would not have, in my view, any undue adverse impacts on the amenity of the courtyard area of No 143 Keightley Road in terms of bulk and scale, access to daylight or sunlight or ventilation.
In terms of impact on the internal areas of No 143 Keightley Road, for these reasons also, the proposed upper level would not, in my view, have any undue adverse impact. Furthermore, the impact of the proposed upper level is reduced by the distance between the internal areas of the adjoining property and the proposed second level of the development. The separation is a minimum of 3 to 4 metres from the master bedroom, a minimum of 5 metres from the meals room and a minimum of 7 to 9 metres from the family room of the adjoining property. Finally, the proposed upper level does not give rise to any material privacy concerns because of the design of the development.
As noted earlier, the Streetscape Policy guides or informs the exercise of discretion under cl 42(1)(b) of TPS 4 as to whether there is 'no undue adverse impact on adjoining residential sites or the general amenity of the locality'. I find, for reasons discussed earlier, that there will be no undue adverse impact on adjoining residential sites, and in particular No 143 Keightley Road, or the general amenity of the locality in consequence of the uppermost level proposed. Therefore, in the circumstances of this case it is appropriate to exercise discretion under cl 42(1)(b) of TPS 4 to approve the proposed upper level.

Issue 3 Does the proposal meet the aims and objectives of the residential zone?

I set out earlier relevant objectives of the residential zone emphasised by the City. I find that, for reasons already given, the proposed development is consistent with those objectives. In particular, I find that the sensible and reasoned location of the uppermost part of the proposal, although in this case located in part within the rear third of the site, preserves the character of existing housing stock by locating the uppermost level away from the street so that the development would present predominantly as a singlestorey house. The development does enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, and the adherence to solar and environmentally sound design principles. In this regard, I accept the evidence of Mr Lewis that the development has been carefully designed to maximise solar penetration into the house.
I also find that the proposed development ensures compatibility with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping, by maintaining the existing streetscape and enhancing it and by adding additional accommodation in a manner that is consistent with the character of the locality.
I note finally in relation to streetscape that Mr Allerding expressed a concern in his witness statement about the side boundary walls having an impact in terms of streetscape. I am satisfied that, because of the considerable setback of the side boundary walls from the street and the design of the development generally, the boundary walls would not have any material impact on streetscape.

Issue 4 Should the variation sought be granted giving due consideration to the existing streetscape and amenity of the locality and its inhabitants?

The only 'variations sought' that were identified by the City are those already discussed. The Council and the Tribunal on review retains a broader planning discretion to consider and determine a development application, notwithstanding compliance with the performance criteria of the Codes and other provisions of the Scheme. This planning assessment requires consideration of the matters set out in cl 27(4) of TPS 4. However, the key matters for consideration raised by the City are restricted to the side boundary on the eastern side and the uppermost level, and in particular, the impact of those elements on the adjoining property to the east. In my view, having carefully considered the application and the plans, and having viewed the site from the adjoining property, the cumulative impact of the wall, particularly if reduced by 200 millimetres in the manner referred to by Mr Lewis, and the uppermost level of the proposal is acceptable. This is particularly the case because the boundary wall would be viewed in the context of existing substantial limestone boundary wall and the pergola structure, and because of the setbacks employed in relation to the uppermost level, which has been carefully staggered, particularly in setting back the section of the proposed uppermost level which is adjacent to the internal living areas at the rear of No 143 Keightley Road.

Issue 5 Would approval of the application be in accordance with orderly and proper planning?

No additional specific issue was raised by the City in this regard. There was a reference in Mr Allerding's witness statement to the precedent that approval of this application might set. The issue of precedent in this case is not relevant because the proposal is not, in itself, objectionable. Each application would need to be assessed on its own merits in particular, considered in the context of both the impact of upper storey development on the streetscape and on adjoining properties. I am satisfied that, in this particular case, the application warrants the exercise of discretion under the Scheme in relation to the uppermost level and warrants conditional development approval.

Conclusion

I am satisfied that there is no undue adverse impact on adjoining residential sites or the general amenity of the locality and therefore consider, guided by the Streetscape Policy, that in the circumstances of this case, the uppermost level warrants approval under cl 42(1)(b) of the Scheme. I consider that the performance criteria in cl 6.3.2 P2 of the Codes are satisfied in relation to the side boundary walls proposed, although the eastern boundary wall should be reduced in height to minimise impacts as suggested by Mr Lewis. I am also satisfied that the proposed development is consistent with the objectives of the Residential zone.
For all of these reasons, in my view, the application should be allowed and the decision of the respondent to refuse development approval set aside.

Orders

The orders of the Tribunal are as follows:
1.Brad and Fleur Cassidy are substituted as applicants.
2.The application for review is allowed.
3.The decision of the respondent made on 7 September 2010 to refuse development approval under the Metropolitan Region Scheme and the City of Subiaco Town Planning Scheme No 4 for two storey additions and alterations to the dwelling at No 145 (Lot 368) Keightley Road, Shenton Park is set aside and a decision is substituted that the development is approved subject to the following conditions:
(i)The roofing of the addition is to satisfy the definition of 'non-highly reflective' contained within the City of Subiaco's Reflective Roofing Policy. Details of the roofing material are to be submitted prior to the issue of a building licence and are to be to the satisfaction of the Manager Planning Services.
(ii)Prior to the occupation of the dwelling, convex mirrors are to be installed within the site boundaries to provide views to the east and west of the site along the right of way. Details of the convex mirrors are to be submitted to the City of Subiaco prior to the issue of a building licence to the satisfaction of the Manager Planning Services.
(iii)All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.
(iv)The development is to be carried out in accordance with the plans and drawings dated 13 August 2010 with the height of the eastern boundary wall reduced such that it is no higher than 3 metres with an average of 2.7 metres to be shown on the plans submitted for a building licence and only such minor modifications as the Manager Planning Services approves prior to the issue of a building licence.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER

[2011] WASAT 63

22/03/2011