CASSIDY and CITY OF SUBIACO

In the case of Cassidy and City of Subiaco, the dispute concerned the approval of a development application involving alterations and additions to a single storey house from the early 20th century. The key issue at hand was whether the proposed addition of a second level was permissible under the planning scheme, which generally restricts development to a single storey, with a discretionary exception where the second level does not unduly impact adjoining residential sites or the general amenity of the locality. The policy guiding this discretion requires that any two-storey development should be designed to appear predominantly as a single storey, excluding the requirement for such developments to be situated in the middle third of the lot.

The legal issues before the court encompassed whether the proposed second level addition complied with the scheme's discretionary exception, and whether the performance criteria for the boundary wall were satisfied. Specifically, the court had to determine if the 26 square metres of the proposed second level, located in the rear third of the lot, complied with the policy's requirement to maintain the appearance of a single storey house, and whether it adversely affected the adjoining property and boundary wall.

The court found that the development application did not meet the discretionary exception criteria as the second level addition did not maintain the appearance of a predominantly single storey house. The placement of the second level in the rear third of the lot, while compliant with the policy's geographical placement requirement, did not sufficiently mitigate the impact on the adjoining residential site and the general amenity of the locality. The court also concluded that the performance criteria for the boundary wall were not satisfied, as the second level addition would compromise the wall's integrity and effectiveness. As a result, the development application was not approved.

The final orders of the court were that the development application for the proposed alterations and additions to the single storey house was refused, due to the non-compliance with the planning scheme's discretionary exception and the failure to satisfy the performance criteria for the boundary wall. The decision highlighted the importance of maintaining the visual integrity of predominantly single storey residential developments within the locality, as well as the need to protect the interests of adjoining properties.