COENEN and CITY OF NEDLANDS
[2006] WASAT 111
•8 MAY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: COENEN and CITY OF NEDLANDS [2006] WASAT 111
MEMBER: MS J SMITHSON (SESSIONAL MEMBER)
HEARD: 7 FEBRUARY 2006
DELIVERED : 8 MAY 2006
FILE NO/S: DR 618 of 2005
BETWEEN: MURLEN COENEN
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning – Development application – Car port – Setback variations – Streetscape definition and impact – Condition review – Council policy – Residential outbuilding – Neighbour's objection – Definition of existing dwelling – Application allowed
Legislation:
Town Planning and Development Act 1928 (WA), s 8A
City of Nedlands Town Planning Scheme No 2, cl 6.1.1(a), cl 5.3.3, cl 5.3.3(b), cl 5.6.2
Residential Design Codes of Western Australia 2002, cl 3.2.3(P3), cl 3.2.3(A3.4)
Result:
The application for review is allowed
Category: B
Representation:
Counsel:
Applicant: Mr G Rowe
Respondent: Ms V Lummer
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings concerned an application for review of the City of Nedlands' (the City) imposition of a condition of planning approval requiring an increased front setback for a proposed carport situated at No 46 Robinson Road, Nedlands.
The application proposed the construction of a carport within the front setback area of an existing residential property.
The City approved the application but with a requirement that the front setback be increased from 3 metres to 3.5 metres. Specifically, condition 7 of the notice of planning approval required "the piers of the proposed carport to be setback [sic] a minimum of 3.5 metres from the front boundary, in accordance with Council's Policy – Carports and Minor Structures forward of the Primary Street Setback". A footnote to the approval stated that, with regard to condition 7, "the Council will allow the eaves of the carport to extend a maximum of 500 mm into the 3.5 metres setback area, to allow sufficient weather protection".
The Tribunal was not satisfied that the increased setback was warranted nor that the condition of approval was substantiated. An increased setback of 500 millimetres for part of the carport structure would have no material or beneficial impact in terms of the amenity of the area or on the streetscape but would have an adverse impact on the use of the property.
The application for review was upheld. Accordingly, condition 7 of the planning approval was set aside.
Introduction
The applicant is Ms Murlen Coenen (the applicant) who, with her husband, Jeop Coenen, resides at 46 Robinson Road, Nedlands. The respondent is the City of Nedlands (the City).
The applicant had applied to erect a carport in front of a recently completed brick and tile residence at Lot 312 (No 46) Robinson Road, Nedlands (site), on land which is zoned "Residential R15" under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or the Scheme).
In 2001, the applicant had submitted a development application to the City for additions to an existing dwelling and for a new carport with a 1.5 metre setback from the street. This application was approved by the City but the development did not proceed. A separate application was lodged in late 2001 for a pool and workshop at the rear of the site and this development was subsequently approved and undertaken.
In August 2003, a further application was submitted to redevelop the property for a new two‑storey residence which was approved in December 2003. A carport did not comprise part of this application. In May 2005 an application was submitted for a double carport with a 3 metre front setback and a side setback of 1 metre. The proposed carport was 5.9 metres wide by 5.3 metres in length, constructed from timber posts and a colourbond roof to match the existing residence on the site. This was approved by the City but with a required front setback of 3.5 metres.
In July 2005, a further, identical application was lodged with the City. The application had additional supporting information and was advertised to adjoining neighbours. Objections were received from three of those neighbours. City officers recommended approval with a 3 metre setback. However, in September 2005, the Council resolved to approve the application subject to conditions including a condition requiring an increased setback to 3.5 metres with an allowance for a 500 millimetre eaves overhang within the front setback to provide weather protection (condition 7). The application for review was lodged following this decision.
For the reasons set out below in more detail, the Tribunal has determined that the proposed increase in setback is not warranted and that condition 7 of the approval should therefore be deleted. In summary, the reasons for this decision are:
(i)The increased setback sought would not make any substantive difference to the impact on neighbours or the streetscape.
(ii)Accommodating the increased setback would result in a less than desirable outcome in terms of the layout of development on the site and the appearance and functionality of the carport.
(iii)The development is generally compliant with the Scheme and Council Policy which permits variation of setback.
(iv)There is precedent for a reduced setback as sought and this, along with the Policy provisions allowing such setbacks for older development, has already had a material impact on the streetscape.
(v)There is no planning basis evident to the Tribunal for the objections raised by the neighbours.
The subject land and surrounds
The site has an area of 696 square metres and contains a two storey brick and tile residence constructed within the last five years. Footings have been laid in front of the residence for a double carport which is the subject of the application for review.
The site is situated within a residential street containing a mixture of one and two storey residences. Whilst the age of the residences vary, they are predominantly typical of the Californian or Federation era but with a number of more recent or new residences. Provision for off‑street parking ranges from nil to carports and garages with varying setbacks. For the majority of new developments, carports that do exist tend to be set back in excess of 3 metres whilst, for older residences, carport setbacks vary from 1 metre upwards.
As mentioned, the site is zoned "Residential R15" under TPS 2. It is zoned "Urban" under the Metropolitan Region Scheme.
Approval to any development or use of the site is required under cl 6.1.1(a) of TPS 2. Clause 5.3.3 of TPS 2 requires a general 9 metre setback for all dwellings within the residential zone unless provided for elsewhere in the Scheme. Dwellings include appurtenant structures such as carports.
Clause 5.6.2 contains a provision allowing the front setback of carports to be reduced to less than 9 metres but "where in the opinion of the Council a carport … by reason of its height, bulk or proposed use may adversely affect the amenity of the surrounding area the Council may impose conditions on its approval". In addition, cl 5.6.2 requires that certain requirements shall be met. These relate to the area of the roof, height of associated walls or fences, driveway gate heights and open walling. The subject carport meets all of these requirements.
Policy 7.1 Carports and Minor Structures forward of the Primary Street Setback (Policy 7.1) was used by the City as the guiding policy in determining the application under review. Within Policy 7.1, carports associated with an existing dwelling may be constructed within the front setback area. Policy 7.1 then states: "The following setbacks shall be deemed as standard and measured to the columns of the carport – Primary Street Setback 3.5 metres …"
Policy 7.1 makes provision for applications which do not comply with the standard setbacks as follows:
"(c)Variations
(i)Where an application is received that does not comply with the … requirements, then an Officer will evaluate the application to determine whether the variation will have impact on either the relevant adjoining property or the streetscape.
Note: Some factors which may influence the evaluation are:‑
•existing buildings
•existing trees or vegetation
•topography of site
•lot size and/or shape.
(ii)Should it be determined that the variation will have a significant adverse impact on either the adjoining properties or the streetscape, the applicant will be contacted and requested to locate the carport in compliance with the standard requirements."
At a meeting in November 2005, which followed the City's determination of the subject application, Policy 7.1 was replaced by Policy 6.3.3 "as part of the Council's regular yearly review of policies". The terms of Policy 6.3.3 are largely identical to those of Policy 7.1 with the exception of the following additional requirement:
"Carports will only be approved forward of the primary street setback under this policy, provided a minimum of five years (5) has elapsed since the issue of a building licence by the City for the existing dwelling on the lot or for significant alterations/additions to the dwelling which has resulted in the need for a carport in this location."
The Residential Design Codes of Western Australia 2002 (Codes) contain provisions dealing with carports and the relevant provision in terms of setbacks is cl 3.2.3(P3) and cl 3.2.3(A3.4). The performance criteria requires the setting back of carports so as not to detract from streetscape or appearance of dwellings, or obstruct views of dwellings from the street and vice versa. The acceptable development to achieve this is that the width of the carport does not exceed 50% of the frontage at the building line and the construction allows an unobstructed view between the dwelling and the street.
The applicant's argument
Evidence was provided to the Tribunal by the applicant, by Mr Paul Cunningham, a town planner from Greg Rowe and Associates, and by Mr Behnam Bordbar, a traffic engineer from Transcore Pty Ltd.
The applicant advised that during 2002, various discussions were held with the City regarding the proposals to redevelop the existing residence. In May 2002, a development application was submitted for a new residence complying with the 9 metre front setback but proposing a carport within 3 metres. The applicant contends that City officers advised her that the application would be refused due to the non‑compliance with the carport setback and that the carport should be deleted and re‑applied for once the new residence had been constructed and would therefore be classified as an "existing dwelling" under the City's Carport Policy. The carport was deleted accordingly and, following a resubmission of a new application for the residence lodged in August 2003 addressing a basement non‑compliance issue, the new residence was approved and constructed. Subsequent applications for the carport lodged in May and July 2005 were approved, but required a 3.5 metre rather than a 3 metre setback.
The double carport is required to provide shelter for the applicant's cars. No covered shelter is currently available. A 3 metre setback is required as the location of the existing (new) residence and garden bed preclude any greater setback. It is intended to reverse vehicles into the carport. The location of the garden bed, with a drop of some 400 millimetres, would make access to the rear of vehicles difficult and unsafe if a 3.5 metre setback for pillars was imposed, resulting in cars not being able to be fully covered if access to the rear of vehicles was to be achieved. A 3 metre setback is therefore necessitated by existing site constraints resulting from the design of the new development that exists on the site. A 0.5 metre increase in setback would require a significant redesign which would have an adverse impact on the appearance and functionality of the carport as well as the value of the property.
The applicant also considered that there has already been a precedent set with carports on lesser setbacks in Robinson Street. These include at No's 31, 37 and 43 Robinson Street, with No 37 being a recently constructed dwelling.
Ms Coenen contends that objections were expected from the neighbours as there are ongoing disputes with the neighbours over the construction of the new residence. In terms of any concerns the neighbours may have she states in a letter to the City, dated 25 July 2005, that:
"Our proposed carport is open on all sides, no view is obstructed and therefore no sightlines of adjoining properties are affected. As we did redevelop our property we have every right to apply for a carport under Policy 7.1. This view was supported by the planning officer with our first application."
The officer's report to Council on the May 2005 application notes that the objections from neighbours relate to concerns with obstruction of views, amenity and use of Policy 7.1 to achieve a reduced setback. However, the officer concluded that the carport with a 3.5 metre setback "is not considered to affect sightlines of the adjoining property and is open on all sides. The applicant is within their rights to apply under Policy 7.1 for a setback variation, as a dwelling has been constructed on the subject lot, although recently constructed".
In the officer's report to Council on the July 2005 application it is noted that the recommendation to increase the setback to 3.5 metres:
"[W]as predominantly based on Administration advice there being no precedent in the street upon which to support a variation for the carport to be setback less than 3.5m [sic]. Subsequently the applicant has resubmitted the application with additional information relating to the setback of carports located on both sides of the street."
Mr Cunningham essentially argued that, as there is precedence for a variation in setback within the street, the City's grounds for requiring the increased setback were no longer valid. In any event, Mr Cunningham argues that the application should be assessed on its merits and, in this regard:
"[T]he location and design of the proposed double carport … has been designed in a manner to accommodate the existing structures (ie [sic] the dwelling, garden beds, vegetation etc.) whilst enhancing the streetscape and the dwelling's interface with neighbouring properties."
Mr Cunningham also disagreed with the City's assessment that streetscape should predominantly include only the side of the street on which the development was proposed given that the City uses a definition of streetscape which incorporates the visible components between "facing" buildings. It is impractical to define and apply "streetscape" to only one side of Robinson Street. Having regard to the definition in the Codes, a "streetscape" should include all visible elements within a street.
Mr Cunningham also queried the respondent's argument that Policy 7.1's reference to "existing developments" meant "older developments" as there is no reference in Policy 7.1 to suggest that the policy was formulated to address "older developments".
The proposal complies with the Codes' provisions for carports as it meets Performance Criteria 3.2.3 in terms of Acceptable Development A3.4. The site has a frontage of 16 metres and the double carport has a width of 5.9 metres equating to approximately 36.9% of the frontage at the building line. The proposed carport also allows an unobstructed view between the building and the street and vice versa.
Mr Bordbar's witness statement concluded that there were no traffic safety issues associated with the carport at a 3 metre front setback. The respondent did not dispute this.
The respondent's argument
Ms Sahai, a planning officer with the City, provided evidence to the Tribunal.
The decision of the City to approve a carport on the site in 2001 with a 1.5 metre setback, was on the basis that the previously existing house was an older dwelling with a front setback less than 9 metres. The current proposal differs in that a newly constructed dwelling now occupies the site and has a standard 9 metre setback.
Setbacks in residential areas are controlled by cl 5.3.3 of TPS 2. This clause requires a general 9 metre front setback for buildings used for residential purposes. This is higher than the standard Code requirement of 6 metres. The definition in the Codes of a "building used for residential purposes" includes "structures appurtenant to dwellings such as carports". The 9 metre setback would therefore normally apply to carports. However, provision is made in cl 5.6.2 of TPS 2 for the construction of a carport between the street and the front setback line subject to complying with the provisions of that clause and Council approval. Essentially those provisions require the City to determine the application having regard to the orderly and proper planning of the area.
In order to guide orderly and proper planning of the area in terms of carports, the City adopted Policy 7.1 in 1997. This policy stipulates a standard primary setback of 3.5 metres (measured from the columns of the carport) for carports constructed in connection with an existing dwelling. Ms Sahai's evidence was that "the original intent of the Policy was to provide a concession as to setback for older, existing houses, the design of which often left no other available space for covered car parking areas to be constructed behind the primary street setback". Ms Sahai acknowledged, however, that the imprecise wording of the policy allowed for newly constructed dwellings to also qualify as "existing dwellings" under the policy and thus obtain "significant concessions as to front setbacks". However, Ms Sahai also indicated this was only from 9 metres to 3.5 metres.
The policy was recently amended to restrict the definition of "existing dwellings" essentially to dwellings at least five years old. This was to "close the loophole" whereby newly constructed dwellings could qualify as "existing dwellings" under the policy shortly after completion. Ms Sahai stated that it is Council's intent that newly constructed dwellings have to fully comply with the 9 metre setback (including associated carports).
The application was originally assessed under the provisions of Policy 7.1. When the new dwelling was classified as "existing" Ms Sahai contended that, as the application is being reviewed by the Tribunal de novo, it is relevant to consider the more recent Policy 6.3.3 under which the new dwelling would not constitute an "existing dwelling" being less than five years old, and as such the required setback was in fact 9 metres not 3.5 metres. Ms Sahai did however, acknowledge that the applicant's house was designed and approved at a time when the applicant would have reasonable expectation of being able to build a carport on a reduced setback and "it would be impractical for the applicants now to modify their house design so as to allow a carport … within a setback of 9 metres".
The City contends that the central issue is whether the carport with a 3 metre setback will have an adverse impact upon the adjoining properties or streetscape.
Ms Sahai's opinion is that the "relevant streetscape" is the eastern side of Robinson Street running from No's 30 to 54 stating that:
"As the character of a streetscape can differ on either side of the street, it is the practice of the City's administration to generally assess applications for carports in front of the building setback on the basis of its impact on the streetscape on that side of the street and whether a precedence exists therein."
Ms Sahai contends that this is the intent of cl 5.3.3(b) of TPS 2 whereby variations to front setback are based on studying the setbacks of all dwellings on the same side of the street between two cross streets to ascertain if a more than 50% precedent for a reduction exists.
On the eastern side of Robinson Street, all carports meet or exceed the required 3.5 metre front setback, albeit the setbacks vary considerably. The average front setback is 5.53 metres. The carports that do exist are the closest built form to the street on this side of Robinson Street.
In Ms Sahai's opinion, a reduced setback of 3 metres would be out of character with the existing streetscape and would have an adverse impact upon that streetscape "by bringing the line of built form significantly closer to the street boundary". This would represent "an incremental but significant shift away from the objectives of Policies 7.1 and 6.3.3" which is "to ensure that the present open character and street amenity of the City of Nedlands is not compromised by the construction of the carport … within the primary street setback area".
Ms Sahai did not consider that the carport setbacks on the western side of the street were relevant in terms of determining streetscape impact. However, if they were, the precedence would not justify the current application as these carports were either approved prior to Policy 7.1 (No 31) or replaced existing older carports on the same or a lesser setback (No's 37 and 43) with No 43 also containing an older house. Other than these three instances there are no other properties with carports on a reduced setback in this part of Robinson Street. Therefore the proposed carport is also not consistent with the streetscape of the western portion of Robinson Street. It would also create an undesirable precedent for further erosion of the 3.5 metre setback if approved.
In terms of the impact on the adjoining residences, the City accepted that there was no impact on sightlines however, "noted that both adjoining neighbours lodged strong objections to the proposed variations … and consider that the proposed carport will have a negative impact on the streetscape".
In terms of the other factors which officers are advised by Policy 7.1 and Policy 6.3.3 to consider, Ms Sahai noted that there were no existing trees or vegetation, the site is at a similar level to the street, and the lot itself is flat and of a regular size and shape to those in the locality. The area in front of the residence incorporates footings for the carport set back 3 metres, but this does not provide any basis for justifying the proposed variation. In Ms Sahai's opinion, the design and location of the residence did not make the carport with piers set back 3.5 metres impractical to construct.
Evidence was also provided by Mr Paul Busby, a building surveyor with the City. Mr Busby contended that a carport could adequately be accommodated on the lot in front of the existing residence with front piers at a 3.5 metre setback. There would be a 100 millimetre gap between the residence and the carport. Compliance with the increased setback presents no construction issue other than a reduced eaves overhang at the front. It was open to the applicant to redesign their new residence prior to construction to accommodate a 3.5 metre setback as required by the policy and all necessary policies were readily available from the City at the time.
The respondent also called as a witness, Mr David Falconer, an immediately adjoining neighbour on the northern side residing at No 44 Robinson Street. Mr Falconer lodged objections to any reduced front setback for the proposed carport on the basis that this would "detract from the existing open streetscape on our side of the street where no other carport has less than a 3.5 metres setback, in accordance with Council policy to date". Mr Falconer did not wish to see this "open streetscape" become closed in by a number of carports on less than 3.5 metre setback which could potentially happen if the application was approved defeating the purpose of the Council's policy. Reduced setbacks on the opposite side of the street were a result of different circumstances being attached to old well established houses.
Mr Falconer believed that the applicant had the opportunity to design a new residence with a complying carport as Mr Falconer and the other adjoining neighbour did. Approval would create an undesirable precedent and would render Council's policy, which was designed to protect amenity, meaningless.
The issues for consideration
Accordingly, the following issues arise for consideration:
1)Whether the proposed application should be assessed under Policy 7.1 or Policy 6.3.3.
2)Whether the proposal meets the requirements of TPS 2 and the relevant policy (including impact on streetscape, amenity and neighbours).
The Tribunal will now consider each of these issues.
Whether the proposed application should be assessed under Policy 7.1 or 6.3.3
Policy 7.1 and Policy 6.3.3 are largely identical policies which provide guidance on carport setbacks. Policy 6.3.3 was adopted after approval to the application under review and varies from Policy 7.1 only to the extent of defining "existing development" as development that has been constructed for at least five years. The policy was deliberately amended to try and preclude reduced setbacks for recent developments such as that the subject of review.
As the Tribunal considers the application for review de novo the current applicable policy is Policy 6.3.3, provided it has been developed, advertised and adopted in accordance with TPS 2. There was some question raised by the applicant in this regard. In any event, the Tribunal formed the view that, in this particular circumstance, it would not be appropriate to strictly apply the definition of "existing development" in Policy 6.3.3 because the proposed development had been designed and approved having regard to and under the provision of Policy 7.1, and the variation appears to have been adopted in part to defeat this particular application.
Evidence was provided by the City that the intent of both policies was to only allow carports to be setback less than 9 metres where the siting of older established residences on setbacks less than 9 metres precluded carports at the front of residences achieving the required TPS 2 setbacks. Whilst this would seem a reasonable planning objective (if it is accepted that a 9 metre overall set back is appropriate for new development), neither Policy 7.1 nor Policy 6.3.3 provides this explanation. As was raised by Mr Rowe, the revised Policy (6.3.3) still doesn't meet the City's objective by suggesting that if owners of new development waited five years, they could be granted a significant reduction in front carport setback which is not the Council's intent.
Whether the proposal meets the requirements of TPS 2 and the relevant policy (including impact on streetscape, amenity and neighbours)
Clause 5.6.2 of TPS 2 permits carports to be developed within the 9 metre front setback. However, where the Council is of the opinion that such a development "may adversely affect the amenity of the surrounding area" by reason of "its height, bulk or proposed use", the Council "may impose conditions on its approval". A number of development criteria are then specified as applying to such developments. The proposed carport meets these criteria, which do not include a minimum setback requirement.
There was nothing raised in evidence to suggest the City had a concern with the height, bulk or proposed use of the carport which gave rise to the requirement for an increased setback. Sightlines were not a concern. The only issues of concern raised by the City were that of impact on streetscape, potential precedence and the strong objections of the neighbours.
Policy 7.1 and Policy 6.3.3 permit carports forward of the required primary setback but the side facing the street must be left open. The subject carport meets this requirement. Furthermore, a primary street setback of 3.5 metres, measured to the columns of the carport, is "deemed standard". However, the policies do not then preclude a lesser "non‑standard" setback. Rather, "an officer will evaluate the application to determine whether the variation will have impact on either the relevant adjoining property or the streetscape … Some factors which may influence this evaluation are existing buildings, existing trees or vegetation, topography of site and/or lot size and shape". Should it be determined that the variation will have significant adverse impact on either the adjoining property or the streetscape, "the applicant will be contacted and requested to locate the carport in compliance with the standard requirement".
The City argued that the lesser setback would have an impact on the streetscape on the basis that "streetscape" should only include the side of the street on which the property is located. The Tribunal prefers the evidence of Mr Cunningham that "streetscape" includes the entire street as it comprises the totality of buildings which face each other. The setbacks of carports in Robinson Street vary significantly from 1 metre to 9 metres. Whilst it is the case that the number of carports with a front setback of less than 3.5 metres are limited, apply predominantly to older properties, and have individual circumstances warranting their approval, the resultant effect is that there is no cohesive streetscape of uniform building (or carport) setbacks.
The effect of Policy 7.1 and Policy 6.3.3 is that older properties will continue to be able to accommodate carports with reduced setbacks with no minimum enforced (albeit 3.5 metres will be the standard). Furthermore, relatively recently constructed dwellings can, after five years, also apply for a reduced setback for new carports. Given there is a reasonable degree of redevelopment in the street (and no apparent preclusion of this), but also a significant number of retained older dwellings, there is no guarantee that an "open streetscape" will be retained. Approving this development would not create an undesirable precedent as there is no precedent for a uniform setback existing in the street today. It is therefore difficult for the Tribunal to accept that a 500 millimetre increased setback for a carport on this property would have any material or substantial adverse impact on the streetscape.
Other factors for consideration, such as site vegetation, configuration or topography do not appear to be relevant considerations, however, existing buildings are relevant. It appeared evident to the Tribunal that the new residence on the subject site was developed in its location with a clear applicant expectation that the City would approve a reduced setback for the carport albeit that there were no guarantees that this would occur. Furthermore, whilst an increased carport setback could be accommodated, it is accepted that the location and configuration of the garden bed would decrease the functionality of the carport. The physical appearance of the carport, with piers offset to accommodate the increased setback, would also detract from the appearance of the development when viewed from the street.
Whist the City indicated that there were "strong objections" from both neighbours, which Mr Falconer's evidence supported, the City did not venture an opinion on whether these objections were reasonable in terms of the relevant TPS 2 and policy provisions, other than in the issue of "streetscape" impact and precedent. The Tribunal finds that there would not be any direct adverse impact, by way of the location, height, bulk, functionality or safety of the carport structure on the immediately adjoining properties in terms of a decrease in amenity for these properties. Given the Tribunal's findings that the increased setback will not have an adverse impact on the streetscape, nor create an undesirable precedent, the objections of the neighbours largely fall away.
Conclusion
For the reasons summarised below, the Tribunal has determined that the application for review should be upheld and that condition 7 of the City's approval, and the associated footnote, should be removed. These reasons are:
i)The increased setback sought would not make any substantive difference to the impact on neighbours or the streetscape. This impact is not considered to be significant.
ii)Accommodating the increased setback would result in a less than desirable outcome in terms of the layout of development on the site and the appearance and functionality of the carport.
iii)The development is generally compliant with TPS 2 and with the Council's policy which permits variation in setback.
iv)There is precedent for a reduced setback as sought and this, along with the Policy provisions allowing such setbacks for older development, has already had, and will continue to have, a material impact on the streetscape.
v)There is no planning basis evident to the Tribunal for the objections raised by the neighbours.
For these reasons, the application for review is supported.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.Condition 7 of the City's approval, and the associated footnote, is deleted.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J SMITHSON, SESSIONAL MEMBER
0
3