COSTLEY and CITY OF SWAN

Case •

[2024] WASAT 94

•

9 SEPTEMBER 2024

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   COSTLEY and CITY OF SWAN [2024] WASAT 94

MEMBER:   MR R POVEY, MEMBER

HEARD:   17 JULY 2024

DELIVERED          :   9 SEPTEMBER 2024

FILE NO/S:   DR 20 of 2023

DR 194 of 2023

BETWEEN:   TERENCE COSTLEY

Applicant

AND

CITY OF SWAN

Respondent


Catchwords:

DR 20 of 2023 - Town planning - Unauthorised fill and retaining - Directions notice - DR 194 of 2023 - Town planning - Development application - Application for development approval - Fill and retaining - Design principles of the Residential Design Codes - Site works - Visual privacy - Lot boundary setbacks - Amenity - Landscape screening

Legislation:

City of Swan Local Planning Scheme No. 17, cl 5.2.2, Sch 5
Interpretation Act 1984 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67(1)(b)
Planning and Development Act 2005 (WA), s 32C(1), s 214(3), Pt 3A
Residential Design Codes Volume 1, cl 1.1, cl 2.2.2, cl 5.1, cl 5.1.3, cl 5.3, cl 5.3.7, cl 5.4, cl 5.4.1
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2)

Result:

DR 20 of 2023

Application for review is allowed
Decision of the respondent is set aside and a decision substituted

DR 194 of 2023

Application for review is allowed
Decision of the respondent is set aside and a decision substituted

Category:    B

Representation:

Counsel:

Applicant : T Houweling
Respondent : CA Slarke

Solicitors:

Applicant : Cornerstone Legal
Respondent : McLeods

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

APP Corporation Pty Ltd and City of Perth [2011] WASAT 132

Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4

John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19

Prosser and Town of Cottesloe [2021] WASAT 115

Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63

SPB (Australia) Pty Ltd v Town of Claremont [2003] WATPAT 138, (2003) 35 SR (WA) 32

Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116

Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR 296

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. A backyard swimming pool is commonly part of the Australian dream.  Swimming pools require a flat area of yard.  The backyard at No 51 Jinda Road, Koongamia (site) had a slope. 

  2. To accommodate a new swimming pool and spa at the site, without first obtaining the necessary development approval under City of Swan Local Planning Scheme No. 17 (LPS 17), retaining walls were constructed adjacent to the site's western and northern boundaries and the levels of the backyard increased, creating a flat area.  Fencing, at 1.8 metres high, was then erected atop the retaining walls.

  3. It is proposed to reduce the height of the western fence to 1.3 metres, for part of its length, and install landscape screening to 1.6 metres high adjacent to this lowered fence.  These works, including the existing retaining and filling, constitute the development (development).  The new pool and spa have been installed, and the surrounds paved.[1] 

    [1] A building permit was issued by the City for swimming pool and spa (however, this documentation was not in evidence before me) - Applicant's Bundle of Documents, page 1, para 4, Exhibit 10.  Development approval is not required under LPS 17 for the swimming pool and spa.

  4. Mr Terence Costley (applicant) seeks review of two decisions of the City of Swan (City or Council):

    (a)DR 20 of 2023, involves review of the City's decision on 11 January 2023[2] to issue a written direction (Notice) pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) which directs the development be removed and the site restored, as nearly as practicable, to its condition before the development started.[3]

    (b)DR 194 of 2023, involves review of the City's decision on 13 March 2024 to refuse to grant approval to the development under LPS 17.[4]

    [2] The parties identify 17 January 2023 as the date of the Notice.  However, this appears incorrect, as the City's covering letter to the applicant is dated 12 January 2023.  The Notice is signed by the City's Chief Executive Officer should be read as dated '11 January 2023'.  Nothing turns on this.

    [3] A copy of the Notice is at Respondent's s 24 Bundle of Documents, pages 2 - 3, Exhibit 4.

    [4] A copy of the City's decision dated 13 March 2024, Respondent's s 24 Bundle of Documents, pages 46 - 49, Exhibit 4.

  5. In these reasons I will first address the final hearing (hearing) and the expert witnesses.  Then I will identify the relevant planning framework, before describing the development, the site and the relevant locality.  Finally, I will outline the four issues for determination and consider and determine each issue.

  6. For the reasons that follow, I have determined the 'correct and preferrable decision'[5] in DR 194 of 2023 is to set aside the City's refusal decision and substitute a decision to approve the development, subject to conditions.  Consequently, I will make orders that the Notice, in DR 20 of 2023, be set aside.

    [5] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(2).

The hearing and the expert witnesses

  1. The hearing was conducted on 17 July 2024.  At the commencement of the hearing I, together with counsel for the parties, two expert planning witnesses and the applicant, undertook a view of the site and the surrounds.  Together with counsel and the planning experts, I also visited the backyard of No 49 Jinda Road, Koongamia (No 49).

  2. The respondent called Mr Daniel Hollingworth, a qualified town planner, as an expert witness, while Ms Andra Biondi, also a qualified town planner, was called on behalf of the applicant.  Each planning expert filed a witness statement and at the hearing their respective witness statements were accepted as their evidence-in-chief and they were cross-examined together.

Planning framework

  1. The relevant planning framework which I have considered in determining the applications includes:

    (a)PD Act;

    (b)Metropolitan Region Scheme;

    (c)LPS 17, which incorporates the Deemed Provisions;[6] and

    (d)Residential Design Codes Volume 1 (R-Codes) and the associated R-Codes Explanatory Guidelines (Guidelines).

Must the development conform with the R-Codes?

[6] The 'Deemed Provisions' are contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).

  1. Mr Slarke, counsel for the respondent, submits that because of cl 5.2.2 of LPS 17 the development is to conform with the provisions of the R­Codes. LPS 17 does not provide modifications to the R-Codes relevant to the development. Further, Mr Hollingworth, identifies that by virtue of Pt 3A of the PD Act, the R-Codes are now a Planning Code with the status of subsidiary legislation for the purposes of the Interpretation Act 1984 (WA).[7] 

    [7] Witness Statement of Daniel Hollingworth, paras 69 - 70, Exhibit 6; see also R-Codes at cl 1.1 and s 32C(1) of the PD Act.

  2. I accept this change does not alter the LPS 17 requirement that for the development to be approved it must conform with the relevant provisions of the R-Codes.  In The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, at [58], the Tribunal held that 'conform to' has a meaning that 'requires that any development for residential purposes be in accordance with, or comply with, the provisions of the [R-]Codes'. In this case, because of cl 5.2.2 of LPS 17 and cl 67(1)(b) of the Deemed Provisions, I accept, development approval cannot be granted for 'development that otherwise does not comply with a requirement of the Scheme …'.[8]

    [8] Deemed Provisions, cl 67(1)(b).

  3. Relevant in DR 194 of 2023 is cl 2.2.2 of the R-Codes 'Judging merit of proposal' which provides that where an application does not meet the deemed-to-comply provisions of the R-Codes and addresses the design principles, the decision-maker (the Tribunal in this instance) is required to exercise judgment and undertake a merit-based assessment to determine the proposal.  Clause 2.2.2 requires the decision-maker have regard to:[9]

    i.any relevant purpose, objective and provisions of the scheme;

    ii.any relevant objectives and provisions of the R-Codes;

    iii.the R-Codes Explanatory Guidelines;

    iv.a provision of a properly adopted local planning instrument consistent with the R-Codes; and

    v.orderly and proper planning.

    [9] Residential Design Codes Volume 1, page 5, Exhibit 5.

  4. The parties accept conformance with the relevant design principles of the R-Codes is central in these proceedings.[10]

    [10] ts 106 and 118, 17 July 2024.

  5. The applicant also points to the fact that officers of the City assessed the proposal and on three occasions recommended approval to Council.[11]  As the former Town Planning Appeal Tribunal observed, and since accepted on numerous occasions by this Tribunal,[12] in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, at [35] - [36]:

    Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees.

    It is accepted, without demure, that of course the decision at all times remains the Respondent's.  When, however, the matter is addressed by the Tribunal on appeal there is proper scope to consider the reflective advice provided to the Respondent in the course of its consideration on and deliberations about the relevant application.  It is in no way determinative of the matter before the Tribunal but nevertheless represents a matter to which regard ought to be had as a matter to be considered in the determination of this appeal.  To the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified planners are of assistance to the Tribunal.

    [11] Applicant's Bundle of Documents, paras 9, 20 and 22, Exhibit 10.  This included earlier versions.

    [12] See APP Corporation Pty Ltd and City of Perth [2011] WASAT 132 at 150 - 152.

  6. These review proceedings are by way of a hearing de novo for the purpose of producing the 'correct and preferable decision' based on the information and evidence now before me.[13]  While this includes a report and recommendation of the City's officers, which I have considered, I do not accord it weight because the report does not explicitly address all the design principles of the R-Codes I am now to consider.[14] 

    [13] SAT Act, s 27.

    [14] Respondent's s 24 Bundle of Documents, pages 34 - 45, Exhibit 4.

The development

  1. The development, I find, involves:

    (a)A western retaining wall of 19.89 metres long with a finished level of 52.66 AHD[15] and runs adjacent to the northern part of the western boundary of No 49.  It has a minimum height of 0.395 metres (closest to Jinda Road) and a maximum height of 1.44 metres (at the rear).[16] 

    (b)A northern retaining wall along the rear boundary of the site, adjacent to No 16 Baloo Place (No 16) and has a length of 11.95 metres and a finished level of 52.66 AHD. 

    (c)On top of the western and northern retaining walls is a 1.8 metre high Colorbond fence which reaches a height of 54.46 AHD.[17] 

    (d)The Colorbond fence on the western retaining wall is proposed to be reduced to 1.3 metres high[18] for a length of 14.7 metres, extending from the northern boundary, then stepping up to 1.8 metres high above the retaining wall, for its remaining 4.72 metre length.[19]

    (e)A maximum combined height of the western retaining wall and the 1.3 metre high Colorbond fence of 2.74 metres.[20]  The combined height of the northern retaining wall and the 1.8 metre Colorbond fence is approximately 3.1 metres.[21]

    (f)Landscape screening is proposed adjacent to the 1.3 metre high Colorbond fence, with five galvanised steel planter boxes, each planted with three 'Orange Jessamine' shrubs.  This screening is to be maintained to a height of 'no more than 1.6 metres above the top of the western retaining wall'.[22]

    (g)A finished level of fill surrounding the swimming pool and spa of 52.65 AHD.[23]

    [15] Australian Height Datum.

    [16] Respondent's SIFC, para 22, Exhibit 3.

    [17] Respondent's SIFC, para 24, Exhibit 3.

    [18] ts 27, 17 July 2024.  This is to be reduced from its current height of 1.8 metres.

    [19] Respondent's s 24 Bundle of Documents, page 32, Exhibit 4.

    [20] Being 1.44 metre high retaining wall plus 1.3 metre high Colorbond fence.

    [21] Respondent's SIFC, para 28, Exhibit 3.

    [22] Applicant's SIFC, para 24, Exhibit 9.

    [23] Respondent's s 24 Bundle of Documents, page 33, Exhibit 4.

  2. Development approval is necessary under LPS 17 because the height of the retaining walls, and associated fill, is greater than 0.5 metres above natural ground level and the combined height of the retaining walls and fencing is predominantly above 2.4 metres high.[24]

    [24] ts 42 - 44, 17 July 2024 and considering the height of the Colorbond fencing on the northern and western boundaries.  Schedule 5 of LPS 17 exempts fences below 2.4 metres in height from the need to obtain development approval.  While a part of the western Colorbond fence is accepted to be below 2.4 metres high, the evidence before me does not identify, with any precision, where that portion commences.

The site and the extent of the relevant locality

  1. The site, I find:

    (a)is zoned 'Residential' under LPS 17, with a split density coding of R20/R30; 

    (b)has an applicable coding of R20 because the site's area is less than 1300m2, being an area of 693m2;

    (c)has a frontage of 24.1 metres to Jinda Road and tapers along its eastern boundary to a rear (northern) boundary of 12.07 metres;

    (d)has a western boundary with No 49 of 38.22 metres;

    (e)prior to the development, had a slope downwards from front to rear of approximately 2 metres along its western boundary and 3 metres on its eastern boundary;[25] and

    (f)has on it a single storey, single house with the swimming pool and spa in the backyard.

    [25] Refusal of development application - Harley Dykstra survey plan, Exhibit 8 and Cottage Surveys plan, Exhibit 13.

  2. As to the locality, the planning experts agree the locality sits within the suburb of Koongamia, at the base of the Darling Scarp and 18.5 kilometres north-east of the Perth CBD.  However, the planning experts do not specifically identify an extent of the relevant locality. 

  3. Considering the planning matters raised in these proceedings, and the evidence before me, the extent of the relevant locality is, in my view, quite confined.  It includes the site and the neighbouring residential lots at No 49 and to the east, No 53 Jinda Road and No 3 Astroloma Place, which shares its rear boundary with part of the eastern boundary of the site.  It also includes three lots to the north, at the rear of the site, being No 14, No 16 and No 18 Baloo Place. 

  4. The planning experts identify a recent residential subdivision, comprising 21 lots, approximately 100 metres north of the site, at the intersection of Astroloma Place and Apara Place.  I accept this is the northern extent of the relevant locality. 

  5. I will return to consider the character of the locality at [98].

Issues for determination

  1. The parties agree, and I accept, the issues for determination are as follows. 

  2. In DR 194 of 2023:

    1.Does the development demonstrate compliance with R-Codes Design Principles cl 5.3.7 P 7.1, P7.2 and P7.3 with respect to site works?

    2.Does the development demonstrate compliance with R-Codes Design Principles cl 5.4.1 P1.1 and P1.2 with respect to visual privacy?

    3.Does the development demonstrate compliance with R-Codes Design Principle cl 5.1.3 P3.2 with respect to lot boundary setbacks?

  3. In DR 20 of 2023:

    4.Should the direction given by the respondent to the applicant be affirmed?

  4. I will consider and determine Issue 2 first,[26] and then consider and determine Issue 1 and Issue 3. The parties accept my findings to Issues 1 to 3 will inform my consideration and determination of Issue 4.[27]

    [26] Because cl 5.3.7 P7.3, at Issue 1, requires due regard be given to cl 5.4.1, which is Issue 2.

    [27] ts 4 and 17, 17 July 2024.

DR 194 of 2023

Issue 2 - Does the development demonstrate compliance with R-Codes Design Principles cl 5.4.1 P1.1 and P1.2 with respect to visual privacy?

  1. Clause 5.4 of the R-Codes addresses building design and, relevantly, contains Objective A:

    To design buildings and landscape to minimise adverse impact on the privacy of adjoining dwellings and private open space.

  2. Clause 5.4.1 addresses 'Visual privacy'.  For outdoor active habitable spaces with a floor level more than 0.5 metres above natural ground level a setback of 7.5 metres is required under the deemed­to­comply requirement of C1.1.  This setback is not provided along the western or northern boundaries where the level of fill exceeds 0.5 metres.

  3. Therefore, it is necessary to consider the Design Principles in cl 5.4.1 P1.1 and P1.2:

    P1.1Minimal direct overlooking of active habitable spaces and outdoor living areas of adjacent dwellings achieved through:

    •building layout and location;

    •design of major openings;

    •landscape screening[28] of outdoor active habitable spaces; and/or

    [28] Although bold text indicates a term with a corresponding definition in A1 Definitions of the R-Codes, I agree with the parties and the planning experts, that 'landscape screening' is not, in fact, a defined term.  It appears in A1 as separately defined words 'landscape' and 'screening' and, in my view, when combined does not convey a sensible meaning of 'landscape screening'.  I agree with the observation of Mr Slarke (ts 122, 17 July 2024), and respectfully suggest this anomaly should be addressed with the next edition of the R­Codes.

    •location of screening devices.

    P1.2Maximum visual privacy to side and rear boundaries through measures such as:

    •offsetting the location of ground and first floor windows so that viewing is oblique rather than direct;

    •building to the boundary where appropriate;

    •setting back the first floor from the side boundary;

    •providing higher or opaque and fixed windows; and/or

    •screen devices (including landscaping, fencing, obscure glazing, timber screens, external blinds, window hoods and shutters).

The parties' positions as to cl 5.4.1 P1.1 and P1.2

  1. The respondent contends the form of landscape screening proposed, vegetation in metal planter boxes, is unlikely to be a permanent or effective method of screening and, therefore, P1.1 is not met because the development will not result in minimal direct overlooking for the outdoor living areas of No 49.[29]  As to P1.2, the respondent contends the development does not demonstrate compliance because the method of screening proposed will not provide maximum visual privacy to the western boundary.[30]

    [29] Respondent's SIFC, para 41, Exhibit 3.

    [30] Respondent's SIFC, para 42, Exhibit 3.

  2. On the other hand, the applicant says the landscape screening is a permanent and effective form of screening that satisfies the height and permeability requirements of the R-Codes because it will obstruct views into the backyard of No 49.[31]

Is compliance with cl 5.4.1 P1.1 and P1.2 achieved?

[31] Applicant's SIFC, para 28, Exhibit 9.

  1. Ms Biondi accepts the retaining walls, and associated filling, creates the overlooking issue.[32]  However, she says the landscape screening will ensure minimal views outwards and downwards from the site into the active habitable space and the outdoor living areas of No 49 and provide further separation between their respective outdoor living areas.[33] 

    [32] ts 65, 17 July 2024.

    [33] Witness Statement of Andra Biondi, para 45 a), Exhibit 11.

  1. Ms Biondi also observes, from a photograph contained in an objection by the owner of No 49, that prior to the filling it appears that anyone standing in the site's backyard was able to see into the backyard of No 49.[34]  Given the original sloping topography of the site and the height of the original dividing fence, I accept this was likely the case for the southern (higher) portion between the house on the site and the southernmost outbuilding on No 49.  Ms Biondi argues the development results in a better visual privacy outcome between the two properties.[35]  Considering the height of the Colorbond fencing in this location, which is 1.8 metres above the western retaining wall, I accept this is the case for the southern portion of the development, adjacent the existing rear porch of the dwelling on the site.

    [34] Witness Statement of Andra Biondi, Annexure 5, page 141, Exhibit 11.

    [35] Witness Statement of Andra Biondi, Annexure 5, page 142, Exhibit 11.

  2. Mr Hollingworth asserts the visual privacy solution is not the result of considered design which has had regard to the original sloping topography, the positioning of neighbouring active habitable space or the positioning and use of the outdoor active habitable space within the site.[36]  He also opines that visual privacy is 'the most significant issue' with the development.[37]  However, under cross-examination Mr Hollingworth concedes, properly in my view, the two existing outbuildings at No 49, close to the common boundary with the site, screen all but a length of 2 - 3 metres of the northern part of the backyard of No 49.[38]

    [36] Witness Statement of Daniel Hollingworth, para 113, Exhibit 6.

    [37] ts 54, 17, July 2024.

    [38] ts 92, 17 July 2024.

  3. He also argues the landscape screening adjacent to the southern area of the backyard of No 49, which incorporates an outdoor living area, presents a fundamental issue.[39]  However, under further cross­examination Mr Hollingworth accepts visual privacy may be addressed by appropriate conditions of approval.[40]  I agree.

    [39] Ibid.

    [40] ts 93 - 94, 17 July 2024.

  4. Mr Hollingworth accepts, that under P1.1 and P1.2, landscaping 'can be used as an element of the screening strategy, however, it should not be a direct replacement'.[41]  He says this is because of variability due to seasons and the health of the plant.[42] 

    [41] Witness Statement of Daniel Hollingworth, para 115, Exhibit 6.

    [42] Witness Statement of Daniel Hollingworth, para 116, Exhibit 6.

  5. However, as the Tribunal held in Prosser and Town of Cottesloe [2021] WASAT 115 (Prosser), vegetation in the form of screen planting or selective planting of suitable trees or shrubs is expressly contemplated by the R-Codes as a suitable screening device for privacy control, subject to ensuring that the vegetation will remain in place.[43]  Further, in Prosser the Tribunal was satisfied, subject to a condition addressing maintenance of the landscaping, that compliance with the design principles is achieved.[44]

    [43] Prosser at [106].

    [44] Ibid.

  6. The draft 'without prejudice' conditions, which the parties agreed at the hearing,[45] provide mechanisms to address the selection and appropriateness of the vegetation species, as well as reticulation and ongoing maintenance of the landscape screening.[46]  These measures, considering the limited extent of potential overlooking, in my view, address the concerns identified by Mr Hollingworth.

    [45] ts 129 - 130, 17 July 2024.

    [46] Applicant's Draft without prejudice condition 3 (as amended at the hearing), ts 129 - 130, 17 July 2024.

  7. There is no contention raised as to visual privacy relating to No 16.  The northern retaining wall has a 1.8 metre high Colorbond fence constructed atop it which, on the evidence before me, provides visual privacy and prevents direct overlooking.

Findings - Issue 2

  1. I am satisfied, and I find, the development can comply with R­Codes Design Principles cl 5.4.1 P1.1 and P1.2 with respect to visual privacy for three reasons.

  2. First, on the western boundary, the presence of two outbuildings at No 49, already provide substantial screening, which means there is only a limited length where overlooking is possible into the backyard of No 49.

  3. Second, the landscape screening abutting the western boundary, maintained to a height of 1.6 metres and combined with the 1.3 metre high Colorbond fence, in the northern section, for a length of 14.7 metres, and then a 1.8 metre high Colorbond fence in the southern section, for a length of 4.72 metres, will result in minimal direct overlooking from the site and the maximisation of visual privacy of the outdoor active habitable spaces and outdoor living areas of No 49 such that design principles P1.1 and P1.2 in cl 5.4.1 are, in my view, met.  Appropriate conditions of approval can address the species selection, reticulation and maintenance of the landscape screening.

  4. Third, as to the northern boundary with a 1.8 metre high Colorbond fence atop the northern retaining wall, this fence satisfies the design principles at P1.1 and P1.2 in cl 5.4.1 because its height maximises visual privacy and results in minimal direct overlooking to the backyard of No 16.

  5. I will now turn to consider and determine Issue 1 and then Issue 3.

Issue 1 - Does the development demonstrate compliance with R-Codes Design Principles cl 5.3.7 P 7.1, P7.2 and P7.3 with respect to site works?

  1. Clause 5.3 addresses site planning and design.  Relevantly, Objective A states:

    Landscape design should optimise function, useability, privacy, social opportunity, equitable access, respect neighbours' amenity and provide for practical establishment and maintenance.

  2. Also, Objective C is:

    To ensure each development makes a contribution to a streetscape by respecting the natural topography for each site, adjoining properties and the amenity of the locality.

  3. It is uncontroversial that the development does not meet the deemed­to­comply requirements of cl 5.3.7 which addresses 'Site works'.[47]   Therefore, the development is to be considered against the relevant design principles P7.1 to P7.3, which are as follows: [48]

    P7.1Development that considers and responds to the natural features of the site and requires minimal excavation/fill.

    P7.2Where excavation/fill is necessary, all finished levels respecting the natural ground level at the lot boundary of the site and as viewed from the street.

    P7.3Retaining walls that result in land which can be effectively used for the benefit of residents and do not detrimentally affect adjoining properties and are designed, engineered and landscaped having due regard to clause 5.4.1.

    [47] Respondent's SIFC, para 29, Exhibit 3 and Applicant's SIFC, para 15, Exhibit 9.

    [48] R-Codes, page 32, Exhibit 5.

  4. 'Natural ground level' is defined in the R-Codes and means:[49]

    the levels on a site which precede the proposed development, excluding any site works unless approved by the decision-maker or established as part of subdivision of the land preceding development.

    [49] Residential Design Codes Volume 1, page 130, Exhibit 5.

  5. The planning experts accept that, in this case, excavation and/or fill to an extent is necessary for the installation of a pool given the sloping site.[50]  However, Mr Hollingworth asserts 'a proper design response would have respected the natural ground levels by cutting and filling at a lower level, perhaps stepped down from the dwelling to create a low level flat surface for the pool and surrounds, or possibly it could be set back further from the boundaries if there was a smaller pool or differently configured'.[51]

    [50] ts 49, 17 July 2024 and Witness Statement of Andra Biondi, para 40 a), Exhibit 11.

    [51] ts 120, 17 July 2024.

  6. It is not for me to determine if the development is the best possible solution, even if an alternative design response may be better.  Rather, I must determine the development before me on its merits against the applicable planning framework.  This is consistent with the observations of the former Town Planning Appeal Tribunal in SPB (Australia) Pty Ltd v Town of Claremont [2003] WATPAT 138, (2003) 35 SR (WA) 32 at [90] which identifies:

    … The function for the Tribunal is not, of course, to determine whether a proposed development is the best possible development, having regard to all issues, that might conceivably be placed on the subject site.  What the Tribunal must do is to assess whether, in the interests of all orderly and proper planning, and the amenity of the area, and having regard to all applicable planning instruments, a development should be approved.  Thus, unless it can be said that a proposed development is contrary to any of those considerations, it should be approved notwithstanding that some may think that a better development of the site might be possible.

  7. I will now consider the development against each of the design principles of cl 5.3.7, P7.1, P7.2 and P7.3.

P7.1

  1. The respondent contends the development does not meet design principle P7.1 because it does not respond appropriately to the natural features of the site and does not involve minimal fill.  The applicant contends P7.1 is met because the development responds to the sloping nature of the site and the surrounding properties.[52]

    [52] Applicant's SIFC, para 17, Exhibit 9.

  2. The respondent says, and the applicant does not disagree, the development involves approximately 30 cubic metres of fill added at the rear of the site.[53]  Along the western side the fill results in a 19.89 metre long retaining wall that tapers from 0.395 to 1.44 metres high.[54] 

    [53] Respondent's SIFC, para 8, Exhibit 3 and Applicant's SIFC, Exhibit 9.

    [54] The maximum height is agreed by the planning witnesses - Witness Statement of Daniel Hollingworth, para 29, Exhibit 6 and Witness Statement of Andra Biondi, para 29, Exhibit 11.

  3. Mr Hollingworth asserts the approach taken to site works has had little regard to the natural contours of the locality and the site.  He says the fill imported is to the maximum extent needed to create a finished level which corresponds with the lowest step of the rear patio.[55]  Under cross­examination, Ms Biondi accepts this reflects the levels of the development.[56] 

    [55] Witness Statement of Daniel Hollingworth, para 94, Exhibit 6.

    [56] ts 47, 17 July 2024.

  4. Mr Hollingworth considers it is necessary to take more of an averaging approach to site works to achieve minimal excavation and fill, so the average natural ground level remains more or less the same.[57]  However, as Mr Houweling, counsel for the applicant, submits, and as the respondent also identifies,[58] excavation was necessary to create the hole for the swimming pool.[59]  Mr Hollingworth, under cross­examination, also agrees that to accommodate the pool, excavation and filling has to be kept to a minimum but asserts the retaining walls 'are a consequence of the pool chosen' and its size and orientation.[60]

    [57] ts 83, 17 July 2024.

    [58] ts 47, 17 July 2024.

    [59] ts 109, 17 July 2024.

    [60] ts 82 - 83, 17 July 2024.

  5. While a lower backyard level may have been possible, the site works, as the parties agree, required not insignificant excavation, for what Mr Hollingworth accepts is, a 'large pool'.[61]  In this context, I consider the development involves minimal excavation and fill.

    [61] ts 81, 17 July 2024.

  6. P7.1 also requires the development to consider and respond to the natural features of the site, which in this case is its sloping topography.  There are significant level differences between the site and the adjoining lots on the western and eastern boundaries.  No 3 Astroloma Place, on the east, sits approximately 2.1 metres higher than the level of No 49 Jinda Road on the western side.[62]  The development is lower, by 0.57 metres, than No 3 Astroloma Place.[63]  Further, a fall of approximately 2 metres occurs along the western boundary of the site and prior to the development it fell 3 metres along its eastern boundary.

    [62] Along the northern boundary of the site.

    [63] Cottage Surveys Plan, Exhibit 13.

  7. Considering the topography, the excavation required for the pool and the levels of the development, in my view, the finished levels consider and respond sufficiently to the natural slope of the site, and result in development which requires minimal excavation/fill to achieve a functional flat area and accommodate the swimming pool.  Therefore P7.1 is, in my view, satisfied, in the circumstances of this case.

P7.2

  1. The respondent accepts the development is consistent with the natural ground level when viewed from the street.  The respondent's contention is the level at the northern and western boundaries and that the development does not satisfy P7.2 which requires 'all finished levels respecting the natural ground level at the lot boundary of the site …'.

  2. Here, Mr Slarke submits that 'respect', which is not defined in the R­Codes, should take its ordinary meaning,[64] which in the context of P7.2 he says, and I accept, means:[65]

    (a)consideration or regard, as to something that might influence a choice;

    (b)to show esteem, regard, or consideration for; and

    (c)to treat with consideration; refrain from interfering with.

    [64] From Macquarie Dictionary Online.

    [65] ts 120, 17 July 2024.

  3. To be clear, the City says some retaining is acceptable, but contends the development does not sufficiently respect the site's sloping topography and it is this that results in unacceptably high retaining.  The planning experts agree, and I accept, the retaining extends to be 1.44 metres above the north-west corner of the adjoining site, No 49.[66] 

    [66] ts 107, 17 July 2024.

  4. The Guidelines identify that '[d]evelopment below natural ground level only rarely affects neighbouring sites …' and '[b]y contrast, filling above natural ground level, especially where, it results in replacing a natural slope with ground and retaining walls is usually visually prominent'.[67]  The City submits this is the case with the development.[68]

    [67] Guidelines, page 50.

    [68] ts 121, 17 July 2024.

  5. Mr Hollingworth asserts the detrimental impacts of the development result from bulk and visual privacy.[69]  I considered visual privacy at Issue 2.[70]  As to bulk, he says 'the significant filling results in the replacement of the characteristic sloping topography of the locality and construction of visually prominent walls, which are incompatible with the visual amenity of adjoining properties'.[71]

    [69] Witness Statement of Daniel Hollingworth, para 98, Exhibit 6.

    [70] See [27] - [43].

    [71] Witness Statement of Daniel Hollingworth, para 96, Exhibit 6.

  6. I accept the development changes the sloping topography at the rear of the site.  However, this is not particularly unusual in the relevant locality.  The subdivision of the adjoining lot to the east, which created No 3 Astroloma Place, also involved retaining walls and filling.  This was observed at the view.[72]  It appears, prior to the development, the retaining wall on No 3 Astroloma Place, abutting the site's eastern boundary, reached a height of approximately 1.86 metres above the backyard of the site.[73]

    [72] ts 10, 17 July 2024.

    [73] Cottage Surveys plan, Exhibit 13 and Historic Aerial Photographs 24 April 2017 and 17 February 2020, Witness Statement of Daniel Hollingworth, Annexure 2, Exhibit 6.

  7. Further, and as mentioned, the planners identify within the locality a recent 21 lot residential subdivision on the northern side of Astroloma Place.  This subdivision makes extensive use of retaining walls to create flat lots.  While I observe these lots are significantly smaller than the site, I accept Ms Biondi's evidence that this subdivision's retaining walls range between 0.5 to over 1 metre high.[74]

    [74] Witness Statement of Andra Biondi, para 24, Exhibit 11.

  8. As to the northern retaining wall, this wall sits below or at the level of the original boundary fence (which remains), and it is the new 1.8 metre high Colorbond fence which is visible from No 16.  Further, while I accept No 16 is exposed to the greatest scale and bulk, this neighbour raises no objection.[75]  Given the site is located to its south and there is a significant setback, in the order of 15 metres, to the dwelling on No 16 and its outdoor living area, there is, I accept, no overshadowing of this backyard from the combined retaining wall and fence.[76] 

    [75] Respondent's s 24 Bundle of Documents, page 38, Exhibit 4.

    [76] Witness Statement of Andra Biondi, para 34 c), Exhibit 11.

  9. While Ms Biondi, under cross-examination, also says the northern retaining wall respects the natural ground level because of a 'slight setback' from the lot boundary,[77] I do not place significant weight on this evidence because a minimal setback only confirms no encroachment onto the neighbouring lot.  It does not explain how its height respects natural ground level or how interfering impacts are mitigated.

    [77] ts 49, 17 July 2024.

  10. This notwithstanding, considering the other evidence before me, the northern boundary wall, in my view, sufficiently respects the natural ground levels at this lot boundary as its bulk is mitigated by being to the south of No 16, with a significant setback to the dwelling and the outdoor living area on this lot.

  11. As to the western retaining wall, Mr Hollingworth's written evidence does not differentiate the bulk impacts between the northern and western retaining walls.  In my view, there are two differences which mitigate the bulk impact of the western wall, where the owner at No 49 holds an objection. 

  12. Firstly, as mentioned, the western retaining wall tapers from 0.395 to 1.44 metres high over its length of 19.89 metres.  Secondly, for a significant length this wall is obscured by two existing outbuildings on No 49.  Ms Biondi correctly, in my view, identifies these outbuildings provide a visual obstruction between the outdoor living area of No 49 and the western retaining wall.[78]  Further, the outbuildings are located against the rear (northern) portion of the western retaining wall, near where it extends to its highest.

    [78] Witness Statement of Andra Biondi, para 40 c), Exhibit 11.

  13. Given these factors, I do not accept the tapering height of the western retaining wall has a negative bulk impact on No 49, even at its highest, 1.44 metres.

  14. Ultimately, whether the development demonstrates 'respect' for the natural ground level of adjoining sites requires the exercise of judgment considering the natural ground levels, the extent of visual prominence of the retaining walls and what interference they may cause.  On the evidence before me, and in the context of the site, the level of the northern and western retaining walls, in my view, sufficiently respect the natural ground levels at each lot boundary.

P7.3

  1. Finally, the respondent contends the development does not meet design principle P7.3 because the retaining walls and Colorbond fencing detrimentally affects No 49 and No 16 through excessive height, bulk and scale.[79] 

    [79] Respondent's SIFC, para 35, Exhibit 3.

  2. The parties agree the retaining walls result in an area which can be effectively used for the benefit of the residents.[80]  However, visual privacy and bulk (including height and scale) are the two detrimental impacts raised in this case.  P7.3 requires due regard be given to cl 5.4.1.  I considered this earlier at Issue 2 and found the development can meet the design principles relating to visual privacy.  At P7.2, I considered the bulk of the development in the context of the adjoining sites to the north and west. 

    [80] ts 51, 17 July 2024.

  3. As to the respondent's concern about the Colorbond fence on the western retaining wall, the fence is to be reduced to 1.3 metres above this wall which, in my view, will appropriately address the bulk impact.  This is particularly so given the wall and fence are largely obscured by the two outbuildings on No 49.

  4. Therefore, because the development does not result in a detrimental impact on adjoining properties, in my view, P7.3 is met.

Findings - Issue 1

  1. The development, I am satisfied, and I find, demonstrates compliance with the design principles in cl 5.3.7 P7.1, P7.2 and P7.3 with respect to site works for three reasons.

  2. First, as to P7.1, the development involves site works that considers and responds appropriately to the natural features of the site, in this case, its sloping topography.  Further, the development creates a flat area of backyard to enable a swimming pool to be installed which involves minimal excavation and filling in the context of this development and site.

  3. Second, as to P7.2, considering the site and its relationship with No 16 to the north, No 49 on the west, and No 3 Astroloma Place to the east, the level of fill along each adjoining lot boundary, in my view, sufficiently respects natural ground levels and has no impact on Jinda Road.

  4. Third, the development results in land which can be effectively used to benefit the residents and, considering my findings relevant to cl 5.4.1, in Issue 2, it will not have a detrimental impact on the visual privacy of adjoining properties.  Further, the bulk impact of the development, including its scale and height, is acceptable.  Therefore, the development satisfies P7.3.

Issue 3 - Does the development demonstrate compliance with R-Codes Design Principle cl 5.1.3 P3.2 with respect to lot boundary setbacks?

  1. Clause 5.1 of the R-Codes addresses context.  Relevantly, Objective B states:

    To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.

  2. Also, Objective C is:

    To ensure adequate provision of sunlight and natural ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.

  3. The R-Codes, at cl 5.1.3 addresses 'Lot boundary setbacks' and the design principle P3.2 is satisfied if 'development demonstrates compliance with the following …':[81]

    P3.2Buildings built up to boundaries (other than the street boundary) where this:

    •makes more effective use of space for enhanced privacy for the occupant/s or outdoor living areas;

    •does not compromise the design principle contained in clause 5.1.3 P3.1;

    •does not have any adverse impact on the amenity of the adjoining property;

    •ensures sunlight to major openings to habitable rooms and outdoor living areas for adjoining properties is not restricted; and

    •positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.

    [81] Residential Design Codes Volume 1, page 16, Exhibit 5.

  4. Clause 5.1.3 P3.1, identified in P3.2 above, states:

    P3.1Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:

    •reduce impacts of building bulk on adjoining properties;

    •provide adequate sunlight and ventilation to the building and open spaces on the site and adjoining properties; and

    •minimise the extent of overlooking and resultant loss of privacy on adjoining properties.

  5. 'Amenity' is identified in dot point 3 of P3.2.  In the R-Codes, 'Amenity' is:[82]

    - as defined under the Planning and Development (Local Planning Schemes) Regulations 2015 and includes the 'liveability', comfort or quality of a place which makes it pleasant and agreeable to be in for individuals and the community. Amenity is important in the public, communal and private domains and includes the enjoyment of sunlight, outlook, privacy and quiet. It also includes protection from pollution and odours.

    [82] A1 Definitions, Residential Design Codes Volume 1, page 128, Exhibit 5.

  6. The above references the definition of 'Amenity' in the Deemed Provisions,[83] which:

    means all those factors which combine to form the character of an area and include the present and likely future amenity.

Is P3.1 compromised?

[83] At cl 1.

  1. The respondent contends design principle P3.1 is compromised for two reasons, as the retaining wall combined with the Colorbond fence does not:[84]

    (a)reduce the impact of building bulk on adjoining properties, rather it increases the impact; and

    (b)minimise the extent of overlooking and resultant loss of privacy on No 49, but rather increases both the extent of overlooking and the resultant loss of privacy.

    [84] Respondent's SIFC, para 48, Exhibit 3.

  2. The applicant contends P3.1 is met because any perceived bulk at No 49 is obstructed by two existing outbuildings and the lowered fence height of 1.3 metres will soften the bulk and allow light and ventilation to the backyard areas between the site and No 49.

  3. Considering P3.1, Mr Hollingworth's concerns in his witness statement focus on the impact on No 49.  He asserts the retaining wall, with the associated fence, presents 'as a monotonous structure, with little attempt made to manage the impact of bulk through articulation, particularly to the western neighbour'.[85]  He identifies that a reduction in the deemed­to-comply requirements may be considered where it is preferable from a practical or aesthetic perspective and does not impact the amenity of adjoining neighbours.[86]  Mr Slarke submits, and I accept, this reflects the explanation given in the Guidelines.[87] 

    [85] Witness Statement of Daniel Hollingworth, para 133, Exhibit 6.

    [86] Witness Statement of Daniel Hollingworth, para 135, Exhibit 6.

    [87] ts 125, 17 July 2024; Guidelines, page 27.

  4. The impact of building bulk associated with the retaining wall is primarily for the northern portion of the western retaining wall, which the planning experts agree tapers to a maximum height of 1.44 metres and to 2.74 metres including the 1.3 metre high fence.  As I observed earlier, this section of wall abuts two outbuildings in the backyard of No 49.  I agree with Ms Biondi, these structures largely screen the development and significantly ameliorate bulk and scale impacts.[88] 

    [88] ts 63, 17 July 2024.

  5. Ms Biondi opines that the modification to the fence on the western retaining wall, reducing it from 1.8 metres to 1.3 metres, responds to an objection by the owner of No 49, and seeks to reduce the impact of bulk[89] and, self-evidently, its scale. 

    [89] Witness Statement of Andra Biondi, para 33 b), Exhibit 11.

  6. Considering the above factors and evidence, I do not accept P3.1 is compromised in this case because the bulk impact on No 49 is significantly ameliorated by the presence of two outbuildings on this lot which are close to the common boundary with the site.  Further, lowering the fence from 1.3 to 1.8 metres high reduces the bulk impact for the limited extent where the development is visible from No 49.

Does the development demonstrate compliance with P3.2?

  1. The respondent contends the development does not demonstrate compliance with design principle P3.2 as:[90]

    (a)it does have an adverse impact on the amenity of the adjoining properties to the north and west; and

    (b)it does compromise design principle P3.1.

    [90] Respondent's SIFC, para 47, Exhibit 3.

  2. However, the respondent accepts the development makes more effective use of the backyard of the site (first dot point of P3.2), does not impact on sunlight of adjoining properties (fourth dot point of P3.2) and does not impact the Jinda Road streetscape (relevant to the fifth dot point of P3.2).[91]  I have also considered P3.1 (relevant to the second dot point of P3.2) and for the reasons outlined, in my view, this design principle is not compromised in this case.[92]

    [91] ts 61, 17 July 2024.

    [92] See [87] - [92].

  3. P3.2 also requires consideration of the amenity of adjoining properties and requires that where a building is built up to the boundary, it is not to have 'any adverse impact on the amenity of the adjoining property'.[93]

Does the development result in any adverse impact on the amenity of adjoining properties?

[93] Residential Design Codes Volume 1, page 16, Exhibit 5 - third dot point of P3.2.

  1. The case authorities on evaluating amenity are well known and settled.[94]  In Tempora,[95] the former Town Planning Appeal Tribunal set out a three­step test for evaluating amenity as follows:

    (1)establish the existing amenity in an objective sense;

    (2)evaluate the manner in which the proposed development will affect the existing amenity; and

    (3)assess the degree of impact on the locality.

    [94] John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].

    [95] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR 296 (Tempora) at 304.  In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [21] - [22], Barker J generally endorsed that approach but added, relevantly, that consideration of amenity should take account of future amenity. That is now expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.

  2. In Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 at [346], the Tribunal considered a similar planning provision addressing amenity[96] and observed:

    … It is not the case that any 'adverse or detrimental effect' must result in a proposal being refused in the exercise of discretion.  Any adverse or detrimental impact must be such that it has tangible adverse or detrimental town planning consequences.

    [96] In cl 14(3)(d)(vii) of Town of Claremont Local Planning Scheme No 3.

  3. Considering the three-step test for evaluating amenity in Tempora, and first establishing the existing character of the locality.  The planners agree, and I accept, the locality is characterised by low density single dwellings, generally on sloping allotments.  Ms Biondi also identifies, and I accept, there is a landscape character featuring mature trees and shrubs.  As to future amenity, the evidence before me does not identify any changes to the existing character in the foreseeable future.

  4. In Sunbay,[97] his Honour Barker J held that when evaluating amenity, '… residents of a locality are often well-placed to identify the particular qualities and characteristics which contribute to residential amenity'.

    [97] Sunbay at [21].

  5. While no residents were called to give evidence at the hearing, I have before me an objection from the owner of No 49, lodged with the City.[98]  This objection raises amenity concerns including the visual appearance of the development being 'prison like' and bulky and high, blocking light and breezes to the garden and outdoor living area of No 49 and to a loss of visual privacy.  The respondent does not contend, and the planning experts do not identify, adverse amenity impacts relating to sunlight or ventilation.  I agree there are no impacts in this regard.  As I will come to next, the remaining amenity concerns of the owner of No 49 are addressed in the expert evidence, which is before me.

    [98] Respondent's s 24 Bundle of Documents, pages 50 - 74, Exhibit 4.

  6. Second, the effect of the development on the existing amenity arises from the modification of the natural slope of the backyard of the site to create a flat area.  The planning experts agree, and I accept, the potential amenity impacts of the development are 'bulk, scale and visual privacy'.[99]  Further, Mr Hollingworth's written evidence focuses on the impact of the development on No 49.  It does not identify specific amenity concerns related to No 16.[100]

    [99] ts 61, 17 July 2024.

    [100] Witness Statement of Daniel Hollingworth, para 135, Exhibit 6.

  7. Third, assessing the degree of the 'bulk, scale and visual privacy' impacts of the development.  Ms Biondi, in my view, is more methodical when considering this aspect of P3.2 and, consequently, I prefer her evidence.  She considers both No 16 and No 49 and their relevant features related to the development. 

  8. As to No 16, she opines the development does not compromise its amenity because of a significant setback between the retaining wall and the dwelling at No 16 as well as its outdoor living area.  She also considers the orientation and asserts the development will not cause overshadowing or compromise the useable space in the backyard of this property.  As to the impact on visual privacy, Ms Biondi says that for No 16 this is protected by the 1.8 metre high fence on top of the retaining wall.[101]  Considering this evidence, which I accept, P3.2 is not compromised for No 16.

    [101] Witness Statement of Andra Biondi, para 34 c), Exhibit 11.

  9. As to No 49, Ms Biondi asserts the amenity of this property is not compromised as the retaining wall is largely screened by the two existing outbuildings on this property.[102]  She holds the view that reducing the height of the fence, from 1.8 metres to 1.3 metres, over a length of 14.7 metres, reduces the bulk of the development and that overlooking is addressed along the lowered fence by the landscape screening.

    [102] Witness Statement of Andra Biondi, para 34 d), Exhibit 11.

  10. Visual privacy is central to Issue 2 and the bulk and scale of the retaining wall and Colorbond fencing is considered under the design principles at cl 5.3.7 at Issue 1.  Considering my findings to Issue 1 and Issue 2, and the evidence of Ms Biondi above, which I accept, the development does not, in my view, have any tangible adverse amenity impact on neighbouring properties, specifically No 49 and No 16.

Findings - Issue 3

  1. The development, I am satisfied, and I find, demonstrates compliance with the design principle at cl 5.1.3 P3.2 for four reasons.

  2. First, and as the respondent accepts, the development does not compromise dot point one, dot point four and dot point five of P3.2.

  3. Second, design principle 3.1 is not compromised because the building bulk, which is greatest in the northern section of the western retaining wall, is significantly screened by two adjacent outbuildings on No 49.

  4. Third, design principle 3.1 is not compromised because the extent of overlooking is minimised through a combination of the outbuildings on No 49, the fencing on top of the retaining wall and continuous landscape screening to a height of 1.6 metres.  Further, the retaining, fencing and landscape screening does not impact sunlight and ventilation at No 49.

  5. Fourth, considering the R-Codes definition of amenity and the potential amenity impacts of bulk, scale and visual privacy, the development, which includes associated fencing and landscape screening, does not have any adverse impact on the amenity of No 49 and No 16.

Conclusion DR 194 of 2023

  1. Considering my findings to Issues 1 to 3, I have found the development meets the relevant design principles of the R-Codes.  It is therefore necessary to consider the conditions appropriate to be placed on an approval.

Conditions

  1. As mentioned,[103] at the hearing the parties agreed without prejudice draft conditions and I accept the four conditions are generally appropriate.  However, in my view, some refinements are required which also result in two additional conditions.  On 3 September 2024, I arranged a directions hearing and provided revised draft conditions to the parties.  The parties agree that, if approval is granted by the Tribunal, the revised conditions are appropriate.  The orders in DR 194 of 2023, therefore, include imposition of six conditions on the approval.

    [103] At [38].

DR 20 of 2023

Issue 4 - Should the direction given by the respondent to the applicant be affirmed?

  1. At the hearing the parties agreed that if the development in DR 194 of 2023 is approved by the Tribunal, the Notice should fall away.[104]  As I have found, the development should be approved and it follows that the City's decision to issue the Notice, therefore, should be set aside because there is now nothing for the Notice to do.

Findings - Issue 4

[104] ts 5, 17 July 2024.

  1. Given my findings in DR 194 of 2023 which results in granting approval for the development, it follows, and I find, that in DR 20 of 2023, the correct and preferable decision is to set aside the respondent's decision to issue the Notice because there is now nothing for the Notice to do.  In its place I will substitute a decision that no direction be given.

Conclusion

  1. These proceedings involve the review of two decisions.  In DR 194 of 2023, the applicant seeks review of the City's refusal to grant approval for the development, which involves retaining and filling at the rear of the site and the erection of Colorbond fencing and the installation and maintenance of landscape screening.  In DR 20 of 2023 the applicant seeks review of the City's decision to issue the Notice requiring removal of the development and restoration of the site.

  2. For DR 194 of 2023, weighing up my findings to Issue 1, Issue 2 and Issue 3, the correct and preferable decision is to set aside the City's decision to refuse the development and to approve the development because, as I have found, it is consistent, or conforms, with the relevant design principles of the R-Codes.  Accordingly, I will set aside the City's refusal of the development and substitute a new decision to approve the development, subject to six conditions.

  3. In DR 20 of 2023, and Issue 4, as a result of approval of the development, the correct and preferable decision is to set aside the City's decision to issue the Notice, because there is now nothing for the Notice to do.  In its place, I will substitute a decision that no direction be given.

  4. For these reasons the Tribunal makes the following orders.

Orders

DR 194 of 2023

The Tribunal orders:

1.The application for review is allowed.

2.The refusal of the development by the respondent is set aside and development approval is granted, under the City of Swan Local Planning Scheme No 17, for the development at No 51 Jinda Road, Koongamia consisting of retaining walls and fill and associated fencing and landscape screening subject to the following conditions:

(a)The approved development must comply with the approved plans being the site plan and elevations prepared by Neil Salvia Building Designs dated 6 February 2024,[105] unless otherwise expressly amended by other conditions. The plans approved as part of this application form part of the development approval issued.

[105] Respondent's s 24 Bundle of Documents, pages 48 - 49, Exhibit 4.

(b)The height of the Colorbond fence shown on the elevations by Neil Salvia Building Designs, dated 6 February 2024, is amended from a dimension of 1293 millimetres and approved at a height of 1300 millimetres.  For the avoidance of doubt, this section of the existing 1.8 metre high Colorbond fence is to be reduced to be 1.3 metres high above the top of the western retaining wall for the 14.7 metre northernmost length of this wall.

(c)Within 60 days of this approval, dated 9 September 2024, and prior to installation of the landscape screening and the reduction of the height of the Colorbond fence adjacent to the western boundary, a detailed landscaping plan for the site shall be submitted to the City of Swan for its approval.  The plan must include the landscaping of the rear planting area adjacent to the western boundary for the purposes of screen planting maintained to a height of 1.6 metres above the finished paved level of the retained backyard area of No 51 Jinda Road, Koongamia. The landscaping plan shall detail the following:

(i)An irrigation plan to address the ongoing maintenance of the landscape screen planting;

(ii)The landscape screen species (which may include Orange Jessamine or another agreed species) and including the height, density, pot size and planting intervals for the shrubs; and

(iii)Details regarding the ongoing maintenance of the landscape screen planting.

(d)Within 90 days of approval of the landscape plan by the City of Swan (or other such time agreed in writing by the City of Swan), the 14.7 metre northernmost length of western Colorbond fence shall be reduced from 1.8 to 1.3 metres high and the landscaping works identified in the approved landscape plan completed, to the satisfaction of the City of Swan. 

(e)The landscaping works (identified in the approved landscape plan) shall be maintained and the maintenance measures implemented for the life of the development, including maintenance of the landscape screening to a height of 1.6 metres above the finished paved level of the retained backyard area of No 51 Jinda Road, Koongamia so as to prevent overlooking of No 49 Jinda Road, Koongamia, to the satisfaction of the City of Swan. 

(f)All stormwater must be contained and disposed on-site at all times, to the satisfaction of the City of Swan.

DR 20 of 2023

The Tribunal orders:

1.The application for review is allowed.

2.The decision of the respondent to issue a written direction pursuant to s 214 of the Planning and Development Act 2005 (WA) is set aside and a decision is substituted that no direction be given.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR R Povey, MEMBER

9 SEPTEMBER 2024


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