Detata and Anor and Town of Cambridge
[2007] WASAT 66
•16 MARCH 2007
DETATA & ANOR and TOWN OF CAMBRIDGE [2007] WASAT 66
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 66 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:311/2006 | 12 DECEMBER 2006 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 15/03/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | LOUIS GUY DETATA CYNAN PETER CUMMING TOWN OF CAMBRIDGE |
Catchwords: | Town planning – Application for planning approval – Grouped dwellings – Acceptable development provisions and performance criteria of the Codes – Matters of orderly and proper planning, amenity and streetscape – Driveway width – Visual privacy – Boundary setback requirements – Solar access to courtyard areas – Site constraints |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 241(1), s 252(1) Residential Design Codes of Western Australia 2002, cl 3.2.2 A2, cl 3.3.1 P1, cl 3.3.2 P2, cl 3.4.2 P2, cl 3.5.4 A4.5, cl 3.8.1 A1, cl 3.8.1 P1 Town of Cambridge Residential Design Guidelines, cl 2.1 A1.1, cl 2.1.1 A14, cl 2.1.2 P1, cl 2.1.3, cl 2.3 P1 Town of Cambridge Town Planning Scheme No 1, cl 5(2), cl 11(2), cl 32, cl 33(2), s 38(4), cl 39, Sch 1 |
Case References: | Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) |
Orders | On the application heard before Senior Sessional Member Lloyd Graham on 16 March 2007, it is ordered that:,1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DETATA & ANOR and TOWN OF CAMBRIDGE [2007] WASAT 66 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 12 DECEMBER 2006 DELIVERED : 16 MARCH 2007 FILE NO/S : DR 311 of 2006 BETWEEN : LOUIS GUY DETATA
- CYNAN PETER CUMMING
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning – Application for planning approval – Grouped dwellings – Acceptable development provisions and performance criteria of the Codes – Matters of orderly and proper planning, amenity and streetscape – Driveway width – Visual privacy – Boundary setback requirements – Solar access to courtyard areas – Site constraints
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
(Page 2)
Residential Design Codes of Western Australia 2002, cl 3.2.2 A2, cl 3.3.1 P1, cl 3.3.2 P2, cl 3.4.2 P2, cl 3.5.4 A4.5, cl 3.8.1 A1, cl 3.8.1 P1
Town of Cambridge Residential Design Guidelines, cl 2.1 A1.1, cl 2.1.1 A14, cl 2.1.2 P1, cl 2.1.3, cl 2.3 P1
Town of Cambridge Town Planning Scheme No 1, cl 5(2), cl 11(2), cl 32, cl 33(2), s 38(4), cl 39, Sch 1
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicants : Mr Peter D Webb (Acting as Agent)
Respondent : Ms Amanda Butterworth (Acting as Agent)
Solicitors:
Applicants : Peter D Webb & Associates (Town Planner)
Respondent : Allerding Associates (Town Planner)
Case(s) referred to in decision(s):
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Cambridge to refuse the construction of eight grouped dwellings at No 122 Kimberley Street, West Leederville.
2 The Tribunal examined the respective arguments of the parties, the relevant legislative and policy provisions, and the variations sought by the applicants to the Residential Design Codes of Western Australia 2002 and the Town's Residential Design Guidelines. Matters of amenity and streetscape were examined.
3 The Tribunal did not accept that the proposed development met the broad intent of the Objective and Performance Criteria of the Codes with respect to boundary setbacks; specifically the need to ameliorate the impact of building bulk on neighbouring properties and the desirability of achieving solar access into rear courtyards.
4 The application for review was dismissed.
Introduction
5 The application for review, dated 13 September 2006, was lodged by Mr LG Detata and Dr CP Cumming (applicants) against a decision of the Town of Cambridge (respondent) on 22 August 2006 to refuse an application for planning approval, dated 30 March 2006, for the construction of eight (8) grouped dwellings at an estimated development cost of $2.4 million. The letter of refusal was dated 31 August 2006.
6 The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (the Act).
7 The Notice of Planning Refusal was based on the following reasons:
"(a) non-compliance with the Town's Residential Design Guidelines in relation to the front setback and wall height;
(b) non-compliance with the provisions of the Residential Design Codes (R Codes) in relation to the outdoor living area behind the front setback, driveway width, visitor bays, visual privacy setbacks and rear setback;
(Page 4)
- (c) concern that the design of the units locates all private courtyard spaces on the southern side, denying adequate solar access."
Subject land
8 The subject land can be described on Certificate of Title Volume 1935, Folio 205 and being Lot 62 on Plan 4413. It has a frontage to Kimberley Street of 20.08 metres, a depth of 100.76 metres and a land area of 2023 square metres. There is an existing single storey residence on the site which is located on the eastern side of the street.
9 The land has a fall of approximately 5.0 metres from its south-west corner down to the north-east corner and there is a general fall across the lot from south to north of approximately 1 metre.
10 Based on photographic evidence before the Tribunal, there is a new two storey home adjacent to the southern (higher) side of the subject land, with a series of single residences to the north sloping down towards Lake Monger Drive; some 110 metres away. To the south, on the eastern side of the street, there would appear to be a number of two storey dwellings.
Legislative framework
11 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS) and "Residential R40" under the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
12 Of relevance are the Residential Design Codes of Western Australia 2002 (the Codes) which were released in October 2002 by the Western Australian Planning Commission as a Statement of Planning Policy.
13 The Tribunal is required, under s 241(1) of the Act, to "have due regard to relevant planning considerations" encompassed by such a State planning policy.
14 The Town of Cambridge Residential Design Guidelines of June 2005 (the Guidelines) are also relevant to this matter.
Respondent's position
15 The respondent's position is outlined in a Statement of Issues, Facts and Contentions forwarded to the Tribunal on 19 October 2006. It argues:
(Page 5)
- (a) Issue No 1.0
1.1 The proposal does not satisfy the performance criteria of the Guidelines (cl 2.1.1 P1) relating to street setback due to:
(i) the proposed setback is not compatible with the established line and pattern of setback in the street – the neighbouring properties to the north and south are set back more than the required 4.0 metres.
(ii) unit 1's front balcony, which encroaches into the front setback, is a dominant projection in the streetscape with the main gabled roof covering the balcony.
1.2 The proposal does not satisfy the performance criteria of the Guidelines (cl 2.3 P1) in relation to building height due to:
(i) the proposal does not respect the scale of buildings in the vicinity in terms of height and bulk and is not subservient to the green landscape; and
(ii) the proposed height does not recognise the need to protect the amenities of the adjoining properties.
2.1 The proposal does not satisfy the performance criteria of the Codes (cl 3.8.1 P1) in relation to visual privacy due to:
(i) there will be direct overlooking between the ground floor living room windows and the backyards of the adjoining properties to the north; and
(ii) there is no provision for effective screening.
2.2 The proposal does not satisfy the performance criteria of the Codes (clauses 3.3.1 P1 and 3.3.2 P2) relating to boundary setbacks due to:
(i) the proposed setbacks do not ensure adequate direct sun being available to adjoining properties;
- (ii) the proposed setbacks do not provide adequate direct sun to the main private open spaces adjacent to units 2 to 8; and
(iii) the proposed setbacks do not assist in ameliorating the impact of building bulk on adjoining properties.
- (c) Issue No 3.0
3.1 The proposal can be redesigned to improve solar access for the private courtyards of units 2 to 8.
16 The applicants' position is outlined in a response, dated 2 November 2006, to the respondent's Statement of Issues, Facts and Contentions. It argues:
(a) Issue No 1.0
1.1 The proposal does satisfy the performance criteria relating to street setbacks because:
(i) there is an ability to vary the street setback pursuant to cl 39 of TPS 1;
(ii) the applicants are prepared to remove the roof cover from the front balcony to minimise the perceived bulk of this projection;
(iii) the property to the south has been redeveloped, but the owner has not taken advantage of the Codes insofar as density, front setbacks and other considerations available within the zoning area concerned;
(iv) dense foliage within the front setback area of the property to the north minimises any perceived impact of the minor building intrusion into the front setback area;
(v) the proposed development contributes to the streetscape;
(vi) the development has been designed to ensure adequate privacy with most units having about double the private open space requirements of the Codes; and
- (vii) there are no easements affecting the land.
- 1.2 The proposal does satisfy the performance criteria relating to building height because:
(i) the proposed development is entirely consistent with the scale of buildings in the vicinity in terms of height and bulk; and
(ii) the height of the proposed development is significantly lower than the adjoining properties to the south which have been filled and retained along the southern boundary of the subject site.
- (b) Issue No 2.0
2.1 The proposal does satisfy the performance criteria relating to visual privacy because:
(i) When viewed from the ground floor living room windows of the units, there is a dividing fence along the northern boundary of the site and additional screening (landscaping) is proposed.
(ii) By locating the courtyard of unit 1 to the west, it will provide access to winter sun.
2.2 The proposal does satisfy the performance criteria relating to building setbacks because:
(i) The shadow diagram complies with the Codes in relation to direct sunlight into adjoining properties.
(ii) The design ensures maximum solar access to internal living spaces associated with the eight units. Direct sun in early morning and late afternoon will enter some parts of the rear spaces and will be available to the northern open space appurtenant to each unit.
(iii) There will be no impact on adjoining properties to the south from the building bulk of this project. This is because these properties are significantly higher.
(iv) The impact from the project on adjoining properties to the north will be insignificant as
- improvements on these properties are some considerable distance from their southern boundaries.
- (v) The performance criteria at cl 3.8.1 P1 of the Codes enables applicants to consider the relative positions of windows to habitable rooms on the subject land and adjoining properties. This has been achieved.
(vi) The performance criteria at cl 3.3.1 P1 offers sufficient flexibility to enable the respondent to use its discretion to lessen setbacks, subject to other criteria.
- (c) Issue No 3.0
3.1 The applicants reject the respondent's contention that the proposal can be redesigned to improve solar access to parts of the open spaces pertinent to each dwelling because:
(i) The re-design would require relocating the driveway to the southern boundary of the site, resulting in significant losses of privacy to each unit because the driveway would be at a higher level. Also, there would be problems associated with drainage of the driveway if a blockage occurred with the ground floors (particularly the garages) being flooded.
(ii) There would be some excavation required, which could put the retaining and adjoining properties at an unacceptable risk of failure.
(iii) The redesign would necessitate the re-orientation of the units, resulting in primary living spaces and bedrooms looking to the south; thereby significantly reducing solar access to these internal spaces.
17 The principal planning issues are:
(a) Would the proposal, if approved, be contrary to the interests of orderly and proper planning?
(Page 9)
- (b) Would the proposal, if approved, adversely affect the amenity of the immediate locality?
Assessment of proposal
Background
18 The background to the matter is as follows:
(a) The application for planning approval was lodged with the respondent by Mr Wezley Zupanov (builder) on 30 March 2006.
(b) A professional report recommending conditional approval was submitted to the respondent's Development and Environmental Services Committee (DESC) on 20 June 2006. The Committee resolved:
"That the item … be deferred to enable the applicant to review his plan to improve solar access to the private courtyards."
The resolution was confirmed at the Council Meeting of 27 June 2006.
(c) Following a meeting between the parties to discuss a so-called "flip" re-design, where the courtyards would be on the northern side of the development, the matter was returned to DESC on 18 July 2006 on the basis of the original design. There was no professional support for the "flip" alternative.
(d) At the Council Meeting of 25 July 2006, the Council resolved:
"That the item be referred back to the Development and Environmental Services Committee to enable the Applicant to further consider the possibility of locating the access roads to the units to the southern side of the development."
(e) Following further consultation between the parties, the matter was returned to DESC on 15 August 2006, on the basis of the original design with conditions of approval. The report was adopted by DESC and forwarded to Council.
(f) On 22 August 2006, the respondent resolved to refuse the application.
(Page 10)
19 From the point of view of the Tribunal, the so-called "flip" re-design does not form part of this review, and will not be considered. Also, based on closing remarks at the hearing, Ms AJ Butterworth for the respondent advised:
"It's not presented today to be an option whatsoever."
Proposed development
20 The proposal envisages the construction of a grouped residential development comprised of eight (8) individual two storey units. Units 1 and 8 face west with unit 1 located at the front with access onto Kimberley Street, and unit 8 located at the rear of the development. Units 2 to 7 face north.
21 Each unit contains a dining room, living room and kitchen on the ground floor with a double garage and courtyard. The upper floors of the units contain three (3) bedrooms with units 2 to 7 also including a home theatre.
22 The individual lots range from 200 square metres to 209.63 square metres with access to a common driveway located on the north side of the development.
Legislative and policy provisions
23 A grouped dwelling is an "AA" use within the residential R40 zone. Clause 11(2) of TPS 1 describes "AA" as:
"… means that the use is not permitted unless the Council has granted planning approval."
24 Clause 5(2) of TPS 1 includes amongst its general objectives:
"(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing."
25 Clause 32 requires planning approval for a development whereas cl 33(2) provides for the granting of a discretionary approval providing the discretion is one that the Council has the power to approve, and it would not compromise the objectives of the Codes or a planning policy.
26 Under the general provisions of cl 38(4), and without limiting its discretion, Council is to have regard to:
(Page 11)
- "(b) any relevant Planning Policy;
(c) any Statement of Planning Policy of the Western Australian Planning Commission;
…
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
27 Under the Codes, there are a series of aims which attempt to encourage a wide range of dwelling types, ensure adequate standards of access and amenity, minimise adverse impacts on neighbours and ensure that new development contributes positively to the streetscape and the locality.
28 The Codes set an "Objective" and a set of "Performance Criteria" that must be satisfied if the objective is to be met. A set of "Acceptable Development Provisions" related to the performance criteria are also included.
29 If a development proposal meets the acceptable development provisions it is "deemed – to – comply" and will be approved, whereas the performance criteria provide the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome.
30 In addition to the Codes, the respondent has adopted the Guidelines under TPS 1 as a planning policy. These guidelines are meant to supplement the Codes by recognising the different characteristics and requirements of the residential precincts of West Leederville (in which the subject land falls), Wembley, Floreat and City Beach.
Variations to the Codes and/or Guidelines
31 In her witness statement, dated 27 November 2006, Ms A Butterworth advises:
"24 In this case, variations are sought to the R-Codes and/or Council's Design Guidelines for Front Setback, Outdoor
- Living Area (in the front setback), Driveway Width, Visitor Bays, Wall Height (for pitched rooves and flat rooves) and Visual Privacy Setbacks (6 locations)."
32 Under Table 1 (General Site Requirements) of the Codes, the minimum setback from the primary street for a grouped dwelling on an R40 zone is 4.0 metres. The balcony for unit 1 is 2.54 metres from the front boundary.
33 Under cl 2.1.1 A14 of the Guidelines, the minimum setback from a primary street is to accord with the Codes but allowance is made for minor incursions in accordance with cl 3.2.2 A2 of the Codes. This provision allows for the incursion of a balcony to project not more than 1 metre into the building setback area.
34 However, under the performance criteria of the Codes (cl 3.2.2 P2), a minor incursion is not to detract from the streetscape whereas under the performance criteria of the Guidelines (cl 2.1.1 P1), the setback is to be compatible with the established line and pattern of setbacks in the street.
35 In a question from Ms Butterworth to Mr Mario Tascone, a building designer for the applicants, he replied:
"Well, firstly, the applicant would be happy to remove the roof portion of it to lessen the form or the bulk of that portion. The side walls that are designed in this at the moment are there due to the shape of the roof to hold the roof up. So if you took the roof off you would also take those walls down to at least, let's say, a metre above the balcony level … and therefore the bulk of the structure would be a lot less and the front of the balcony – actually we propose to do glass balustrading there so it's even less bulk again."
36 In the view of the Tribunal, and having regard to the photographic evidence of the street, the removal of a portion of the roof, as explained by Mr Tascone, is appropriate and could be handled by way of an appropriately worded condition of approval.
37 The matter of the outdoor living area to unit 1 being within the street setback area was raised by the respondent at the hearing, but the Tribunal accepts that this area would be capable of use in conjunction with a habitable room, and would be open to winter sun. It therefore meets the performance criteria outlined in cl 3.4.2 P2 of the Codes.
(Page 13)
38 A further point relating to fencing in the street setback area (that is both front and side fencing) relative to unit 1 was also addressed in terms of the requirements of cl 2.1.3 of the Guidelines where a solid wall at 0.75 metres above natural ground level should not, with visually permeable infill panels, exceed a maximum average height above natural ground level of 1.8 metres. The Tribunal believes that this requirement can be met by way of an appropriately worded condition of approval.
39 The matter of driveway width and visitor parking adjacent to unit 8 at the rear of the development was at issue between the parties.
40 Clause 3.5.4 A4.5 of the Codes requires a minimum driveway width of 4.0 metres for grouped dwellings in order to allow vehicles to pass in opposite directions at one or more points, and where the number of dwellings served by the driveway is six or more.
41 Based on the evidence before the Tribunal, the distance between the northern boundary of the subject site and northern wall of units 2 to 7 is 5.19 metres with a driveway width of 3.59 metres only. There is a narrow landscape strip along the northern boundary fence and also outside the living rooms of units 2 to 7.
42 In view of the Tribunal, the driveway should be widened to 4.0 metres but the lot areas maintained at 200 square metres to allow for future subdivision.
43 The matter of wall height in relation to units 5 and 8 was at issue between the parties, and these walls could be reduced to not more than 6.0 metres and 7.0 metres respectively to accord with cl 2.3 A1.1 of the Guidelines. An appropriately worded condition would cover this matter.
44 Again, the finished floor level for the ground floor of units 3, 4, 5, 6 and 7 can be reduced so that they are not more than 0.5 metres above natural ground level. This requirement, which could be included as a condition of approval, would accord with the visual privacy acceptable development provisions of the Codes (cl 3.8.1 A1).
45 The matter of overlooking of Lot 8 Vincent Street West from the upper floor master bedroom of unit 8 was raised by the respondent at the hearing, and once again the matter of visual privacy could be addressed by an appropriate condition of approval in line with cl 3.8.1 A1 of the Codes.
46 The issue of side boundary setbacks was a significant issue between the parties at the hearing with Ms Butterworth arguing that with a total
(Page 14)
- wall length in the order of 70 metres to 75 metres, and a wall height of some 6.0 metres to 6.5 metres that, in accordance with Table 2 of the Codes, the building should be set back some 6.3 metres.
47 The essential argument of Mr Tascone was that by introducing articulation into the wall along its length that modification to setbacks can be made. He argued with respect to Figure 2D of the Codes, which is designed to assist calculations, that:
"It would depend on the interpretation of this because I look at 2D, and although the diagram does explain a certain amount, it cannot explain every scenario and every, you know, different type of design. It's a little bit vague …"
48 The matter was addressed in the officer's report to Council of 22 August 2006 in this way:
"It should be noted that no objections were received for the side and rear setback variations … Council's Town Planning Delegations Policy … delegates certain Scheme powers to the Chief Executive Officer as well as the Executive Manager, Development and Environmental Services and Manager Planning Services. These delegations usually apply where the adjoining owner has no objection to the variation and the variation is acceptable from a planning perspective. It is considered that the side and rear setback variations are acceptable and are therefore not further discussed in this report."
49 This approach was not accepted in the Council decision and neither can it be by this Tribunal. However, it is acknowledged that the sever constraints of a 20.08 metre wide site oriented east-west cannot, as in this case, meet the acceptable development provisions and must rely on the relevant performance criteria.
50 The Codes also address the matter of exceptions to basic setback provisions and put it this way:
"… The main exceptions are:
• where significant relaxations of setbacks, including allowance for boundary walls, are desirable for practical or aesthetic reasons, and are achievable without detriment to the amenity of others …
(Page 15)
- The best outcome in these situations can be achieved by the application of design skills to particular problems, measured against specific Performance Criteria."
51 In the view of the Tribunal, this matter can only be addressed relative to the amenity of the adjoining property to the south.
52 The wider issue of the likely effect of the total development on the amenity of the immediate locality is also both relevant and important.
The matter of amenity
53 In the witness statement of Mr Bruce Henderson, dated 30 November 2006, he advised:
(a) "The proposed dwellings are simply too voluminous to be constructed on slightly more than 200 square metres lots."
(b) "The development proposes a wall length of 70 metres to 2 stories (along my common boundary) at a setback of 4.5 metres, whereas it is supposed to be setback 7 metres."
(c) "Kimberley Street (North) is already in drastic need of traffic treatment to abate excessive speed and heavy traffic levels. This development together with the significant compromise on driveway width and lack of dedicated visitor bays will force traffic movement, manoeuvring and parking out onto Kimberley Street itself."
(d) "This overshadowing of my northern and rear outdoor living areas is of genuine concern and is created by the reduced setback on the southern boundary …"
54 In his evidence at the hearing, Mr Henderson further advised that as the owner of the adjacent property to the south at 120B Kimberley Street that:
(a) The overshadowing diagrams represent the adjacent site to the south (Mr Henderson's property) as a "flat" site which is not the true situation.
(b) The adjacent site to the south is some 1.2 metres to 1.6 metres higher than the subject land and the actual
- overshadowing will, as a consequence, be less than diagrammatically shown.
- (c) He was concerned a the potential loss of views across to Lake Monger.
(d) His concern over development on the subject land caused him to consider cancelling the contract for the paradox of his home.
55 In the view of the Tribunal, although the arguments by Mr Henderson on the proximity of the proposed development to his home, its overshadowing effects and the loss of some views is understandable, it is also the case that redevelopment of the subject land, with its medium density zoning at R40, was highly probable in West Leederville.
56 On the question of on-site and off-site parking as a result of the proposed development, the Tribunal is satisfied, that with each unit having a double garage and able to accommodate two visitor vehicles (with the exception of unit 8), that on-site parking is adequate. Also, all vehicles, with the exception of those from unit 1, will be able to proceed to Kimberley Street in forward gear.
57 On the broader question of "amenity" it is defined in Sch 1 (Definitions) of TPS 1 as:
"amenity: means the expectations of those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy and security."
58 In Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) amenity is described as:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
59 Based on the information provided in the Council report of 22 August 2006, the 10 adjoining owners were notified but only one objection was received. This objection, from 409 Vincent Street West, when coupled with the submissions of Mr Henderson, amount to two objections only.
60 In the view of the Tribunal, and based on the limited adverse reaction from neighbours alone, it is difficult to mount a case against the proposal
(Page 17)
- on amenity grounds. However, the views of the most affected neighbour to the south (Mr Henderson) must be given due weight.
The matter of streetscape
61 In a question from Mr Webb to Mr Tascone on this matter he (Mr Tascone) replied:
"Well, I believe the streetscape is very eclectic. Just about every house is different to the one next to it."
62 What is also clear from further evidence from Mr Tascone, and from photographs available to the Tribunal, is that a number of homes in Kimberley Street and nearby, have solid brick walls on the front boundary, and roofed carports built to within 1 metre of the front boundary.
63 In the view of the Tribunal, the proposed development would appear from directly opposite as a single two storey residential structure and, when approached from the south, would be partly obscured by adjacent two storey development, the front fencing and existing street trees. When approached from the north, the development would be evident but, in the future, may also be partly obscured by the redevelopment of adjacent properties to the north.
64 The Tribunal can find no reasons to oppose the development on the basis of streetscape considerations.
Conclusions
65 The application for review was lodged against a decision of the Town of Cambridge to refuse the construction of eight (8) grouped dwellings on the subject land.
66 In examining this matter, the Tribunal has had regard to the relative positions of the parties together with the background to the proposal, the development itself, legislative and policy provisions, the variations sought to the Codes and Guidelines and the matters of amenity and streetscape.
67 The position of the respondent is best summarised in the closing statements of Ms A Butterworth:
"We say that the extent of variations sought goes beyond what is considered to be reasonable expectations, nor are they consistent with the general pattern of development in the
(Page 18)
- locality. Specifically we also say that the two-storey development of 70 metres with a setback variation sought to that side boundary presents a significant impact on the amenity of the neighbour. In conclusion it's considered that the proposal amounts to over-development of the site and that in order to accommodate the relevant requirements the proposal may potentially have to be redesigned."
68 The position of the applicants is best summarised in the closing statements of Mr P Webb:
"The minor concessions which are being sought as part of the application are able to be either accepted because they are minor concessions or of course addressed by some minor variation to the design …"
69 In the view of the Tribunal, the difficulty faced by the applicants in this case was to design a medium density development in a R40 zone on a narrow and elongated site which is surrounded by 10 adjacent properties.
70 In its assessment of the matters in dispute, the Tribunal believes that the intrusion of the upper floor balcony of unit 1 into the outdoor living area forward of the building setback line can be minimised by structural change to the roof line, removal of the side walls and the fitting of glass balustrading. Such changes can be supported on the basis of the balcony and outdoor living area having access to winter sun, and there would be no adverse overlooking effects on neighbouring properties.
71 Other matters in dispute such as the fencing to unit 1, wall heights in relation to units 5 and 8, the finished floor levels of units 3, 4, 5, 6 and 7 not being more than 0.5 metres above natural ground level and overlooking from unit 8 could all be addressed by appropriately worded conditions.
72 However, the matters of driveway width and the side boundary setbacks from the adjoining neighbours to the south are more significant. In the first case, there is just sufficient room to widen the driveway width to the required 4.0 metres and still maintain lot areas at 200 square metres minimum.
73 The widening of the driveway will however restrict landscaping on the northern boundary of the site but this could still be achieved by the planting and reticulation of vegetation (possibly creepers) against the fence. Quite clearly the closeness of driveway traffic to the living rooms
(Page 19)
- of units 2 to 7 could affect their amenity, but this will largely be a consequence of actual vehicle numbers.
74 The issue of the closeness (2.41 metres to 4.5 metres) of the proposed development at ground floor level to the neighbouring properties to the south is the most significant issue in this case, and cannot in any way be categorised as "a minor concession". In fact, the Tribunal is unable to see how the southern wall of the proposed development could in any way meet the acceptable development provisions (boundary setbacks) of the Codes. The matter must be assessed under the relevant Objective and Performance Criteria of the Codes.
75 The Objective for Boundary Setback Requirements of the Codes state:
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties."
76 The details of the performance criteria (cl 3.3.1 P1) of the Codes will not be repeated here, but the emphasis is again on access to direct sun and ameliorating the impact of building bulk on adjoining properties.
77 In the view of the Tribunal, and in order to achieve the intent of the performance criteria, there is a need to break the overall bulk of the single building extending from units 2 to 7 and, if possible, orient some of the units towards the east or west in a similar fashion to units 1 and 8. This would open up the rear outdoor living areas (courtyards) to the sun and meet the intent of the Codes.
78 Almost certainly this change in design would require a reduction in the number of units from 8 to 7 but, in so doing, would ameliorate the impact of building bulk on the adjoining properties to the south and improve their overall amenity. A slight meandering of the driveway might also be possible at one or two points along its length in order to provide opportunities for landscaping.
79 If the re-orientation of some of the units east–west was not feasible, their number would still need to be reduced from eight to seven in order to break up the bulk of the building (currently units 2 to 7) and to provide opportunities during the day for some of the rear courtyards to have access to sunlight.
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80 In an overall context the Tribunal acknowledges the constraints of the subject land, accepts that the driveway to the north is the most appropriate option and that most of the points of difference between the parties can be resolved by conditions of approval as outlined in this review.
81 It also acknowledges that the overshadowing effect (to the south) is reduced somewhat because of the comparative levels of the subject land relative to the adjoining properties, and that the streetscape would not be adversely affected.
82 However,the Tribunal strongly believes that the proposed development does not adequately meet the overall objective and performance criteria of the Codes with respect to boundary setbacks. It also believes that in order to meet these requirements that modifications to the design will be necessary to address the building bulk of units 2 to 7 and, even accepting the constraints of the site, there is still the need to attempt to introduce more sunlight into those rear courtyards.
83 The Tribunal does not accept that a development of nine (9) units, as originally contemplated by the applicants, could have been achieved on the subject land with its narrow width and still maintain a 200 square metre minimum lot size. It also does not believe that such a development, as with the current proposal, would have met the overall intent of the Codes and delivered the necessary amenity to both occupants and neighbours.
Orders
84 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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