ELLIS and CITY OF STIRLING
[2016] WASAT 73
•17 JUNE 2016
ELLIS and CITY OF STIRLING [2016] WASAT 73
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 73 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:337/2015 | 16 FEBRUARY 2016 | |
| Coram: | MS M CONNOR (MEMBER) MS N OWEN-CONWAY (MEMBER) | 17/06/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | SARAH JANE ELLIS BRENDAN WILLIAM CITY OF STIRLING |
Catchwords: | Town planning Development application Two grouped dwellings in side by side configuration that orientate towards primary street Local planning policy seeks to promote use of abutting ROW from primary access Double garages fronting onto ROW providing vehicular access to proposed dwellings Incorporation of design features to justify orientation Impact on streetscape of ROW Whether development demonstrates compliance with cl 5.4.2 Solar access |
Legislation: | City of Stirling Local Planning Scheme No 3, cl 2.2, cl 2.3.2, cl 2.4, cl 4.2.12, cl 5.2.2, cl 8.1.1, cl 8.2.1, cl 8.2.2, cl 10.2 Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 252(1), s 256, s 257B(d) Planning and Development Local Planning Scheme Regulations 2015 (WA), Sch 2, reg 8(1)(c), reg 10(4), cl 60, cl 61, cl 67 State Planning Policy 3.1 Residential Design Codes of Western Australia (2013), cl 2.5.1, cl 5.4.2, cl 5.4(b) State Administrative Tribunal Act 2004 (WA), s 31 |
Case References: | Loxton & Anor and City of Fremantle [2015] WASAT 46 Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 Mitchell and City of Subiaco [2008] WASAT 230 Puma Energy Australia and City of Cockburn [2016] WAST 36 Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 |
Orders | 1. The application for review is dismissed., 2. The decision of the respondent is affirmed. |
Summary | Sarah Jane Ellis and Brendan William applied to the Tribunal for review of a decision of the City of Stirling to refuse to grant planning approval for the construction of two grouped dwellings on Lot 981 (No 161) Wilding Street, Doubleview.,The proposed two storey grouped dwellings orientated to, and primary access was provided from, Wilding Street. Single storey garages with skillion roofs were located at the rear of the lot with vehicular access provided from the abutting right of way.,The principal issues that arose for determination in this matter included whether the proposed development should be approved having due regard to the planning framework, in particular the City of Stirling Local Planning Policy 6.5 Development Abutting Rights of Ways and Clause 5.4.2 of the Residential Design Codes of Western Australia.,The Tribunal, in considering the substantial merits of this particular case in light of the planning framework, did not consider the proposal warranted approval. The Tribunal found that the proposed development did not satisfy the objectives and general provisions of the City of Stirling Local Planning Policy 6.5 - Development Abutting Rights of Ways and that there was no cogent reason to depart from the Policy in the circumstances of this case. The application for review was dismissed and the decision of the respondent affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ELLIS and CITY OF STIRLING [2016] WASAT 73 MEMBER : MS M CONNOR (MEMBER)
- MS N OWEN-CONWAY (MEMBER)
- BRENDAN WILLIAM
Applicants
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development application Two grouped dwellings in side by side configuration that orientate towards primary street Local planning policy seeks to promote use of abutting ROW from primary access Double garages fronting onto ROW providing vehicular access to proposed dwellings Incorporation of design features to justify orientation Impact on streetscape of ROW Whether development demonstrates compliance with cl 5.4.2 Solar access
Legislation:
City of Stirling Local Planning Scheme No 3, cl 2.2, cl 2.3.2, cl 2.4, cl 4.2.12, cl 5.2.2, cl 8.1.1, cl 8.2.1, cl 8.2.2, cl 10.2
Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 252(1), s 256, s 257B(d)
Planning and Development Local Planning Scheme Regulations 2015 (WA), Sch 2, reg 8(1)(c), reg 10(4), cl 60, cl 61, cl 67
State Planning Policy 3.1 Residential Design Codes of Western Australia (2013), cl 2.5.1, cl 5.4.2, cl 5.4(b)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Summary of Tribunal's decision:
Sarah Jane Ellis and Brendan William applied to the Tribunal for review of a decision of the City of Stirling to refuse to grant planning approval for the construction of two grouped dwellings on Lot 981 (No 161) Wilding Street, Doubleview.
The proposed two storey grouped dwellings orientated to, and primary access was provided from, Wilding Street. Single storey garages with skillion roofs were located at the rear of the lot with vehicular access provided from the abutting right of way.
The principal issues that arose for determination in this matter included whether the proposed development should be approved having due regard to the planning framework, in particular the City of Stirling Local Planning Policy 6.5 Development Abutting Rights of Ways and Clause 5.4.2 of the Residential Design Codes of Western Australia.
The Tribunal, in considering the substantial merits of this particular case in light of the planning framework, did not consider the proposal warranted approval. The Tribunal found that the proposed development did not satisfy the objectives and general provisions of the City of Stirling Local Planning Policy 6.5 - Development Abutting Rights of Ways and that there was no cogent reason to depart from the Policy in the circumstances of this case. The application for review was dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicants : In Person
Respondent : Mr N John
Solicitors:
Applicants : N/A
Respondent : City of Stirling
Case(s) referred to in decision(s):
Loxton & Anor and City of Fremantle [2015] WASAT 46
Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202
Mitchell and City of Subiaco [2008] WASAT 230
Puma Energy Australia and City of Cockburn [2016] WAST 36
Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Introduction
1 Sarah Jane Ellis and Brendan William (applicants) made application to the City of Stirling (respondent, Council or City) in April 2014 for approval to construct two grouped dwellings on Lot 981 (No 161) Wilding Street, Doubleview (subject land).
2 The development application was refused under delegated authority of the Coordinator Planning Approvals on 14 August 2015. In refusing the application, the respondent gave the following reason:
The proposed development does not satisfy the objectives of Local Planning Policy 6.5 Development Abutting Rights of Ways.
3 The applicants, on 18 September 2015, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicants seek an order that the respondent's decision be set aside and that the application for planning approval be granted.
4 Pursuant to orders of the Tribunal made on 16 October 2015 the respondent provided the following further particulars of the reason for refusal:
The reason for refusal is that the development does not meet the Objectives of LPP 6.5 Developments Abutting Rights of Way and more specifically, does not meet the requirements of Clause 7.2.1 and 7.2.2 of the Policy.
5 As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in modified plans being submitted. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider its decision in light of the revised plans.
6 On reconsideration of the matter, the respondent affirmed its previous decision and gave the following reasons for refusal:
1. The proposed development does not satisfy Clause 7.2.1 Objectives of Local Planning Policy 6.5 Developments Abutting Rights of Way as it does not orientate to or provide passive surveillance of the Right of Way nor does it contribute to creating a pleasant streetscape along the Right of Way.
2. The proposed development does not satisfy the deemed to comply requirements as the overshadowing of the adjoining lot is 62% inlieu of 35% nor does it demonstrate compliance with the Design Principles of the Residential Design Codes 5.4.2 Solar access for adjoining sites as it overshadows the outdoor living area on the adjoining lot.
7 The matter was programmed to final hearing, which took place on 16 February 2016 commencing on site with a view by the Tribunal and the parties.
Subject land and surrounds
8 The subject land is situated on the western side of Wilding Street and is 645m2 in area. The lot is rectangular in shape, being 15.09 metres wide and 42.75 metres deep.
9 The subject land is contained within the street block bounded by Wilding Street, Sackville Terrace, Alice Street and Moorland Avenue. A right of way (ROW) dissects the street block and runs adjacent to the western boundary of the subject land. Although portions of the ROW have been constructed, the section adjacent to the subject land is unconstructed, albeit well traversed. The respondent has informed the Tribunal that the subject ROW is included in the City's ROW upgrade works programme for 2016/2017, which involves the entire length of ROW being paved and drained; street lighting installed and services, such as, rubbish collection and mail provided.
The proposal
10 The proposed development involves the construction of two, two storey grouped dwellings in a side by side configuration that orientate towards Wilding Street. Single storey double garages with skillion roofs are located at the rear of the lot with vehicular access provided via the ROW.
Planning framework
11 The subject land is zoned Residential with a density coding of R40 under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme). Clause 4.2.12 of the Scheme set outs objectives for the Residential zone, which includes the following relevant objective:
To provide for residential development at a range of densities with a variety of housing type and size, to meet the current and future needs of the community.
12 'Grouped Dwelling' is a 'P' (permitted) use in the Residential zone, providing the use complies with the relevant development standards and requirements of the Scheme.
13 Clause 5.2.2 of the Scheme provides:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
14 Further, State Planning Policy 3.1Residential Design Codes of Western Australia (2013) (R Codes) is a State planning policy prepared under s 26 of the PD Act and therefore the Tribunal, pursuant of s 241(1)(a) of the PD Act is to have due regard to 'any State planning policy which may affect the subject matter of the application'.
15 The deemed provisions for local planning schemes in Sch 2 of the Planning and Development Local Planning Scheme Regulations 2015 (WA) (LPS Regulations) (deemed provisions) came into force on 19 October 2015 under s 256 of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, the deemed provisions have the effect as part of LPS 3. Furthermore, in consequence of s 257B(d) of the PD Act, if a deemed provision that has effect as part of LPS 3 is inconsistent with another provision of LPS 3, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.'
16 There are a number of provisions in LPS 3 that are considered to be inconsistent with the deemed provisions. These include cl 8.1.1, 8.2.1 and 8.2.2 of LPS3 which relate to 'Requirement for Approval to Commence Development' and 'Permitted Development'. Clauses 60 and 61 of the deemed provisions prevail and cl 8.1.1, 8.2.1 and 8.2.2 of LPS 3 have no effect. This change does not affect the requirement for this development to obtain development approval. Similarly, cl 10.2 of LPS 3 which relates to 'Matter to be considered by the Council' is inconsistent with cl 67 of the deemed provisions. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WAST 36 found, at [47] that:
In effect, cl 67 of the deemed provision has replaced cl 10.2 of TPS 3 (and all equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text) by virtue of s 257B(3) of the PD Act.
17 Relevantly, in terms of the agreed issues for determination (which are set out in the next section of these reasons), in considering the application for development approval, the Tribunal is required to have 'due regard' to the following matters set out in cl 67 of the deemed provisions:
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning[;]
…
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
…
(m) the compatibility of the development with its setting including the relationship of the development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
…
(ii) the character of the locality; and
…
(zb) any other planning consideration the local government considers appropriate.
18 Clause 2.2 of LPS 3 empowers the respondent to make planning policies relating to planning and development of the Scheme area. The City has adopted Local Planning Policy - 6.5 Development Abutting Rights of Ways (LPP 6.5 or Policy). Clause 2.3.2 of LPS 3 provides that:
A Local Planning Policy is not part of the Scheme and does not bind the Council in respect of any application for planning approval but Council is to have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its determination.
19 There is no dispute between the parties that LPP 6.5 was validly created and adopted in accordance with cl 2.4 of LPS 3 and is a relevant consideration in the determination of this matter.
20 The objectives of LPP 6.5 are specified as:
2.1. To facilitate the improved management of Rights of Way ('ROW');
2.2. To promote better urban design by encouraging the use of ROW for vehicle access;
2.3. More efficient use of individual sites;
2.4 Create unique streetscapes along the ROW through sympathetic building orientation and design;
2.5. Maintain existing streetscapes, by minimising the need for and impact of additional garages/carports and paved areas within the street setback area, and better allowing the retention of existing buildings and landscaping; and
2.6. Contribute to the objectives of the City's Rights of Way Management Strategy adopted by Council on 10 November 2009.
21 It is accepted by the parties, and the Tribunal agrees, that for the purposes of LPP 6.5 the ROW abutting the subject lot is categorised as a 'Category 2 Development Potential ROW'. Such a ROW arises where it is:
[L]ocated in areas where the majority of abutting lots have infill development potential and the ROW is deemed to have the potential to reduce the negative impacts of this infill development (in terms of streetscape amenity, environmental impact, efficient use of land and traffic management).
22 Clause 5.2 of the LPP 6.5 states that the respondent's intention in the policy is to 'promote' Category 2 ROW for 'primary access'. Primary access is defined in the Policy to mean:
… a road or ROW which provides the principal access to the major entry (front door) of a dwelling.
Issues
23 During the hearing, the parties agreed that the following issues arise for determination in relation to these proceedings:
1. Whether the proposed development on Lot 981 (No 161) Wilding Street, Doubleview should be approved having due regard to the planning framework, in particular:
i) LPP 6.5; and
ii) Clause 5.4.2 of the R Codes relating to solar access to adjoining sites.
LPP 6.5 Development Abutting Rights Of Ways
25 The intent of LPP 6.5, in respect of Category 2 ROW, is to seek to promote the use of the abutting ROW for primary access, that being the principal access to the major entry (front door) of a dwelling. The specific provisions relating to Category 2 ROW require developments to orient to and use the ROW for primary access and 'not to detract from the long term objectives of good traffic management, passive surveillance and creating a pleasant streetscape along the ROW.' Developments, as such, may either be oriented towards the primary street or the ROW, however, justification and demonstration of design features that support the selected orientation must be provided.
26 The proposed grouped dwellings are oriented to, and primary access is provided from, Wilding Street. The function of the ROW in this instance is to provide vehicular access to the double bay garages of the proposed dwellings.
27 The applicants contend that the design of the development is consistent with the objectives of LLP 6.5 for the following reasons. Firstly, the design encourages the use of the ROW as the principal vehicular access to the dwellings. Secondly, the positioning of the double garages to the rear of the dwellings allows for an improved interface with Wilding Street as the dwellings provide an attractive façade to the primary street and a reduction of crossovers and garage/carport structures in the streetscape. Thirdly, the design of the garages is sympathetic with the surroundings and is identical to others in the street block. Fourthly, the garages present as single storey structures with skillion roofs so a line of sight of the ROW can be maintained from the proposed dwellings in order to provide passive surveillance from the second storey of the proposed dwellings. Fifthly, the contrasting building materials and landscaping assist in ameliorating the impacts of the garage on the streetscape of the ROW.
28 The respondent contends that the proposed development is inconsistent with LPP 6.5 as the orientation of the dwellings to Wilding Street fails to create a unique or pleasant streetscape along the ROW as there is a lack of design features facing the ROW to compensate for the orientation of the dwellings. Mr John, Senior Planning Officer at the City, accepts that LPP 6.5 does not require the development to orientate towards the ROW but submits that there are no design features incorporated in the proposed development that contribute towards creating a pleasant streetscape along the ROW. He considers the two double garages that encompass almost the entire width of the site will have no aesthetic value and have a negative impact on the streetscape of the ROW. He also contends that the upper floors of the dwellings, which are set back 13 metres from the boundary, will make almost no contribution to reducing the dominance of the garage façade on the ROW, nor provide passive surveillance of the ROW as the line of sight from the major openings of the upper floor will be obscured by the garages.
29 The applicants assert that there is no requirement for strict compliance with LPP 6.5 and relies on words such as 'promote' and the fact that there is development within the street block that does not comply with the Policy, in particular, the development immediately south of the subject land at No 163A and 163B Wilding Street. It is the applicants' contention that the narrow lot configuration of development is the preferred neighbourhood character, which enables 'maximising the development potential of the original lots, taking advantage of rear vehicular access, and providing the greatest localised capital improvement, and hence broader gentrification of the neighbourhood.'
30 In Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198 the Tribunal stated at [34]:
… an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24].
31 The applicants observe, correctly, that the policy provision are not mandatory. In fact, an inflexible approach to the application of a policy without considering site specific factors would involve an error of law: Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].
32 The applicants submit that based on their analysis of a small section of Wilding Street there are five distinct forms of development in the street, which in short, are as follows:
1. Original lots retaining the existing single storey dwellings.
2. Infill development involving the amalgamation of lots with development accessing a centrally located common property driveway with sole frontage to Wilding Street.
3. Infill development in the form a battle-axe subdivision for which the original dwelling may or may not have been retained, and a single storey dwelling subsequently constructed to the rear with sole frontage to Wilding Street.
4. Infill development in the form of a subdivision that retains the original dwelling and provided sole frontage for a new single storey dwelling to the rear ROW with a pedestrian access way to Wilding Street.
5. Infill development where the original dwelling has been demolished and new narrow lot two storey dwellings have been constructed providing sole or principal vehicular access to the ROW.
33 In the context of LPP 6.5, Mr John defined the 'locality' as the street block bounded by Wilding Street, Sackville Terrace, Alice Street and Moorland Avenue. Mr John agreed that the five forms of development as identified by the applicants were representative of the forms of development found in the street block. He submits that the predominant character of the street block is single frontage wide lots. He identified lots in the street block where infill development had been approved (refer to Exhibit 10 and Appendix 5 of Exhibit 4) and maintains that since 2007, with the exception of Lot 172A Alice Street which had a battle axe subdivision approved in 2006, all new infill development oriented to the ROW and contributed to the streetscape of the ROW. He acknowledges that there are some historic developments that have no orientation to the ROW and provide double garage frontage to the ROW, but maintained that due to the consistent application of LPP 6.5, since 2007, it can been seen that the progression of the character of the streetscape of the ROW is single lots with dwellings orientating to the ROW.
34 Clearly, the intent of LPP 6.5 is to encourage infill development to address both the primary street and the ROW by ensuring the design of the development maintains the existing streetscapes along the existing street network and promotes the creation of 'unique' streetscapes along the ROW. There appears, however, to be a discord between the objectives of Category 2 ROW and the general provisions contained in the same. The 'Objectives' of Category 2 ROW clearly state that '[d]evelopments are required to orient to and use Category 2 ROW for primary access and not to detract from the long term objectives of good traffic management, passive surveillance and creating a pleasant streetscape along the ROW'. While the 'General' provisions of Category 2 ROW are equivocal to the orientation and only require justification through design features that support the selection of orientation.
35 The proposed development clearly does not satisfy the 'Objectives' of Category 2 ROW for the following three reasons. Firstly, the proposed development does not orient to and use the ROW for primary access. Secondly, almost all of the entire frontage to the ROW is comprised of garage structures. The dominance of this type of structure on the ROW cannot be considered to be a positive element in the creation of a 'unique' or 'pleasant' streetscape. Thirdly, as demonstrated in the applicants' plans, major openings in the upper floor of the proposed dwellings (see Exhibit 3, p 10) do not provide for passive surveillance of the ROW. As to whether the proposed development satisfies the 'General' provisions of Category 2 ROW and provides design features that contribute to the creation of a 'pleasant' streetscape along the ROW, the Tribunal finds that the incorporation of landscaping areas, lighting to the garages and contrasting building materials do not ameliorate the negative impacts of the garages on the ROW. The proposed development does not assist in creating a 'pleasant' streetscape along the ROW.
36 The Tribunal is not persuaded by the applicants' argument that there are other similar developments in the street block and therefore this form of development is acceptable, notwithstanding the intent of LPP 6.5. Appendix 5 of Mr John's witness statement identifies the approval dates of development within the street block, which shows that during the period from 1999 to 2004 the City, in the main, supported development that did not orient to the ROW. However, the evidence clearly establishes a change in direction, as from 2007, all approvals, with the exception of 172A Alice Street, supported development that was consistent with LPP 6.5 and orientated to the ROW. It should be noted that the development the applicants are seeking to emulate (163A and 163B Wilding Street) was approved in 1999.
37 It is clear that the City is committed to advancing the planning principles ensconced in LPP 6.5 in respect to this street block as it has committed substantial finances to the upgrade of this ROW in the 2016/2017 works programme.
38 The Tribunal, in considering the substantial merits of this particular case, finds no cogent reason to depart from LPP 6.5 and support development that detracts from the longterm objectives of the Policy and results in an outcome that does not create a 'pleasant' streetscape along the ROW.
Clause 5.4.2 of the R Codes
Whether the proposed development demonstrates compliance with the design principles specified in cl 5.4.2 Solar access for adjoining sites P2.1 and P2.2 of the R Codes
39 Given the Tribunal's findings made above in respect to issue 1(i), it is unnecessary to assess the proposed development against cl 5.4.2 of the R Codes. However, as the Tribunal heard evidence on this issue during the hearing and has turned its mind to the arguments, the Tribunal will address it.
40 There is no dispute between the parties that the proposed development fails to meet the 'deemedtocomply' provisions of the R Codes relating to solar access for adjoining sites, that is cl 5.4.2 C2.1 and, therefore, the development is to be assessed against the respective design principles for 'solar access for adjoining sites', being cl 5.4.2 P2.1 and cl 5.4.2 P2.2.
41 The respondent contends that the proposed development does not demonstrate compliance with the first two dot points of cl 5.4.2 P2.2 as the proposed building overshadows the outdoor living area and north facing major openings of the adjoining lot at No 163A Wilding Street (adjoining lot).
42 Mr John, in his witness statement, held the view that the proposed development does not meet the design principle of cl 5.4.2, stating the following reasons:
a) The subject development casts shadow over 62% (inlieu of 35% deemed to comply) of the adjoining lot to the south.
b) The outdoor living area of the adjoining lot is 45m2 in area, 25m2 is overshadowed by the subject building.
c) The north facing major opening to kitchen and dining area of the adjoining property are overshadowed by the subject building.
43 As the Tribunal has articulated in Loxton & Anor and City of Fremantle [2015] WASAT 46, the exceedance of the development with the deemedtocomply requirement is not an appropriate measure for assessing whether the development demonstrates compliance with the design principles. In the exercising of judgment, the decisionmaker is to consider the merits of the proposal having regard to the objective(s) of the design element and balancing these with the consideration of the design principle(s): cl 2.5.1 of the R Codes.
44 The relevant objective in this instance is cl 5.4(b) which states:
To optimise comfortable living, access to sunlight and solar energy to facilitate sustainable housing development with particular regard for place and local conditions.
45 The applicable design principles to be met (see cl 5.4.2) are:
P2.1 Effective solar access for the proposed development and protection of the solar access.
P2.2 Development designed to protect solar access for neighbouring properties taking account the potential for overshadow existing:
• Outdoor living areas;
• North facing major openings to habitable rooms, within 15 degree of north in each directions; or
• Roof mounted solar collectors.
47 The view of the subject land enabled the Tribunal and the parties to observe the dwelling and improvements situated on the adjoining lot at No 163A Wilding Street. The view revealed that the outdoor living area situated at the rear of the dwelling was covered with a shade sail and awnings had been installed on the north facing major openings on the upper level of the dwelling.
48 As recognised in the Residential Design Codes of Western Australia Explanatory Guidelines, narrow eastwest oriented lot on the south side of a development site, such as No 163A Wilding Street, is highly vulnerable to being overshadowed, even by a relatively low building setback from the common boundary. Notwithstanding, the north facing major openings of the upper floor level of the dwelling on the adjoining property will be impacted by the proposed development in midwinter, the Tribunal is of the view that the design of the proposed development has attempted to respond to the development on the adjoining lot. Firstly, the portion of the upper floor level adjacent to the outdoor living area on the adjoining lot has been set back 3.49 metres from the common boundary, whereas the portion of the upper floor level adjacent to the existing dwelling is set back 1.2 metres from the common boundary. This increase in the setback to the upper floor assists in reducing the overshadowing of the outdoor living area. Secondly, the roof structure covering the alfresco area of the proposed development is setback 2.005 metres from the common property, which also reduces the shadow cast by the proposed development on the outdoor living area.
49 The Tribunal is satisfied, on the evidence before it, that the proposed development demonstrates compliance with the design principles set out in cl 5.4.2 P2.2 of the R Codes.
Conclusion
50 In considering the substantial merits of this particular case in light of the objectives of the planning framework, the Tribunal does not consider the proposal warrants approval. The Tribunal finds that the proposed development does not satisfy the objectives and general provisions of LPP 6.5 and that there is no cogent reason to depart from the Policy in the circumstances of this case.
Orders
For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
- I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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