FIORE and CITY OF STIRLING - [2009] WASAT 185

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FIORE and CITY OF STIRLING [2009] WASAT 185

MEMBER: MR J JORDAN (MEMBER)

HEARD: 24 JUNE 2009

DELIVERED : 23 SEPTEMBER 2009

FILE NO/S: DR 508 of 2008

BETWEEN: FERNANDO FIORE
GAIL MADAFFERI
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development refusal Development of a second two storey dwelling at the front of a lot Lot has existing two storey dwelling at rear New dwelling will abut existing dwelling Site has ocean views to west and southwest Site slopes down from east to west Development refused because considered to be overheight Development not in compliance with acceptable development standards of respondent's Building Height Policy - Whether the development would be in compliance with performance criteria for building height in Residential Design Codes of Western Australia (2008) - Desired height of building in the locality - Impact on amenity of adjoining property and streetscape

Legislation:

City of Stirling District Planning Scheme No 2, cl 1.1.6.2, cl 1.3.5.1(f), cl 1.3.5.4, cl 2.3.1, cl 2.3.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2008), Pt 1, Pt 5, cl 5.3, cl 6.7, cl 6.7.1, cl 6.7.1 A1.1, cl 6.7.1 P1, cl 6.9.1, Table 3
State Administrative Tribunal Act 2004 (WA), s 31, s 64

Result:

The application for review is dismissed
The refusal by the City of Stirling is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr M Hardy
Respondent: Mr D McLeod

Solicitors:

Applicants: Hardy Bowen
Respondent: McLeods

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

Dumbleton and Town of Bassendean [2005] WASAT 145

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the City of Stirling of an application for development approval for a second two storey, flat roofed dwelling at the front of No 3 Mary Street, Waterman. The proposed dwelling would be in front of a two storey, flat‑roofed dwelling approved in 2006 and now built.
The City of Stirling refused the development application because the top of the external wall exceeded by 0.5 metres the maximum height set out in its height policy as acceptable development for a flat roofed house on a sloping site.
The Tribunal found that there was no dispute that the building did not comply with the City of Stirling height policy acceptable development provisions. The height policy, however, is stated as being in addition to the Residential Design Codes of Western Australia (2008) and it was necessary therefore to assess the proposed dwelling against the performance criteria for building height set out in those codes.
The Tribunal formed the view that the significant considerations in this matter were the comparison of the external wall heights of the proposed dwelling, with each of: a dwelling that would comply with the 'desired' height of building as expressed in the Height Policy; the wall height of the existing dwelling to the east at No 5 Mary Street; and the scale of development in the street. The Tribunal found that the wall height of the proposed dwelling would be unacceptable because it would be substantially greater than the wall height of the building to the east and also, because it would not be consistent with what might reasonably be expected to be the scale of a dwelling of the type proposed in this streetscape.
The development would also have an impact on the amenity of the house to the east because the additional height would result in some reduction in the availability of solar access. While this was not determinative of the matter, it was an impact that resulted from the wall height of the proposed dwelling.
The Tribunal concluded that the proposed dwelling would not satisfy the performance criteria for building height found in the Residential Design Codes of Western Australia (2008) or meet the objectives of the City of Stirling's height policy. The Tribunal therefore dismissed the application.

Introduction

These proceedings involve an application brought by Mr Fernando Fiore and Ms Gail Madafferi (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Stirling (City or respondent) to refuse to grant approval for the development of a second two storey dwelling at the front of No 3 (Lot 23) Mary Street, Waterman (site).

Site and locality

The site has an area of 936 square metres and is orientated north‑south. At the southern end is a frontage of 26 metres to Mary Street and at the northern end, a rear boundary of 14.7 metres. The site is between 47.3 metres and 45.9 metres deep. A site plan shows that the site falls from about RL 9.8 adjacent to the eastern boundary to about RL 8.4 adjacent to the western boundary.
A flat roofed dwelling approved by the respondent at the rear of the site in 2006 is shown on the plans with a ground floor of RL 10.410. From photographs supplied by the parties, it appears that fill has been placed and levelled at the front of the site where the proposed dwelling would be built.
Mary Street runs perpendicular to West Coast Highway at Waterman. West Coast Highway runs north-south parallel to the Indian Ocean. Mary Street rises up from West Coast Highway to the east, giving the appearance of houses generally stepping up Mary Street away from the ocean. Adjoining to the west of the site is a two storey flat‑roofed house and next to that on the corner of Mary Street and West Coast Highway is a further two storey house. Adjoining the site to the east at No 5 Mary Street is a house which is two storey at the front, single storey at the rear and occupies much of the depth of that lot. On the southern side of Mary Street are mostly two storey houses with balconies at the front to take advantage of the ocean views to the west and north‑west.

Planning framework

The site is zoned 'Urban' under the Metropolitan Region Scheme and is zoned 'Residential' with a density coding of R20 under the City of Stirling District Planning Scheme No 2 (DPS 2). Clause 1.1.6.2 of DPS 2 states:
The Residential Design Codes (R Codes) shall be read in conjunction with the Scheme as if they form part of the Scheme. Except as otherwise provided by the Scheme, the use and development of land for any of the residential purposes dealt with by the R Codes shall conform to the provisions of the R Codes.
Clause 1.3.5.1(f) of DPS 2 provides that in considering an application for planning approval, due regard is to be had to certain matters including:
(i)the objectives and provisions of the Scheme;
(ii)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, region scheme or amendment which has been granted consent for public submissions to be sought;
…
(vi)any Local Planning Policy adopted by the local government under clause 1.4.3 …
(ix)the compatibility of a use or development with its setting;
…
(xiv)the preservation of the amenity of the locality;
(xv)the relationship of the proposal to development on adjoining land and on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(xxv)any relevant submissions received on the application; and
(xxvi)any other planning considerations the local government considers relevant.
Clause 1.3.5.4 of DPS 2, 'Preservation of Amenity', notes that the respondent, having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenity of the locality, may refuse to grant its refusal to an application to use or develop land.
Clause 2.3.1 of DPS 2, 'Minimum Development Standards', states that:
Subject to the provisions of the Scheme, no person shall develop or use any land or use any building in a Residential Zone or undertake any development of a residential nature for any of the purposes mentioned in the Zoning Table - Table 1, unless such development or use is in accordance with the provisions of the R Codes, this Part of the Scheme and the standards set against such purpose in Table 2: Uses which may be permitted in the Residential Zone, as the case may be.
Clause 2.3.3 of DPS 2, 'Height of Buildings', provides that the City shall consult with neighbours when exercising discretion on building height and shall advertise a proposal when it considers the amenity of the wider area might be affected.
The Residential Codes mentioned in DPS 2 are the Residential Design Codes of Western Australia (2008) (Codes). Design Element 6.7, 'Building Height Requirements', has the objective 'to ensure that the height of buildings is consistent with the desired scale in a given locality'. The 'Performance Criteria' in respect of height at cl 6.7.1 P1 of the Codes, that the development should meet, are:
Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms; and
•access to views of significance.
Under the heading 'Acceptable Development', the Codes, at cl 6.7.1 A1.1, state that one way of meeting the associated performance criteria is as follows:
Buildings which comply with Table 3 for category B area buildings, except where stated otherwise in a local planning policy or equivalent.
Part 5 of the Codes relates to local planning policies. Clause 5.3 notes that local planning policies may contain provisions that:
(a)vary or replace the following acceptable development provisions set out in the Codes:
…
building height (design element 6.7 A1) …
(b)augment the Codes by providing additional performance criteria and acceptable development provisions for any aspect or residential development that is not provided for in the Codes.
The respondent has adopted Policy N101421 Residential Building Height (Height Policy). This states in the introduction that:
This Policy is adopted under the provisions of the Residential Design Codes of Western Australia [Codes] and the following standards are in addition to the Acceptable Development Standards specified under Clause 3.7 [now clause 6.7] of the [Codes].
The objectives of the Height Policy are:
•to ensure that the height of buildings are consistent with the desired scale in a given locality; and
•to ensure that the height of a building does not overly impact on the streetscape or on neighbouring properties.
The Height Policy sets out definitions that are applicable, including:
Wall height
Is calculated as per the 'Height, Wall' definition of the [Codes]. However, the height of the wall is measured at the base of the wall (i.e. not the boundary).
It is noted that the Codes include the definitions:
Height, wall
The vertical distance from natural ground level to the roof or parapet at any point in accordance with figures 2A, 2B and 2C.
Natural ground level
The levels on a site which precede the proposed development, excluding any site works unless approved by the Council or established as part of subdivision of the land proceeding development.

Under the heading 'Acceptable Development Standards' in the Height Policy, it states that 'Development which complies with the following Acceptable Standards are deemed to meet the relevant Performance Criteria'. The Height Policy then states:
Building height (Clause [6].7.1 - A1.1)
•The Acceptable Building Heights in areas coded R50 or less are as per category B specified in Table 3 of the [Codes].
Table 3 of the Codes sets out the following maximum building heights for Category B buildings:
•Top of external wall (roof above) - 6 metres;
•Top of external wall (concealed roof) - 7 metres; and
•Top of pitched roof - 9 metres.
There are no performance criteria set out in the Height Policy. As the Height Policy acceptable development standards are in addition to the 'Acceptable Development' standards of the Codes, the relevant 'Performance Criteria' are those found at cl 6.7.1 P1 of the Codes referred to above.
The Height Policy, under the heading 'Measurement of Building Height', states:
•On a sloped site the Building Height may be measured from the Average Natural Ground Level* (ANGL) calculated separately for the footprint of each level of the dwelling (i.e. its site cover), provided that at any point the difference between the ANGL and [the] Natural Ground Level does not exceed 1.5m …
* as determined by the City.
The Height Policy then includes, as Example 1, three cross-sections showing acceptable building heights for areas coded R50 or less for buildings on sloped sites with, respectively, a pitched roof, flat roof and a skillion roof. The maximum heights above average natural ground level (ANGL) shown are the same as for Category B buildings in Table 3 of the Codes.

Proposed development

The original plans for the proposed development were amended by the applicants following discussion with the respondent. The plans before the Tribunal for approval are date-stamped 13 August 2008. Proposed is a new dwelling on the site in addition to the two storey flat-roofed grouped dwelling at the rear of the site approved in 2006 and now built.
The proposed dwelling would be two storeys with a 'flat' roof concealed by a parapet. On the ground floor would be the entry, bedrooms and a double garage with a crossover adjacent to the northern boundary. On the first floor would be the main bedroom, plus lounge, dining, meals and kitchen areas. On the southern and western elevations of the first floor would be balconies. The dwelling would abut the dwelling to the rear of the site at the first floor level.
The plans show the height of the proposed dwelling to be level with that of the dwelling to the rear. To note is that the rear dwelling was approved as an over-height building with a height to the top of the external wall of about 7.5 metres above ANGL. There is a dispute being pursued elsewhere over whether the rear dwelling actually has been built to the approved height.
The plans show an average ground level of RL 9.346 and the level to the top of the parapet of the proposed dwelling as RL 16.841, giving an overall height above average ground level of 7.495. The parties discussed that the ANGL might vary slightly, depending upon the number of points from which it was calculated, but agreed that height to the top of the external wall could be considered as 0.5 metres above the maximum level in the Height Policy. At its western edge, the low side of the site, the plans show the building retained from actual ground level 750 millimetres below the average ground level, giving an overall height of approximately 8.2 metres. The dwelling is parallel to the western boundary and therefore at an angle to the front boundary. The front setback varies with the articulation of the façade with the porch in the centre of the façade being set back at about 3 metres at the closest point.

Respondent's decision

The application for development approval was not determined within 60 days and an application for review of a deemed refusal was filed with the Tribunal on 17 December 2008. The respondent's administration issued a refusal of the application for the proposed development on 14 January 2009. The reason for refusal set out in that decision stated:
The proposed development does not satisfy with [sic] the provisions of the Residential Design Codes of Western Australia and the City's Building Height Policy. Specifically, the proposed top of external wall height exceeds the permitted building height by 0.5 m (7.5 m proposed in lieu of 7 m).
The application for review was then filed with the Tribunal. The Council was invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 21 April 2009, the Council again considered the proposed development and reiterated the decision of 14 January 2009.

The issues

The parties filed a joint statement in which they agreed that the issues before the Tribunal in respect of the proposed dwelling were whether there was:
1)compliance with the City's Height Policy; and
2)compliance with cl 6.7.1 of the Codes.
The respondent also filed witness statements from two people who objected to the development and a town planner engaged by the objectors. The objectors were Mr Bradley Arnup who owns and lives at No 5 Mary Street next door on the eastern side, and Mrs Myra Staffa who owns No 8 Mary Street opposite. Their town planner was Mr Michael Swift.
The Tribunal has had regard to these submissions where relevant to the issues agreed between the parties. The Tribunal would add that prior to the parties agreeing the issues, it had refused requests made on behalf of the objectors that they be granted leave to intervene in the matter or to make submissions pursuant to s 242 of the PD Act. No request was made by the objectors for leave to pursue additional issues after the issues agreed between the parties were filed. The Tribunal would comment that it has had regard to the submissions of the objectors where they are considered to bear on the issues raised by the parties and not where they purport to raise additional issues.

Discussion

Issue 1: whether the proposed dwelling is in compliance with the City's Height Policy

The Height Policy sets as an acceptable development standard for a flat roofed building on a sloping site, a maximum height to the top of the external wall of 7 metres above ANGL. Counsel for the applicant acknowledged that the proposed dwelling exceeds this maximum height standard. The town planners called as expert witnesses for each of the parties, Ms Claire Murray for the applicant and Mr Neil Maull for the respondent, said in the joint witness statement of the planning experts (Exhibit 7) that they had calculated that the proposed development would be 0.5 metres above the required 7-metre height requirement calculated from ANGL.
Mr Swift, the town planner engaged by the two objectors, was of the opinion that the existing survey information did not accurately estimate natural ground level, which means the magnitude of the height variation is unclear and may well be greater than 0.5 metres above the 7‑metre maximum height requirement of the Height Policy. Mr Swift said he had used the levels shown on the revised plans of 13 August 2008 and calculated an ANGL of RL9.24 metres and a building height of 7.601 metres at the front elevation of the building. Mr Swift considered that a new, independent survey should be undertaken to confirm the relative ground levels which are used to calculate ANGL and the height of the proposed development. Mr Maull agreed that this would remove any doubt. Counsel for the respondent asked that such a survey be ordered as provided for under s 64 of the SAT Act.
The Tribunal considered the background to the current proposal and the evidence before it and formed the view that an independent survey was not warranted. Exhibit 8 includes a letter written by Mr Keith Howard Piper, licensed surveyor, dated 3 March 2009, addressed to Mr L Marchesani. Mr Piper refers to an attached copy of his original site survey for No 3 Mary Street drawn on 19 May 2006. The letter includes comment that the current ground level was estimated at RL10 and the original ground level was interpolated at RL9.5. The evidence of Mr Maull was that this RL had been used as the basis for determining the ANGL and the height of the dwelling now at the rear of the site. The information was available to him when calculating the ANGL for the proposed dwelling. He said that in calculating the ANGL, he ignored any fill on the site and used the original ground level interpolated by Mr Piper in 2006.

Mr Arnup, the next door neighbour, said fill had been placed on the site prior to 2006. Counsel for the respondent said an independent survey might assist in determining what fill had been on the site prior to the survey by Mr Piper. Comment was made by the expert witnesses, but no conclusions drawn, on whether the appropriate natural ground might be the approved level of the foundations of the now demolished original house on the site or even the Water Corporation contours used as a standard in other situations.
The Tribunal noted that a licensed surveyor had identified an 'original ground level' in 2006. The City accepted that survey. The survey had formed the basis of decision-making since that time. The Tribunal further noted that under the Height Policy, building height is measured from the average natural ground level as 'determined by the City'. The City has identified and consistently used an ANGL since 2006. The Tribunal had no evidence before it that since Lot 23 was created and originally developed with a house, there was established a set of levels at a particular point in time that should preferably be considered as natural ground level for the basis of any calculations. In the interests of consistent decision-making and consistent application of standards, the Tribunal considers that the level adopted by the Council in 2006 in respect of ANGL should continue to be applied in respect of Lot 23.
Ms Murray emphasised that the proposed dwelling, while 0.5 metres above the maximum height level from ANGL, would be less than the 1.5 metres allowed as a maximum between ANGL and natural ground level on the low side of the slope.
There was no dispute that the Height Policy contains only acceptable development provisions. If met, these would arguably satisfy the objectives of the Height Policy. The acceptable development standards have not been met and so in respect of Issue 1, the proposed dwelling did not comply with the City's Height Policy. It was common ground, and the Tribunal agrees, that the Height Policy is in addition to, rather than replacing, cl 6.7 of the Codes. That is, the Height Policy provides one way of satisfying the Performance Criteria of cl 6.7 of the Codes and thereby the objectives of the Height Policy. As the acceptable development standard of the Height Policy is exceeded, it then falls to the Tribunal to assess the proposal against the Performance Criteria at cl 6.7.1 P1 of the Codes.

Issue 2: whether the proposed development is in compliance with cl 6.7.1 of the Codes

Clause 6.7, 'Building Height Requirements', of the Codes sets out as an objective, as does the Height Policy:
To ensure that the height of buildings is consistent with the desired scale in a given locality.
The proposal does not rely on meeting the acceptable development provisions at cl 6.7.1 A1.1 of the Codes to satisfy this objective. To be assessed, then, is whether the development would satisfy the Performance Criteria at cl 6.7.1 P1 of the Codes, and which are set out in full under the heading 'Planning framework' above.
The first consideration mentioned in the Performance Criteria of cl 6.7.1 P1 of the Codes is building height being consistent with the desired height of buildings in the locality. It was the evidence of Ms Murray that the Height Policy guides expectation of heights of residential development in this locality. In addition, in the submission of counsel for the applicant, the desired height of dwellings in the locality is influenced by, and expressed in, the existing development in the street, referring to the recent two storey developments of both pitched roof and flat roof designs in Mary Street.
Ms Murray was of the opinion that the proposed development complied with the expectations for height in the locality because the dwelling would be within the 8.5 metre high building envelope allowed by the Height Policy. That is, the casual observer would not be able to identify the ANGL but would see a house as built, and the Height Policy provides for an overall height of 8.5 metres above natural ground level. She pointed out that the dwelling is similar in design to the flat roofed dwelling to the west, a new house of a similar design over the road and others in the street. In her opinion, the height and the scale of the dwelling would be consistent with others in the locality and would not overly impact on the streetscape.
Included in the respondent's bundle of documents at page 33 was a drawing the applicants had prepared showing the street elevation on the northern side of Mary Street. The drawing showed two versions of development upon the site and the front elevations of the flat-roofed house on the low side to the west and the pitched-roof house at No 5 Mary Street on the high side to the east. One version of development on the site showed an outline of the dwelling applied for. The top of the parapet on the proposed dwelling was indicated at an RL which was the 0.92 metres lower than the top of the ridge of the two storey section at the front of the house at No 5 Mary Street. The second street elevation on the drawing showed a house on the site with 6 metre high walls and a pitched roof, to the standards set out in the acceptable development criteria of the Height Policy. The ridge of this house would be 1.54 metres above the height of the ridge of the house at No 5 Mary Street.
Mr Maull considered that even though the street elevations showed the proposed development to be within the possible height envelope for a pitched‑roofed development, the proposed additional 0.5 metres above ANGL for a flat-roofed development makes a difference in terms of local streetscape impact. In his opinion, this was because the proposed external wall height would be 2.4 metres higher than the wall height of the existing house at No 5 Mary Street.
The submission of the applicants was that the proposed dwelling must be considered in context and this includes the subjective requirements of cl 6.7.1 of the Codes, the changing character of the Mary Street streetscape, the height of the existing building at the rear of the site and the permissible height of a pitched-roof dwelling. The applicants said that in this context, the proposed dwelling would be consistent with the Performance Criteria and so would satisfy the height and scale desired for the locality.
The Tribunal notes the comparison between the proposed dwelling and the building envelope for a pitched-roof house, but also notes that the drawing with the street elevations was prepared for the purposes of comparison and a pitched-roof design has not been the subject of any assessment by the City. The Tribunal would make the comment that, while a significant factor in its favour, it does not follow that any pitched‑roof house that complies with the Height Policy requirements would automatically receive a planning approval. This is because of other matters that must be considered under cl 1.3.5 1(f) of DPS 2 when determining an application for a house or grouped dwellings: Dumbleton and Town of Bassendean [2005] WASAT 145 at [90].
The Tribunal, with respect, does not consider the main consideration to be a comparison of whether the proposed development will have more or less impact on the neighbours and streetscape than another style of possible development. When determining whether a proposed development is of a standard that is acceptable, the main consideration is what impact the proposed development will have on the neighbours and streetscape.
The streetscape comparison drawing reveals the impact within the streetscape of the height of the walls of the proposed dwelling when compared to neighbouring houses. The elevation shows that it is the comparison between wall heights, rather than with the apex of a ridge, that best illustrates that impact. The Tribunal has formed the view that the additional height of the walls of the proposed dwelling has an impact greater than would be expected for a house of this design in the streetscape.
There was no dispute that the Mary Street streetscape now comprises a mix of original single storey houses and more recently, two storey houses with both pitched roofs and flat roofs. There was no evidence as to whether or not newer houses on any other lots in the street were approved as over‑height houses. The existing dwelling at the rear of the site has been approved as an over‑height dwelling but its impact on the streetscape will be limited once a dwelling is built at the front of the site.
The Tribunal considers significant the submission of the respondent that it is a reasonable expectation for the streetscape that the Height Policy will be consistently applied so that as older houses in the street are redeveloped the standards expressed in the Height Policy will result in a predictable relationship between buildings up the slope of Mary Street. The Tribunal has formed the view that the proposed dwelling will be inconsistent with that expectation because it will be of a scale that will overly impact on the streetscape.
Clause 6.7.1 P1 of the Codes next mentions the need to protect the amenities of adjoining properties. The first item listed is 'adequate direct sun to buildings and appurtenant open spaces'. It was common ground that the proposed development meets the acceptable development provisions of cl 6.9.1 of the Codes, the design element concerned with overshadowing. This is because the subject site has a northsouth axis and overshadowing is only required to be measured at midday at the winter solstice.
Mr Swift said that access to direct sun would be inadequate for No 5 Mary Street because of the afternoon shadow cast by the two storey building. Mr Arnup, of No 5 Mary Street, made the same comment in his statement.
Mr Maull was of the opinion that while overshadowing requirements of the Codes were satisfied, there would be an impact on solar access in respect of No 5 Mary Street. Ms Murray made reference to the side setbacks to the upper level of the proposed dwelling being greater than required to protect solar access and ventilation to No 5 Mary Street.
The Tribunal notes that the house at No 5 Mary Street, as described by Mr Arnup, extends most of the length of the site and is two storeys at the front. The Tribunal considers it a reasonable expectation of the owners of the site that they be allowed to build a two storey development consistent with other new houses in the street. The increase in height of the parapet of the proposed dwelling, however, does marginally reduce direct sun at No 5 Mary Street. The reduction in direct sunlight due to the additional 0.5 metres is not considered to be of itself a reason for refusal, but it is a relevant consideration.
The next item listed at cl 6.7.1 P1 is adequate daylight to major openings to habitable rooms. The neighbour, supported by Mr Swift, cites as an example what he says is the unacceptable impact the existing dwelling at the rear of the site has had on access of daylight to habitable rooms at the rear of No 5 Mary Street.
The Tribunal notes that at the front of No 5 Mary Street the upper floor is set back further from the boundary than the rear of that house and the proposed dwelling would mostly be set back a greater distance from the side boundary at the upper level than the rear dwelling on the site. This is a locality where the respondent has consistently approved two storey dwellings. On lots with a northsouth orientation, unless the house design incorporates specific design features to overcome the situation, access to direct sunlight from mid-afternoon onwards will be difficult to achieve. The Tribunal again notes that the additional height of the proposed dwelling would make some difference to the length of time that shadow is cast at the upper level of No 5 Mary Street.
The final item at cl 6.7.1 P1 of the Codes is access to views of significance. The proposed dwelling is two storey and reducing its height by 0.5 metres would make no difference to the impact that there will be on the view once enjoyed by the house at No 5 Mary Street.

Conclusion

In respect of Issue 1, that is, whether the proposed dwelling is in compliance with the City's Height Policy, there was no dispute that the development would not be compliant with the acceptable development standards for a flat-roofed dwelling on a sloping site. The walls of the proposed dwelling would be in the order of 0.5 metres above the 7-metre maximum above ANGL set out in the Height Policy. The objectives of the Height Policy include ensuring that the height of buildings is consistent with the desired scale in a given locality and that the height of the building does not overly impact on the streetscape or on the neighbouring properties. If the dwelling had satisfied the acceptable development standards, it might be read that the objectives of the Height Policy would also be satisfied, subject to the general considerations required under the DPS 2.
Importantly, the Height Policy sets standards in addition to the acceptable development standards for height at cl 6.7.1 A1 of the Codes. It was common ground that as the development did not satisfy the acceptable development standards of the Height Policy, or the Codes, then the next step would be to assess the proposed development against the Performance Criteria for the height of buildings at cl 6.7.1 P1 of the Codes. This leads to consideration of Issue 2.
Issue 2 was whether the proposed development would be in compliance with, more particularly, cl 6.7.1 P1 of the Codes which sets out the Performance Criteria to be met to satisfy the objectives of the height design element of the Codes.
The first criterion mentioned in cl 6.7.1 P1 of the Codes is building height being consistent with the desired height of buildings in the locality. Building height for this locality finds expression in the development standards under the Height Policy. The applicants' position was that when considered in context the additional height could be supported. The context argued was a streetscape of a mixture of two storey flat-roofed and pitched-roofed houses, the existing development at the rear of the site at the height proposed for the new dwelling, the relationship of the proposed development with the house to the east and the proposed dwelling being within the building envelope of a pitched-roofed house that complies with the Height Policy standards.
The Tribunal formed the view that the significant considerations were the comparison of the wall heights of the proposed dwelling with the wall height of a flat-roofed dwelling that would comply with the 'desired' height under the Height Policy, with the wall height of the existing dwelling to the east at No 5 Mary Street and with the scale of development in the street. The Tribunal found that the wall height of the proposed dwelling would be unacceptable because it would be substantially greater than the wall height of the building to the east and also because it would not be consistent with what might reasonably be expected to be the scale of dwelling of the type proposed in this streetscape.
The development would also have an impact on the amenity of the house to the east because the additional height would cause some reduction in solar access for that house. While this was not determinative of the matter, it was an impact that results from the wall height of the proposed dwelling.
The Tribunal concluded that the proposed dwelling would not satisfy the Performance Criteria at cl 6.7.1 P1 of the Codes and therefore the objectives of the City's Height Policy and the Design Element for Height under the Codes would not be met. The Tribunal has therefore dismissed the application.

Orders

1.The application for review is dismissed.
2.The refusal by the City of Stirling is affirmed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER