FRYER and CITY OF SUBIACO - [2006] WASAT 199

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: FRYER and CITY OF SUBIACO [2006] WASAT 199

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 27 AND 28 JUNE 2006

DELIVERED : 30 JUNE 2006

FILE NO/S: DR 106 of 2006

BETWEEN: PETER FRYER
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Demolition of house which straddles lot boundary and erection of two storey houses built to common boundary on each allotment - Locality generally comprises single storey houses - Applicable height control in local planning scheme contemplates single storey buildings but confers discretion to allow variation to permit two storey buildings where no undue adverse impact on adjoining residential sites or the general amenity of the locality - Whether demolition should be approved prior to approval of a replacement building - Whether discretion should be exercised to permit second storey - Whether discretion should be exercised to permit proposed overall and wall heights - Policy adopted to guide discretion prescribes bulk and scale control restricting second level component to 25% of site area - Proposed second levels occupy 33% and 37% of site area - Whether second levels which exceed 25% of site area give rise to adverse impacts Adverse impact on single storey character and on residential amenity - Whether car parking arrangements acceptable in relation to risk of injury to pedestrians

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 2, cl 12(1), cl 22, cl 27(4), cl 30, cl 37, cl 39(3), cl 42, cl 42(1), cl 42(1)(a), cl 42(1)(b), Sch 1
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374A
Planning and Development Act 2005 (WA) s 252(1)

Town Planning and Development Act 1928 (WA), s 8A(1)

Result:

Application for review dismissed and decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Mr CA Slarke
Respondent: Mr LA Tsaknis

Solicitors:

Applicant: McLeods
Respondent: Watts & Woodhouse

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Zhang v Canterbury City Council (2001) 115 LGERA 373

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Mr Fryer sought review of the refusal of development applications for the demolition of a single storey house which straddled a lot boundary, and for the erection of two storey dwelling houses, joined to one another, on each of the two lots.
Following the hearing, the Tribunal gave an oral decision in which it dismissed the application for review.
The Tribunal determined that it would be contrary to the orderly and proper planning of the locality and the conservation of the streetscape character, and therefore, amenity of the locality, to allow demolition without also approving an appropriate replacement building, and conditioning the demolition on the erection of the replacement building within a reasonable period of demolition.
The Tribunal determined that discretion could not be exercised to allow the proposed second levels, as there would be undue adverse impact on an adjoining residential site, in terms of apparent bulk and scale, and on the general amenity of the locality, in terms of the predominantly single storey character of the streetscape.
The Tribunal also determined that the proposed vehicular access arrangement for one of the lots was unacceptable, because of the risk of injury to pedestrians, particularly children.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

These proceedings involve an application brought by Mr Peter Fryer pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (see now Planning and Development Act 2005 (WA) s 252(1)) for review of the decisions of the City of Subiaco (City) to refuse approval for two development applications in relation to Lots 38 and 39 (No 137) Hamersley Road, Subiaco (site).
The site is located at the south-eastern corner of the intersection of Hamersley Road and Campbell Street. It is directly across the road from the City gardens known as "Rankin Gardens" and diagonally across the road from the Subiaco Pre-Primary School and the Subiaco Primary School playing field and rear entrance.
Lot 38, which is the eastern lot, has a frontage to Hamersley Road of 5.93 metres, a depth of 35.04 metres and a total area of approximately 207.8 square metres. Lot 38 is, by the standards of the locality, uncharacteristically narrow and small. It constitutes approximately the western half of an original allotment which had the same dimensions and size as Lot 39.
Lot 39, which is the western lot, has a frontage of 11.59 metres to Hamersley Road, a frontage of 35.04 metres to Campbell Street, and an area of approximately 406.1 square metres.
Presently erected on the site is an original early 20th century single storey dwelling house which straddles the lot boundary between Lots 38 and 39.
Hamersley Road and Campbell Street are generally characterised by early 20th century single storey dwelling houses. Three dwelling houses in Campbell Street, which each have their principal address to another street, have a second level component. At their principal address, these buildings each appear single storey. There are two dwelling houses on the southern side of Hamersley Road, between Rokeby Road to the east and Hensman Road to the west, which have a second level component, with a third presently under construction. There are ten dwelling houses between Hensman Road and Railway Road which have a second storey element. The limited number of dwelling houses in Hamersley Road which have a second level element generally present as substantially single storey buildings to the street, although there are about six in Hamersley Road which clearly present as two storey houses.
Given that the streetscape is generally comprised of single storey houses, and that the houses with two storey elements generally present to the street as substantially single storey buildings, the small number of houses which present as two storeys to the street are a discordant element in the streetscape.
However, the immediate streetscape of the site in both Hamersley Road and Campbell Street is mixed. As noted earlier, the northern side of Hamersley Road in the immediate vicinity of the site comprises City gardens and the pre-primary school. Behind the City gardens is the City's administration building and the Subiaco Museum, both large single storey buildings. To the west is the primary school playing field. Further to the west is the large three storey Subiaco Arts Centre.
To the west of the site, across Campbell Street at No 139 Hamersley Road, is a single storey, early 20th century dwelling house which is substantially obscured by a 3 metre high solid-looking hedge from both streets.
To the immediate east of the site is a large and relatively tall single storey Edwardian dwelling house with a tower element known as "Duffel House". Like the existing building on the site, Duffel House occupies one-and-a-half original allotments. Unlike the existing building, Duffel House is a listed heritage item, both by the National Trust and on the City's Municipal Heritage Inventory.
To the east of Duffel House is a laneway and then a large two storey commercial building which principally addresses Rokeby Road. The commercial building presents to the residential area of which the site forms part, with a large blank brick wall, at the second level.
Although Campbell Street is generally characterised by single storey dwellings, the property immediately adjoining the site to the south, at No 2A Campbell Street, comprises a substantial two storey Inter-war or immediate Post-World War II residential flat building.
The development applications propose the demolition of the existing dwelling house on the site and the erection of a two storey dwelling house with undercroft double garage and basement home theatrette on Lot 38, and a two storey dwelling house with a basement and double garage on Lot 39. The buildings would each be built to the common boundary, including a two storey component approximately 15 metres in length.
The site is zoned "Residential" and has a residential density coding of "R20" under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme). The site is located within the West Subiaco Planning Precinct for the purposes of cl 37 of TPS 4. The proposed development is classified as "Dwelling: Single" under TPS 4, and is a permitted use in the zone. However, cl 22 requires that prior development approval must be obtained for the proposal, and cl 27(4) requires the City (and the Tribunal on review) to have regard to considerations including the following:
"(a)the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policies;
…
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality;
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure; and
(i)the conservation of places and areas of cultural heritage significance as referred to in clause 58 and clause 59."
Clause 39(3) of the Scheme provides as follows:
"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."
The site is zoned "Urban" under the Metropolitan Region Scheme.
The development applications were lodged with the City on 27 April 2005. The City notified the applications to surrounding property owners, and referred them for comment to the Heritage Council of Western Australia, Mr Phillip Griffiths, an independent architect, and Mr Kris Kennedy, an independent town planner and urban designer.
Two resident submissions were received during the notification period, one in support of the application and one in opposition to it. A further 37 submissions were made at a Council meeting at which the proposal was considered, one in support and 36 in opposition to it.
The Heritage Council of Western Australia advised that there is no requirement to seek its advice, as neither the existing dwelling house on the site nor Duffel House is listed or proposed to be listed on the State register. Mr Griffiths considered that the setbacks and bulk and scale of the proposal are acceptable. He also observed that, if a new house is to be built, "it is far better that it be built in a contemporary idiom than some romantic notion of the Federation period".
Mr Kennedy supported the proposal, noting that the streetscape in the vicinity is mixed, and that the development would not visually dominate Duffel House.
At the request of the City's officers, the applications were amended on 17 August 2005 and on 2 December 2005. The amendments include, in relation to the proposed building on Lot 38:
(i)reduction in building height by 500 millimetres to a maximum of 6.95 metres;
(ii)reduction in the area of the second level; and
(iii)the incorporation of a combined hipped/gabled roof style,
and in relation to the proposed building on Lot 39:
(i)reduction in the building height by 1.53 metres to a maximum of 9.97 metres;
(ii)increase in open space to 50% of site area; and
(iii)incorporation of hipped roof form.
The City's professional staff then recommended the grant of development approval.
On 21 February 2006, the City's Planning Committee, acting under delegation, approved the applications. However, on 21 March 2006, the Planning Committee resolved to revoke its earlier resolution of approval and to refuse the applications. These proceedings for review of that refusal were commenced shortly thereafter.
The Tribunal had the benefit of a view of the site and locality, accompanied by Mr Fryer and representatives of the parties, this morning.

The issues

The following four principal issues emerged for consideration in the review:
1)Whether demolition of the existing house should be approved prior to approval of a replacement building or buildings.
2)Whether the proposed buildings' exceedence of the development standards of 6.5 metres overall height and 3.6 metres wall height, prescribed by cl 42(1)(a) of TPS 4, gives rise to any undue adverse impact on adjoining residential sites or the general amenity of the locality and whether a variation to the development standards should be permitted.
3)Whether the bulk, scale, setback, details and materials of the proposed buildings are acceptable in the context of the streetscape of Hamersley Road and Campbell Street.
4)Whether the proposed on-site car parking arrangements for Lot 38 are acceptable in relation to traffic and pedestrian safety.
It is to be noted that the City did not contend that the existing building on the site is of sufficient cultural heritage significance, in its own right, as a contributory item to Duffel House, or otherwise, to warrant the refusal of the demolition application. Moreover, the City did not contend that the proposed development would have an adverse impact on the cultural heritage significance of Duffel House.
A number of residents who made submissions in relation to the rescission motion referred to heritage considerations, and one, Ms Patricia Benjamin, said that the building was constructed by Mr William Fairweather, who she says constructed some of the most important buildings in Perth, as his residence.
In his comments to the City dated 18 May 2005, Mr Griffiths said:
"The existing house at 137 Hamersley Street [sic] is not of the highest order of cultural heritage significance, but does contribute to the value of the whole collection of places in the street in terms of a time period, design materials and construction method. It is also a good companion piece to Duffel House. Although much altered, the alterations are reversible, and it is difficult to understand why the place was not included on the municipal inventory.
However, as we understand it, the heritage value of the place is not in issue."
Later, Mr Griffiths said:
"We believe that the loss of the existing residence is regrettable, and will have a negative impact on the heritage streetscape."
However, the City did not call Ms Benjamin, Mr Griffiths or a heritage architect or heritage planner to give evidence, and did not present any evidence on heritage other than in the general context of streetscape. The City also did not raise any issue concerning density.
Although the Tribunal exercises an independent planning review function, it is generally guided in relation to the identification of issues for consideration by the original decision-maker and, to some extent, by the applicant. Given that the City did not raise heritage as an issue in relation to the demolition, or any issue concerning density, and given that there is insufficient basis in the evidence to lead the Tribunal to itself undertake an inquiry in relation to these issues, I will proceed to consider the applications in the context of the four principal issues identified earlier.

Issue 1: Should demolition be approved prior to approval of a replacement building?

Mr David Read, a consultant town planner who gave evidence on behalf of Mr Fryer, considers that demolition independent of a replacement building or buildings is appropriate, because the existing building is not listed as a heritage item and is not "an outstanding or integral part" of the streetscape, the area is in the course of transition, and there is a precedent in that the City approved the demolition of three buildings at Nos 149 to 155 Hamersley Road, approximately 30 40 metres to the west of the site.
Mr Stephen Allerding, a consultant town planner who gave evidence on behalf of the City, disagrees, considering that the approval of demolition without a replacement building would detrimentally affect the continuity of the streetscape and general amenity.
Clause 30 of the Scheme confers a discretion on the City (and the Tribunal on review) to defer consideration of an application until it has granted development approval for subsequent development of the relevant site. As noted earlier, the City and the Tribunal are each required to have regard to "the orderly and proper planning of the locality" and "the conservation of the amenity of the locality". The term "amenity" is defined by cl 12(1) and Sch 1 of the Scheme to mean, "all those factors which combine to form the character of the area and include the present and likely future amenity".
In the circumstances of this case, it would be contrary to the orderly and proper planning of the locality and the conservation of the streetscape character of the locality, and therefore the conservation of its amenity, to allow demolition without also approving an appropriate replacement building, and the conditioning of the demolition on the erection of the replacement building within a reasonable period of demolition.
Whether the building has cultural heritage significance or not, it forms part of a relatively homogenous and consistent streetscape on Hamersley Road.
The precedent referred to by Mr Read demonstrates how inappropriate demolition without timely replacement is in relation to orderly development and amenity. That site presents, in significant contrast to the developed character of the remainder of the southern side of the streets, as a car park. If demolition on that site was approved without requiring an appropriate replacement building or buildings to be built within a reasonable period, that decision was a mistake which should not be repeated.
Mr Slarke, counsel for Mr Fryer, made two further submissions in relation to this issue.
First, he submits that the issue can be adequately addressed by a condition that the site be landscaped in the interim. I do not agree. The character, and, therefore, amenity of the consistent streetscape is defined primarily by the built form, although I accept that the buildings appear generally in a landscaped setting.
Mr Slarke also submits that by reference to s 374A of the Local Government (Miscellaneous Provisions) Act 1960 (WA), the discretion conferred by cl 30 of the Scheme and the general discretion conferred by the considerations in cl 27(4) should be confined by considerations in that section which relate to a demolition licence. I do not agree. The Scheme, as I have noted earlier, requires development approval for the proposal, including demolition. The provisions of the Scheme to which I have referred speak generally of development. It is inappropriate to read considerations of proper and orderly planning and the conservation of the amenity of the locality down by reference to the provision referred to by Mr Slarke.

Issue 2: Should discretion be exercised to permit the proposed overall and wall heights?

Clause 42(1) of the Scheme provides as follows:
"(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height, and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality."

The maximum overall height of the proposed buildings is 6.95 metres on Lot 38 and 6.97 metres on Lot 39, which exceed the standard of 6.5 metres prescribed by cl 42(1)(a) by 450 millimetres and 470 millimetres, respectively. The maximum wall height of the proposed buildings is 5.35 metres on Lot 38 and 5.9 metres on Lot 39, which exceed the standard of 3.6 metres by 1.75 metres and 2.3 metres, respectively. The applications cannot, therefore, be approved unless the Tribunal is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
The planning experts agree that this inquiry is informed by the City's policy entitled Streetscape and Building Height Standards for R15 and R20 Zones (Height Policy).
Clause 6.2 of the Height Policy provides as follows:
"The Scheme imposes a height limit that allows single storey development as of right. Clause 42(1)(b) of the Scheme does enables [sic] the City to approve development of increased height or [sic] up to two storeys where it is satisfied that 'there will be no adverse impact on adjoining residential sites or the general amenity of the locality'. The requirements of clause 42(1)(b) may only be satisfied subject to meeting the standards contained within part 6 of this policy."
Clause 6.4 of the Height Policy prescribes design standards in relation to maximum height, bulk and scale, and overshadowing of adjoining properties.
The maximum height standard states "wall height 6 metres and overall height of 9 metres". It should be noted that this standard is redundant, as it simply restates the absolute maximum height prescribed by cl 42(1)(b) of the Scheme.
The bulk and scale standard states:
"Maximum floor area of the footprint of the portion of the building of increased height is not to exceed 25 per cent of the site area."
The overshadowing of adjoining properties standard states:
"(i)Development is to not overshadow greater than 50% of an adjoining outdoor living area of a neighbouring dwelling at midday on 21 June.
(ii)Development is to not overshadow glazed openings to habitable rooms of neighbouring dwellings at midday on 21st June."
The proposed development satisfies the maximum height and overshadowing design standards, but not the bulk and scale standard. In particular, whereas the bulk and scale standard states that the maximum floor area of the footprint of the building of increased height is not to exceed 25% of the site area, in this case:
(i)the floor area of the footprint of the second level of the proposed building on Lot 38 occupies approximately 33% of the site area of that lot, which is approximately 16 square metres in excess of the 25% standard; and
(ii)the floor area of the footprint of the second level of the proposed building on Lot 39 occupies approximately 37% of the area of that lot, which is approximately 48.6 square metres in excess of the 25% standard.
As the New South Wales Court of Appeal held in Zhang v Canterbury City Council (2001) 115 LGERA 373, at [75], specifically in relation to development control plans, which are relevantly equivalent to planning policies under TPS 4, a planning consent authority is required to treat a properly adopted planning policy as a fundamental element in, or a focal point of the decision-making process.
Similarly, Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24] as follows:
"If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach."
Mr Read gave evidence that although it is proper to consider the two proposed buildings together as a single built form, the 25% standard in the Height Policy should not be strictly applied in the particular circumstances of the case, because the floor space which exceeds 25% does not give rise to any identifiable adverse impacts.
I agree that it is appropriate to consider the buildings together, but I disagree with Mr Read's opinion that the development does not give rise to any adverse impacts in consequence of the second level floor space which exceeds 25% of the site area of each lot.
The adverse impacts of the floor space of the proposed buildings which exceed 25% of the site area of each lot are manifested both to the public domain in Hamersley Road and Campbell Street and to the rear private open space of Duffel House, which is the home of Mr Thomas Prudence who gave evidence on behalf of the City.
To assist in the understanding of the following analysis, I will attach the elevations and floor plans of the proposal to the written version of these reasons.
Although the overall heights of the proposed buildings are consistent with the overall height of Duffel House, as the eastern roof structure of Duffel House is well set back from the street, as it presents as a single storey building in a densely landscaped setting, and as its comparable overall height to the proposal is due to a 3.2 metre wide tower element and its roof form, which as Mr Allerding observes is, "a sloping more benign feature" than the second storey presentation of the proposal to the street, I accept Mr Allerding's evidence that the proposal would present as a far more dominant feature in the streetscape than Duffel House.
In making this finding, I accept that the westernmost part of the street elevation of the proposed building on Lot 39 would not relevantly form part of the Hamersley Road streetscape, as it is set back approximately 23 metres from that frontage.
I also consider that the proposal would present as a far more dominant feature than the building at 139 Hamersley Road to the west. To the extent to which that building can be seen through and around the hedge, it presents as a large single storey, rather than as a two storey building.
Given that the streetscape on the southern side of Hamersley Road is characterised by relatively continuous single storey development, the dominance of the proposal over its single storey neighbour, its obvious two storey presentation, its uncharacteristic joined form at the second level, and the fact that although part of the street frontage of Lot 39 could be landscaped, the frontage of Lot 38 could not be, so as to mitigate bulk, because of the proposed access to a double garage, the second level floor space in excess of 25% of the site area of both proposed buildings would have an adverse impact on the character and streetscape of Hamersley Road.
This conclusion is not altered by the fact that the immediate locality is mixed, in the sense that it includes a commercial building fronting Rokeby Road, and large civil, educational and cultural buildings on the northern side of Hamersley Road. Both as a matter of definition of the term "streetscape" in TPS 4 and general principle, "streetscape" means the total visual impression gained from any one location within a street, including the natural and man-made elements. The other types of buildings, and particularly the commercial building, form part of the relevant streetscape. However, they are to be given little weight in the assessment of the impact of the proposal in general, or its second level in excess of 25% of site area in particular, because they are in an entirely different zoning and planning context.
The second level of the proposal proximate to the street would adversely affect the general amenity of the locality in that it would affect the predominantly single storey character of the southern side of Hamersley Road.
The southern part of the second level of the Campbell Street elevation of the proposed building on Lot 39 would also have a significant adverse effect on the established character, and, therefore, general amenity. This section of the proposed building would present as a 9.25 metre wide, 5.2 metre to 5.5 metre high, section of wall set back in a common plane just 1.5 metres from the frontage. While Campbell Street in particular has large street trees which would screen the proposal from certain vantage points, there is no tree directly in front of this substantial masonry section, and it would not be possible to incorporate landscaping of scale within the 1.5 metre setback, given that it is a paved pathway and includes steps.
Although the residential flat building at No 2A Campbell Street is just over twice as long as this section of the proposed building on Lot 39, it is set back considerably further from the street in the order of approximately 8.8 metres to 9.0 metres, with balconies projecting approximately 1.0 metre forward.
Moreover, the residential flat building is clearly an uncharacteristic element. While it would separate the proposed building to some extent from the remaining built form in the street, the proposed building would be seen in the context of a substantially single storey streetscape. In that context, the proposal would have a significant adverse effect on established character.
The floor space of the proposed buildings which exceeds 25% of the site area would also have a detrimental impact on the residential amenity of Mr Prudence's backyard in terms of apparent bulk and scale and loss of aspect of sky and trees.
In particular, the southern part of the second level of the building proposed for Lot 38 and the southern part of the second level of the building proposed for Lot 39 would be apparent from the backyard of Mr Prudence's property, although the two storey section on Lot 38 would not project as far to the south as does Mr Prudence's house.
Mr Prudence gave evidence that the development would remove a view of sky and street trees in Campbell Street, and replace that amenity with a sense of enclosure by built form. Having viewed the site from Mr Prudence's backyard, I accept his characterisation of the effect of the development.
I also accept Mr Allerding's evidence that the presumption in favour of single storey development in TPS 4 and the City's apparent consistent application of the 25% standard since 1994 provides "what are reasonable expectations for land owners in the locality".
Although the southernmost part of the second level on Lot 39 would be generally screened from Mr Prudence's property by a single storey section at the southern end of Lot 38, and although the apparent two storey section of the building on Lot 39 would be set back 7.13 metres to 8.8 metres from Mr Prudence's western boundary, his reasonable expectation, in a locality where the presumption is single storey development and where there is a consistently applied maximum standard of 25% site area in the second storey element, is that 16 square metres of the second level of the proposed building on Lot 38 and 48.6 square metres of the second level of the proposed building on Lot 39 should not be there.
Although I accept that the size of Lots 38 and 39, and particularly the small size of Lot 38, gives rise to design constraints and is relevant to the exercise of discretion under cl 42(1) of TPS 4, the size does not warrant a departure from the maximum 25% standard in the circumstances of this case. The proposed building on Lot 39 is a substantial four bedroom family home. The proposed building on Lot 38 is, by the standards of the size of the lot, a relatively substantial three bedroom home. It may well be that these lots are not reasonably capable of sustaining the level of accommodation proposed consistently with the applicable planning controls, although of course other design options are always available.
Mr Slarke submits that the fact that the proposal conforms to the setback provisions of the Residential Design Codes of Western Australia (2002) (Codes) "answers the issue of undue adverse impact". He observes that, because it conforms to the Codes in this respect, the development meets the objective of the setback element, namely, "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".
However, as the Tribunal determined in Dumbleton & Anor and Town of Bassendean [2005] WASAT 145, at [22] [23], compliance with the Codes does not mandate approval of an application under a town planning scheme such as TPS 4.
Moreover, as Mr Allerding observes, cl 42(1) of the Scheme reflects a conscious judgment by the City not to rely on the Codes in relation to building height. As Mr Read conceded, cl 42(1) is a fairly unusual provision in a town planning scheme in the metropolitan area. The presumption of single storey development, and the conferral of a discretion guided by the Height Policy to permit second storey elements, is consistent with the established single storey character of the locality.
While in other local government areas which do not have the equivalent of cl 42(1) in their applicable schemes, the extent of impact on Mr Prudence's backyard in terms of loss of aspect of sky and trees and the consequential bulk and scale, might not be an undue adverse impact, in the particular planning context of cl 42(1), the Tribunal finds that it is.
I do not accept that, in the particular circumstances of this case, the 25% standard should not be applied. Moreover, I find that the southern end of the two storey section of the building proposed for Lot 38 gives rise to undue adverse impact on the backyard area of Mr Prudence's property by virtue of apparent bulk and scale, and that the two storey sections of both buildings give rise to undue adverse impacts on the general character, and therefore amenity, of the locality for the reasons I have discussed.
I also find that the two storey section of the building proposed on Lot 39 gives rise to adverse impacts on the general amenity of the locality enjoyed by Mr Prudence, because of loss of aspect of sky and trees and apparent bulk and scale to his backyard, although it is arguably not an adjoining residential site.
It follows that the development application must be refused under cl 42 of TPS 4.
However, as the remaining two issues were debated in evidence and submission, I will briefly address them.

Issue 3: Whether the bulk, scale, details and materials of the proposed buildings are acceptable in the context of the streetscape

It follows from my earlier findings that the bulk and scale of the proposed development is unacceptable in relation to the streetscape.

The Height Policy is also relevant in this regard. An objective of the policy set out in cl 4 is "to ensure that new development is consistent with the character and in particular the scale of existing residential development". Clause 6.1 provides that new homes "are to have a comparable scale and proportion to surrounding development as viewed from the street unless it can be demonstrated that the surrounding development is not desirable or representative".
Although the residential flat building at No 2A Campbell Street and the commercial building at the corner of Rokeby Road and Hamersley Road form part of the "surrounding development", and although the definition of surrounding development in cl 2 says that "more significance will be given to surrounding development that is closer to the proposed development, particularly in the case of corner lots", the buildings are, in the case of No 2A Campbell Street, not representative, and in the case of the commercial building, not desirable or representative in relation to the site.
The obvious two storey presentation of the proposal to Hamersley Road and the significant two storey component at the southern end of Lot 39 are plainly not comparable in scale and proportion to surrounding development, other than the buildings which are not desirable and/or representative.
Finally, the City relies on Policy 8.9 West Subiaco Precinct (Policy 8.9). This policy states that the desired future character of the area includes the following:
"The retention and renovation of the Gold Boom and Inter-war period housing stock should be encouraged to preserve the heritage character of the Precinct …
Any change or redevelopment should reflect the scale, character, detail and materials of the Gold Boom and Inter-war period buildings within the street block or immediate vicinity, including front and side setbacks, verandahs, fencing and vehicular access."
The City contends that the development is unacceptable because it does not reflect the details and materials of the Gold Boom and Interwar period.
A number of the residents objected to the development, because it does not retain the existing house.
Although the Tribunal is required to give real, genuine and realistic consideration to Policy 8.9, I accept the evidence of Mr Read that the policy assumes that the site is located in a heritage conservation area which does not, in fact, exist, and for this reason, should be given limited weight.
Although Policy 8.9 was apparently developed for the purposes of TPS 4, it appears to be premised on a false assumption. It is curious that the City does not appear to have created any conservation areas under its Scheme.

Issue 4: Are the proposed on-site car parking arrangements acceptable in relation to Lot 38?

The Tribunal had the benefit of evidence from two civil engineers, Ms Cherie Little, who gave evidence on behalf of the City, and Mr Gordon Macpherson, who gave evidence on behalf of Mr Fryer.
Ms Little considers that the proposed driveway on Lot 38 would give rise to an unacceptable level of pedestrian injury, or even death. Her assessment of the probability of risk is informed by the following six considerations:
1)Hamersley Road carries approximately 2600 vehicles per day.
2)The pre-school has two sessions per day, the first of which begins and ends at times corresponding to the time when people are likely to leave their properties and return home, if they are so fortunate, for lunch, and the primary school has a rear entrance diagonally across from the site.
3)The footpath adjoining the front boundary of the site immediately abuts the site – that is, there is no nature strip in between.
4)The fence at Duffel House would obscure view of pedestrians to the east.
5)The proposed driveway would have a gradient of approximately 24% until the crossover, which would have a gradient of approximately 4%.
6)It is likely that vehicles would enter the garage in a forward direction and back out across the footpath and into the street.
Mr Macpherson considers that the level of risk to pedestrians is acceptable, because it is typical in many areas throughout the region where medium or high density development occurs, and because there are no particular restrictions in place on exiting a property in reverse in the vicinity of a school. He says, based on generalised statistics, that only 15% of school children walk to school, and that very few pre-school children walk or are walked to pre-school.
Mr Slarke relies on Mr Macpherson's evidence and also submits that even on a flat driveway, there would be a "shadow" or blind spot as one reverses out.
Objective (a) of TPS 4 is as follows:
"To protect and enhance the health, safety and general welfare of the City's community and the social, physical and cultural environment."
I accept Ms Little's assessment of risk, as it reflects a number of unusual characteristics of the proposal and site location.

First, although it is correct that there are no restrictions on vehicles reversing across a footpath in the vicinity of a school, this is not a case of an existing vehicular accessway, or even an existing developed residential allotment. The existing house on the site has vehicular access from Campbell Street.
Second, the particular proposal involves a relatively steep gradient, which would increase the "shadow", on Mr Macperhson's evidence, by 225 millimetres, so that a driver would only see an 8- to 10-year-old over the car, and any child below this age would be effectively invisible. While I accept Mr Fryer's evidence that, from a streetscape perspective, a proposal which involves an excavated basement is more acceptable than one which involves a single garage at grade, nevertheless, the excavation gives rise to an additional risk by virtue of the additional "shadow".
Third, the narrow width of Lot 38 and the solid piers in the fence of Duffel House would mean that a driver might well not see pedestrians until the vehicle is across the footpath.
Fourth, the site is diagonally across the road from the pre-school and the rear entrance to the public school. Although there is no evidence before the Tribunal as to the number of children from the immediate locality who walk past the site in order to gain access to the pre-school or primary school, the Tribunal should, in relation to matters of public health and safety, adopt a precautionary approach. Moreover, there is evidence from Ms Little that she has observed some children walking down the footpath in order to access the pre-school or school.
These four characteristics combine, in my opinion, to make the proposed vehicular access arrangements for Lot 38 unacceptable in terms of the risk of injury, or even potentially death, to pedestrians and particularly children who are likely to frequent the locality to get to preschool or school.
For these reasons, the application for review must be dismissed and the decision of the respondent to refuse development approval affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse development approval for the demolition of the dwelling house and other improvements at Lots 38 and 39 (No 137) Hamersley Road, Subiaco, and for the erection of a dwelling house on each of Lots 38 and 39 Hamersley Road, Subiaco, is affirmed.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER