HARDY and TOWN OF BASSENDEAN
[2015] WASAT 27
•16 MARCH 2015
HARDY and TOWN OF BASSENDEAN [2015] WASAT 27
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 27 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:245/2014 | 16 DECEMBER 2014 | |
| Coram: | MR J JORDAN (MEMBER) | 16/03/15 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is allowed Decision to refuse the application set aside and conditional planning approval granted for development of 10 multiple dwellings | ||
| B | |||
| PDF Version |
| Parties: | LANCE HARDY TOWN OF BASSENDEAN |
Catchwords: | Town planning Development of 10 multiple dwellings Refusal Split coding R20/R30 under local planning scheme Requirement for preservation of existing streetscape Boundary setback of upper units Scale of development in single residential area Corner lot Fronts major regional road Access to parking off right of way Single storey character of neighbouring lots Planning proposals for locality under local planning strategy |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 2.4, cl 2.5, cl 2.5.1, cl 2.5.2, cl 6.1.4 Pt 4.1 cl 6.1.4 Town of Bassendean Local Planning Scheme No 10, cl 1.6, cl 2.1, cl 3.5.4, cl 4.2, cl 4.2.1(g), cl 5.2.2, cl 5.3.1, cl 5.3.1.1, cl 5.3.1.2, cl 10.2(f) |
Case References: | Nil |
Orders | On the application heard before Member James Jordan it is on 16 March 2015, ordered that:,1. The application for review is allowed.,2. The decision of the Council to refuse the proposed development of 10 multiple dwellings at 103 Guildford Road, Bassendean made at its meeting of 28 October 2014 is set aside and planning approval is granted for the proposed development, subject to the following conditions:,(a) Amended plans being submitted demonstrating that the carport columns are set back a minimum of 1.5 metres from the eastern boundary. Amended plans shall be submitted and approved by the Town in advance of the submission of an application for a Building Permit and such detail shall be incorporated into the working drawings submitted for a Building Permit;,(b) A detailed landscape plan being submitted prior to or with the application for a Building Permit for the Town's approval which addresses the following:,(i) details of the location and type of proposed trees, shrubs, groundcover and lawn areas to be planted;,(ii) a minimum of 50% of the Guildford Road setback area being soft landscaped;,(iii) landscaping of the verge area adjacent to the development site, including the provision of substantial street trees in accordance with the Town of Bassendean's adopted Street Tree Master Plan; and,(iv) details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months.,(c) Pedestrian paths to be constructed which provide wheelchair accessibility connecting all entries to buildings with the public footpath and car parking areas.,(d) Provision of lighting to pathways and car parking areas.,(e) The site shall be landscaped in accordance with the approved landscaping plan and shall be maintained thereafter.,(f) The right of way is to be constructed in accordance with the Town of Bassendean's specifications. Details of the construction of and drainage to the right of way are to be submitted to the Town of Bassendean's Asset Services for assessment and approval prior to or in conjunction with the application for a Building Permit.,(g) Bollards are to be located at the entry of the right of way and along the southern boundary of the right of way adjoining Units 1 and 2, No 101 Guildford Road, Bassendean, to prevent access onto Guildford Road. Details of the bollards and their spacing are to be submitted to the Town of Bassendean's Asset Services for assessment and approval prior to, or in conjunction with, the application for a Building Permit.,(h) The existing redundant crossover on the Shackleton Street frontage of the development site being removed.,(i) Separate approval being obtained from the Town of Bassendean's Asset Services for the proposed crossover on the Shackleton Street frontage of the development site, and this crossover being constructed in accordance with that approval.,(j) The sealing and kerbing of all car parking areas and accessways to the Town's specifications.,(k) The car parking spaces and accessways being constructed and maintained thereafter to the Town of Bassendean's satisfaction.,(l) Visitor parking spaces being clearly marked for 'Visitors Only' and used as such.,(m) A minimum of four and one bicycle bays shall be provided for the residents and visitors respectively. The bicycle parking spaces shall be located in the area identified on the approved drawings and shall be constructed in accordance with the provisions of Australian Standard AS 2890.3 (as amended).,(n) All stormwater being contained and disposed of on site. Details of the method of stormwater containment and disposal shall be included with the drawings submitted for a Building Permit.,(o) Prior to the issue of a Building Permit a development bond for the sum of $5,000 being lodged with Council to ensure the satisfactory completion of all works associated with landscaping, carparking, accessways and fencing.,(p) The incorporation of public art into the proposed development or a cash--in-lieu payment of 1% of the construction cost of the proposed development in accordance with the Town of Bassendean's adopted Local Planning Policy No 15 - Percent for Art Policy. Detailed arrangements and agreement with respect to art to be provided onsite or, alternatively, payment of the required fee shall be made prior to, or in conjunction with, the application for a Building Permit.,(q) The owner/applicant is required to undertake a transport noise assessment in accordance with the guidelines of the Western Australian Planning Commissions State Planning Policy 5.4 Road and Rail Transport Noise and Freight Consideration in Land Use Planning:,(i) the Report shall pay special consideration in addressing noise amelioration measures for two storey dwellings; and,(ii) the owner/applicant shall be responsible for all costs in implementing all the recommendations in the Report.,(r) The street number being prominently displayed at the front of the development.,(s) The provision of the side and rear fences (eastern property boundary and southern property boundary), behind the street setback line, of 1.8 metre height shall be measured above the higher ground level;,(t) The provision of letterboxes and bin storage in materials to complement the development to the satisfaction of the Town;,(u) External clothes drying facilities shall be screened from view of the street or any other public places at all times. No drying of clothes from upper floor balconies (units 2, 4, 6 &10) or ground floor outdoor living areas (units 1, 3, 5 & 9) is permitted;,(v) Air-conditioning units and external fittings shall be incorporated into the building or screened from view. Details of the treatment of such external fittings to the building being submitted prior to the issued of a building permit to the satisfaction of the Manager Development Services.,(w) The applicant submitting to the satisfaction of the Manager Development Services a construction management plan that addresses the issues of dust and noise control, hours of work, and provides contact details of person to deal with complaints;,(x) A Waste Management Plan (WMP) is to be submitted for the Town's approval prior to or in conjunction with the application for a Building Permit. The WMP shall address matters including, but not necessarily limited to, the following:,(i) Measures to be implemented for the purpose of minimising the delivery of waste to landfill during occupation, including: the onsite separation of materials for recycling and the expectation of owners and/or tenants;,(ii) Site Plan showing the location and size of the on-site rubbish disposal area, including the number of general rubbish and recycling bins to be provided for the development, including sharing arrangements where the number of bins is less than the number of dwellings;,(iii) An estimation of the volume of waste to be generated by the proposed development and the capacity of this volume of waste to be accompanied by on site bin storage capacity;,(iv) Details of intended method of collection (private contractor or Council contractor);,(v) Details of arrangements for transferring bins from the communal bin storage area to the verge for collection and subsequently from the verge back to the communal bin storage area, including timeframes at each stage;,(vi) Details of where the bins would be located when waiting collection;,(vii) Details of advice to the provided to the owners and occupiers regarding the WMP; and,(viii) Details of how the WMP will continue to be applied in perpetuity across the life of the development, including the WMP being incorporated into the strata by?laws for the proposed development;,(y) The bin storage area is:,(i) To be provided with a self-closing gate;,(ii) To be provided with 75mm minimum thickness concrete floors grading to a 100mm industrial floor waste, with a hose cock to enable both the bins and bin storage area to be washed out; and,(iii) To be provided with internal walls that are cement rendered (solid and impervious) to enable easy cleaning;,(z) The proposed boundary wall shall be finished to the satisfaction of the Town;,(aa) All building works to be carried out under this planning approval are required to be contained within the boundaries of the subject lot;,(ab) The building hereby approved shall not be occupied until all of the conditions of planning consent have been complied with to the satisfaction of the Manager Development Services, unless the applicant has entered into an agreement with Council to comply with those conditions within a specified period;,(ac) The issue of a building permit prior to the commencement of any on-site works; and,(ad) If the development the subject of this approval is not substantially commenced within a period of 2 years from the date of this approval, the approval shall lapse and be of no further effect. |
Summary | The Town of Bassendean refused to grant planning approval for the development of 10 multiple dwellings in two storey buildings on a lot on the corner of Guildford Road, a major regional road adjacent to a railway, and Shackleton Street, a residential street. The site had a split density coding of R20/R30 under the local planning scheme. ,The Town of Bassendean considered the proposed development did not qualify for approval at the higher density because the local planning scheme requirement that development preserve the existing streetscapes would not be achieved. The existing streetscapes were mostly of single residential, single storey dwellings. The proposed development was also considered to be in conflict with setback requirements for two of the boundaries.,The Tribunal was of the view that in the context of the intent of the local planning scheme and local planning strategy to preserve a streetscape was not to be interpreted as meaning that no development at all should be permitted on any lot. The Tribunal found that the proposed development would introduce a different form of development into the streetscapes, but that the development would be consistent with the planning controls of the local planning scheme, the objectives of the local planning strategy and with the relevant design principles. The development would not be an intrusion into and so undermine sections of street, and locality, identified for single residential purposes. The streetscape would therefore be preserved because the proposed development would not harm the particular sections of the streetscapes in which it would be located. The Tribunal further found that the development satisfied the relevant design principles for building setbacks. ,The Tribunal decided to uphold the application for review and granted conditional planning approval for the proposed development. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HARDY and TOWN OF BASSENDEAN [2015] WASAT 27 MEMBER : MR J JORDAN (MEMBER) HEARD : 16 DECEMBER 2014 DELIVERED : 16 MARCH 2015 FILE NO/S : DR 245 of 2014 BETWEEN : LANCE HARDY
- Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Town planning Development of 10 multiple dwellings Refusal Split coding R20/R30 under local planning scheme Requirement for preservation of existing streetscape Boundary setback of upper units Scale of development in single residential area Corner lot Fronts major regional road Access to parking off right of way Single storey character of neighbouring lots Planning proposals for locality under local planning strategy
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 2.4, cl 2.5, cl 2.5.1, cl 2.5.2, cl 6.1.4 Pt 4.1 cl 6.1.4
Town of Bassendean Local Planning Scheme No 10, cl 1.6, cl 2.1, cl 3.5.4, cl 4.2, cl 4.2.1(g), cl 5.2.2, cl 5.3.1, cl 5.3.1.1, cl 5.3.1.2, cl 10.2(f)
Result:
Application for review is allowed
Decision to refuse the application set aside and conditional planning approval granted for development of ten multiple dwellings
Summary of Tribunal's decision:
The Town of Bassendean refused to grant planning approval for the development of 10 multiple dwellings in two storey buildings on a lot on the corner of Guildford Road, a major regional road adjacent to a railway, and Shackleton Street, a residential street. The site had a split density coding of R20/R30 under the local planning scheme.
The Town of Bassendean considered the proposed development did not qualify for approval at the higher density because the local planning scheme requirement that development preserve the existing streetscapes would not be achieved. The existing streetscapes were mostly of single residential, single storey dwellings. The proposed development was also considered to be in conflict with setback requirements for two of the boundaries.
The Tribunal was of the view that in the context of the intent of the local planning scheme and local planning strategy to preserve a streetscape was not to be interpreted as meaning that no development at all should be permitted on any lot. The Tribunal found that the proposed development would introduce a different form of development into the streetscapes, but that the development would be consistent with the planning controls of the local planning scheme, the objectives of the local planning strategy and with the relevant design principles. The development would not be an intrusion into and so undermine sections of street, and locality, identified for single residential purposes. The streetscape would therefore be preserved because the proposed development would not harm the particular sections of the streetscapes in which it would be located. The Tribunal further found that the development satisfied the relevant design principles for building setbacks.
The Tribunal decided to uphold the application for review and granted conditional planning approval for the proposed development.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr D Maiorana (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Harley Dykstra
Case(s) referred to in decision(s):
Introduction
1 These proceedings involve an application by Mr Lance Hardy (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Town of Bassendean (Council, Town or respondent) to refuse to grant planning approval for the development of 10 grouped dwellings on No 103 (Lot 251) Guildford Road, corner Shackleton Street, Bassendean (site).
Site and locality
2 The site has an area of 1,278m², frontage of about 41 metres to Guildford Road, at what will be described as the western boundary, and frontage of about 32.5 metres to Shackleton Street at the northern boundary. The southern boundary of the site is about 40 metres and abuts a right of way. The eastern boundary abuts a lot with a single residential dwelling.
3 Development north and south of the site along Guildford Road is mainly single storey residential with a prevalence of 1.8 high front fences. The lot to the south of the site, on the opposite side of the right-of-way is developed as two single storey grouped dwellings. On the opposite side of Guildford Road is the Perth to Midland railway line and beyond to the west is Railway Road and commercially developed properties.
4 The right of way is not paved and runs from Guildford Road to Cyril Street. In Cyril Street is a mixture of single dwellings and grouped dwellings, all single storeys.
5 The houses eastward from the site along Shackleton Street are a mixture of single houses and grouped dwellings, all single storeys. Opposite the site are two residential properties with 1.8 metre high front fences.
6 The site and the area around could be described as flat. A single dwelling currently on the site would be demolished to make way for the proposed development. Prior to the hearing, the Tribunal, accompanied by the parties' representatives and the witnesses, viewed the site and the surrounding streets.
Proposed development
7 Proposed is a two storey 10 multiple dwelling development comprising on each of the ground and first floors, four dwellings with two bedrooms and one dwelling with one bedroom, built along the Guildford Road and Shackleton Street frontages. To the rear of the dwellings are the residents' covered car bays with access off the right-of-way. Three visitor parking bays with access from Shackleton Street are located in the front setback of the dwellings at the eastern end of the Shackleton Street boundary.
Planning framework
8 The site is zoned Residential under Town of Bassendean Local Planning Scheme No 10 (LPS 10) with a density coding of R20/R30. The R20/R30 coding extends 150 metres along Shackleton Street to the east of the site to Geraldine Street and 500 metres along Guildford Road to the south. North of Shackleton Street and east beyond Geraldine Street, lots are coded R20. Guildford Road is a primary regional road under the Metropolitan Region Scheme and Main Roads WA has advised that access to the site from Guildford Road is not supported.
9 Under cl 1.6 of LPS 10 the listed aims of the scheme include:
(a) to enhance the lifestyle of residents and provide community and leisure facilities for a range of socio-demographic groups;
(b) to encourage a housing stock that provides for a variety of lifestyle choices for a range of socio economic and age groups;
…
(g) to promote greater use of alternative modes of transport and public transport.
10 The Town has adopted the Town of Bassendean Local Planning Strategy (Strategy), which is said to set out its vision for the municipality and establish short, medium and long term directions. The Tribunal notes that both the Strategy and LPS 10 are contemporary documents, first adopted by the Town in 2008. The (State Planning Policy 3.1 Residential Design Codes of Western Australia 2013) (Codes) coding for the site and neighbouring lots have remained the same since that time.
11 Clause 2.1 of LPS 10 states that except where they would be inconsistent with LPS 10, the determinations of the local government are to be consistent with the Strategy.
12 Clause 4.2 of LPS 10 sets out the objectives of the Residential zone. These include:
(a) to maintain life long or long-time residents as an integral component of the Bassendean community;
(b) to continue and increase the attraction for young families to reside and raise their families in the Bassendean community;
(c) to recognise the role of Bassendean as a middle metropolitan area that is well placed to contribute meaningfully to sustainable urban development for the Perth Region, and therefore facilitate the planned gradual increase in population growth in a manner that provides net environmental, social and economic benefit;
(d) to make provision for housing types that respond to the demands of an ageing population and declining occupancy rates;
…
(g) to ensure that subdivision and development comply with the Local Planning Strategy and the principles of any Local Planning Policy adopted by the Council.
13 Under LPS 10 a multiple dwelling is a 'P' use. A 'P' use means that the development is permitted providing the use complies with the relevant development standards and requirements of LPS 10.
14 Clause 5.3.1 of LPS 10 provides:
…
5.3.1.1 Where a Split Density Code is depicted on the Scheme maps, any development shall conform to the lower density code applicable to the lot, unless Council determines that development up to the middle or higher density code is acceptable, having regard for subclause 5.3.1.2.
5.3.1.2 Subdivision or development in excess of the lower density coding shall be considered to be acceptable to Council where:
(a) in the opinion of Council the lot has a road frontage sufficient to allow at least two homes and a shared accessway, where required to service development to the rear;
(b) There is due regard for relevant Local Planning Policies;
(c) Identified heritage objectives are not compromised;
(d) The proposal demonstrates elements of water sensitive urban design; and
(e) The existing streetscape is being preserved.
2.4 Where a proposal does not meet deemedtocomply provision(s) of the RCodes and addresses designprinciple(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgment of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemedtocomply provision(s).
…
2.5.1 Subject to clauses 2.5.2 and 2.5.3, the decisionmaker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the RCodes.
The decisionmaker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s).
2.5.2 In making a determination on the suitability of a proposal, the decisionmaker shall exercise its judgement, having regard to the following:
(a) any relevant purpose, objectives and provisions of the scheme;
(b) any relevant objectives and provisions of the RCodes;
(c) a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the RCodes; and
(d) orderly and proper planning.
6.1.4 Lot boundary setbacks
P4.1 Buildings set back from boundaries or adjacent buildings so as to:
· ensure adequate daylight, direct sun and ventilation for buildings and the open space associated with them;
· moderate the visual impact of building bulk on a neighbouring property;
· ensure access to daylight and direct sun for adjoining properties; and
· assist with the protection of privacy between adjoining properties.
17 The Town has also produced a review of its Strategy, but this would appear to reinforce the planning objective of medium to high density development, including multiple dwellings in the vicinity of railway stations.
18 The Tribunal is of the view that at this stage of the process, any proposed changes to the Codes and the Strategy cannot be considered as being 'seriously entertained'. The merit of the proposed development is to be determined by reference to the current version of LPS 10, the Strategy and the Codes.
Issues
19 The Tribunal, at a directions hearing on 4 November 2014, noted that the issues for determination in this review were the three reasons of the refusal in the respondent's determination dated 28 October 2014.
Issue 1
20 Refusal reason 1 states:
The application does not qualify for the higher density code under the split coding R20/30 and is not consistent with the requirements set out in 5.3.1.2 of the Town of Bassendean's Local Planning Scheme No.10, namely the preservation of the existing streetscape.
21 As set out above, cl 5.3.1 of LPS 10 is concerned specifically with split density coding. Clause 5.3.1.1 provides that development conform to the lower density code applicable to the lot unless Council determines that development to a higher density code is acceptable, having regard to cl 5.3.1.2; that is, for this site, to 'qualify' for development at the higher density code under the split coding R20/R30, the Tribunal must weigh the proposed development against the requirements of cl 5.3.1.2.
22 There was no dispute that cl 5.3.1.2(a) of LPS 10 is satisfied, particularly because the site is a corner lot and there is a right of way available for shared access. Clause 5.3.1.2(c) is not relevant to the existing development on the site or the locality. The respondent did not raise cl 5.3.1.2(d) as an issue that was not, or could not, be satisfied. This leaves cl 5.3.1.2(b) and (e) for discussion.
23 Clause 5.3.1.2(b) of LPS 10 requires that 'there is due regard for relevant Local Planning Policies'.In this respect the respondent identified the Strategy as the equivalent of a 'Local Planning Policy'. Complying with the Strategy is also consistent with the objectives for the Residential zone at cl 4.2.1(g) and the requirement at cl 10.2(f) of LPS 10.
24 Expert planning evidence was provided to the Tribunal by Mr Joe Algeri for the applicant, and Mr David Maiorana for the respondent. The Tribunal would comment that, because of its comprehensive nature and the extent of the objectives for short, medium and long term planning for the Town, both Mr Algeri and Mr Maiorana were able to interpret the Strategy as supporting aspects of their respective opinions on whether or not the site was suitable for the form of development proposed.
25 Under the Strategy the site is within Housing Precinct C and more particularly Sub Precinct C1. Clause 3.5.2 of the Strategy includes the comment that, given the proximity of Sub Precinct C1 to the train station and the town centre, it is envisaged that change within Sub Precinct C1 is likely to occur prior to other to sub precincts.
26 The objectives at cl 3.5.3 of the Strategy refer to Housing Precinct C as predominately a single residential housing area in the short to medium term. It also refers to making provision for a limited number of larger housing lots ripe for development to be redeveloped for medium density housing in a manner that does not undermine the integrity of Housing Precinct C as a single residential area.
27 Clause 3.5.4 of the Strategy includes a strategy to promote, facilitate and undertake the preparation of relevant local planning scheme policies, providing guidelines for the design and implementation of medium density housing proposals, with the maximum R30 density development being subject to higher quality performance criteria.
28 The Tribunal is aware that while the intent of housing Precinct C is to be predominately single residential, Precinct C extends over a wide area. LPS 10 identifies much of the precinct as single residential, but with pockets of the split coding R20/R30, characterised by proximity to the pedestrian catchments for the railway stations. The Tribunal is of the view that the proposal to develop the site for medium density housing is consistent with the objectives of the Strategy. In this respect, due regard has been had for the relevant local planning policy as required by cl 5.3.1.2(b) of LPS 10.
29 The main focus of the evidence of the witnesses and the submissions of the parties was cl 5.3.1.2(e) of LPS 10 which states that development in excess of the lower density coding 'shall' be considered where 'the existing streetscape is being preserved'. The Tribunal considers that 'streetscape' includes both the views along the street and the view experienced at a particular point, both by a pedestrian and a motorist.
30 The Tribunal notes that 'preserved' in LPS 10 has no meaning other than its ordinary English meaning. The Macquarie Dictionary (5th ed, 2009) lists meanings for 'preserve', and includes the following:
1. to keep alive or in existence; make lasting.
…
3. to keep up; maintain. …
31 Mr Algeri argued, and Mr Maiorana did not dispute, that in cl 5.3.1.2(e) 'preserve' did not mean that to preserve the streetscape absolutely nothing must be done to change the site. The Tribunal agrees, because too literal an interpretation of cl 5.3.1.2(e) in isolation would render otiose those provisions of LPS 10 and the Strategy setting out planning objectives for the locality and controls set out in LPS 10 to achieve them. For the planning objectives and controls to serve some useful purpose, the Tribunal considers that the streetscape can be said to be preserved where the streetscape is not harmed by the development proposed.
32 The site is a corner lot and so has a streetscape in Guildford Road, in Shackleton Street and at the junction of those two roads. Both parties provided a series of photographs to illustrate the site and locality and the Tribunal had experience of the streetscapes when conducting the view.
33 In the submission of Mr Maiorana, streetscape includes such elements as built form, including architectural style and design, landscaping, fencing, crossovers, car parking in the front setback and the lot width. The streetscapes were characterised by single dwellings with space between.
34 Mr Maiorana emphasised that in the immediate locality dwellings were predominantly single residential and, even where developed for group dwellings, all were single story. He pointed out that there were no multiple dwellings in this locality.
35 It was Mr Maiorana's submission that the R20/R30 coding was envisaged to produce grouped dwellings and it was not contemplated that multiple dwellings would be built. This, he pointed out, was a consequence of the 2013 version of the Codes being concerned only with plot ratio for multiple dwellings and not with the number of dwellings, which is the control for grouped dwelling development. Mr Maiorana was of the opinion that medium density might be considered for the site, but that it should preserve the existing character of the area. He argued that a two storey multiple dwelling development in what appears to be one large block would not be consistent with this objective.
36 It was also of concern to him that there was proposed for the Shackleton Street frontage a 6 metre wide crossover to an area set aside for parking and vehicles manoeuvring occupying a 10 metre deep front setback. This parking would not, in his submission, preserve the streetscape character.
37 Mr Maiorana said the site is on a prominent corner and the respondent was concerned that the design of any medium density development, would establish a 'benchmark' for development, particularly on Shackleton Street. The development therefore needed to be of sufficient quality. He characterised the proposed development as one large two storey building, with an area of car parking in part of the front setback. Mr Maiorana said the contrast, especially with the remainder of Shackleton Street, was simply too great.
38 The applicant argued that he also had looked at what was proposed and the impact it would have on the streetscapes. The applicant referred to the predominance of 1.8 metre high solid screen walls that were common along Guildford Road and, particularly, opposite the site in Shackleton Street, with a glimpse of the house set behind. In the applicant's opinion, the proposed railing fence would improve the streetscape by having a softer appearance and the view to the dwellings would enliven the street. The applicant considered the development would make the same impact as if a series of two storey grouped dwellings were built on the site.
39 Mr Algeri pointed out that multiple dwellings were a 'P' use in the Residential zone in Table 1 of LPS 10 and that there was nothing in the planning framework to prevent the development of a two storey dwelling. Mr Algeri emphasised that the site was on the corner in Guildford Road and Shackleton Street and that the development would not be introduced into the middle of a single residential single storey locality.
40 Mr Algeri argued that the development should be viewed as establishing a new streetscape for the 150 metres eastward on the south side of Shackleton Street that had been coded R20/R30 for this purpose. Between Guildford Road and Geraldine Street there were only four other lots coded R20/30 and one was currently developed with single storey grouped dwellings. Opposite the R20/R30 coded lots, on the north side of Shackleton Street, were only two lots of R20 coding, both with a 1.8 metre high front fence on the road boundary, and a small triangular open space area.
41 In Mr Algeri's opinion the designers had attempted to have the development appear as a series of two 'semi-detached' two storey dwellings. In respect to the parking Mr Algeri pointed out that Main Roads WA did not permit vehicle access from Guildford Road. Visitor parking had to be visible and accessible by visitors and so had to be located off Shackleton Street. In his submission, because lot boundaries were not perpendicular to Shackleton Street, the hard standing in each of the dwellings in the R20/R30 coded lots appeared a significant proportion of the frontage. If the site were to be developed only for grouped dwellings, the buildings would make the same contribution to the streetscape with the only difference being a reduced area of visitor parking.
42 The applicant contended that the Town simply did not want multiple dwellings in this locality, even though they were a 'P' use under LPS 10. He said there was no good planning reason to refuse the development because group dwellings would have the same appearance in the streetscape.
43 The Tribunal has formed the view that the proposed development can be supported. The development will introduce a new form of development into the existing streetscapes. At the site of the house in Guildford Road, the Tribunal considers the streetscape is heavily influenced by heavy traffic on a regional road, the railway reserve and a predominance of 1.8 metre high front fences.
44 The Tribunal notes that in Shackleton Street the R20/R30 density coding ceases at Geraldine Street. The streetscape east of Geraldine Street and north of Shackleton Street will continue to be subject to the single residential planning objectives of Housing Precinct C.
45 The Tribunal considers it relevant that the objectives of LPS 10 and the Strategy include provision for an ageing population and declining occupancy rates as well as being attractive to young families. To assist in achieving these objectives, south of Shackleton Street and east to Geraldine Street has been identified as suitable for medium density housing and multiple dwellings are a 'P' use. The Tribunal considers that the proposed development is consistent with what might be expected under the current planning controls. The development would not undermine the single residential character of streetscapes in Housing Precinct C set aside for single residential purposes. In this respect then, introducing the proposed development into this streetscape would not harm the streetscapes.
Issue 2
46 Refusal reason 2 stated:
Non-compliance with the Deemed-to-comply and Design Principle provisions of the Residential Design Codes of Western Australia 2013, with regards to cl 6.1.4 'Lot Boundary Setbacks' relating to the upper floor southern setback of units 6 and 8.
47 In the report to the Council from the Town's planning officer it was set out that units 6 and 8, on the upper floor, have a combined length of 22 metres, with a setback of between 1.6 metres and 2.9 metres to the southern boundary of the site, rather than the minimum 2.7 metre setback required to meet the deemedtocomply provisions of cl 6.1.4 of the Codes.
48 As pointed out by Mr Algeri, and as expressed in cl 2.4 and cl 2.5 of the Codes, the deemedtocomply provisions are one way that the design principles can be satisfied. Mr Algeri's evidence was that the southern boundary of the site abuts the right of way, which in turn abuts the accessway to grouped dwellings built on the adjoining lot which fronts Guildford Road.
49 The respondent also referred to pillars of certain of the carports being too close to the eastern boundary of the site. The parties agreed that this could be the matter of a condition if the development were allowed.
50 The Tribunal finds, as argued by Mr Algeri, that the dwellings and the open space associated with them on the lot to the south would have adequate access to daylight, direct sun and ventilation as required in the design principles of cl 6.1.4 of the Codes because of the separation distance from the site. The separation distance would also ensure that there was a reduced visual impact of the building bulk of the proposed development and limited impact on the privacy of the dwellings to the south. This leads the Tribunal to conclude that the development would comply with the design principles of cl 6.1.4 P4.1 of the Codes.
Issue 3
51 Refusal reason 3 states:
The cumulative impact of this lack of compliance will have a negative impact on the scale of the development in comparison to neighbouring lots and the existing single residential character of the area.
52 From its assessment of the two issues above, the Tribunal has formed the view that, respectively, the proposed development satisfies the relevant provisions of LPS 10 and the Codes. There cannot therefore be a cumulative lack of compliance. The scale of the development will be different from that of its neighbours, but the Tribunal has concluded that this impact does not warrant refusal of the development.
Conditions
53 The respondent filed a Schedule of Conditions, without prejudice to its position, that it would want imposed should the Tribunal be minded to approve the development. The applicant responded by informing the Tribunal conditions 1 to 29 were agreed. The applicant however objected to proposed condition 30, which states:
If the development the subject of this approval is not substantially commenced within a period of 1 year, the approval shall lapse and be of no further effect.
54 Mr Maiorana said that the condition should remain. It was appropriate because of an advertised change to the Codes. If the Codes were changed as proposed then this would impact on whether multiple dwellings might be allowed on the site. He considered it appropriate that a review of the acceptability of this type of development should occur sooner rather than later in the light of this proposed change. Any reports and assessments required before work commenced could be done concurrently.
55 The applicant said it was common practice for approvals to require development to be substantially commenced within 24 months from the date of approval and it was not uncommon that local planning schemes provide the capacity to extend this time frame further. His submission was that with this development there was a lot of initial work to do, including carrying out a noise assessment, preparing a waste management plan, a landscape plan and making a works application to upgrade the right of way. The applicant said it was important that there be some surety that the development would move ahead and this could be compromised if it was necessary to reapply for development approval within 12 months.
56 The Tribunal has accepted that it might take more than 12 months to get a project to a point where it could arguably be considered as having been substantially commenced. It would be necessary that any application for a fresh approval be lodged prior to 12 months being completed. In the circumstances where the review of the Codes cannot yet be considered as seriously entertained, and because the development is of the type that can be considered for approval under LPS 10, the Tribunal considers that what has become a standard period of time within which to commence should be allowed. The Tribunal is therefore prepared to amend condition 30 to require that the development be substantially commenced within 24 months of the date of approval.
Orders
1. The application for review is allowed.
2. The decision of the Council of the Town of Bassendean to refuse the proposed development of 10 multiple dwellings at 103 Guildford Road, Bassendean made at its meeting of 28 October 2014 is set aside and planning approval is granted for the proposed development, subject to the following conditions:
(a) Amended plans being submitted demonstrating that the carport columns are set back a minimum of 1.5 metres from the eastern boundary. Amended plans shall be submitted and approved by the Town of Bassendean in advance of the submission of an application for a Building Permit and such detail shall be incorporated into the working drawings submitted for a Building Permit.
(b) A detailed landscape plan being submitted prior to or with the application for a Building Permit for the Town of Bassendean's approval which addresses the following:
(i) details of the location and type of proposed trees, shrubs, groundcover and lawn areas to be planted;
(ii) a minimum of 50% of the Guildford Road setback area being soft landscaped;
(iii) landscaping of the verge area adjacent to the development site, including the provision of substantial street trees in accordance with the Town of Bassendean's adopted Street Tree Master Plan; and
(iv) details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months.
(c) Pedestrian paths to be constructed which provide wheelchair accessibility connecting all entries to buildings with the public footpath and car parking areas.
(d) Provision of lighting to pathways and car parking areas.
(e) The site shall be landscaped in accordance with the approved landscaping plan and shall be maintained thereafter.
(f) The right of way is to be constructed in accordance with the Town of Bassendean's specifications. Details of the construction of and drainage to the right of way are to be submitted to the Town of Bassendean's Asset Services for assessment and approval prior to or in conjunction with the application for a Building Permit.
(g) Bollards are to be located at the entry of the right of way and along the southern boundary of the right of way adjoining Units 1 and 2, No 101 Guildford Road, Bassendean, to prevent access onto Guildford Road. Details of the bollards and their spacing are to be submitted to the Town of Bassendean's Asset Services for assessment and approval prior to, or in conjunction with, the application for a Building Permit.
(h) The existing redundant crossover on the Shackleton Street frontage of the development site being removed.
(i) Separate approval being obtained from the Town of Bassendean's Asset Services for the proposed crossover on the Shackleton Street frontage of the development site, and this crossover being constructed in accordance with that approval.
(j) The sealing and kerbing of all car parking areas and accessways to the Town's specifications.
(k) The car parking spaces and accessways being constructed and maintained thereafter to the Town of Bassendean's satisfaction.
(l) Visitor parking spaces being clearly marked for 'Visitors Only' and used as such.
(m) A minimum of four and one bicycle bays shall be provided for the residents and visitors respectively. The bicycle parking spaces shall be located in the area identified on the approved drawings and shall be constructed in accordance with the provisions of Australian Standard AS 2890.3 (as amended).
(n) All stormwater being contained and disposed of on site. Details of the method of stormwater containment and disposal shall be included with the drawings submitted for a Building Permit.
(o) Prior to the issue of a Building Permit a development bond for the sum of $5,000 being lodged with Council to ensure the satisfactory completion of all works associated with landscaping, carparking, accessways and fencing.
(p) The incorporation of public art into the proposed development or a cashinlieu payment of 1% of the construction cost of the proposed development in accordance with the Town of Bassendean's adopted Local Planning Policy No 15 Percent for Art Policy. Detailed arrangements and agreement with respect to art to be provided onsite or, alternatively, payment of the required fee shall be made prior to, or in conjunction with, the application for a Building Permit.
(q) The owner/applicant is required to undertake a transport noise assessment in accordance with the guidelines of the Western Australian Planning Commissions State Planning Policy 5.4 Road and Rail Transport Noise and Freight Consideration in Land Use Planning:
(i) the Report shall pay special consideration in addressing noise amelioration measures for two storey dwellings; and
(ii) the owner/applicant shall be responsible for all costs in implementing all the recommendations in the Report.
(r) The street number being prominently displayed at the front of the development.
(s) The provision of the side and rear fences (eastern property boundary and southern property boundary), behind the street setback line, of 1.8 metre height shall be measured above the higher ground level;
(t) The provision of letterboxes and bin storage in materials to complement the development to the satisfaction of the Town;
(u) External clothes drying facilities shall be screened from view of the street or any other public places at all times. No drying of clothes from upper floor balconies (units 2, 4, 6 &10) or ground floor outdoor living areas (units 1, 3, 5 & 9) is permitted;
(v) Airconditioning units and external fittings shall be incorporated into the building or screened from view. Details of the treatment of such external fittings to the building being submitted prior to the issued of a building permit to the satisfaction of the Manager Development Services.
(w) The applicant submitting to the satisfaction of the Manager Development Services a construction management plan that addresses the issues of dust and noise control, hours of work, and provides contact details of person to deal with complaints;
(x) A Waste Management Plan (WMP) is to be submitted for the Town's approval prior to or in conjunction with the application for a Building Permit. The WMP shall address matters including, but not necessarily limited to, the following:
(i) Measures to be implemented for the purpose of minimising the delivery of waste to landfill during occupation, including: the onsite separation of materials for recycling and the expectation of owners and/or tenants;
(ii) Site Plan showing the location and size of the onsite rubbish disposal area, including the number of general rubbish and recycling bins to be provided for the development, including sharing arrangements where the number of bins is less than the number of dwellings;
(iii) An estimation of the volume of waste to be generated by the proposed development and the capacity of this volume of waste to be accompanied by on site bin storage capacity;
(iv) Details of intended method of collection (private contractor or Council contractor);
(v) Details of arrangements for transferring bins from the communal bin storage area to the verge for collection and subsequently from the verge back to the communal bin storage area, including timeframes at each stage;
(vi) Details of where the bins would be located when waiting collection;
(vii) Details of advice to the provided to the owners and occupiers regarding the WMP; and
(viii) Details of how the WMP will continue to be applied in perpetuity across the life of the development, including the WMP being incorporated into the strata bylaws for the proposed development;
(y) The bin storage area is:
(i) To be provided with a selfclosing gate;
(ii) To be provided with 75mm minimum thickness concrete floors grading to a 100mm industrial floor waste, with a hose cock to enable both the bins and bin storage area to be washed out; and
(iii) To be provided with internal walls that are cement rendered (solid and impervious) to enable easy cleaning;
(z) The proposed boundary wall shall be finished to the satisfaction of the Town;
(aa) All building works to be carried out under this planning approval are required to be contained within the boundaries of the subject lot;
(ab) The building hereby approved shall not be occupied until all of the conditions of planning consent have been complied with to the satisfaction of the Manager Development Services, unless the applicant has entered into an agreement with Council to comply with those conditions within a specified period;
(ac) The issue of a building permit prior to the commencement of any onsite works; and
(ad) If the development the subject of this approval is not substantially commenced within a period of 2 years from the date of this approval, the approval shall lapse and be of no further effect.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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