Insitu Contemporary Design Pty Ltd and City Of Geraldton-Greenough
[2008] WASAT 202
•2 SEPTEMBER 2008
INSITU CONTEMPORARY DESIGN PTY LTD and CITY OF GERALDTON-GREENOUGH [2008] WASAT 202
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 202 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:125/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 2/09/08 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Conditional development approval granted | ||
| B | |||
| PDF Version |
| Parties: | INSITU CONTEMPORARY DESIGN PTY LTD CITY OF GERALDTON-GREENOUGH |
Catchwords: | Town planning Development application Two grouped dwellings Living/dining/kitchen area, bedroom and loft Housing density Minimum site area Survey strata lots approved by Western Australian Planning Commission Similar development, but without loft, previously approved by Council Scheme specifies minimum site area more than double minimum site area for applicable code under Residential Design Codes of Western Australia (2008), but allows reduction in minimum site area to minimum site area for applicable code where merits of application justify variation Whether merits of application justify variation of Scheme requirement to minimum site area for applicable code |
Legislation: | City of Geraldton Town Planning Scheme No 3, cl 2.2.1, cl 2.2.4, cl 4.2, cl 4.8.1, cl 5.3(c), cl 5.4.1, cl 7.3.2 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.1.1 A1.1, cl 3.1.3, cl 4.1.3, Table 1 Residential Design Codes of Western Australia(2008), cl 6.1.1, cl 6.1.2, cl 6.1.3, cl 7.1.3, Table 1 State Administrative Tribunal Act 2004 (WA), s 27(2) |
Case References: | Boulter and City of Subiaco [2007] WASAT 71 Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 12 March 2008 to refuse development approval for the construction of two grouped dwellings at No 2 (Lot 6) Alice Street, Geraldton is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(1) The development shall be carried out in accordance with four sheets of plans drawn by Insitu Contemporary Design Pty Ltd being 2004-020 (site plan), 2004-021 (floor plan), 2004-022 (elevations) and 2004-023 (elevations) each dated 26 November 2007, except as modified or required by the following conditions.,(2) A fire rated wall/separation is required between the units/buildings in accordance with the Building Code of Australia.,(3) A drainage system for the disposal of surface water must:,(a) convey water to an appropriate outfall;,(b) avoid the entry of water into a building; and,(c) avoid water damaging the building.,(4) The applicant is required to make arrangements with and to the approval of the Water Corporation, for the provision of reticulated sewerage to the development.,(5) Installation of crossing place/s to the standards and specifications of the Local Government.,(6) All stormwater is to be disposed of on-site to the specifications and approval of the Local Government. On application for a building licence a detailed design of stormwater collection and disposal system of developed areas is to be supplied.,(7) The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by reason of the emission of smoke, dust, fumes, odour, noise, vibration, waste products or otherwise.,(8) The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.,(9) The storerooms as shown on the approved plans being constructed in accordance with cl 6.10.1 A1 of the Residential Design Codes of Western Australia (2008).,(10) All car parking bays and access to them to be installed in all weather finish surface, concrete, bitumen or brick paving, and drained to the Local Government's standards. |
Summary | This case concerned a development application for the construction of two grouped dwellings each comprising a living/dining/kitchen area and a bedroom at ground level and a loft within the roof form. A very similar development, without the loft but with the same roof form, and a survey strata subdivision of the site were previously approved and the approvals are current.,While the site is relevantly coded R40, which contemplates a minimum site area of 200 square metres and a minimum average site area of 220 square metres for a grouped dwelling, a provision of the local planning scheme states that in all codes two grouped dwellings will not be permitted on a lot with an area of less than 900 square metres, unless the respondent considers that the merits of the particular application justify a variation to this requirement, in which case the minimum lot size may be reduced to the minimum under the relevant code.,The Tribunal determined that the merits of this particular application justify a variation to the minimum 900 square metres lot size requirement, because of the subsisting development and survey strata subdivision approvals and because the development satisfies performance criteria including the specific objective of the zone. The Tribunal therefore granted conditional development approval.,Finally, the Tribunal observed that there is inconsistency in the respondent's planning framework in relation to grouped dwelling housing density which should be addressed and resolved in the interests of orderly and proper planning. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : INSITU CONTEMPORARY DESIGN PTY LTD and CITY OF GERALDTON-GREENOUGH [2008] WASAT 202 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 SEPTEMBER 2008 FILE NO/S : DR 125 of 2008 BETWEEN : INSITU CONTEMPORARY DESIGN PTY LTD
- Applicant
AND
CITY OF GERALDTON-GREENOUGH
Respondent
Catchwords:
Town planning - Development application - Two grouped dwellings - Living/dining/kitchen area, bedroom and loft - Housing density - Minimum site area - Survey strata lots approved by Western Australian Planning Commission - Similar development, but without loft, previously approved by Council - Scheme specifies minimum site area more than double minimum site area for applicable code under Residential Design Codes of Western Australia (2008), but allows reduction in minimum site area to minimum site area for applicable code where merits of application justify variation - Whether merits of application justify variation of Scheme requirement to minimum site area for applicable code
(Page 2)
Legislation:
City of Geraldton Town Planning Scheme No 3, cl 2.2.1, cl 2.2.4, cl 4.2, cl 4.8.1, cl 5.3(c), cl 5.4.1, cl 7.3.2
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1 A1.1, cl 3.1.3, cl 4.1.3, Table 1
Residential Design Codes of Western Australia(2008), cl 6.1.1, cl 6.1.2, cl 6.1.3, cl 7.1.3, Table 1
State Administrative Tribunal Act 2004 (WA), s 27(2)
Result:
Conditional development approval granted
Category: B
Representation:
Counsel:
Applicant : Ms S Wills (Acting as Agent)
Respondent : Mr M Connell (Public Sector Employee)
Solicitors:
Applicant : Insitu Contemporary Design Pty Ltd (building designer)
Respondent : City of Geraldton-Greenough
Case(s) referred to in decision(s):
Boulter and City of Subiaco [2007] WASAT 71
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
(Page 3)
Summary of Tribunal's decision
1 This case concerned a development application for the construction of two grouped dwellings each comprising a living/dining/kitchen area and a bedroom at ground level and a loft within the roof form. A very similar development, without the loft but with the same roof form, and a survey strata subdivision of the site were previously approved and the approvals are current.
2 While the site is relevantly coded R40, which contemplates a minimum site area of 200 square metres and a minimum average site area of 220 square metres for a grouped dwelling, a provision of the local planning scheme states that in all codes two grouped dwellings will not be permitted on a lot with an area of less than 900 square metres, unless the respondent considers that the merits of the particular application justify a variation to this requirement, in which case the minimum lot size may be reduced to the minimum under the relevant code.
3 The Tribunal determined that the merits of this particular application justify a variation to the minimum 900 square metres lot size requirement, because of the subsisting development and survey strata subdivision approvals and because the development satisfies performance criteria including the specific objective of the zone. The Tribunal therefore granted conditional development approval.
4 Finally, the Tribunal observed that there is inconsistency in the respondent's planning framework in relation to grouped dwelling housing density which should be addressed and resolved in the interests of orderly and proper planning.
Introduction
5 These proceedings involve an application brought by Insitu Contemporary Design Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Geraldton-Greenough (City or Council) to refuse development approval for the construction of two grouped dwellings at No 2 (Lot 6) Alice Street, Geraldton (site).
6 The site has a width and frontage to Alice Street of 12.88 metres, a depth of 33.90 metres and an area of 436.63 square metres.
(Page 4)
7 The proposed grouped dwellings are mirror-images of one another, built to a party wall. Each dwelling would have an internal floor area of 88.7 square metres, comprising ground floor of 60 square metres with open plan living/dining/kitchen area and a bedroom, and 28.7 square metre loft within the 29 degree pitched roof form. The maximum height of the loft is approximately 2.8 metres but the section with a height of 1.5 metres or greater is restricted to a width of about 2 metres and an area of about 12 square metres.
8 The living/dining/kitchen would open through sliding doors onto a north-facing courtyard with dimensions of about 6.4 metres by 10 metres, including a 3 metre by 4 metre area covered with a shade sail and a 2 metre by 2 metre store.
9 Each proposed dwelling would have tandem car parking at the Alice Street frontage with a carport covering the whole of one car and part of another car, set back 4 metres from the street.
10 The proposed development would present as a substantially single storey building with dormer louvred windows to the loft.
Planning framework
11 The site is zoned "Residential" and is subject to residential density code of "R17.5/40" under the City of Geraldton Town Planning Scheme No 3 (TPS 3 or Scheme). The objective of the Residential zone is:
To ensure that the City's residential areas develop in a manner which provides a range of choice in housing with protection of residential amenity, achieves efficiency in provision of services and accessibility, and enhances townscape values generally.
12 Under cl 4.2 and Table 1 - Zoning Table of TPS 3, the Council may, at its discretion, permit grouped dwelling use of land in the Residential zone.
13 Clause 5.3(c) of TPS 3 states that:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design Codes of Western Australia (2008) (Codes)] shall conform to the provisions of those [Codes].
14 Clause 5.4.1(a) of TPS 3 provides that, in relation to land coded "R17.5/40", the code designation shall apply to R17.5 standards for a single house and to R40 standards for a grouped dwelling or multiple dwelling. It also states
(Page 5)
- that approval is "at the discretion of the Council in accordance with the City of Geraldton Residential Development Policy". However, the Council has not adopted this policy.
15 Clause 5.4.1(b) states, in part, as follows:
Grouped Dwellings
Except in the City Centre zone, under all codes grouped dwellings will not be permitted on a lot with an area less than the following:
2 grouped dwellings/dual occupancy 900 [square metres] …
unless Council considers that the merits of a particular application justify a variation to this requirement, in which case the minimum lot size may be reduced to the minimum lot size permissible for the proposed number of grouped dwellings under Clause 5.4.1(a) and the [Codes].
16 Clause 2.2.1 of TPS 3 states that, in order to achieve the objectives of the Scheme, the Council may make planning policies, but "no such policy … or any part thereof shall conflict with the provisions of the Scheme". Clause 2.2.4 requires the Council - and the Tribunal on review - to take any relevant planning policy into account in considering a development application, but notes that a planning policy "will not be statutorily binding on the Council".
17 On 11 July 2007, the Council adopted the Group Dwellings Local Planning Policy (Group Dwellings Policy). Clause 3.2.2 of the Group Dwellings Policy states, in part, as follows:
Where a development meets the assessment criteria of this policy, a 50% reduction between the minimum site areas as per the Town Planning Scheme and the average site area as stipulated by the Residential Design Codes shall apply as illustrated in the following table:
NO. OF GROUP DWELLINGS |
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(Page 6)
18 Therefore the Group Dwellings Policy allows a 50% reduction, namely 230 square metres, of the difference between the minimum site area for two grouped dwellings referred to in cl 5.4.1(b) of TPS 3 and 440 square metres, which is the minimum average site area per dwelling for a grouped dwelling in the R40 code specified in Table 1 of the Codes, where a development meets the assessment criteria which are set out in cl 3.3 of the Group Dwellings Policy. However, as noted earlier, cl 5.4.1(b) of TPS 3 itself allows the Council to reduce the minimum lot size to the minimum lot size permissible for the proposed number of grouped dwellings under the Codes.
19 Finally, cl 7.3.2 of TPS 3 states as follows:
The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is reserved, zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, may refuse or approve any application for Planning Consent or may grant its approval unconditionally or subject to such conditions as it thinks fit.
Background
20 On 15 March 2005, the Council granted development approval under TPS 3 for the construction of two grouped dwellings on the site (approved development). This approval is current. The approved development is very similar to the development which is the subject of these proceedings, the principal differences being that the approved development does not include a loft within the room form and includes only a single car parking bay for each grouped dwelling.
21 Although the Council assessment report and the development approval described the development as "two single bedroom dwellings", it is clear that the approved development involves "grouped dwellings" for the purposes of TPS 3. However, as the Council report recognised, because each of the grouped dwellings was a "Single Bedroom Dwelling" under cl 4.1.3 of the Residential Design Codes of Western Australia (2002) (2002 Codes), the minimum site area could be reduced by up to one-third under cl 3.1.3 A3(i) of the 2002 Codes.
22 Therefore, although the minimum average site area required for each grouped dwelling under cl 3.1.1 A1.1 and Table 1 of the 2002 Codes was 220 square metres, whereas the average site area was about 218 square metres, with a reduction of about 2 square metres under cl 3.1.3 A3(i) of the 2002 Codes, the development satisfied the minimum
(Page 7)
- site area requirements. The Council considered that the merits of the particular application justified the variation to the minimum 900 square metre site area requirement for two grouped dwellings under cl 5.4.1(b) of TPS 3 on this basis.
23 On 24 March 2006, the Western Australian Planning Commission (Commission) granted conditional approval for the survey strata subdivision of the site into two survey strata lots of 217 square metres with 2 square metre common property at the Alice Street boundary. At the City's request, the Commission included an advice note stating that:
The City of Geraldton advise[s] that any amendment to the current planning approval (being Planning Permit TP04/198) [ie for the approved development] will require further approval by the City of Geraldton.
24 On 22 January 2008, the applicant lodged the development application which is now the subject of these proceedings with the City. On 11 March 2008, the Council refused the development application for the following reasons:
(i) The subject property does not comply with the minimum lot size of 900 [square metres] for two grouped dwellings under [clause] 5.4.1(b) of [TPS 3]
(ii) The subject property does not comply with the minimum lot size variation of 670 [square metres] for two grouped dwellings under R40 code in accordance with the [Group Dwellings Policy]
(iii) It is not considered that the merits of the particular application justify a variation to be above requirements.
25 On 9 April 2008, the applicant sought review of the Council's decision.
Consideration of application for review
26 The Tribunal considers that the merits of the particular application justify a variation to the requirement in cl 5.4.1(b) of TPS 3 that two grouped dwellings will not be permitted on a lot with an area less than 900 square metres such that the minimum lot size may be reduced to the minimum lot size permissible for two grouped dwellings under cl 5.4.1(a) of TPS 3 and the Codes, for the following three reasons.
27 First, the proposed development is very similar to the development approved by the Council on 15 March 2005. Although it is common ground that the proposed development, unlike the approved development, does not involve
(Page 8)
- single bedroom dwellings for the purposes of the Codes, because the loft could serve as a second bedroom, nevertheless, the appearance and external impact of the proposed development is very similar to that of the approved development. In particular, the inclusion of the loft does not alter the fundamental building and roof form and provides only limited accommodation, with the area having a height of 1.5 metres or greater, restricted to a width of about 2 metres and an area of about 12 square metres. Although the City contends that the approved development is different and was considered appropriate "due to the low impact nature of Single Bedroom Dwellings", in practical terms, the impact of the proposed development would be very similar to that of the approved development.
28 As the Tribunal said in Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54]:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
29 The only aspect of the planning framework that has changed since the consent granted to the approved development is the adoption of the Group Dwellings Policy. However, the Group Dwelling Policy cannot override the discretion conferred by cl 5.4.1(b) of TPS 3 or limit the exercise of that discretion to sites of 670 square metres or greater in area. Clause 5.4.1(b) of TPS 3 expressly contemplates that, if the merits of a particular application justify variation to the minimum 900 square metre site area requirement, "the minimum lot size may be reduced to the minimum lot size permissible for the proposed number of grouped dwellings under [cl] 5.4.1(a) and the [Codes]".
30 Furthermore, this is an appropriate case to depart from the Group Dwellings Policy, because of the subsisting approval of a very similar development and because of the subsisting survey strata subdivision approval.
31 The second aspect of the merits of the application justifying a variation to the requirement in cl 5.4.1(b) of TPS 3 is the subsisting survey strata subdivision approval. The subdivision approval has significance in two respects.
32 First, the subdivision approval contemplates development of the site at a density of R40. It creates a reasonable expectation for approval of dwellings of the nature proposed in the development application; cf Boulter and City of Subiaco [2007] WASAT 71 at [60] - [66].
(Page 9)
33 Although the Commission included an advice note that any amendment to the existing development approval "will require further approval from the City of Geraldton", this note does no more than state a legal requirement which exists in any case under TPS 3. The subdivision approval does not expressly or by implication limit physical development of the approved lots to the approved development or to single bedroom dwellings. Indeed, the advice note contemplates that amendment of the approved development is possible. If the intention had been to limit physical development of the site to the approved dwellings or to single bedroom dwellings, conditions could have been imposed requiring the construction of the approved development as a pre-condition to issue of the survey strata plan and/or registration of a restrictive covenant on the titles restricting physical development to the approved development or single bedroom dwellings.
34 Second, cl 6.1.3 A3 of the Codes contains an acceptable development provision that the following variation to the minimum and average site areas set out in Table 1 of the Codes may be made:
(ii) in the case of a single house, grouped dwelling or multiple dwelling; the area of a lot, survey strata lot or strata lot approved by the [Commission];
35 Whereas, at 217 square metres site area for each approved survey strata lot, the site satisfies the minimum site area per dwelling of 200 square metres for the R40 code in Table 1 of the Codes, it does not meet the average minimum site area per dwelling of 220 square metres. However, the effect of cl 6.1.3 A3(ii) of the Codes is that, in this case, 217 square metres satisfies the acceptable development provision in relation to site area requirements.
36 The City contends that the provisions of the Codes are irrelevant in this case, because the 2002 Codes still operated at the time when the Council refused to grant development approval for the proposed development. However, s 27(2) of the State Administrative Tribunal Act 2004 (WA) states that:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
37 The Tribunal is therefore required to apply the current law, including the Codes.
(Page 10)
38 The third aspect of the merits of the application justifying a variation to the requirement in cl 5.4.1(b) of TPS 3 is that the proposal satisfies the performance criteria in cl 6.1.3 P3.1 of the Codes, which enable a council to approve the creation of a survey strata lot for a grouped dwelling of a lesser minimum site area than that specified in Table 1 provided that the proposed variation would meet the following criteria:
• be no more than five percent less in area than that specified in Table 1; and
…
• achieve specific objectives of the local government's scheme and, where applicable, the local planning strategy.
39 As noted earlier, the site area of each proposed dwelling is greater than the minimum site area specified in Table 1 of the Codes for a grouped dwelling in the R40 code. While the average minimum site area of the two proposed dwellings is less than the minimum average site area specified in Table 1 of the Codes for a grouped dwelling in the R40 code, the shortfall is less than 5% (approximately 1.36%) to this requirement and the proposed variation would achieve the specific objective for the Residential zone in cl 4.8.1 of TPS 3:
That the City's residential areas develop in a manner which provides a range of choice in housing with protection of residential amenity, achieves efficiency in provision of services and accessibility, and enhances townscape values generally.
40 The proposed development certainly provides choice in housing in the Residential area because it comprises two relatively small dwellings, each with ground level north-facing private open space, achieves efficiency in provision of services and accessibility by its location in a closely settled area, and enhances townscape values generally by presenting as an essentially single storey building.
41 The City is concerned that approval of the proposed development would create a precedent whereby an application could be made and approved for single bedroom dwellings, a survey strata application could then be approved based on the single bedroom dwellings development approval, and a further application made for grouped dwellings on the basis that the lots have received Commission approval, contrary to the intent of the approval of the initial development application and survey strata application.
(Page 11)
42 However, the City's concern is misplaced. While cl 6.1.3 A3(i) of the Codes confers, as an acceptable development provision, discretion to reduce the minimum site area for the purposes of a single bedroom dwelling by up to one-third in accordance with cl 7.1.3 of the Codes, a single bedroom dwelling is not, in itself, a land use recognised in TPS 3 or the Codes, but rather is a type of single house, grouped dwelling or multiple dwelling land use. As noted earlier, the survey strata approval was not conditioned so as to restrict physical development of the site to the approved development or to single bedroom dwellings. Where appropriate, conditions can be imposed on a survey strata approval to restrict the form of physical development on the approved survey strata lots. Finally, as also noted earlier, the performance criteria in cl 6.1.3 P3.1 of the Codes allows for approval of grouped dwellings with the minimum and minimum average site areas proposed in this case. Similarly, at the time that the Council granted consent for approved development on the site, cl 3.1.3 of the 2002 Codes provided for approval of grouped dwellings, irrespective of whether they were Single Bedroom Dwellings, on the site areas that were then proposed. Therefore, this is not a case in which development approval could only have been granted for the approved development if it comprised Single Bedroom Dwellings.
43 It follows that the merits of the development application in this case justify a variation to the requirement to the minimum 900 square metre site area such that the minimum lot size may be reduced to the minimum lot size permissible for the proposed number of grouped dwellings under cl 5.4.1(a) of TPS 3 and the Codes. As the City has not raised any other issue in relation to the proposed development, the Tribunal considers that it warrants conditional development approval, having regard to the considerations in cl 7.3.2 of TPS 3.
Conclusion
44 The merits of the particular development application before the Tribunal justify a variation to the minimum 900 square metre area requirement in cl 5.4.1(b) of TPS 3 such that the minimum lot size may be reduced to the minimum lot size permissible for the proposed number of grouped dwellings under cl 5.4.1(a) of TPS 3 and the Codes. Although the minimum average lot size proposed is marginally less than 220 square metres specified in Table 1 of the Codes for the R40 code, it satisfies both the acceptable development provision in cl 6.1.3 A3(ii) of the Codes, being the area of a survey strata lot approved by the Commission, and the performance criteria in cl 6.1.3 P3.1 of the Codes,
(Page 12)
- being a variation of less than 5% and achieving specific objectives of TPS 3.
45 Finally, the Tribunal notes that there is inconsistency in the City's planning framework in relation to grouped dwelling (and multiple dwelling) housing density which should be addressed and resolved in the interests of orderly and proper planning in the City's planning framework. There are, in effect, three different development standards specified for grouped dwellings in the planning framework, namely:
• code area specific minimum and average site areas ranging from R20 to R60 in accordance with cl 6.1.1 - cl 6.1.3 and Table 1 of the Codes under cl 5.4.1(a) of TPS 3;
• a blanket minimum site area of 900 square metres for two grouped dwellings, 1,250 square metres for three grouped dwellings and 1,500 square metres for four or more grouped dwellings in all codes and in all zones, other than the City Centre zone, but subject to a discretion to reduce the minimum lot size to that permissible for the proposed number of grouped dwellings under cl 5.4.1(a) of TPS 3 and the Codes where the Council considers that the merits of a particular application justify a variation to this requirement; and
• minimum site area of 670 square metres for two grouped dwellings in the R40 code (and various other minimum site areas for grouped dwellings depending on number and code) under the Group Dwellings Policy where a development meets the assessment criteria of the policy.
46 Given that cl 5.4.1(a) of TPS 3 and the table contemplate careful, area specific coding, including split codings, the City should consider whether a blanket provision specifying a minimum site area under all codes and in all zones, other than the City Centre zone, is consistent with the intent of cl 5.4.1(a) and the achievement of the zone objective for the Residential zone in cl 4.8.1 of TPS 3, and whether any planning objectives sought to be achieved by a blanket provision could be better achieved by specific performance criteria. If the City considers that the maintenance of a blanket provision is appropriate, subject to discretion to vary the minimum lot size to that contemplated by the coding, it would seem sensible for there to be specific guidance in the Scheme or in a policy in relation to the exercise of that
(Page 13)
- discretion. Finally, although a discretion under a local planning scheme can be guided by an adopted planning policy, as noted earlier the Group Dwellings Policy creates a third development standard which is subject to its own assessment criteria. In order to guide the exercise of a discretion under a scheme, the assessment criteria under a policy must relate to the discretion available under the scheme.
Orders
47 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 12 March 2008 to refuse development approval for the construction of two grouped dwellings at No 2 (Lot 6) Alice Street, Geraldton is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(1) The development shall be carried out in accordance with four sheets of plans drawn by Insitu Contemporary Design Pty Ltd being 2004-020 (site plan), 2004-021 (floor plan), 2004-022 (elevations) and 2004-023 (elevations) each dated 26 November 2007, except as modified or required by the following conditions.
(2) A fire rated wall/separation is required between the units/buildings in accordance with the Building Code of Australia.
(3) A drainage system for the disposal of surface water must:
(a) convey water to an appropriate outfall;
(b) avoid the entry of water into a building; and
(c) avoid water damaging the building.
(4) The applicant is required to make arrangements with and to the approval of the
- Water Corporation, for the provision of reticulated sewerage to the development.
- (5) Installation of crossing place/s to the standards and specifications of the Local Government.
(6) All stormwater is to be disposed of on-site to the specifications and approval of the Local Government. On application for a building licence a detailed design of stormwater collection and disposal system of developed areas is to be supplied.
(7) The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by reason of the emission of smoke, dust, fumes, odour, noise, vibration, waste products or otherwise.
(8) The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.
(9) The storerooms as shown on the approved plans being constructed in accordance with cl 6.10.1 A1 of the Residential Design Codes of Western Australia (2008).
(10) All car parking bays and access to them to be installed in all weather finish surface, concrete, bitumen or brick paving, and drained to the Local Government's standards.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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