IONIC PROJECTS PTY LTD and CITY OF MELVILLE - [2023] WASAT 133

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   IONIC PROJECTS PTY LTD and CITY OF MELVILLE [2023] WASAT 133
MEMBER:   MS M CONNOR, MEMBER
HEARD:   31 MAY 2023 AND 1 JUNE 2023, 14 JUNE 2023, 20 JULY 2023 AND 28 JULY 2023
DELIVERED          :   27 DECEMBER 2023
FILE NO/S:   DR 145 of 2022
BETWEEN:   IONIC PROJECTS PTY LTD
Applicant
AND
CITY OF MELVILLE
Respondent

Catchwords:

Town planning – Development - Whether application is a cl 77 application to amend aspects of 'approved development' - Whether proposed development demonstrates compliance with design principles and satisfies objectives of RCodes Volume 1 for Street setback, Lot boundary setback, Building height, Street walls and fences, Vehicular access, Sight lines and Site works - Building bulk - Views of Significance - Compatibility with setting - Impact on amenity of locality

Legislation:

City of Melville Local Planning Scheme No 6, cl 7(1)(a), cl 7(1)(b), cl 7(2), cl 25(1), cl 26
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12
Local Government Act 1995 (WA), Sch 9.1, cl 7
Metropolitan Region Scheme
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 17, reg 17(1)(c)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 3, cl 61(1), cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(c), cl 67(2)(fa), cl 67(2)(g), cl 67(2)(m), cl 67(2)(n), cl 67(2)(w), cl 67(2)(y), cl 76, cl 77, cl 77(1), cl 77(1)(c), cl 77(2)(a), cl 77(4), Pt 8
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.1, cl 5.1.2, P2.1, P2.2, cl 5.1.3, P3.1, cl 5.1.3, P3.1, P3.2, cl 5.1.6, P6, cl 5.2.1, cl 5.2.4, cl 5.2.5, P5, cl 5.3.5, P5.1, C5.2, C5.3, cl 5.3.7, P7.1, P7.2

Result:

Application for review dismissed
Decision of the respondent affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr A Koroveshi
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Arthur Koroveshi Barrister and Solicitor
Respondent	:	McLeods

Cases referred to in decision(s):

Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2019] WASC 207
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
SPG Capital Fund 5 Pty Ltd and Presiding Member of Metro Inner-North Joint Development Assessment Panel [2023] WASAT 100
Stewart and Town of Cottesloe [2019] WASAT 100
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Warden and Town of Mosman Park [2019] WASAT 88

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In February 2021, Ionic Projects Pty Ltd (applicant) applied to the City of Melville (respondent, Council or City) for approval to commence development for a 'Two Storey House with Roof Deck' on No 23 (Lot 90) Carron Road, Applecross (subject land or site).
The respondent granted development approval on 11 June 2021 subject to 11 conditions and eight advice notes (June 2021 approval),[1] with subsequent amendments approved on 12 July 2021 (July 2021 approval)[2] and 10 September 2021 (Sept 2021 approval).[3] The previous development approvals have not been implemented.
[1] Respondent's s 24 bundle of documents dated 24 November 2022 (Exhibit 3), pages 259 - 263.
[2] Exhibit 3, pages 264 - 265.
[3] Exhibit 3, pages. 275 - 277.
A further development application seeking approval for further amendments to the approved development on the subject land was lodged with the City on 1 November 2021 (Nov 2021 application or proposed development).
The Nov 2021 application was presented to the Council at its meeting of 16 August 2022, with a recommendation for conditional approval by the City's officers. However, the Council unanimously resolved to refuse the Nov 2021 application for the following reasons:
…
1.The proposed development exceeds 9 metres in height over the associated natural ground level across significant portions of the building and does not meet the deemed to comply provisions of Clause 2.1.1 of the City of Melville Local Planning Policy 1.9 Height of Buildings and or Design Principles specified in Clause 5.1.6 of State Planning Policy 7.3 Residential Design Codes Volume 1;
2.The Application is not consistent with Design Principle 5.1.6 P6 of the Residential Design Codes as the building height proposed negatively impacts access to views of significance;
3.The Application is not consistent with Design Principles 5.1.3 of the Residential Design Codes as the proposed western and northern lot boundary setback increases the impact of building bulk on the western and northern adjoining property and streetscape;
4.The Application is not consistent with cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 as:
a.The Application is inconsistent with orderly and proper planning;
b.The building height is incompatible with the desired character of its setting;
c.The building bulk, height and setbacks does not demonstrate the necessary relationship to development within the locality; and
d.The Application is inconsistent with the amenity of the locality[.]
On 24 August 2022, the applicant sought review by the Tribunal of the Council's decision to refuse to grant development approval to the Nov 2021 application. The applicant seeks an order that the respondent's decision be set aside and a decision substituted granting development approval, subject to appropriate conditions.
The matter proceeded to final hearing (hearing) for adjudication by the Tribunal. During the course of the hearing, the Tribunal heard expert evidence from Mr Howard Charles Mitchell, a landscape architect, and Mr David Maiorana, a town planning consultant called on behalf of the applicant; Mr Ryan Mathew Cribb, a surveyor with expertise in compiling three-dimensional modelling, and Ms Amanda Jane Butterworth, a town planning consultant called on behalf of the respondent. The respondent also called Ms Anne Margaret Gardner, an owner/occupier of No 26 Strome Road, Applecross (No 26), to give evidence. The Tribunal also admitted into evidence a submission by Anne and Richard Gardner made pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act).
Further, the Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject land and surrounding locality, including access to the upper level of the dwelling at No 26.
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in the proceedings and address each issue in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in the exercise of planning discretion, is to refuse to grant development approval for the proposed development.

Subject land and surrounding locality

The subject land is more particularly described as Lot 90 on Deposited Plan 27294 being the whole of the land contained in Certificate of Title Volume 2508 Folio 621 and is 1,004m² in area.
The site is located on the north-west corner of Carron Road and Killilan Road, with a frontage of 20.69 metres and 34.27 metres to these roads respectively. An 8.5 metre truncation is provided at the intersection of Carron Road and Killilan Road.
The fall across the site is approximately 2.62 metres from 6.63 metres Australian Height Datum (AHD) in its north-east corner to 9.25 metres AHD in its south-west corner.
Mr Mitchell usefully described the surrounding locality, which was not challenged, as follows:
28.The subject property is located within a local neighbourhood which is characterized by large residential properties of greatly diverse styles, set within a framework of streets and mature trees on a sloping terrain that falls down to the river.
29.There is not a distinctive local building characteristic but the common aspect being that buildings could be said to be often ostentatious, of high quality with a strong street presence. The character of the locality is not homogenous. It is a changing and evolving character as older properties are removed and new larger contemporary residences are built. The removal of trees within gardens to facilitate larger buildings also is a contributing aspect of the changing character. There is a mixture of styles, materials and built forms. The neighbourhood character is formed through the diverse nature of the dwellings, the plethora of building materials, garden plantings and the views down streets to the broader area including the river.
30.These surrounding contextual landscapes of the streets have their own specific characteristics, dependant on the exact location. These characters being formed by their street trees, orientation, diverse built forms and scale and nature of front garden treatments. They would generally fall into a category of a high quality suburban landscape.[4]
[4] Witness Statement of Howard Charles Mitchell dated 22 May 2023 (Exhibit 10), paras 28 - 30.

Proposed development

As the Nov 2021 application was the third development application amending the June 2021 approval (noting that the two previous applications to amend were approved), the Tribunal required Ms Butterworth and Mr Maiorana (planning experts) to confer during the course of the hearing and to produce a joint witness statement that identified the amendments they observed between the different sets of plans. The process undertaken by the planning experts was very thorough and resulted in the production of a comprehensive written document comprising 92 paragraphs and a set of A1 plans for each amending application (July 2021 approval, Sept 2021 approval and Nov 2021 application) marked up, cross-referencing the changes identified in the written document.[5]
[5] Joint Witness Statement of Expert Planning Witnesses dated 6 June 2023 (Exhibit 17).
Due to the quantum of changes being applied for and that the bulk of these require assessment under the design principles of the R-Codes, the particulars of the aspects of the development sought to be amended will be set out under the pertinent issue.

Planning framework

The subject lot is zoned Urban in the Metropolitan Region Scheme and 'Residential' under the City of Melville Local Planning Scheme No 6 (LPS 6) with a density coding of R15.
LPS 6 comprises the Scheme Text, the deemed provisions set out in the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 (deemed provisions) and the Scheme Map (sheets 1 ‑ 10).[6] Further, LPS 6 is to be read in conjunction with any local planning strategy for the Scheme area.[7]
[6] LPS 6, cl 7(1)(a), cl 7(1)(b).
[7] LPS 6, cl 7(2).
The objectives of the 'Residential' zone are:
·To provide for a range of housing and a choice of residential densities to meet the needs of the community.
·To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
·To provide for a range of non-residential uses, which are compatible with and complementary to residential development to promote sustainable residential development.
·To maintain the compatibility with the general streetscape, for all new buildings in terms of scale, height, style, materials, street alignment and design of facades.
Clause 25(1) of LPS 6 provides that '[t]he R-Codes[8], modified as set out in cl 26, are to be read as part of this Scheme'. Clause 26 of LPS 6 does not relevantly modify the R-Codes in terms of any of the issues for determination in this review. The Tribunal will refer to relevant provisions of the RCodes when considering the issues concerning those provisions below.
[8] The applicable Residential Design Codes for the purposes of this matter is State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes).
The erection of a single house on a lot does not require development approval under LPS 6 if the conditions set out in cl 61(1) of the deemed provisions are satisfied. The original development application for the single house required development approval under LPS 6 as aspects of the proposed development did not comply with the deemed-to-comply provisions of the R-Codes.
Clause 77(1) of the deemed provisions provides as follows:
77.Amending or cancelling development approval
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following —
…
(c)to amend an aspect of the development approved which, if amended, would not substantially change the development approved[.]
Pursuant to cl 77(2)(a) of the deemed provisions an application to amend the development approved is required to be dealt with as if it were an application for development approval. The July 2021 approval and the Sept 2021 approval were dealt with as cl 77 applications.
Clause 77(4) of the deemed provisions provides that a local government (and the Tribunal on review) may determine an application made under cl 77(1) by:
…
(a)approving the application without conditions; or
(b)approving the application with conditions; or
(c)refusing the application.
Clause 76 of the deemed provisions provides for a review of a determination by the local government to refuse to amend a development approval on an application made under cl 77 by the Tribunal.
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the decision-maker is to have due regard to a range of specified matters to the extent that, in the opinion of the decision-maker, those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
·the aims and provision of LPS 6 (subclause (a));
·the requirements of orderly and proper planning (subclause (b));
·any approved State planning policy (subclause (c));
·any local planning strategy for this Scheme endorsed by the Commission (subclause (fa))
·any local planning policy for the Scheme area (subclause (g));
·the compatibility of the proposed development with its setting (subclause (m));
·the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
·the history of the site where the development is to be located (subclause (w)); and
·any submissions received on the application (subclause (y)).
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent relied on the following three policies adopted pursuant to cl 3 of the deemed provisions, being:
·Local Planning Policy 1.9: Height of Buildings (LPP 1.9);
·Local Planning Policy 3.1: Residential Development (LPP 3.1); and
·Local Planning Policy 1.10: Amenity.

Issues

The respondent identified 12 issues for determination.[9] Mr Wittkuhn, counsel for the respondent, in opening submissions indicated that a number of issues had fallen away and during the course of the hearing it was agreed by the parties that the following issues arise for determination in relation to this matter:
[9] Respondent's Statement of Issues, Facts and Contentions dated 24 November 2022 (Exhibit 2).
1.Whether the proposed development demonstrates compliance with the design principles of the R-Codes in relation to:
(i)cl 5.1.2 'Street setback' - (set back to Killilan Road);
(ii)cl 5.1.3 – 'Lot boundary setback' (setback to rear (northern) boundary);
(iii)cl 5.1.3 – 'Lot boundary setback' (setback to side (western) boundary) in regard to:
.the garage boundary wall;
.the Level 1 setback; and
.the roof top setback.
(iv)cl 5.1.6 'Building height';
(v)cl 5.2.4 'Street walls and fences';
(vi)cl 5.3.5 'Vehicular access';
(vii)cl 5.2.3 'Sight lines'; and
(viii)cl 5.3.7 'Site works';
2.Whether the proposed development is compatible with its setting and the amenity of the locality;
3.Is the proposed development a cl 77 application to amend the 'development approved'?

4.What, if any, weight should be given to draft State Planning Policy 7.3 Residential Codes Volume 1 2023 (Vol 1 2023).

Given the importance of the jurisdictional issue of whether the Nov 2021 application is an application to amend an aspect of the development approved, the Tribunal considers it prudent to deal with this issue first.

Is the Nov 2021 application a cl 77 application to amend the 'development approved'?

The respondent submits that the Nov 2021 application is not, in true substance, an application to amend an existing development approval within the scope of cl 77 for the following two reasons. Firstly, the respondent submits that the form of the application lodged by the applicant did not apply for specific identified variations.
Secondly, the differences between that approved development and the Nov 2021 application are numerous, some of which are significant in their own right and collectively they are significant. The respondent submits that there must be a point where the amendments become simply so numerous that the application cannot be treated as an application to amend an existing development approval but must be regarded in substance as a fresh development application.
Regarding the respondent's first submission, the Tribunal is satisfied that the form of the application lodged with the City is properly characterised as an application made pursuant to cl 77 as the covering letter attached to the 'Application for Development Approval' clearly identifies that the applicant is seeking approval for 'Proposed Amendments to the Development Approval of 23 Carron Road, Applecross - Application Number DA-2021-214' and states that '[a]ll revisions have been clouded on the drawings and a summary of the proposed amendments is provided below[.]'[10] Whilst the 'summary' of the proposed amendments may have been inadequate in that there was no assessment of the impacts of the proposed changes against the respective R-Codes provision(s), it was open to the City, as they did so on several occasions, to require further accompanying material to be provided in accordance with Part 8 of the deemed provisions. Additionally, the further information provided by the applicant via its planning consultants clearly identifies that the application seeks approval for amendments to a previous development approval.[11]
[10] Exhibit 3, page 21.
[11] Exhibit 3, pages 51 - 79.
In relation to the respondent's second submission, the Tribunal is not persuaded that the Nov 2021 application is in substance, a fresh development application. It is acknowledged that the application for review is the third application made by the applicant to amend aspects of the original development approved in June 2021. However, cl 77(1)(c) of the deemed provisions makes provision for an application to be made to 'amend an aspect of the development approved which, if amended, would not substantially change the development approved'.
The wording of cl 77(1) of the deemed provisions is in materially identical terms to reg 17(1)(c) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), except that the decision-maker in cl 77 of the deemed provisions is the local government and not a development assessment panel. In Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2019] WASC 207 (Milem), Archer J discusses the two stage-process in the context of reg 17, which given that cl 77 is in materially identical terms are on point. Her Honour observes that the first stage requires a precondition to be satisfied before the second stage, the exercise of discretion, arises.

More completely, her Honour held at [9] and [10]:
9The first stage requires the decision-maker to be satisfied that the proposed amendment would not substantially change the development approved. If the decision-maker is so satisfied, the application for the amendment would be a valid application under reg 17(1)(c), and the Panel would then have the jurisdiction to exercise its discretion to approve or refuse the proposed amendment. In these reasons, I will refer to the Panel's satisfaction that the proposed amendment would not substantially change the development approved as the 'Precondition'.
10The second stage is the exercise of discretion. It obviously only arises if, in the first stage, the decision-maker determines that the Precondition has been met. [Emphasis added].
Her Honour also considered the proper construction of 'Precondition' and the meaning of 'substantially' and in line with Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115 identified the following considerations in an evaluation of whether the proposed amendment would not substantially change the development approved:
•the evaluation requires an assessment of the extent of any change to the built form of the development approved and also any change to its use;
•the evaluation requires a comparison between the development approved and the development as it would be if amended as proposed;
•it is necessary to consider the change in both a quantitative and a qualitative sense, and in light of all the circumstances;
•an amendment will not 'substantially' change a development if, after such amendment, the development would be essentially or materially the same or have the same essence.
Further, Archer J says at [40] - [41]:
40… a change that could properly be described as minor or insignificant (in the context of both built form and use of the development approved) would not be a change that altered the essence of the development approved.
41Further, even a proposed change which can be described as significant in one sense may be properly characterised as one which would not substantially change the development approved … [Citations omitted]
Whilst the amendments proposed in the Nov 2021 application are numerous to say the least, many of the changes are minor in nature and some do not even require development approval. I accept that some of the changes are significant and alter the built form of the approved development and in the exercise of discretion are not considered to warrant approval (see reasons below), but after careful evaluation of the amendments sought and taking into consideration the matters identified in Milem, the Tribunal is satisfied that the development would in essence be the same as the development approved and as such, considers the Nov 2021 application to be a valid application under cl 77 of the deemed provisions.

Whether the proposed development demonstrates compliance with the design principles in relation to:

Clause 5.1.2 'Street setback'

There is no contest that Killilan Road is the primary street[12] for the purposes of assessing the street setback, although the dwelling is setback a minimum of 6 metres from Carron Road. The planning experts identified and agreed the following amendments to the Nov 2021 application in relation to street setback:
[12] Primary street is defined in the R-Codes as follows: Unless otherwise designated by the local government, the sole or principal public road that provides access to the major entry (front door) to the dwelling or building.
(a)GROUND FLOOR
Setback to Killian Road boundary
(i)To the wall:- Sept 2021 approval - 1.58 metres. Nov 2021 application - 1.37 metres. The planning experts agree that the Nov 2021 application proposes a lesser front boundary setback of 0.21 metres.[13]
[13] Exhibit 17, para 27.
(ii)To front door:- Sept 2021 – 3 metres. Nov 2021 application 3.1 metres. It is agreed that the Nov 2021 application proposes an increased setback to the entry door by 0.1 metre but this amendment does not result in a greater/lesser street setback.[14]
[14] Exhibit 17, para 30.
Wall length to the Killilan Road Frontage
Sept 2021 approval (excluding balcony) - 18.7 metres. Nov 2021 application - 20.3 metres. The planning experts agree that the extent of wall along the Killilan Road frontage has increased by 1.6 metres and that the increase of wall length does not result in any greater setback requirement.[15]
[15] Exhibit 17, para 28.
Other
Entry porch:- Sept 2021 approval – 2.74 metres in width and a FGL of 8.292 metres AHD. Nov 2021 application – 2.4 metres in width and a FGL of 8.342 metres AHD. The planning experts agree that the porch width is reduced by 0.29 metre and the FGL is increased by 0.05 metres. It is further agreed that the modification in levels to the porch from natural ground levels as proposed in the review application is less than 0.5 metres and therefore the change in levels at this location does not require further assessment under the planning framework and that this modification does not result in any greater street setback.[16]
[16] Exhibit 17, para 29.
(b)LEVEL 1
Setback to Killian Road
(i)Sept 2021 approval - 1.58 metres to the balcony, bedroom 4 and gym. Nov 2021 application – 1.37 metres. The planning experts agree that the Nov 2021 application proposes a lesser front boundary setback of 0.21 metres.[17]
[17] Exhibit 17, para 43.
(ii)At the western end of the Killilan frontage:- Sept 2021 approval – ensuite with a setback of 6.7 metres to Killilan Road frontage for a length of 3.9 metres. Nov 2021 application – now wall to bedroom 4 that is setback 2.93 metres. The planning experts agree that the Nov 2021 application results in a 3.844 metres lesser setback in this location.[18]
(iii)The Sept 2021 approval included a balcony on the western end of the Killilan Road elevation that was setback 1.58 metres from Killian Road frontage. In the Nov 2021 application this balcony is deleted.[19] However, in the Sept 2021 approval the balcony adjacent to the western boundary that is setback 8.53 metres is setback 2.936 metres in the Nov 2021 application.[20]
(iv)Sept 2021 approval – included a recessed portion to a void, which is setback of 2.9 metres. Nov 21 application – does not include any recessed portion on this elevation (other than the western end).[21]
Wall length to the Killilan Road Frontage
Sept 2021 approval – the length of wall that is setback 1.58 metres (including the recessed area and western balcony but excluding the eastern/primary balcony) is 22.05 metres. Nov 2021 application - the portion of wall that is setback 1.37 metres has a wall length of 20.3 metres. The planning experts agree that the assessment of wall length to the front boundary does not result in any greater setback requirement.[22]
(c)ROOF TERRACE
(i)Setback to the western portion of the roof terrace (open space) from the Killilan Road frontage:- Sept 2021 approval - is 10.2 metres. Nov 2021 application - is 4.7 metres. The planning experts agree that the setback to Killilan Road frontage for this portion of the roof terrace has been reduced by 5.5 metres.[23]
(ii)Sept 2021 approval - to the west of the void the AC plant is setback 5.228 metres; the void is setback 3 metres; the recess east of the void (recess width 1.87 metres) is setback 5.228 metres; and roof terrace to the east of the recess measures 14.13 metres in length is setback 3.8 metres. Nov 2021 application - proposes a consistent setback to Killilan road frontage of 4.7 metres for a total length of 24.2 metres.[24]
[18] Exhibit 17, para 44.
[19] Exhibit 17, para 45.
[20] Exhibit 17, para 37d).
[21] Exhibit 17, paras 47 and 62.
[22] Exhibit 17, para 46.
[23] Supplementary Witness Statement of David Maiorana dated 26 June 2023 (Exhibit 18), para 52.
[24] Exhibit 17, para 55.
The planning experts agreed that the Nov 2021 application does not satisfy the deemed-to-comply provisions in relation to street setbacks and therefore requires assessment under cl 5.1.2 P2.1 and P2.2 of the R‑Codes.
Clause 5.1.2 P2.1 and P2.2 states:
P2.1Buildings set back from street boundaries an appropriate distance to ensure that:
.contribute to, and are consistent with, an established streetscape;
.provide adequate privacy and open space for dwellings;
.accommodate site planning requirements such as parking, landscape and utilities; and
.allow safety clearances for easements for essential service corridors.
P2.2Buildings mass and form that:
.use design features to affect the size and scale of the building;
.uses appropriate minor projections that do not detract from the character of the streetscape;
.minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
.positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
The respondent contends that the building is not setback from Killilan Road an appropriate distance to ensure that it contributes to and is consistent with the established streetscape and that the mass and form of the building does not demonstrate compliance with all four bullet points as specified in cl 5.1.2 P2.2.
Ms Butterworth, in her review of the existing street setbacks along Killilan Road focused on the street setbacks to Killilan Road, between Canning Beach Road and Strome Road (including the properties on the western side of the intersection of Killian Road and Strome Road) and concluded that:
The established streetscape of Killilan Road does not have a consistent established streetscape. The streetscape consists of a mix of vacant land, older established dwellings and new dwellings, come of which are dwellings on larger properties and other lots have been subdivided. There is not a consistent setback to Killilan Street (sic), not that the dwellings at 16 Killilan Road (property to the east of the Review Site) and 26 Carron Road front Killilan Road and have lesser setbacks as comparted to some of the older dwellings along Killilan Road.
From my site view, in terms of the setbacks on the same side of Killilan Road, I observed that the minimum front setback to 16 and 22 Killilan Road (newer dwellings) are less than that for the remainder of the street.[25]
[25] Exhibit 6, paras 87 and 88.
Ms Butterworth observes that the June 2021 approval, July 2021 approval and the Sept 2021 approval all depicted a front setback of 1.58 metres from the Killilan Road frontage. She also points out that in terms of the built form to Killilan Road, the first floor elevation was 'broken up' with a void being setback 3.0 metres, a balcony west of the void and the western portion of the first floor having a greater setback of 6.7 metres from Killilan Road frontage. Ms Butterworth is highly critical of the amendments incorporated into the Nov 2021 application and observes:
•the front elevation to Killilan Road is not 'broken up' by the setting back of central portions of the building;
•there are no particular features or minor projections used to reduce the massing of the building, particularly on Level 1;
•the gatehouse with a nil setback does not positively contribute to the building mass and form; and
•there are no other dwellings along Killilan Road, between Canning Bridge Road and No 8 Killilan Road, with a setback of less than 1.5 metres to a building of this height and length.
Ms Butterworth considers that when compared to the Sept 2021 approval, the design of the Nov 2021 application has removed the design features that assisted to reduce the scale of the building when viewed from Killilan Road, those features being the recessed void [vertical element], the balcony in front of bedroom 3 (Level 1) and the increased setback to the ensuite to bedroom 3.[26] Ms Butterworth says that the design of the Nov 2021 application results in 'a long stretch of building without any elements breaking up that elevation of the building, and that the setback is less than what other buildings are in Killilan Road …'.[27]
[26] Exhibit 6, para 97.
[27] ts 20, 20 July 2023.
Acknowledging that the streetscape of Killilan Road is not homogonous and that there are dwellings in this locality that have portions of building with a similar setback, Ms Butterworth does not consider the Nov 2021 application to be consistent with the existing streetscape, nor does it positively contribute to the streetscape due to the bulk and scale of the proposal with a setback of predominantly 1.37 metres for a 25 metre section of the building, which also incorporates a gatehouse with a zero setback for 3.461 metres along the frontage. She further submits that a building of this height, with a setback of 1.37 metres to the primary street for the majority of the Killilan Road frontage results in a building mass and form that does not positively contribute to the prevailing or future development context and streetscape.
Mr Maiorana holds the view, and the Tribunal accepts, that the subject land 'forms part of an emerging streetscape that is progressively transitioning from older, more modest housing stock to substantially large contemporary houses.'[28] He points to No 16 Killilan Road, No 25 Carron Road and No 26 as recent examples within the immediate locality with reduced setbacks to Killilan Road.
[28] Exhibit 18, para 12.
Mr Maiorana submits that the front setback is consistent with other dwellings with reduced setbacks to Killilan Road and in his opinion, 'the design of the dwelling will make a positive contribution to the Killilan Road frontage in terms of delivering a new architecturally‑designed building of a scale and type that is consistent with the existing built form within the streetscape.'[29]
[29] Exhibit 18, para 12.
He considers the setback of the garage provides a suitable 'stepping back' transition to No 12 Killilan Road, Applecross (No 12) and the use of varied building materials and finishes and the recessed floor to ceiling glazing at both levels adds visual interest to the building and assist in reducing its perceived size and scale. He also says that the horizontal emphasis of the dwelling defined particularly by the eastern end balcony elements further assists in reducing the perception of building height and that the gate house and front fencing are aspects of design that break up the overall mass and building bulk of the building.
In relation to the removal of the 'significant' recess void, he opines that the overall scale of the building 'presents as reduced, relative to the Sept 2021 approval'[30] and maintains that the Nov 2021 application continues to demonstrate compliance with cl 5.1.2 of the R-Codes.
[30] ts 22, 20 July 2023.
The Tribunal accepts that the more recent contemporary dwellings constructed in the immediate locality are larger in scale and bulk than the older housing stock and that the subject land and the new dwellings form part of an emerging streetscape. It is also accepted that a reduced front setback to Killilan Road is consistent with the setback pattern as evident in Killilan Road. However, the Tribunal does not consider the combination of design aspects sought to amend the approved development to positively contribute to the prevailing and future development context and streetscape. The high degree of articulation of the building, including the vertical element, along the Killilan Road frontage incorporated in the approved development that assisted with the breaking down of the perceived bulk and visual massing of the building has been significantly moderated by the amendments proposed to the western end of the Killilan Road frontage. The low level of articulation incorporated in the Killilan Road façade does not provide sufficient relief to the mass of the building when viewed from Killilan Road, and this together with, a further reduced front setback culminates in a building mass and form that does not demonstrate compliance with cl 5.1.2 of the R-Codes. Accordingly, this aspect of the Nov 2021 application does not satisfy objective (e) of cl 5.1 of the R-Codes as the setback to Killilan Road, together with the bulk and massing of the building does not respond sympathetically to the street. This aspect of the development does not warrant approval.

Clause 5.1.3 – 'Lot boundary setback' (northern (rear) boundary)

The planning experts identified and agreed the following amendments to the Nov 2021 application in relation to the northern (rear) boundary:
(a)GROUND FLOOR
Dwelling
Sept 2021 approval – included two sections of wall both setback 1 metre, separated by a recess with a wall length of 5.6 metres which is setback 2.3 metres. Nov 2021 application – includes two sections of wall with the eastern section setback 1 metre and the western section setback 1.5 metres, separated by a recess with a wall length of 3.1 metres setback 2.45 metres. The planning experts agree that the recess wall length has decreased but the setback to the boundary has increased.[31]
[31] Exhibit 17, para 34.
Garage
Sept 2021 approval – setback 3.88 metres from the rear boundary. Nov 2021 application – setback 3.75 metres from the rear boundary. The planning experts agree the setback to the rear boundary has reduced by 0.13 metres.[32]
[32] Exhibit 17, paras 20 and 75.
Store
Sept 2021 approval – setback 3.88 metres. Nov 2021 application setback 3.75 metres. The planning experts agree that the setback to the rear boundary has been reduced by 0.13 metres.[33]
(b)LEVEL 1
(i)Sept 2021 approval – the balcony and ensuite (western end) is setback 1.5 metres with a total wall length of 8.06 metres (noting that as the balcony was screened, this wall contained no major openings). Adjacent to this section of wall is a recess of 1.84 metres in length with a setback of 2 metres. To the east of the recess is a section of wall measuring 6.7 metres with a setback of 1.5 metres. Nov 2021 application - does not include a recess wall, and the balcony has been deleted, and as such, the western portion of the wall on the northern elevation is 14.9 metres in length with a setback of 1.5 metres.[34]
(ii)Sept 2021 approval - the master bedroom wall at the eastern end has a wall length of 6.45 metres plus the 25% permeable screening to the primary balcony, which is 3.114 metres in length (not a major opening) and is setback 1 metre. Nov 2021 application – the master bedroom wall has a length of 9.34 metres with no major openings and a 1 metre setback. The balcony length on the northern side elevation measures 2.19 metres (with no screening to the balcony) and therefore is a major opening.[35]
(c)ROOF TERRACE
(i)Setback to 1.6 metres screening (western portion):- Sept 2021 approval – setback 3.7 metres for 16.6 metres in length. Nov 2021 application - setback 1.5 metres for 9.3 metres in length.
(ii)Setback 1.6 metres screening (eastern portion): - Sept 2021 approval - setback 3.2 metres for 5.5 metres in length. Nov 2021 application - setback 2.25 metres for 14.9 metres in length.[36]
[33] Exhibit 17, para 22b).
[34] Exhibit 17, para 39, 40a) and b).
[35] Exhibit 17, para 40 c) and d).
[36] Exhibit 17, para 53a).
The planning experts agree that the setbacks to the northern (rear) boundary do not satisfy the deemed-to-comply setback (6 metres) of Table 1 of the R-Codes and therefore require assessment under cl 5.1.3 P3.1 of the R-Codes.
Clause 5.1.3 P3.1 states:
P3.1Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:
.reduce impacts of building bulk on adjoining properties;
.provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
.minimise the extent of overlooking and resultant loss of privacy on adjoining properties.

Ms Butterworth holds the view that the Nov 2021 application demonstrates compliance with bullet point two and with the imposition of a planning condition requiring the inclusion of appropriate screening where the plans do not include obscure glazing to 1.6 metres, would not result in an undue adverse impact in terms of overlooking on No 21b Carron Road, Applecross (No 21b).
In her witness statement Ms Butterworth expresses the opinion that 'the bulk and scale of the proposal has increased in terms of presentation to the property to the north' and 'the setback of the wall (to the balustrade to the roof terrace) is not such that it reduces the impact of building bulk on [No 21b]'. Ms Butterworth in oral evidence explained that she was particularly concerned about the reduced setbacks and the impact of the bulk of the building on the adjacent outdoor living area of No 21b.
Mr Maiorana maintains that the reduced setbacks to the northern (rear) boundary are not impacting unreasonably on the amenity of No 21b and points to the following design aspects that he considers assists in reducing the building bulk of the Nov 2021 application on No 21b:
•a portion of the ground floor is located below natural ground level;
•adequate wall articulation across all levels;
•the articulation is emphasised by the glazing along the Level 1 façade and incorporates varied building materials/finishes;
•the largest northern setback (3.752 metres to the garage) abuts the outdoor living area of No 21b; and
•the roof structures will be 'inevident or not seen' from No 21b due to their placement adjacent to the side setback of the dwelling on No 21b.
Mr Maiorana considers the design to be responsive to the dwelling on No 21b because the building interfaces with a side setback with very little opportunity to see any component of the building and does not compromise the outdoor living area of No 21b.
The Tribunal acknowledges that the dwelling on No 21b is orientated east/west and that the building on the subject land interfaces with the side elevation of No 21b and as such, the impacts of the setback of the building should be considered in this context. The amendments to the approved development, whilst in one instance marginally increases the setback of the western section of the ground floor to the northern boundary, the material effect of the changes reduces the articulation of the building along this boundary. Most noticeably is the deletion of the balcony to bedroom 1 on Level 1 together with, the setback to the 1.6 metres high obscure glazing (western portion) on the roof terrace being reduced from 3.7 metres to 1.5 metres, which results in a wall 9.3 metres in length with a maximum wall height of 10.42 metres[37] setback 1.5 metres from the northern boundary adjacent to the outdoor living area of No 21b. This outcome cannot be characterised as reducing the impacts of building bulk on No 21b. Consequently, the Tribunal finds that this aspect of the Nov 2021 application does not demonstrates compliance with cl 5.1.3 of the R-Codes and does not satisfy objective (c) of cl 5.1 of the R-Codes because the design of the building fails to limit the impacts of building bulk on No 21b. This aspect of the Nov 2021 application does not warrant approval.
[37] Exhibit 6, para 140 also referred to in Exhibit 17, para 90.

Clause 5.1.3 – 'Lot boundary setback' (western (side) boundary)

The planning experts identified and agreed the following amendments to the Nov 2021 application in relation to the western (side) boundary:
(a)GROUND FLOOR
Garage and Store
Sept 2021 approval - the length of the garage wall is 14.42 metres; FFL of garage is 8.292 metres AHD and 8.464 metres AHD for the store, with maximum height of garage boundary wall height to 12.25 metres AHD. Nov 2021 application - the length of the garage wall is 14.76 metres; FFL of garage and store is 8.942 metres AHD with maximum of garage boundary wall height of 11.985 metres AHD. The planning experts agree that the wall height of the garage is approximately 0.3 metres lower but the length of the boundary wall has increased by 0.34 metres.[38]
[38] Exhibit 17, paras 19, 21 and 74.
(b)LEVEL 1
Balcony
Sept 2021 approval - 6.3 metres in length x 2.1 metres wide and setback 1 metres to the obscure glass balustrade. Nov 2021 application - 20.1 metres in length x 1.92 metres wide and setback 1.22 metres. The planning experts agree that the length of the balcony has increased by 13.8 metres; that the width of the balcony has reduced by 0.18 metres and the setback to the side boundary has increased by 0.22 metres.[39]
To the wall
Sept 2021 approval - wall length of 18.5 metres with a 3.07 metres setback. Nov 2021 application - wall length of 22.4 metres with a 3.14 metres setback. The planning experts agree that the setback to the western boundary is increased but wall length is longer.[40]
(c)ROOF TERRACE
Sept 2021 approval - length of wall 13.94 metres (1.6 metre screening) with a setback of 5.3 metres. Nov 2021 application - length of wall (1.6 metres screening) 20.6 metres with a setback of 3.17 metres. The planning experts agree that the western side boundary setback of the 1.6 metres screening to the roof terrace satisfies the deemed‑to‑comply setbacks under Table 2 of the RCodes, but the presentation to the western (side) boundary may be a matter for consideration and assessment under cl 67(2)(m) and (n) of the deemed provisions.[41]
[39] Exhibit 17, para 37.
[40] Exhibit 17, para 38.
[41] Exhibit 17, para 51.
The planning experts agree that the amendments to the ground floor and Level 1 relating to the western (side) boundary do not satisfy the deemedto-comply provisions of cl 5.1.3 of the R-codes and therefore require assessment under the corresponding design principles of cl 5.1.3.
Clause 5.1.3 of the R-Codes states:
P3.1Buildings set back from lot boundaries or adjacent buildings on the same lots so as to:
.reduce impacts of building bulk on adjoining properties;
.provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
.minimise the extent of overlooking and resultant loss of privacy on adjoining properties.
P3.2Buildings built up to boundaries (other than the street boundary) where this:
.makes more effective use of space for enhanced privacy for the occupant/s or outdoor living areas;
.does not compromise the design principle contained in clause 5.1.3.P3.1;
.does not have any adverse impact on the amenity of the adjoining property;
.ensures direct sun to major openings to habitable rooms and outdoor living areas for the adjoining properties is not restricted; and
.positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.

Garage boundary wall

Ms Butterworth observes that most of the boundary wall sits adjacent to an existing boundary wall but extends further to abut the rear outdoor living area of No 12. Although Ms Butterworth was initially concerned about the possible impact of building bulk on the outdoor living area of No 12, in oral evidence, she told the Tribunal that based on her observations at the view she was satisfied that even though the boundary wall may marginally sit above the existing boundary fence she considers the garage boundary wall to demonstrate compliance with the design principles.[42]
[42] ts 48 and 49, 20 July 2023.
Mr Maiorana considers the changes to be minor in nature and will not result in a material difference to the amenity enjoyed by the residents at No 12. Accordingly, he submits that the changes do not compromise the design principles contained in clause 5.1.3 P3.2.
Given the evidence of the planning experts, the Tribunal is satisfied that this aspect of the Nov 2021 application demonstrates compliance with cl 5.1.3 P3.2 of the R-Codes.

Level 1

The planning experts agree that the proposed amendments to Level 1 in the Nov 2012 application satisfy bullet points two and three of cl 5.1.3 P3.1.
However, Ms Butterworth holds the view the proposed setback to Level 1 and particularly the balcony screening, does not seek to reduce impacts of building bulk on No 12. She submits that as the western balcony consists of one material type (obscure glazing) with no variation of setback for the entire length of the balcony (13.8 metres), the design does not seek to reduce the impact of building bulk on No 12, particularly the outdoor living area, as there are no features being utilised which would seek to reduce building bulk. She considers there to be an opportunity to reduce the impact of the balcony on No 12 by the removal of the section of balcony adjacent to the ensuite on Level 1.
Mr Maiorana considers the extensive use of glazing (including floor‑to‑ceiling treatments), which is distributed more-or-less evenly along the length of the first floor, minimises blank wall facades to No 12 and is sufficiently screened to prevent overlooking. He also considers the use of varied materials and finishes (i.e. stone cladding, acrylic render, metal facia and obscure glass) for the overall western elevation assists to reduce large blank building surfaces to No 12. Mr Maiorana explained in oral evidence that his approach 'was to look at the interface and the degree of impact that that, the balcony, would have on the adjoining property to the west'.[43] He described the eastern elevation of No 12 as follows:
… along with the nil setback to the garage on that side of the boundary wall, there is a large portion of that building along the boundary, the eastern boundary of 12 Killian, that doesn't have any major openings. It's just highlight windows. It's two-storey and the interface with that portion of the building, in particular, to my mind, won't result in any impact in terms of building bulk on the adjoining property[.][44]
[43] ts 52, 20 July 2023.
[44] ts 52, 20 July 2023.
In his assessment, the impact of building bulk on the residents of No 12, and in particular, their ability to use and enjoy the outdoor living space, will not be significant given the interface between the two elevations.
The extent of the balcony along the west elevation with a setback 1.2 metres from the boundary is a concern, more so in relation to its impact on Killilan Road (see para [50]) rather than the adjoining property given the design of the eastern elevation of the dwelling on No 12. The Tribunal is not persuaded that the suggestion by Ms Butterworth relating to the removal of portion of the balcony adjacent to the ensuites will have the desired effect of reducing building bulk on No 12 given the interface at that point will be the blank wall/highlight windows of the upper level of the dwelling on No 12. However, the setback to the portion of the balcony adjacent to the outdoor living area of No 12, cannot be characterised as reducing the impacts of building bulk on the adjoining property as the reduced setback of this aspect of the design will exacerbate the building bulk of Level 1 of the proposed dwelling on the outdoor living area of No 12. Consequently, the Tribunal finds that this aspect of the Nov 2021 application does not demonstrates compliance with cl 5.1.3 P 3.1 of the RCodes and therefore, does not satisfy objective (c) of cl 5.1 of the R-Codes. This aspect of the Nov 2021 application does not warrant approval.

Clause 5.1.6 'Building height'

The planning experts identified and agreed the following amendments:
(a)Maximum building height proposed:
.Sept 2021 approval - 18.628 metres AHD. Nov 2021 application – 19.321 metres AHD (excluding the skylight to the lobby). The planning experts agree that the Nov 2021 application proposes an increase in building height by 0.693 metres.[45]
(b)Maximum building height of the vergola:
.Sept 2021 approval - 18.428 metres AHD. Nov 2021 application is 19.321 metres AHD. The planning experts agree that the Nov 2021 application proposes an increase in height by 0.893 metres.[46]
[45] Exhibit 17, paras 66 and 81d).
[46] Exhibit 17, para 67.
The parties also agreed the following facts:[47]
[47] Exhibit 2 and Applicant's Statement of Issues, Facts and Contentions dated 16 February 2023 (Exhibit 9), paras 70 - 73.
[.]The vertical distance from natural ground level to the highest point of the top of the external wall height, is approximately 11.8m.
[.]The vertical distance between natural ground level and the top of the obscure glazing on top of the proposed roof terrace would range from approximately 8.25m to 9.6m.
[.]The portion of the roof terrace which is enclosed by the proposed 1.6m high obscure glazing, has a length from east to west of approximately 44m and a width from north to south of approximately 36m.
[.]The structures and other features shown on the 'roof terrace' plan would included:
(a)a building containing the lift shaft and other rooms, of 7.234m x approx. 8.36m and height of 3.35m plus skylight additional height;
(b)an aluminium openable pergola [also referred to as vergola] of 10.3m x 6.208m and height of 3.35m;
(c)a fire pit with surrounding furniture;
(d)a spa and surrounding hard landscaping;
(e)garden beds surrounding most of the rooftop terrace; and
(f)a 'kids area'.
The planning experts agree that the Nov 2021 application does not satisfy LPP 1.9, which replaces the deemed-to-comply provisions in relation to building height and therefore requires assessment under clause 5.1.6 P6 Building height of the R-Codes.
Clause 5.1.6 P6 states:
P6Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves, and where appropriate maintains:
.adequate access to direct sun into buildings and appurtenant open spaces;
.adequate daylight to major openings into habitable rooms; and
.access to views of significance.

The Tribunal in Warden and Town of Mosman Park [2019] WASAT 88 (Warden) at [42] found that on its proper construction cl 5.1.6. P6 provides for:
… two separate concepts that are linked by their connection to building height. That is, building height that creates no adverse impact on the amenity of adjoining properties or the streetscape on the one hand, and building height that, where appropriate, maintains the three things listed in the bullet points that follow, on the other hand.
Based on the definition of 'adjoining property' in Appendix 1 - Definitions to the R‑Codes, it was agreed, and the Tribunal concurs, that the relevant adjoining properties for the purposes of cl 5.1.6 of the RCodes is limited to No 12 and No 21b.
The respondent contends that the building height of the proposed development does not demonstrate compliance with both limbs of cl 5.1.6 P6. Firstly, the respondent asserts that the building height will have an adverse impact on the amenity of No 12 and No 21b. Secondly, that the building height will create an adverse impact on the amenity of the streetscape. Thirdly, the building height does not appropriately maintain access to views of significance for No 26 Strome Road, Applecross (No 26) and No 13 Killilan Road, Applecross (No 13).
The applicant asserts that the first limb of cl 5.1.6 P6 falls away as the changes in building height on the roof terrace creates no adverse impact on the amenity of the adjoining properties or the streetscape because the structures are setback far enough to be concealed from the residents of the adjoining properties so that they do impact on their amenity. As to the second limb, the applicant submits that the building height appropriately maintains access to views of significance, including those views enjoyed by No 26 and No 13.

Impact on adjoining properties and streetscape

Ms Butterworth says that the 'roof structure'[48] would not create an undue adverse impact on No 12 as the building is setback approximately 10 metres from the common boundary with that property. However, Ms Butterworth observed that the balcony balustrading on the western elevation measures approximately 9.3 metres in height, with a setback of 3.1 metres and a length of 20 metres (Cf. setback of 5.2 metres and a length of 14 metres in the Sept 2021 approval).[49] She opined that the 'impact of bulk and scale on [No 12] could be reduced if the setback of the balustrading to the roof terrace on the western boundary was increased', which she considered could be achieved without prejudicing the use of the rooftop area.[50]
[48] Ms Butterworth identified the 'roof structure' as 'the building that accommodates the stairs, lift, two stores and shower and toilet facilities' - Exhibit 6, para 136.
[49] At para 131 of Ms Butterworth's witness statement, she calculates the height (to the top of the 1.6 metre balustrade) to be in the vicinity of 9 metres towards the northern end of the roof terrace.
[50] Exhibit 6, para 144.
In relation to No 21b, Ms Butterworth submits that the roof structure at a height of 11.8 metres, setback 2.2 metres to the northern boundary, together with the balustrading on the roof top with a maximum wall height of 10.4 metres (above NGL) to the portion setback 2.2 metres from the common boundary and a maximum wall height of 9.8 metres (above NGL) to the portion setback 1.5 metres from the common boundary (which is directly adjacent to the rear courtyard of No 21b), would create an adverse amenity impact on No 21b as a result of the bulk and scale of the development. (Cf. Sept 2021 approval - roof terrace setback 3.2 metres to the 5.5 metres portion closest to Carron Road and the remainder of the roof terrace setback 3.7 metres from the northern boundary.)
In terms of streetscape, Ms Butterworth notes that there are other dwellings of similar height in the immediate locality and whilst she considers that there are other design elements of the proposed development that adversely impact on the streetscape, she does not consider building height to be an issue.
Mr Maiorana says that there will be no adverse overshadowing, bulk or privacy impacts on adjoining properties due to:
a)Overshadowing during the winter solstice will fall over Killilan Road reserve, which abuts the southern boundary of the subject site:
b) Varied building materials and provided wall articulation;
c)Adequate privacy screening/obscure glass is provided to the west-facing balcony and major openings (where require);
d)The proposed landscaping within the 0.6m wide planters on the roof terrace. This will assist in 'softening' the proposed dwelling's overall aesthetic, minimising visible building surfaces and reducing any potential 'heat island' micro-climate concerns; and
e)Furthermore, should the landowners request verge trees to be planted by the Respondent within the Killilan Road streetscape, this would also contribute to enhancing the overall presentation of the proposed dwelling within its context, particularly when viewed from the adjoining properties (including No 26) on the southern side of Killilan Road.[51]
[51] Witness statement of David Maiorana dated 17 May 2023 (Exhibit 11), para 106.
The Tribunal accepts the evidence of the planning experts that the amendment to building height in the Nov 2021 application creates no adverse impact on the streetscape. The Tribunal also accepts the planning experts' evidence that the balustrading to the roof terrace, which satisfies the deemed-to-comply provisions, will obstruct the view of the roof structure from the outdoor living area of No 12 and as such will not adversely impact on the amenity of No 12.[52] However, the Tribunal finds that the amendments to building height in the Nov 2021 application along the northern elevation, for the reasons stated in para [58] will adversely impact on the amenity of No 21b and as such, this aspect of the Nov 2021 application does not demonstrate compliance with the first limb of cl 5.1.6 P6 and does not satisfy objective (e) of cl 5.1 of the R-Codes.

Access to views of significance

[52] ts 63, 20 July 2023.

The third bullet point of cl 5.1.6 P6 of the R-Codes, requires the exercise of judgment to determine whether the 'building height, where appropriate, maintain access to views of significance. '[I]t requires an assessment of whether or not access to views is maintained, and to the degree they are not, whether that is appropriate'.[53]
[53] Warden at [79].
The relevant test, as articulated in Warden, comprises the following three questions (three-step test):[54]
(1)What is the existing access to views of significant, unaffected by the proposed development?
(2)Is it appropriate that access to views of significance be maintained in the circumstances of this case?
(3)If so, does the proposed development maintain access to views of significance?
[54] Warden at [56].
The three-step test is an objective test, not a subjective one, although a specialist planning tribunal is assisted by the views of residents that may be affected by the proposed development. Further, the level of access to views that should be maintained, where appropriate, will be a question of fact and degree depending on the circumstances of the case.[55]
[55] Warden at [60].
The respondent contends that the nature and extent to which the roof deck of the development, together with the vegetation and temporary structure, would obstruct city skyline views currently available from No 26 and No 13 is unacceptable having regard to the application of cl 5.1.6 P6 of the R-Codes. The respondent did not argue that it was appropriate that access to views of significance from the ground floor levels of No 26 and any future development on No 13 be maintained. As such, any reference to loss of views of significance in this decision is in regard to the first-floor levels of No 26 and No 13.
The applicant disputes this contention and says that the building height of the proposed development appropriately maintains access to views of significance, including those enjoyed by No 26 and No 13. In support of its position, the applicant advances the following three arguments. Firstly, access to the views, particularly to the upper floor, are transitory views and have only become available as a result of the development process having been commenced that is, the demolition of the original house and the removal of trees on the subject land. Secondly, that preexisting views enjoyed by the occupants of No 26 will be preserved by virtue of the design of the proposed development. Thirdly, the issue is further complicated as there is an approved development, which is a cl 67(2) of the deemed provisions consideration, that if constructed would impact on the views enjoyed by the residents at No 26 and future residents of No 13. The applicant submits that the difference between the Sept 2021 approval and the Nov 2021 application is negligible in the context of the views in their totality.
The respondent called Ms Anne Margaret Gardner, one of the owners of No 26, to evidence. Ms Gardner told the Tribunal that the views northeast of the city skyline over the top of the subject site was an important factor in the decision to purchase the property and that their new house was designed to preserve these views in the event of future development of the subject land. She explains that the location of the first-floor study is the premium part of the property in terms of views as it has the best CBD city skyline views and that this space is a place where the family spends a very significant amount of time as it is used for her work-from-home commitments; her higher study commitments; a study place for the children; and a place to undertake administration work for her husband's business.
She also points out that the first floor living room and the northfacing balcony, which opens up from the living room, also enjoys views northwards and eastwards but acknowledges that there is a eucalyptus tree in the street verge on the north side of Killilan Road, which obstructs the westernmost end of the CBD skyline.
She maintains that they have always had striking city skyline views from the first-floor study, both before the demolition of the old house on the subject land, and since its demolition. The part of the city skyline that she finds most impressive and valuable is the section of the skyline that incorporates the 'David Malcolm Justice Centre' building to the 'Mia Yellagonga' building, as they are the most distinctive and recognisable as being of Perth.
Mr Cribb was engaged by the respondent to create accurate 3D models of:
(a)the existing physical nature of the site including existing builtform and contextual surrounds of the streetscape and beyond, including to the Perth city skyline;
(b)the development proposal for 23 Carron Road, Applecross …;
(c)an earlier-approved development on the subject lot from September 2021 design plans;
(d)model renderings of the composite 3D model of the subject development as viewed from certain points of reference[;]
(e)the views from certain points of reference to the landscape including built form, which existed as prior to the demolition of the former house on 23 Carron Road[.][56]
[56] Witness Statement of Ryan Mathew Cribb dated 18 May 2023 (Exhibit 5), para 5.
Mr Cribb produced a series of renderings[57] from specified locations, which included:
(i)first floor study of No 26 - 1.2 metres inwards from north-facing window, 0.4 metre eastward from western edge of north-facing window both standing and seated position of current view, historical view (pre-development), refused development (Nov 2021 application), previously approved (Sept 2021 approval), overlay of Sept 2021 approval on Nov 2021 refusal;
(ii)first floor study of No 26 - 1.2 metres inwards from north-facing window, 1.1 metres inwards from east-facing window in seated position of current view, and Nov 2021 application;
(iii)first floor study of No 26 - 0.45 metres inward from southern wall of study, along midpoint of that wall in seated position of current view and Nov 2021 application;
(iv)first floor 'Sitting' room of No 26 near north-east corner standing position of current view, pre-development view, Nov 2021 application, Sept 2021 approval and overlay of Sept 2021 approval on Nov 2021 application;
(v)first floor 'Sitting' room of No 26 - middle position in the room in standing position of current view and Nov 2021 application;
(vi)first floor balcony of No 26 - midpoint along southern glazing to balcony, 0.45 metres outward from the glazing in seated position of current view and Nov 2021 application;
(vii)first floor balcony of No 26 - midpoint along southern glazing to balcony, 1.1 metres outwards from that glazing in standing position of current view, pre-development view, Nov 2021 application, Sept 2021 approval and overlay of Sept 2021 approval on Nov 2021 application; and
(viii)13 Killilan Road - current view, pre-development view, Nov 2021 application; Sept 2021 approval and overlay of Sept 2021 approval on Nov 2021 application.[58]
[57] The renderings generated from the 3D models are attached to Exhibit 5 as annexure RMC 2.
[58] This series of renderings are created based on a viewpoint 7.6 metres above existing ground level at No 13 Killilan Road, set back 6 metres from the street boundary at approximately the mid-point of a theoretical future street-front elevation (Exhibit 5 para 10(g)).
The methodology utilised to produce the renderings was uncontroversial and the survey model and three dimensional computer imagery formed part of the materials that assisted Mr Mitchell in his 'appreciation of the issues associated with the views within this locality'.[59]
[59] Exhibit 10, paras 17 and 19.
Mr Mitchell's visual amenity assessment considered the likely impact of the proposed development within the local neighbourhood, the public domain and the likely impacts of the building height on the private amenity from No 26 and No 13.
The renderings produced by Mr Cribb also formed part of the materials used by Ms Butterworth and Mr Maiorana in their assessment of the visual impact of the proposed development on No 26 and No 13.
Mr Mitchell considers the private views from the upper levels of No 26 and No 13 to be 'panoramic vistas of the Swan River and city skyline extending east to the Canning River, seen over the rooves [sic] of the properties to the north and over the cleared subject land'.[60] He also observes that views are also obtained looking down Killilan Road to the Canning River. He considers both views to be 'valuable views'.[61]
[60] Exhibit 10, para 38.
[61] ts 67, 1 June 2023.
In oral evidence Mr Mitchell considered the skyline of Perth to be recognisable 'principally because of half a dozen building which have a particular form',[62] but accepted that as a conglomeration, the buildings extending from the Mia Yellagonga building through to the David Malcolm Justice Centre identified as the Perth skyline and considered it to be a significant panorama.
[62] ts 68, 14 June 2023.
Mr Mitchell submits that the extent of northern panoramic views obtainable from the upper level of No 26 and any future two-storey development on No 13 is 'reliant on the absence of mature garden tree that were removed from the subject [land] after an earlier development approval on the subject [land]'[63] and that these views 'could again in time also be impacted by future street tree plantings or garden planning being established that restrict views.'[64] In oral evidence Mr Mitchell said, which the Tribunal accepts, that views from the upper level of No 26 prior to the demolition of the original house and removal of trees were obtained through the canopy of the trees and that they were 'glimpsed views'/'veiled views' of the Perth City skyline and the iconic buildings.[65]
[63] Exhibit 10, para 41.
[64] Exhibit 10, para 44.
[65] ts 58, 1 June 2023 and ts 71, 14 June 2023.
Mr Maiorana identified potential views of significance from the upper floor study of No 26 as the Perth CBD and the waters of the Swan River. In oral evidence, he identified the central cluster of Brookfield Place, Central Park and the Bankwest Tower as being the most significant in terms of them being more distinguishable within the Perth skyline.[66]
[66] ts 70, 14 June 2023.
Ms Butterworth described the existing view as enjoyed from the study of No 26 as:[67]
… a sweeping view that includes:
.An uninterrupted view of the Perth Skyline that extends from the western end of the Perth Skyline starting at the Mia Yellagonga Building and QV1, along the length of the Perth skyline including views of buildings such as Brookfield Place, Central Park, Bankwest Tower, Enex Building, the David Malcom Justice Centre.
.Views to South Perth and Como; and
.Views of where the Swan River meets the land along the South Perth and Como foreshore[.]
[67] Witness statement of Amanda Jane Butterworth at para 160.

Mr Cribb's renderings clearly demonstrate that the removal of the trees on the subject land enhanced the views of the Perth City skyline from the upper level of No 26, more particularly the study and No 13. Mr Mitchell described the existing view as a 'significant panorama' and a 'valuable view', and Ms Butterworth termed the view as an 'uninterrupted view'. It was agreed that this view incorporated a conglomerate of buildings that are distinctive in the Perth City skyline, namely the Mia Yellagonga building, QV1, Brookfield Place, Central Park, Bankwest Tower and the David Malcolm Justice Centre. The Tribunal accepts that this is a view of significance.
There is no dispute that panoramic views of the Perth City skyline are highly valued views, and these views are an important part of the amenity shared and enjoyed by many residents in the locality. Whilst the RCodes do not guarantee protection of views of significance the Tribunal is persuaded that a view of the Perth City skyline is a valuable view and a view of significance that may, depending on the circumstances of the case, be appropriate to maintain access to views of properties potentially affected by development that might impact on that access to views.
Mr Maiorana submits that, in this case, when considering maintaining access to views of significance under cl 5.1.6. P6 it is appropriate to utilise the 'pre-development' views[68] when determining a suitable benchmark/reference point because the 'existing views', as a consequence of pre-development works, are an 'interim' scenario and represent a 'narrow window of time prior to development commencing and artificially inflates the extent of visible views (due to the removal of on-site trees)'.[69]
[68] Views obtainable prior to the demolition of the original dwelling and the removal of the tree.
[69] Exhibit 11, para 109.
The Tribunal does not agree with this proposition as the Tribunal has determined that the Nov 2021 application is an application to amend the approved development, and as such, the starting point must be the difference between the two views. If the Nov 2021 application was determined to be a 'fresh' application for development approval, the Tribunal is charged with producing the 'correct and preferable decision at the time of the decision upon the review',[70] which would entail the assessment of views of significance as they exist at the time of the review. Although it would be open to the applicant to argue that the history of the site is a relevant consideration in the determination of the application.[71]
[70] SAT Act, s 27(2).
[71] Clause 67(2)(w) of the deemed provisions.

Extent of impact on No 13

Ms Butterworth considers it reasonable to expect that future development on the site would comprise a two-storey dwelling. Ms Butterworth formed the following opinions from her analysis of Mr Cribb's renderings of No 13:

•A two-storey dwelling would likely enjoy extensive and uninterrupted views of the Perth City Skyline, which would include views of iconic buildings such as the Mia Yellagonga building, QV1, Brookfield Place, Central Park, Bankwest Tower, the Enex building and most likely the David Malcolm Justice Centre and therefore, would enjoy views of significance.
•The Sept 2021 approval maintained some access to views of significance and concluded that 'blocking out views of significance is therefore not an inevitable consequence of a twostorey dwelling on No 23 Carron Road, even a two-storey with a roof terrace'.[72] The tops of the tallest buildings, namely QV1, Brookfield Place, Central Park and the Bankwest Tower, would still be visible.
•The impact of the Nov 2021 application 'would depend upon where someone was standing but it could take away the views of [a] number of iconic buildings'. The renderings show that iconic city views are substantially obstructed and that access to views from that location are not maintained.
[72] Exhibit 6, para 182.

However, Ms Butterworth also observed that:
A development on 13 Killilan Road will almost certainly aim to capitalise on the skyline views. Because 13 Killilan is vacant, I cannot rule out that there might be various design options that might enable access to views to be maintained even with the [Nov 2021 application] in place. However, I consider that it is the applicant's onus to prove this: see RCodes clause 3.3.1.[73]
[73] Exhibit 6, para 183.
There are currently no views enjoyed by residents of No 13 as the lot is currently vacant. The Tribunal accepts the opinion of Ms Butterworth, which was not disputed, that '[a] development on 13 Killilan Road will almost certainly aim to capitalise on the skyline views' and 'that there might be various design options that might enable access to views to be maintained even with the [Nov 2021 application] in place'. The Tribunal also accepts the evidence of Mr Mitchell that views are not static and that small differentials, such as whether a person is standing or sitting or a change of location in a room can impact on the visual field of the view. The Tribunal finds the renderings produced by Mr Cribb for No 13 are of limited value in demonstrating the impact on views for both the Sept 2021 approval and the Nov 2021 application as they represent a hypothetical situation and are speculative at best.

Extent of impact on No 26

From Mr Mitchell's analysis of the survey model, he concludes that a proportion of the existing views will be affected by the Nov 2021 application and that these views would also be affected by the Sept 2021 approval. He holds the view that the difference between the two proposals 'is not significant'.[74]
[74] Exhibit 10, para 40.
In his oral evidence, Mr Mitchell expressed the following opinion in relation in relation to impact on views from No 26:
… that the differences between the two panoramas and the impact of an approved development on that panorama, and the impact on the refused development … are quite negligible. I think within the normal focal length of a view, if you were to outstretch you hand and put you thumb up, it would be about that difference. It would be a proportion of the panorama which is miniscule, albeit important, because it is a view of the city skyline from the precise location.[75]
[75] ts 66, 1 June 2023.
Mr Mitchell agreed that from the first-floor study of No 26 in the precise location as depicted in Mr Cribb's renderings[76] about half the width of Brookfield Place and nearly all its height and all the city skyline buildings to the right of Brookfield Place will be obstructed by the proposed development and that Brookfield Place and the Central Park buildings are still visible from that precise location on the Sept 2021 approval. However, he added:
… these were glimpsed views, they're not panoramic. Under the approved development, this still is not a panoramic view and it, therefore, is not of significance because you're looking at the tops of a particular section of the city which is thought significant and invaluable to the people that are viewing it, but in terms of general assessment of views of significance, I can't agree that this is a view of significance.[77]
[76] Exhibit 5, pages 13 and 14.
[77] ts 74, 14 June 2023.
It is his opinion that 'one view is glimpsing a couple of buildings, and we are trying to attribute values to a panorama based on specific buildings observed at 10 kilometres'.
Mr Maiorana in his witness statement and supplementary witness statement deferred to the visual experts engaged by the parties regarding the degree of access to views of significance that will be affected, particularly in relation to interpreting the extent to which foliage might obscure views of the buildings. However, in oral evidence he observed as follows in relation No 26 in comparing the Nov 2021 application and the Sept 2021 approval:[78]
… the buildings I identified as perhaps being more identifiable or recognisable within the skyline being Brookfield or between Brookfield Place and the Bankwest Tower are more readily visible from that viewpoint when compared to the image at 1(f) which preserves a portion of the Brookfield Place building, but otherwise appears to obscure the - the other two central building I referred to, being Central Park and Bankwest Tower.
[78] ts 75, 14 June 2023.
Ms Butterworth considers that access to existing views of significance from No 26 will be interrupted as a result of the Nov 2021 application and will 'likely result in a disconnect of the panoramic Perth City skyline view presently enjoyed'[79] and a loss of the view where the water meets the land at the South Perth foreshore. She also points out that the view of a number of iconic buildings in the Perth City skyline, specifically Brookfield Place, Central Park, Bankwest Tower and the Enex building, will be obstructed by the proposed development.
[79] Exhibit 6, para 171.

She holds the opinion that notwithstanding that there are extensive views still available of buildings more to the east end of the City and to the Como foreshore, the Nov 2021 application does not maintain access to a significant view component of the existing panorama that is part of the unique amenity currently enjoyed by No 26.
Ms Butterworth's analysis of the impact on views of significance using Mr Cribb's renderings to compare the extent of impact on views of significance accepts that the Sept 2021 approval results in a discontinuance of the view of the Perth City skyline. However, she observes that views of the Bankwest Tower, Central Park, Brookfield Place (buildings that she considers to be iconic buildings in the Perth City skyline) and the Perth City skyline to the west of Brookfield Place are retained in the Sept 2021 approval. Whereas the Nov 2021 application only retains part of Brookfield Place and the Perth City skyline to the west of that building. She concludes that the Nov 2021 application has a greater impact on views of significance, more particularly the iconic view of the Perth City skyline, when compared to the Sept 2021 approval. Ms Butterworth also expresses concern about the potential for temporary or semi-permanent installations located on the roof terrace presenting as additional visual obstructions to views of significance.
There is no doubt that the panoramic view of the Perth City skyline from the upper level of No 26 will be significantly impacted by the Sept 2021 approval. The uninterrupted view of the Perth City skyline will be, as Mr Mitchell described, 'glimpsed views … not a panoramic view … because you are looking at the tops of particular sections of the city'[80] and as observed by Mr Cribb's 'there is a break in the skyline … both vertically and horizontally'.[81]
[80] ts 74, 14 June 2023.
[81] ts 64, 1 June 2023.
The Tribunal accept that in this case because the application is a cl 77, the starting point for the assessment of the impact on building height on access to views of significance is the view which incorporates the Sept 2021 approval, which as Mr Mitchell describes as 'glimpsed views' of the Perth City skyline. However, that does not mean that the existing panorama has no part to play in the assessment of the amended development as the changes to building height in the Nov 2021 application may not maintain appropriate access to views of significance as assessed appropriate in the Sept 2021 approval.
Mr Cribb's renderings demonstrate that from the selected viewing locations from the upper level of No 26, the Nov 2021 application will:
•further erode views of the Perth City skyline by obstructing views of some of the more distinctive buildings that define the character of the Perth City skyline, namely Central Park and Bankwest Tower and partially obscures Brookfield Place; and
•may potentially reduce the impact on views to buildings in the eastern end of the City, although the view corridor as depicted in the renderings cannot be relied on as the model provided for 1.2 metres clear glass balustrading on the northern elevation of the roof top, whereas the Rooftop Plan and the North Elevation (Elevation 3) are annotated showing 'obscure glass to 1600mm'.[82] This adjustment in the model would result in a diminution of the view as shown in the renderings, although the extent is unknown.
[82] Exhibit 3, pages 250 and 253.
The Tribunal is persuaded that, in the circumstances of this case, it is appropriate to maintain the views of the Perth City skyline from the upper level of No 26, albeit an interrupted view as a legacy of the Sept 2021 approval. Although Mr Howard considers the difference between the two proposals to be negligible, the Nov 2021 application clearly further diminishes the significant view of the Perth City skyline from the upper floors of No 26 by obstructing views of some of the more distinguishable buildings that are recognisable within the Perth skyline. The further incursion of the view through the re-orientation of the structures on the roof terrace from north-south to east-west does not demonstrate compliance with the second limb of cl 5.1.6 P6 of the RCodes and this aspect of design of the Nov 2021 application is not consistent with objective (e) of cl 5.1 of the R-Codes as the building height does not respond sympathetically to the surrounding buildings, in particularly No 26. This aspect of the Nov 2021 application does not warrant approval.

Clause 5.2.4 – 'Street walls and fences'

The planning experts identified and agreed that the width of the gatehouse, which is incorporated in the front fence along Killilan Road has increased from 2.7 metres to 3.0 metres in width but the maximum height to the top of the gatehouse roof has decreased from 4.0 metres to 3.0 metres.[83] Further, the planning experts identified that the width of the western pillar of the gatehouse is 0.45 metres wider than that shown in the Sept 2021 approval.
[83] Exhibit 17, para 59.
It was agreed that the gatehouse does not satisfy the deemedtocomply provisions of LPP 3.1, which provides for gatehouses, and therefore requires further assessment under cl 5.2.4. of the R-Codes. During the hearing there was discussion about whether this component was a 'building' by definition and therefore should be assessed under cl 5.1.2. of the R-Codes. In this instance, nothing turns on whether the gatehouse is assessed under cl 5.1.2 or cl 5.2.4 as the issue relates to the impact of the structure on the streetscape, which is an assessment made under both those provisions.
Further, the planning experts noted that the fence treatment above the retaining wall along Carron Road and on the Killilan Road frontage at the Carron Road end was different but agreed that the fencing proposed in both set of plans were acceptable.[84]
[84] Exhibit 17, paras 68 and 73.
Clause 5.2.4 P4 states:
P4Front fences are low or restricted in height to permit surveillance (as per Clause 5.2.3) and enhance streetscape (as per clause 5.1.2), with appropriate consideration to then need:
.for attenuation of traffic impacts where the street is designated as a primary or district distributor or integrator arterial; and
.for necessary privacy or noise screening for outdoor living areas where the street is designated a primary or district distributor or integrator arterial.
Whilst Ms Butterworth accepts there are other gatehouses on both Killilan Road and Carron Road and that there are other properties with portions of solid fencing along Killilan Road, she observed that the gatehouses and the associated dwellings are setback further from the street boundary than the proposed development. She points to the proposed dwelling being setback 1.37 metres from the street boundary and submits that by introducing a gatehouse element with a nil setback will project more building bulk onto the front boundary, which will not enhance the streetscape.
Mr Maiorana says the gatehouse provides a human scale architectural feature that enhances recognition of the dwelling's entrance and affirms the orientation of the building. He also says that given the prevalence of gatehouse in the locality, this element would not be incongruous or unexpected within the streetscape and the changes meet the relevant design principles, particularly those applicable to cl 5.2.1 of the R‑Codes.
In the context of the presence of gatehouses in the immediate locality and that this feature is a component of the June 2021 approval, the Tribunal is satisfied that the amendments to the gatehouse, which can best be described as minor in nature, will not detract from the character of the streetscape and demonstrate compliance with the design principles of cl 5.2.4, which references cl 5.1.2 of the R-Codes and accordingly, is considered to be sympathetic to the scale of the street and satisfies objective (e) of cl 5.1 of the R-Codes.

Clause 5.2.5 'Sight lines' of the R-Codes

The planning experts identified and agreed the following in relation to the boundary fence forward of the garage:
Sept 2021 approval – (within 1.5m of Killilan Road frontage) includes a pillar of 1.8m in height and then a solid fence of 1.2m in height. Nov 2021 application – includes a pillar of 1.8m in height and then a solid fence of 1.1m in height.[85]
[85] Exhibit 17, para 76.
The planning experts agree that the boundary fence does not satisfy the deemed-to-comply provision of cl 5.2.5 of the R-Codes. Notwithstanding, the planning experts agree that if the application is deemed an amended application pursuant cl 77 then this amendment does not require further assessment under the planning framework.
Clause 5.2.5 P5 states:
Unobstructed sight lines provided at vehicle access points to ensure safety and visibility along vehicle access ways, streets, rights-of-ways, communal streets, crossovers, and footpaths.
Ms Butterworth holds the view that the sight lines for vehicles exiting the subject land and No 12 will be obstructed as a result of the boundary fence and pier proposed on the western boundary. In oral evidence she accepted that because of the distance between Killilan Road boundary and the road pavement that vehicle access safety was not an issue but maintained that visibility of pedestrians remains a concern and that there should be a section of open fencing to at least provide a degree of visibility.
Mr Maiorana holds the view that the changes proposed in the Nov 2021 application demonstrates compliance with cl 5.2.5 P5:
a)The driveway gradient is minimal which assists visibility when vehicles approach the crossover;
b)The site is located at the Killilan Road/Carron Road intersection which is controlled by a stop sign and solid white line marking. This results in a low speed environment for passing traffic.
c)There is no nearby footpath, bus stop or other feature that might generate high pedestrian numbers. Accordingly, the potential for conflicts are considered minimal.
d)The proposed driveway is not opposite a neighbouring driveway which further reduces the potential for conflict.
e)There is a landscape strip between the proposed crossover and that of the abutting No. 12 which aids identification of the crossover and delineates it from the remainder of the verge.
f)The width of the driveway/crossover allows flexibility for vehicle manoeuvring and provides the opportunity for reversing vehicles to 'centre' themselves within the pavement to increase sight lines to the carriageway.
g)The proposed sliding gate will ensure vehicles exit the site slowly whist the mechanism opens. As for vehicles accessing the site, the crossover length can accommodate vehicles to avoid 'stacking' onto the carriageway.[86]
[86] Exhibit 18, para 40.
Mr Maiorana accepted in oral evidence that there would be some elements that would cause some obstruction to the sight lines.[87]
[87] ts 78, 20 July 2023.
It is unclear from the plans that support the Nov 2021 application whether the applicant was seeking an amendment to this wall. What was not appreciated during the hearing was that the details of the wall and pillar identified in the Sept 2021 application are the same as in the June 2021 approval and July 2021 approval. The approval issued in June 2021 imposed a condition requiring walls or fencing within sight line areas to meet the requirements contained in cl 5 of LPP 3.1 to the satisfaction of the City[88] and the ground floor and west elevation plans were annotated 'see condition 9 of the planning approval'. Both the July 2021 approval and the Sept 2021 approval were issued as amended planning approvals requiring compliance with the June 2021 approval, including any remaining conditions. Given that the wall and pillar on the western boundary have not been amended in either of these applications, condition 9 attached the Sept 2021 approval.
[88] Condition 9 of Development Approval of 11 June 2021 (Exhibit 2) page 261.
As such, the Sept 2021 approval did not grant approval to the wall as described by the planning experts, as condition 9 required some modifications to the wall or fencing (which would include the pillar) within the sight line area. The Tribunal is not convinced that the reduction in the height of the wall to 1.1 metres is an amendment to the approved development but rather a scaling discrepancy. However, if this is not the case, the amendment requires assessment against the background of condition 9 being imposed on the approved development.
The main concern in relation to the wall and the pillar relates to pedestrian safety as sight lines will be obstructed if the wall and pillar are constructed as proposed. On the view, it was observed that the pillar to boundary wall on No 12 is setback 0.75 metres from the street boundary and as such, causes some obstruction to sightlines. The proposed boundary wall and pillar will only further exacerbate sight lines issues. The Tribunal considers Ms Butterworth's concerns about pedestrian safety to be valid in the circumstances of this case, particularly given the gradient of the driveway at No 12, and as such, the Tribunal concludes that this element of the proposed development does not demonstrate compliance with cl 5.2.5 P5.5 of the R-Codes. However, this in itself is not fatal to the development application as this aspect of design can be cured by the imposition of an appropriate condition on an approval.

Clause 5.3.5 'Vehicular access' of the R-Codes

This issue was not identified in the respondent's Statement of Issue, Fact and Contentions but identified by the planning experts in their joint witness statement. At the commencement of the hearing, it was accepted by the parties that this matter would form part of the issues to be determined.
The planning experts identified and agreed, based on details depicted on the site plan, the width of the crossover had increased by 0.3 metres from 5.955 metres to 6.25 metres[89] and that the landscape strips abutting the driveway had been deleted and the pavement width of the driveway had increased to 7.0 metres.[90]
[89] Exhibit 17, para 31.
[90] Exhibit 17, para 32.
During the course of the hearing there was discussion about whether the landscaping strips as detailed in the Sept 2021 approval had been deleted from the Nov 2021 application. It was difficult for the planning experts to arrive at a definitive position as there is a disparity in the detail between the site plan and the ground floor plan for the Nov 2021 application. The site plan does not show either of landscaping strips as depicted on Sept 2021 approval site plan, but the ground floor plan appears to retain the line delineating the landscaping strip on the western boundary, although there is no annotation on the plan to indicate whether the area is to be landscaped or paved.
Regarding the amendments, the planning experts agreed that:
(i)the increased width of the crossover did not meet the requirements of cl 3.1 of the City of Melville Crossover Guidelines and Specifications, which states for a residential crossover, the maximum width is '6m for lots with a frontage in excess of 12.5m';
(ii)that the driveway does not satisfy the deemed-to-comply requirements of cl 5.3.5 C5.2 of the R-Codes;
(iii)if the landscaping strip on the western boundary is deleted then this aspect of the Nov 2021 application would not satisfy the first bullet point of the deemed-to-comply requirements of cl 5.3.5 C5.3 of the R-Codes;[91] and
(iv)requires assessment under cl 5.3.5 P5.1 of the R-Codes.
[91] Exhibit 17, para 32.
Clause 5.3.5 P5.1 of R-Codes states:
P5.1Vehicular access provided for each development site to provide:
.vehicle access safety;
.reduced impact of access points on the streetscape;
.legible access;
.pedestrian safety;
.minimal crossovers; and
.high quality landscaping features.
In essence, the planning experts agreed in oral evidence, and the Tribunal accepts, that a landscaping strip along the western boundary as shown in the Sept 2021 approval would achieve compliance with the sixth bullet point (high quality of landscaping features) of cl 5.3.5 P5.1, which in turn would reduce the width of the driveway to an acceptable width. It was further agreed that a condition imposed on an approval requiring these amendments would ensure compliance with the design principles.
In relation to the width of the crossover and its non-compliance with cl 3.1 of the City of Melville Crossover Guidelines and Specifications, this is not a matter that is dealt with under the R-Codes. There is a separate legislative regime for the approval of vehicle crossovers by local government.[92] As the Tribunal has previously articulated, 'the provisions of the [R-Codes] do not relate to the land between the "lot" and the surface of the road, commonly referred to as the verge area'.[93]

Clause 5.3.7 'Siteworks' of the R-Codes

[92] Reg 12 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA). The power to make reg 12 is found in cl 7 of Sch 9.1 of the Local Government Act 1995 (WA).

[93] Stewart and Town of Cottesloe [2019] WASAT 100 at [161].

The planning experts identified and agreed the following amendments to the Nov 2021 application in relation to siteworks:
(i)The paved area (north-west corner) and the FGL alongside the northern elevation between the northern (rear) boundary - The Nov 2021 application proposes an increase in the FGL by 0.05 metres from 8.29 metres AHD to 8.342 metres AHD. The planning experts agree that this represents a further increase in the proposed FGL adjacent to the boundary as the Sept 2021 approval is more than 0.5 metres above the NGL for at least part of this level.[94]
(ii)FGL for the Patio adjacent to the truncation - The Nov 2021 application proposes an increase in the FGL by 0.564 metres from 7.778 metres AHD to 8.342 metres AHD.[95]
(iii)Eastern patio FFL (adjacent to the meals/dining area) - The Nov 2021 application proposes an increase in the FGL by 0.05 metres from 8.292 metres AHD to 8.342 metres AHD. The planning experts agree the increase in level by 0.05 metres represents a change in level of 1.1 metres above the existing NGL.[96]
(iv)Courtyard adjacent to Carron Road - the stepped pedestrian access adjacent to the northern boundary in proximity to Carron Road boundary (6.921 metres AHD to 7.435 metres AHD) is deleted in the Nov 2021 application and the level is proposed as 7.829 metres AHD. This change results in an increase in the FGL by up to 0.908 metres.[97] Further, the FGL of the courtyard has increased by up to 0.101 metres.[98]
Retaining Wall on Carron Road boundary: - Sept 2021 approval - top of retaining wall measures 7.778 metres AHD, resulting in a retaining wall of predominantly 1.15 metres in height, with a minimum height of approximately 1.0 metres. Nov 2021 application - top of retaining wall measures 7.829 metres AHD, resulting in a retaining wall of approximately 1.2 metres in height.[99]
[94] Exhibit 17, para 23.
[95] Exhibit 17, para 24.
[96] Exhibit 17, para 25.
[97] Exhibit 17, para 26.
[98] Exhibit 17, para 26.
[99] Exhibit 17, para 69.
The planning experts agree that these amendments do not satisfy the deemed-to-comply provisions of cl 5.3.7 of the R-Codes and therefore require assessment under the respective design principles.
The design principles as set out under cl 5.3.7 of the R-Codes state:
P7.1Development that considers and responds to the natural features of the site and requires minimal excavation /fill.
P7.2Where excavation/fill is necessary, all finished levels respecting the natural ground level at the lot boundary of the site and as viewed from the street.
P7.3Retaining walls that result in land which can be effectively used for the benefit of residents and do not detrimentally affect adjoining properties and are designed, engineered and landscaped having due regard to clause 5.3.7 and 5.4.1.

Ms Butterworth says that the site works as proposed do not demonstrate compliance with the design principles P7.1 and P7.2 because the finished levels do not respect the natural ground levels of the site, particularly along the Carron Road frontage, which results in the need for a 1.2metre-high retaining wall. She considers that the application maybe capable of approval if the levels adjacent to Carron Road are reduced.
Regarding the change in the finished level at the lot boundary adjacent to No 21b arising from the deletion of the front stairs, Ms Butterworth holds the view that the retaining wall will not cause overlooking or overshadowing of the front yard of No 21b and will result in land which can be effectively used for the benefit of the future residents of the subject land.
Mr Maiorana considers the design of the proposed development is responsive to the levels along Killilan Road and Carron Road and achieves an appropriate balance between cut and fill. He holds the view that the design 'essentially represents a typical "middle ground" scenario when endeavouring to minimise overall cut and/or fill for a site'.[100] He considers the removal of the pedestrian access to be the more significant change to levels in the Nov 2021 application but concludes there to be 'very little difference ultimately in terms of streetscape presentation and retaining wall height along that Carron Road frontage.'[101]
[100] Exhibit 18, para 51.
[101] ts 103, 20 July 2023.
Much of the oral evidence in relation to this issue focused on the appropriateness of the levels and the responsiveness of the design to the natural features of the site of the approved development. However, as this is a cl 77 application, the amendments should be considered in light of the approved development.
Given that the FFLs as shown on the June 2021 approval were determined to demonstrate compliance with the design principles set out in cl 5.3.7, the Tribunal is satisfied that the amendments to the FFLs and retaining walls as shown in the Nov 2021 application demonstrate compliance with cl 5.3.7 and satisfies the relevant objective relating to site works of the R-Codes for the following reasons.
The site works and retaining wall approved in the Sept 2021 approval are the same as approved in the June 2021 approval. Essentially, except for levels changes as a result of the deletion of the stepped pedestrian accessway, the amended design seeks to raise the level of patio areas surrounding the dwelling to the same FFL as the dwelling, which for most the patio area results in a 0.05 metre increase in FFL. However, the change in FFL of the patio on the eastern elevation has the flow on effect of increasing the FFL of the pool area and associated spaces by 0.101 metres and raising the height of the retaining wall along Carron Street by 0.051 metres. These changes can only reasonably be described as minor and will be imperceptible from the street.
The area of exception is the patio adjacent to the truncation, which as a consequence of the deletion of the sunken lounge room necessitates a 0.564 metres increase in the FFL of the adjacent patio area, which in turn results in an increase in the height of the solid portion of the front fence adjacent to the patio area, in order to achieve the desired design outcome. The height of the solid portion of the front fence satisfies the deemed-to-comply provisions of LPP 3.1 and the change in FFL will have a minimal impact on the streetscape of Killilan Road.
The change in FFL of most significance in the Nov 2021 application stems from the deletion of the stepped pedestrian accessway adjacent to the northern boundary of the subject land. The resultant effect is a solid boundary wall of a maximum 1.2 metres high with 600 millimetres permeable fence above along the northern boundary, adjacent to the front yard of No 21b. The proposed street wall is compliant with the deemedto-comply provisions of LPP 3.1 and the subsequent removal of the WC and pool equipment building will significantly reduce the impact of building bulk on No 21b.

Is the proposed development compatible with its setting and the amenity of the locality

The compatibility of the proposed development with its setting and the impact on the amenity of the locality are relevant matters for consideration,[102] which requires an assessment of the relationship of the proposed development to development on adjoining land and other land in the locality. In this case, given the extent of the proposed amendments to the Sept 2021 approval consideration of many of the elements identified in issue 1 have required this assessment, particularly in respect of street setback, lot boundary setback and building height.
[102] Clause 67(2)(m) & (n).
Holistically, the design outcome of the amendments sought to the approved development can best be described as 'incremental creep', which has effectively designed out the high degree of articulation embodied in the south, west and north elevations of the approved development. The cumulative effect of the design changes to the approved development results in the scale of the building in terms of bulk and form not responding sympathetically with the streetscape and adjoining properties. Further, the height of the building, together with the re-orientation of the structures on the roof terrace from north-south to east-west, will have detrimental impact on access to views of significance of the Perth City skyline from No 26.
For these reasons, the Tribunal finds that the proposed development is not compatible with its setting and the degree of the impact on the amenity of adjoining properties is unacceptable and as such, the amendments to the approved development do not warrant approval.

Weight to be given to draft State Planning Policy 7.3 - Residential Codes Volume 1 2023 (Vol 1 2023)

This issue was raised by the planning experts as at the time of the hearing and it was expected that the new Medium Density Housing Codes would form part of the amended R-Codes Volume 1 (Vol 1 2023), which was scheduled to be gazetted on 1 September 2023. However, the gazettal of Vol 1 2023 was delayed indefinitely in August 2023 and as such, cannot be regard as certain or imminent.[103] The Tribunal, taking into consideration the criteria to determine weight to be accorded to a draft planning instrument[104] has not given Vol 1 2023 any weight in these proceedings.
[103] See SPG Capital Fund 5 Pty Ltd and Presiding Member of Metro Inner-North Joint Development Assessment Panel [2023] WASAT 100.
[104] See Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [40] - [59] and Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [198] - [206].

Conclusion

Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval to the proposed development.
The proposed development warrants refusal in the exercise of planning discretion, because it does not demonstrate compliance with cl 5.1.2, cl 5.1.3, cl 5.1.6 and the relevant objectives of cl 5.1 of the RCodes, is not compatible with its setting and will have an unacceptable adverse impact on the amenity of the adjoining properties to the north and west (No 21b & No 12) by reason of bulk and scale and will have a detrimental impact on access to views of significance of the Perth City skyline from No 26.
It follows that the correct and preferable decision at the time of the decision upon the review, under s 27(2) of the SAT Act, is to refuse development approval for the proposed development and as such, the application for review is dismissed and the decision of the respondent dated 16 August 2022 is affirmed.

Orders

For the above reasons, the Tribunal made the following orders.
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
27 DECEMBER 2023