JOLIMONT DEVELOPMENT COMPANY and CITY OF SUBIACO - [2010] WASAT 137

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: JOLIMONT DEVELOPMENT COMPANY and CITY OF SUBIACO [2010] WASAT 137

MEMBER: MR J JORDAN (MEMBER)

HEARD: 18 JUNE 2010 AND 22 JUNE 2010, FINAL SUBMISSIONS 28 JUNE 2010

DELIVERED : 28 SEPTEMBER 2010

FILE NO/S: DR 485 of 2009

BETWEEN: JOLIMONT DEVELOPMENT COMPANY
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Refusal - High density R80 coding - Twelve single bedroom multiple dwellings - Assessment under performance criteria of Residential Design Codes of Western Australia (2008) - Variations required to requirements for height, setbacks, open space, dwelling size and boundary walls - Grouped dwellings adjoin to east - Public open space adjoins to west - Impact on local amenity - Impact on streetscape - Bulk

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 27, cl 27(4), cl 27(4)(h), cl 28(3), cl 41, cl 41(2), scl 41(2)(a), cl 41(2)(c), cl 42(4), cl 42(4)(b), cl 78, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2004 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.1.3 A3, cl 6.1.3 A3(i), cl 6.3, cl 6.3.1, cl 6.3.1 P1, cl 6.3.1 A1, cl 6.3.2, cl 6.3.2 P2, cl 6.4, cl 6.4.1, cl 6.4.1 P1, cl 6.9.1 A1, cl 7.1.3, cl 7.1.3 P3, cl 7.1.3 A3, Table 1
State Administrative Tribunal Act 2004 (WA), s 31

Result:

The application for review is dismissed
The decision of the City of Subiaco to refuse the application is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr E Samec
Respondent: Mr S Allerding (Representative)

Solicitors:

Applicant: Samec Legal
Respondent: Allerding & Associates (Town Planners)

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a refusal by the City of Subiaco to grant planning approval for the demolition of a single storey house and the construction of 12 single bedroom multiple dwellings with parking beneath at Hay Street, Jolimont.
The City of Subiaco refused the development because it considered the proposed height, setbacks, open space, floor area of dwellings and boundary walls would have an adverse impact on local amenity and streetscape, and not meet the objectives of the residential zone under its town planning scheme.
The Tribunal found that the proposed development did not meet the relevant performance criteria under the Residential Design Codes of Western Australia (2008) for boundary setbacks from the eastern boundary and the provision of open space on the site. The Tribunal found that there was a basis for supporting the floor area of the proposed single bedroom dwellings but that achieving the maximum number of dwellings could not be done at the expense of development standards, such height, scale, bulk and setbacks.
In respect of the City of Subiaco Perimeter Fencing Policy, the Tribunal found that because of its design and purpose and the height being not greatly in excess of a sufficient fence, the proposed wall on the western boundary would be acceptable.
In respect of the aims and objectives for the residential zone of the city of Subiaco's town planning scheme, the Tribunal found that because of the impact on the neighbouring residential use and the local amenity, the proposed development did not warrant the granting of the proposed height concessions for the walls and the roof required for the development. The Tribunal also found that because of the proposed height and setbacks, the proposed development would not be consistent with the scale of the existing buildings of the surrounding area and therefore would not satisfy this objective for the residential zone.
Further, the Tribunal found that because of the scale of the proposed development relative to buildings in the locality the proposed development would not be consistent with the streetscape or both the existing and likely future amenity of the locality.
The Tribunal also found that, while the future development of the locality would include multiple dwellings, including single bedroom dwellings consistent with the R80 coding, the proposed development would not be consistent with orderly and proper planning. The proposed development would be one of the first at this density. The Tribunal concluded that it would be contrary to orderly and proper planning if the development was allowed at a height, setbacks and with open space concessions that would be viewed as an expression of the desired future streetscape, character and amenity of the locality. The Tribunal found that to depart from the reasonable development requirements and standards found in the planning instruments would be inconsistent with the orderly and proper planning of the locality.
On the basis of the conclusions reached on the issues arising in this matter, the Tribunal decided to dismiss the application for review.

Introduction

These proceedings involve an application by Jolimont Development Company (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the City of Subiaco (respondent or Council), to refuse an application for planning approval for the demolition of an existing single house and the construction of 12 single bedroom multiple dwellings at No 627 (Lot 623) Hay Street, Jolimont (site).

Background

The application for development approval was lodged with the Council in August 2009. The application went before the Council at its 24 November 2009 meeting with a plan amended to accommodate comments made by the City's development and community services committee on 10 November 2009. The Council refused the amended application and the application for review was then filed with the Tribunal. On the orders of the Tribunal, an amended plan was referred to the Council under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting in April 2010, the Council did not approve the amended design and so the original refusal stood.

Site and locality

The site has an area of 1,019 square metres, a narrow frontage of 15.71 metres to Hay Street at the northern end and a wider rear boundary of 28.18 metres at the southern end. The eastern boundary is 50.29 metres and the western boundary is 45.26 metres. The site falls east to west from about RL22.2 to RL21.4 at the Hay Street boundary and from about RL21.3 to RL20.5 at the rear boundary. That is, the site slopes down by about 1 metre from front to rear and from east to west. Hay Street in this location is a dual carriageway and carries heavy traffic, including public transport.
On the site is a brick and tile single storey house at the Hay Street frontage with various outbuildings to the rear. Adjoining the site to the west is a public open space reserve of 2039 square metres on the corner of Hay Street and Jersey Street. To the west, beyond Jersey Street, the southern side of Hay Street is mostly developed with two storey grouped and multiple dwellings. Adjoining the site to the east is No 623 - 625 Hay Street (No 625) on which are 10 grouped dwellings with carports and double storey buildings at the Hay Street frontage and single storey dwellings behind. Further east along Hay Street is a mixture of mostly two storey grouped and multiple dwellings and, about 100 metres to the east, are two storey commercial office buildings.
Adjoining the rear of the site is a car park about 20 metres wide for a two storey multiple dwelling development fronting Currie Street to the south. Currie Street is developed mostly with two storey multiple dwelling developments. On the opposite side of Hay Street to the north is a supermarket and fast food outlets.
Prior to the hearing of 22 June 2010, the Tribunal, accompanied by the representatives of the parties and the witnesses, viewed the site, the neighbouring land uses and the general locality.

Planning framework

Under the Metropolitan Region Scheme (MRS), the site is zoned Urban and is zoned residential with a coding of R80 under the City of Subiaco Town Planning Scheme No 4 (TPS 4). The site is located within the respondent's Daglish precinct. The lot adjoining to the west is reserved as open space under TPS 4. The lots to the east and to the south are residential, also with a density coding of R80.
Clause 27(4) of TPS 4 lists matters the Council shall have regard to in determining applications. These include:
(a)the provisions of this Scheme and any written law applying within the Scheme area including the Metropolitan Regions Scheme;
(b)any relevant planning policies;
(c)a statement of planning policy of the Western Australian Planning Commission;
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and
(h)design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
...
Clause 28(3) of TPS 4 deals with normal complying applications and states:
The Council cannot grant development approval for a noncomplying application unless, if so required by the Council under clause 26, the application has been advertised and the Council is satisfied that:
(a)if approval were to be granted, the development would be consistent with:
(i)the orderly and proper planning of the locality;
(ii)the preservation of the amenity of the locality; and
(iii)the planning objectives of the particular zone and relevant precinct planning policies; and
(b)noncompliance would not have any undue effect on:
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality.
Clause 41(2) of TPS 4 requires that in considering an application for development approval in the residential zone regard shall be had to the following objectives:
(a)the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
(b)the protection of residential areas from any interaction between different intensities of uses or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;
(c)the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d)the protection of the privacy of indoor and outdoor living spaces of dwellings;
(e)the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;
(f)to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sounds design principles and the preservation of the character of the existing housing stock[;]
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping.
...
Clause 42 of TPS 4 states that, unless specified within the division, all development is to be in accordance with the Residential Design Codes of Western Australia (2008) (Codes). Clause 42(4) of TPS 4 sets out variations to the provision of the Codes relevant to land with an R80 coding. The variation that follows is concerned with the height of the development and this is addressed under issue 3 below.
Schedule 1 of TPS 4 lists definitions and these include:
...
Amenity: means all those factors, which combine to form the character of an area and include the present and likely future amenity.
...
Streetscape:
(a)means the total visual impression gained from any one location within a street including the natural and manmade elements; and
(b)is made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.
...
Under cl 78 of TPS 4, Council may make planning policies. Policies adopted include:
•Daglish Precinct Planning Policy
•Local Planning Policy - Perimeter Fencing (Perimeter Fencing Policy)
Elements of the Codes relevant to this matter include:
•Clause 6.3.1 relating to building setbacks from the boundary;
•Clause 6.3.2 relating to buildings on the boundary; and
•Clause 6.4 relating to open space.
Particularly relevant to this matter is cl 7.1.3 of the Codes - 'Single Bedroom Dwellings'. Under acceptable development at cl 7.1.3 A3 it reads:
Single bedroom dwellings with a maximum plot ratio of 60 sq m.
Under performance criteria, cl 7.1.3 P3 states:
Dwellings that provide limited accommodation, suitable for one or two persons.
In the Explanatory Guidelines of the Codes it states for single bedroom dwellings:
This type of dwelling is designed to accommodate the one or twoperson households that now make up over half of all households in Western Australia. Because dwellings of this nature result in a low population density per dwelling unit, they do not generate the same demands for car parking as two or threebedroom dwellings, and result in less building bulk, the codes allow the same concessions as for aged or dependent persons' dwellings. However, there are no constraints on the age of occupants and there is no requirement for special facilities.
Clause 6.1.3 A3(i) of the Codes states:
[F]or the purposes of an aged or dependent persons' dwelling or a single bedroom dwelling, the minimum site area may be reduced by up to one third, in accordance with part 7.1.2 and 7.1.3; ...

Proposed development

The proposed development is the demolition of the single storey house on the site and the construction of 12 single bedroom multiple dwellings. The development before the Tribunal was that set out on the set of plans PL-01 RevG to PL-07 Rev-G and PL 07B Rev-G all date stamped 16 March 2010 by the City of Subiaco.
The development requires a full description to illustrate how the design makes use of the slope of the site. The development would have three levels. The plans use the term 'basement level' for the lowest level, 'living level' for the middle level and, for the top level, the term 'sleeping level'.
At basement level, the development makes use of the slope of the site so that at the eastern boundary the whole basement is mostly below ground level, whereas at the western boundary the basement finished floor level is about 0.5 metres below the level of the adjacent open space. Basement level includes a vehicle ramp down from Hay Street, a storage unit and a parking space for each of the 12 dwellings, 4 visitors' parking spaces and, at the south west corner of the site, the ground floor of dwellings 11 and 12. At this level, dwellings 11 and 12 have an entry door, a study, a bedroom with en suite facilities and stairs to the upper levels of dwellings 11 and 12. Adjacent to the parking spaces would be stairwells up to the courtyards of dwellings 1 to 10.
The living level is generally level with Hay Street and No 625 to the east. At this level the development is mostly in the eastern half of the site, with dwelling 1 at the Hay Street frontage and dwelling 10 at the southern boundary. These 10 dwellings have a rear courtyard adjacent to the eastern boundary. In between dwellings 1 to 8 and the western boundary, because of the slope of the site, there is a deck that overlooks the open space and has pedestrian access from Hay Street, voids providing a view down into the parking area, communal open space and a private entry courtyard at the front of each dwelling. Between dwelling 9 and 10 and the western boundary are the upper floors of dwellings 11 and 12. At the living level, dwellings 1 to 8, and dwelling 11 and 12 have a kitchen and a lounge room and dwellings 9 and 10 have a study and bedroom.
At the next level up, the 'sleeping level', dwellings 1 to 8 have a bedroom and a study and dwellings 9 and 10 have a kitchen and lounge. Each dwelling has a balcony at both the west and east elevations. The western balcony for each of dwelling 9 and 10 is a deck on the roof above dwelling 12 and 11 respectively which is roofed and partly enclosed with access via a covered walkway.
Dwellings 1 to 8 might be described as being in sets of pairs because the upper level of dwelling 2 is above the lower level of dwelling 1 and the upper level of dwelling 1 is above the lower level of dwelling 2 with the pattern repeated for dwellings 3 and 4, dwellings 5 and 6, and dwellings 7 and dwelling 8. Dwellings 9 and 10 in the southeast corner do not have this arrangement.
The west elevation of the proposed development, from the adjoining public open space and Jersey Street, would have the appearance of a pitched roofed, three level building. At the lowest level would be a wall with arched, barred openings to the parking area, above that the deck with a balustrade and the dwellings beyond and at the upper level each dwelling with a balcony. The east elevation of the proposed development, viewed from the grouped dwellings on No 625 would appear as a two storey building behind a 1.8 metre high ground level screen fence along the boundary with upper level balconies with a 1.6 metre high balustrade. From Hay Street the building would appear as a pitched roof two storey building. The roof on each elevation includes gable ends.

The refusal

The Council refused the application because it considered the development to be inconsistent with the orderly and proper planning of the locality. This was because the Council considered that critical aspects of the proposed development would not meet acceptable development standards or performance criteria under the Codes or the relevant development standards under TPS 4. The refusal referred to the development not satisfying the objectives for the residential zone under TPS 4 and the objectives of the Perimeter Fencing Policy.

The issues

The issues raised by the parties in this matter can be grouped as follows:
1)Whether the proposed development meets the performance criteria and objectives of Codes relating to:
(i)boundary setbacks;
(ii)open space;
(iii)boundary walls; and
(iv)single bedroom dwellings.
2)Whether the proposed development is consistent with Council's Perimeter Fencing Policy.
3)Whether the proposed development meets the aims and objectives for the residential zone of TPS 4 in respect of:
i)height requirements;
ii)the scale of the existing buildings of the surrounding area; and
iii)streetscape and amenity of the locality.
4)Whether approval of the proposed development would be contrary to orderly and proper planning.

Discussion

Issue 1 - whether the application meets relevant performance criteria and objectives and the Codes

The elements of the Codes identified by the parties were concerned with side and rear boundary setbacks, open space, boundary walls and single bedroom dwellings. These will be discussed in turn.

Boundary setbacks

The Objective for boundary setbacks under the Codes at cl 6.3 states:
To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties.
Under the heading 'Performance Criteria', the Codes state at cl 6.3.1 P1, that new development should meet the following criteria:
Buildings setback from boundaries other than street boundaries so as to:
•provide adequate direct sun and ventilation to the building;
•ensure adequate direct sun and ventilation being available to adjoining properties;
•provide adequate direct sun to the building and appurtenant open spaces;
•assist with protection of access to direct sun to the adjoining properties;
•assist in ameliorating the impacts of building bulk on the adjoining properties; and
•assist in protecting privacy in adjoining properties.

At cl 6.3.1 A1, the Codes set out acceptable development standards which illustrate one way of meeting the performance criteria. It was common ground between the parties that the proposed development would not satisfy the stated acceptable development distances for setbacks from the eastern, western or southern boundaries. It was necessary therefore to determine whether the setback distances proposed would satisfy the performance criteria at cl 6.3.1 P1.
The respondent called as an expert witness, Mrs Amanda Butterworth, a town planner. The applicant called as an expert witness, Mr John Sneddon, an architect who has experience working with the Codes in the design of buildings and the preparation of applications for planning approval for those buildings.
There was no dispute between the parties that, because of the northsouth orientation of the site, the proposed development would satisfy the acceptable development standard for solar access for adjoining sites at cl 6.9.1 A1 of the Codes. That is, the proposed development would cast little or no shadow over the adjoining property, No 625, at midday on 21 June.
Mr Peter Stockden, who appeared as a witness, said he resided at Unit 5 at No 625 which has its private open space abutting the common boundary with the site. He expressed concern that the proposed development would cause his outdoor recreation area and the western face of his unit to be deprived of afternoon sun.
The Tribunal notes that proposed dwellings 1 to 10 would have eastern and western balconies, or open space, to get access to sun and ventilation. The Tribunal has also formed the view that, while afternoon shadow would be cast on neighbouring properties by the proposed development, there would remain reasonable access to ventilation and to direct sun and for the middle of the day.
The Tribunal also notes that the privacy of residential properties to the east would be protected. This is because on the boundary would be a 1.8 metre high boundary fence and the eastern balcony of the sleeping level would have a 1.6 metre high balustrade. To the west of the site is public open space. Privacy is not a concern with open space. The Perimeter Fencing Policy requires visual permeability above 0.9 metres for perimeter fencing adjacent to parks.
The criterion from the list at cl 6.3.1 P1 on which the parties could not reach common ground was whether the proposed eastern and western setbacks would 'assist in ameliorating the impacts of building bulk on the adjoining properties'.
The two experts did agree that a setback of 1.22 metres from the southern boundary to the side wall of proposed dwelling 10, which has an eaves height of 6.75 metres above natural ground level and a ridge height of about 9.5 metres, satisfied the performance criteria of cl 6.3.1 P1. This was because the wall had no openings to habitable rooms and abutted a car park about 20 metres wide serving a multiple dwelling development on the lot to the south. The Tribunal agrees with the experts' conclusion in respect of the setback from the southern boundary of the site.
The setbacks from the eastern boundary vary because the dwellings would not be perpendicular to the boundary. For dwellings 1 and 2, the proposed setback from the eastern boundary at both the living level and the sleeping level would vary from 0.2 metres to 1.8 metres. The setback of 0.2 metres for the proposed dwelling closest to Hay Street would be adjacent to carports on No 625. However, the 1.8 metre setback of that front dwelling and the 0.2 metre setback of the next dwelling at both levels would be adjacent to the yard of the front dwelling of No 625 Hay Street.
The Tribunal agrees with the respondent's submission that a two storey building at this setback, and with the proposed finished floor level of the these two dwellings being higher than the finished floor level of the adjacent units on No 625, as discussed below, results in a form of development on the site that would not assist in ameliorating the impacts of building bulk on the adjoining property. The Tribunal considers that proposed dwellings 1 and 2 would not satisfy the performance criteria for setbacks under the Codes.
Dwellings 3 to 10 would have a setback between the eastern boundary and the living level varying between about 1.5 metres and about 3 metres. The Tribunal notes that there is proposed a 1.8 metre high wall on the boundary and these dwellings have a finished floor level at about the same or less than the finished floor level of the adjacent grouped dwellings on No 625. The Tribunal accepts that the proposed setbacks from the eastern boundary for the living level of dwellings 3 to 10 appropriately addresses the performance criteria for boundary setbacks at cl 6.3.1 P1 of the Codes.
At the sleeping level, the setback of dwellings 3 to 10 from the eastern boundary would be a minimum of 3 metres to the wall of the building and 1.8 metres to the balustrade, of the balcony. This balustrade, while having vertical steps along the site from south and north, is 1.6 metres high and is in a continuous plane parallel to the boundary at this setback. Mr Sneddon was of the opinion that the balcony design would assist in ameliorating the impact of bulk because of the variations in relative heights and materials for each dwelling. The applicant said that, while it was not considered necessary, a condition of approval would be accepted that required the setback to the sleeping level balconies to be increased by 0.5 metres. Mr Sneddon said the balconies were not for use as outdoor living space and the reduced depth would still enable the balconies to provide light and air to the adjacent bedroom. With the increased setback and the proposed landscaping adjacent to the boundary, Mr Snedden considered that the proposed development would satisfy the performance criteria at cl 6.3.1 P1 of the Codes.
Mrs Butterworth remained of the opinion that even the increased setback would not assist in ameliorating the impact of the bulk of the proposed development on the neighbouring property.
The Tribunal has formed the view that a 1.6 metre high balustrade at first floor level in a wall length over 30 metres, even at a setback of about 2.5 metres would not assist in ameliorating the impact of bulk on the neighbouring property. The proposed development is a single building and while the architect has produced a design which includes articulation in the eastern façade, the Tribunal considers that because of the bulk of the building and the impact it would have on the property to the east, the performance criteria at cl 6.3.1 P1 of the Codes would not be satisfied.
In respect of setbacks from the western boundary of the site to the balustrades of the balconies at the sleeping level, these vary from 3.9 metres for dwellings 1 to 3 at the Hay Street end to 9.4 metres at dwelling 8. The Tribunal is of the view that there is some substance to the respondent's concern that the setback to the sleeping level at dwellings 1 to 3 would contribute to the impact of bulk of the development on the neighbouring open space and streetscape. The Tribunal considers, however, that overall the setback to the western boundary, of itself, would not be sufficient to provide a reason for refusing the development, although the contribution of these setbacks to bulk is a consideration in the discussion below on the height of the building.

Open space

The objective of the open space requirements a cl 6.4 of the Codes state:
To ensure that private communal open space is set aside and landscaped to provide for attractive streetscapes, attractive settings to complement buildings, privacy, direct sun, and the recreational needs of residents.
The Performance criteria at cl 6.4.1 P1 of the Codes require:
Sufficient open space around buildings:
•to complement the building;
•to allow attractive streetscapes;
•to suit the future needs of residents, having regard to the type and density of the dwelling.
Mrs Butterworth calculated that the proposed development would result in 48.8% of the site being open space, as defined under the Codes. This she compared to the 60% required to meet the acceptable development standard for R80 development at Table 1 of the Codes. Mrs Butterworth was of the opinion that if the area of open space provided was increased, this would reduce the effect of the bulk of the building on the neighbours and improve the impact of the development on the streetscape.
Mr Sneddon agreed with Mrs Butterworth's calculation if the definition of the Codes was used to identify open space on the site. Mr Sneddon argued, however, that 'open space is open space' and it didn't matter what the definition was. He produced a plan, PL-07C Rev H, which he said illustrated that it could be calculated that 63% of the site would be open space. Mr Sneddon said that having areas of open space roofed or beneath an overhanging floor above increased the likelihood of greater use by the residents throughout the year. In his opinion, removing roofs and some side walls from balconies and making open space areas obvious from the street would reduce the amenity of the residence and make the building bland.
The Tribunal has formed the view that, in respect of the performance criteria at cl 6.4.1 P1 of the Codes, the open space identified by Mr Sneddon might be argued to suit the future needs of the residents of the proposed development and, as asserted by the architect, complement the building. The Tribunal considers, however, that by incorporating much of the outdoor space that would be used by the residents under roofs and overhanging upper levels, with walls in part, the development would not contribute to an attractive streetscape as required by the performance criteria at cl 6.4.1 P1 and the objective at cl 6.4 of the Codes. This outcome is not alone a result of the apparent proportion of the site that appears to be occupied by building, but is also contributed to by the bulk, setbacks and height of the proposed building.

Boundary walls

There was discussion between the experts at the hearing as to whether that part of the proposed building on the western boundary was a wall of the building. The basement level and the living level deck both extend to the western boundary and, while the wall provided a balustrade to the living level deck, it was not apparent from the drawings whether the western wall provided structural support to the deck. This wall has the characteristics of boundary fence, in that it would be limestone sections separated by full height sections of grill. The limestone sections would be punctuated by arched openings secured by a grill. The wall is the vertical face of the building and is in part solid building material as required for a wall under the Codes, but its open structure on the boundary allowing a view to the parking on the site and from the site to the open space, supports a conclusion that it serves the purpose of a fence.
If the western wall is to be considered a wall on the boundary, the performance criteria for a building on the boundary at cl 6.3.2 P2, the Codes read:
Buildings build up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining properties; and
•ensure direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
If that part of the development on the western boundary were considered to be a building on the boundary under the Codes, it would certainly satisfy dot points one and three. The wall would not enhance privacy because it is designed to allow overlooking of the adjacent open space. In respect of the last two dot points, the test is the impact on adjoining property. Under the Codes, by definition an adjoining property is one on which a dwelling may be constructed. The lot adjoining to the west is reserved for public open space and cannot be developed for residential purposes.
The respondent conceded that the last two dot points of the performance criteria at cl 6.3.2 P2 were not applicable. The respondent submitted, however, that regard should be had to the intent of the performance criteria and consideration given to whether the wall would have any significant adverse effect on the adjoining public open space. The respondent said the wall extended the full length of the boundary and was up to 2.4 metres high and so would add to the adverse impact of bulk on users of the open space.
The applicant said the wall was of reasonable height, complied with the relevant performance criteria at cl 6.3.2 P2 of the Codes and enhanced the local amenity because it was designed to reflect the historical association of the adjoining open space with the early Benedictine Monks.
The Tribunal is of the opinion that a solid wall of the length and height proposed along the full length of the boundary would be a concern. However, having regard to the design of the wall and the location adjoining the open space, it would be more appropriate to assess the proposed wall on the western boundary of the site as a fence and this is addressed at Issue 3 below in respect of the Council's Perimeter Fencing Policy.

Single bedroom dwellings

The 12 proposed single bedroom dwellings would each have a floor area of 77 square metres. Mr Sneddon pointed out that, under the Codes, at a density of R80 a plot ratio of 1:1 is permitted and the site is 1,019 square metres. If the 12 single bedroom dwellings were restricted to 60 square metres, as the respondent requires, the total floor area would be 720 square metres. In Mr Sneddon's opinion this would 'waste 299 square metres of site area'. He said the proposed dwellings would have a floor area about equivalent to the 'normal' eight dwellings otherwise allowed on the site at R80. Mr Sneddon produced evidence of his experience of the demand for single bedroom dwellings in this general area and of an increase over time of demand for larger single bedroom dwellings which included the facilities in the proposed development.
Mr Sneddon rejected as unnecessary the respondent's suggestion that the study be removed from each dwelling to enable the dwellings to be set back further from the eastern boundary, to increase open space on the site and to reduce the bulk and scale of the proposed development. He said he would be prepared to reduce the upper level balcony depth on the eastern side by 0.5 metres, but considered the proposed setbacks and open space were acceptable.
Mr Sneddon said that deleting a room from each dwelling would result in poorer standard of development, was unnecessary and the building was sufficiently articulated to address any concerns about bulk. In his opinion, the respondent's concerns that the study might be used as a second bedroom were misplaced. This was because the dwellings were designed for a single person or a couple and the study provided an accessway to the bedroom.
The Tribunal notes that the proposed single bedroom dwellings do not meet the acceptable development standard of 60 square metres at cl 7.1.3 A3 of the Codes. The Tribunal has accepted, however, that the application was for single bedroom dwellings, and while generous in floor area, the design meets the performance criteria at cl 7.1.3 P3 of the Codes in that they would provide suitable accommodation for one or two persons.
The Tribunal would add, however, that simply attempting to maximise the number of dwellings to achieve the arithmetically possible plot ratio for R80 under the Codes gives rise to concerns about satisfying associated development standards and requirements under the Codes, as addressed above, and under TPS 4 and the Council's policies, as addressed below. These development standards and requirements are not subordinate to achieving the maximum floor area and must be addressed when assessing a proposed development.

Issue 2: whether the proposed development is consistent with Council's Perimeter Fencing Policy

At cl 2.2 of the Perimeter Fencing Policy, it states:
A dividing fence separates the land of two different owners and may or may not be located on the common property boundary. Requirements relating to the construction of dividing fences are set out in the Dividing Fences Act.
The Act does not apply to fences that adjoin Crown land or land used for public purposes such as roads, rights-of-way, parks and reserves. However, for the purposes of this policy, these fences are also considered to be dividing fences.
The Perimeter Fencing Policy is silent on the maximum height of a dividing fence. At cl 7.2 of the Perimeter Fencing Policy, it states in respect of dividing fences:
These types of fences are exempt from the requirements to obtain development approval provided that:
...
•Fences which abut public open spaces areas are visually permeable above 0.9 metres in height;
...
The development extends to the western boundary of the site and the structure on the western boundary serves more than one purpose. It is the western wall of the basement level, which is mostly above natural ground level at the western edge of the site and is a retaining wall where the basement level is below natural ground level. It is not clear from the drawings if this western wall is structurally necessary to support the deck at the living level of the development, but it extends up to provide a balustrade to this deck. The balustrade would be part railings and part limestone. Plan PL-05 Rev G shows that opposite dwellings 3 and 4 the limestone sections of the wall are 2.4 metres above the ground level with the horizontal railings on top. Elsewhere the total height is 2.4 metres or less.
The wall on the western boundary would include 10 arched openings secured by vertical bars. It would also include six sections comprising vertical bars from natural ground level to the top of the balustrade.
Mr Sneddon analysed the wall as having above 0.9 metres above natural ground level gaps occupying some 56.8% of the fence area and 61.9% of its length. This he said was consistent with the requirement under the Perimeter Fencing Policy concerning visual permeability at cl 2.3 which states:
A visually permeable, or 'see through' fence comprises:
•continuous gaps at least 50 millimetres wide which in aggregate occupy at least one third of the length of the fence; or
•continuous gaps less than 50 mm wide which in aggregate occupy at least half of the length of the fence;
Provided that the gaps are evenly distributed along the length of the fence.
The respondent objected to the proposed wall on the boundary, commenting that it was up to 2.4 metres high and this, together with the concessions required on the setbacks to the dwellings and the proposed height of the development, contributed to what is an imposing bulk and scale that would have a detrimental impact on the streetscape view from Jersey Street and on the amenity of users of the park.
The Tribunal considers that a fence on this boundary could be expected as part of any development. In this development, because of the dwellings being set back and the design and materials used, the wall has the characteristics of a boundary fence. The Perimeter Fencing Policy deems a sufficient fence to be 1.8 metres high, but the Tribunal accepts that higher fences might be appropriate, particularly where a lot is higher than its neighbour. The Tribunal is satisfied the proposed wall is not so high as to be reason for refusing the application and is also satisfied that the wall sufficiently addresses the visual permeability requirements of the Perimeter Fencing Policy.
The Tribunal has formed the view that, while the wall on the western boundary has characteristics of both the wall of the development and a perimeter fence, the wall as proposed on the boundary would be consistent with the Perimeter Fencing Policy.

Issue 3: Whether the proposed development meets the aims and objectives for the residential zone of TPS 4

TPS 4, at cl 27(4), lists matters to be considered when determining a development application, including in the residential zone. Clause 41(2) of TPS 4 requires that in considering an application for development approval in the residential zone regard must also be had to a series of objectives, which are set out in full above under the heading 'Planning framework'.
The issues identified by the parties include whether the proposed development would comply with particular requirements of TPS 4. These are addressed under the subheadings below.

Height requirements

At cl 42(4) of TPS 4 is direct reference to residential zoned land with a density coding of R80. This clause sets out standards for the height of buildings replacing the height standards of the Codes, as follows:
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R80 shall not exceed 9 metres overall height and 6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 12 metres overall height and 9 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
The expert witnesses agreed that the wall heights of the proposed development would exceed 6 metres above the level identified as natural ground level of the site on the licensed surveyor's plan at PL-02 Rev G. The expert witnesses marked on Plan PL-05 Rev G the heights of the proposed walls at identified points set back 3 metres from the eastern boundary. The heights identified were to the eaves at the northern and southern edge of the pairs of dwellings referred to above. For dwellings 1 and 2 these were, at the northern edge of dwelling 1, 7.1 metres above natural ground level and at the southern edge of dwelling 2, 7.1 metres above natural ground level. Then for the other pairs of dwellings from dwelling 3 to dwelling 10 the respective heights above natural ground level were 6.6 metres and 6.8 metres, 6.5 metres and 6.6 metres, 6.3 metres and 6.5 metres, 6.65 metres at the northern wall of dwelling 9 and at the southern wall of dwelling 10, 6.75 metres.
It was the submission of the applicant that the wall heights above 6 metres would not have an adverse impact on the adjoining residential sites or the general amenity of the locality and therefore could be allowed under cl 42(4)(b) of TPS 4. This was because the additional height requested was at the 'lower end of the scale' being closer to the allowed 6 metre wall height than to the possible 9 metre wall height. In Mr Sneddon's opinion, the impact on the neighbours to the east would not be significant enough to refuse the development. In his opinion, the variation in height of the eaves for the different dwellings would create interest, but it would not be readily discernible that the variation was above 6 metres.
The respondent referred to the development being concentrated along the eastern side of the site. Mrs Butterworth was of the opinion that with the reduced setbacks, the additional height would add to the bulk and scale of the development and would result in an adverse impact on the adjoining residential site and on the general amenity of the locality.
In respect of the western elevation, the expert witnesses agreed that, again, for selected eaves starting from the Hay Street end, respective heights above natural ground level of 7.4 metres, 6.4 metres, 7.1 metres, 6.1 metres, 6.5 metres, 7.0 metres, 6.0 metres, 7.0 metres and 7.05 metres. These variations in height reflect the hips and gables above the respective dwellings and their balconies.
The applicant said the western alignment of the building was generally at the midline of the site, separated from the western boundary by the access deck. Mr Sneddon was of the opinion that the proposed height of the building at the western façade could have no impact on any adjoining residential site, and nor would there be any impact on the amenity of the adjoining public open space or the locality.
The respondent referred to the western façade not being set back the distance required to satisfy the acceptable development provisions of the Codes and was of the opinion this, together with the additional height, would have an adverse impact on the local amenity because of the resultant bulk.
Clause 42(4) also refers to overall height. Mr Sneddon attached to the expert witnesses' joint statement a plan PL-07D Rev H. This plan was an isometric view of the proposed development with a plane inserted at 9 metres above natural ground level. Mr Sneddon interpreted the plan as showing that above dwellings 1 and 2 the ridge of the building reached a maximum height of 9.629 metres at the eastern side and 10.215 metres at the western side above natural ground level. Building above a height of 9 metres then reduced to be minimal above dwelling 10. It was Mr Sneddon's contention that the ridge would not be visible to the neighbours at No 635 to the east and that the additional height was minor.
The respondent's contention was that from the park to the west, the bulk of the proposed development would be unnecessarily imposing, particularly together with the height of the boundary wall and what it considered to be a reduced setback.
Clause 42(4)(b) requires that consideration be given to whether there would be undue adverse impact of the additional height on adjoining residential sites. In respect of the proposed height of the building, Mr Stockden, the next door neighbour, said he expected the site would be redeveloped but did not expect the development to be of the proposed height and bulk. He said the impact on his dwelling of a wall greater than 6 metres height at the setback proposed would be adverse to his amenity, he also pointed out that he would also have a view generally along the expanse of the eastern elevation of the building which, at the height and setback proposed, would have the appearance of unacceptable bulk.
The Tribunal notes that the dwellings at the southern end of adjoining No 635 have a finished floor level and open space area at about RL22.2, which is about 0.8 metres higher than the natural ground level of the site. The eaves height of the proposed development in this location would be about 6 metres above the finished floor level of the adjacent dwellings on No 635. If this relationship of respective floor heights was maintained for the whole of the site, then serious consideration might be given to supporting the additional height allowed under cl 42(4)(b) of TPS 4.
The application plans show, however, that the finished floor levels for proposed dwellings 1 to 6 would be relatively higher than the finished floor levels of the adjacent dwellings on No 625. For dwelling 2 and dwelling 3 on No 625 this would be about 0.5 metres, which, the Tribunal considers, would accentuate the relative height difference between those dwellings and the proposed building. This relative difference in floor levels, together with the reduced setback being sought is considered by the Tribunal to result in a development which would have an adverse impact because of the resulting bulk.
At cl 41(2)(c) of TPS 4, under the aims and objectives for the residential zone, consideration of finished heights is required to ensure that residential areas are protected from disproportionate or excessive development. The Tribunal has formed the view that while it is to be expected that there would be multiple dwelling developments in this locality, the development proposed, being in excess of the standard height requirement, would have an adverse impact on neighbouring residential development inconsistent with the objectives for residential areas under TPS 4.
Clause 42(4)(b) of TPS 4 also requires consideration of whether the proposed additional height would have undue impact on the general amenity of the locality. This question overlaps with and is addressed under the following two sub-issues.

The proposed development and the scale of existing buildings in the locality

Clause 27(4)(h) of TPS 4 requires that regard be had to 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure'. The photographs supplied by the parties and the viewing of the site and locality revealed that along the southern side of Hay Street, in the vicinity of the site, buildings are commonly two stories, with the exception of a single storey house at No 621 Hay Street. Similarly, nearby in Jersey Street and to the south in Currie Street, buildings are mostly two storey grouped or multiple dwellings. Other than photographs and the viewing of the other buildings in the locality, the only evidence before the Tribunal in respect of setbacks was for the grouped dwellings at No 25, but the general comment could be made that the buildings mostly appeared to have discernable landscaped setbacks. The respondent argued that the proposed development would occupy more its site than neighbouring developments and would have the appearance of a three storey building when viewed from the west. The scale of the building, it was submitted, would be inconsistent with the objective of protecting the area from excessive and disproportionate development.
The Tribunal is inclined to the view that the number of apparent stories is not of itself necessarily fatal to a development in an R80 coded residential area. Of more concern to the Tribunal would be whether the proposed development would require concessions on height and setbacks to achieve the particular form proposed and the impact the resultant development would have on the streetscape and amenity of the locality. This is addressed in the following subissue.

Established streetscape and amenity of the locality

Streetscape is a consideration under the objectives for the residential zone at cl 41(2)(g) and amenity of the locality is specifically listed as a consideration at cl 27(4)(g) of TPS 4.
The respondent contended that the proposed development would not be consistent with the established streetscape. This was because the proposed development would be of a larger scale than others in the locality as a result of the height and setback concessions that are required. The respondent also considered that the height of the development would have an overbearing impact on the adjoining park to the west.
Mr Sneddon considered the streetscape to have no recognisable pattern because of the different eras, styles, and materials of the buildings. An unattractive feature Mr Sneddon identified was the development of carports and parking spaces at the street frontage of developments in the locality. In Mr Sneddon's opinion, the development would be an aesthetically pleasing addition to the streetscape because it did not have the shortcomings of existing developments and would also provide the currently absent passive observation of the public spaces.
The Tribunal has formed the view that a new development that did not feature carports and parking at the street front would enhance the streetscape. The Tribunal is concerned, however, that the form of development proposed requires concessions on height and setback. As discussed above, the Tribunal has concluded that this undue height, scale and bulk relative to neighbouring residential development would have an undesirable impact on the streetscape.
Both parties used their position on the impact of the proposed development on streetscape and neighbouring uses to support their submission that, for the applicant, the development would not have an adverse impact on the amenity of the locality, and for the respondent, there would be an adverse impact on the amenity of the locality.
The Tribunal notes that under TPS 4 amenity is defined to include both 'the present and likely future amenity'. The Tribunal considers, as can be seen from the conclusions reached on the issues above, that the variations to development standards being sought would have an adverse impact on the present amenity of the locality.
In respect of the likely future amenity of the locality, the Tribunal considers that this will be influenced by the R80 density coding under TPS 4, location on significant transport routes and proximity to the centre of Subiaco. Such a location helps support a future character that would include multiple dwellings, including single bedroom dwellings, in buildings of more than one storey. The Tribunal does not consider, however, that there has been established why the future amenity of this locality should be characterised by development that requires relaxation of normal standards and requirements of the planning instruments. The Tribunal is of the view that the planning objectives for this residential locality can be achieved within the normal planning requirements. This leads to consideration of the final issue which is in respect of orderly and proper planning.

Issue 4: Whether approval of the proposed development would be contrary to orderly and proper planning

The applicant said the proposed development would be consistent with orderly and proper planning. This was because the development would be at the R80 density coding and, in its submission, satisfied the objectives for the residential zone under TPS 4.
The Tribunal has formed the view the proposed development would be contrary to orderly and proper planning. The Tribunal accepts that it is a reasonable planning expectation that the site will be redeveloped because it is zoned Residential with a density coding of R80 under TPS 4. The Tribunal also accepts that single bedroom dwellings would be an appropriate addition to the 'wide range of different types of residential accommodation' referred to in the objectives for the residential area at cl 41(2)(a) of TPS 4. This type of development is also considered consistent with the objective of maintaining a 'higher density residential pocket' in the vicinity of Jersey Street, which is referred to under the objectives of the Daglish Precinct Planning Policy within which the site is located.
Although there was no empirical evidence before the Tribunal, this development would appear to be one of the first to attempt to take full advantage of the R80 coding in this immediate vicinity. Most grouped and multiple dwelling developments in the vicinity appear from the view and photographs to be on sites with generous setbacks and open space. Close by at No 621 Hay Street is a single house and No 625 adjacent to the site is developed at a density of about R50.
Development at a density of R80 requires consideration of not only the number of dwellings that might be allowed but also requires consideration of development requirements and standards and the impact any proposed development might have on neighbours, the streetscape and the locality. The Tribunal has found, as set out in the discussions of the issues above, the proposed development includes setbacks, height concessions and open space arrangement that would result in a building of a bulk and scale that would have an adverse impact on the neighbouring residential development and the streetscape. In weighing the proposed development against the matters to be considered at cl 27 of TPS 4, Council's policies and the relevant provisions of the Codes, the Tribunal has found that the proposed development would be inconsistent with the objectives for residential development at cl 41 of TPS 4.
As stated above, under TPS 4, amenity, by definition, also includes consideration of likely future amenity. The Tribunal considers that the future amenity of this locality is most likely to include residential development at R80 density as provided for under TPS 4. As the proposed development is one of the first at this density, the Tribunal considers it would be contrary to orderly and proper planning if the development was allowed at a height, setbacks and with open space concessions that would be viewed as an expression of the desired future streetscape, character and amenity of the locality. The Tribunal finds that to depart from the reasonable development requirements and standards found in the planning instruments, to provide for the proposed development of the site, would be inconsistent with the orderly and proper planning of the locality.

Conclusion

In respect of issue 1, the Tribunal found that the proposed development did not meet the relevant performance criteria under the Codes for boundary setbacks from the eastern boundary and for the provision of open space on the site. The Tribunal found that there was a basis for supporting the proposed boundary wall and, while the floor area of the proposed single bedroom dwellings was considered acceptable because of the design, the Tribunal considered that achieving the maximum number of dwellings could not be done at the expense of development requirements and standards relevant to such elements as setbacks, open space, scale and bulk.
Issue 2 was whether the proposed development would be consistent with Council's Perimeter Fencing Policy. The Tribunal found that because of its design and purpose and the height being not greatly in excess of a sufficient fence, the wall on the western boundary would be consistent with this policy.
Issue 3 was concerned with whether the proposed development would meet particular aims and objectives for the residential zone of TPS 4. The first of these required assessing the proposed development in respect of the proposed height. The Tribunal found that the proposed development did not warrant the granting of the proposed height concessions for the walls and roof available at cl 42(4)(b) of TPS 4 because of the impact the additional height would have on the neighbouring residential use and the local amenity.
The Tribunal also found that the proposed development would not satisfy the objectives for the residential area under TPS 4 in respect of scale of the development relative to buildings in the locality and compatibility with the streetscape. This was because of the proposed height, setbacks and reduced open space and the resultant bulk.
The final consideration under issue 3 was the impact of the proposed development on the amenity of the locality and this includes both existing and likely future amenity. The Tribunal found that because the bulk resulting from the proposed height and setbacks, the proposed development would have an unacceptable impact on current amenity. In respect of likely future amenity, the Tribunal considers that this will be influenced by development taking advantage of the R80 density coding in the locality.
Issue 4 was whether approval of the proposed development would be contrary to orderly and proper planning. The Tribunal formed view that future development of the locality would include multiple dwellings, including single bedroom dwellings consistent with the R80 coding and the development requirements and standards of the Codes and TPS 4. The Tribunal found however, that it would not be consistent with orderly and proper planning to allow as a matter of course at this stage in the development of that locality development that required concessions on normal development requirements and standards. The Tribunal has formed the view that the orderly planning of this locality would be served by development that did not rely on concessions on such standards as height, setbacks and open space as set out in the applicable planning instruments.
On the basis of the conclusions reached on the issues arising in this matter, the Tribunal has decided to dismiss the application for review.

Orders

1.The application for review is dismissed.
2.The decision of the City of Subiaco to refuse the application is affirmed.

I certify that this and the preceding [113] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER