JOSTIN PTY LTD and TOWN OF BASSENDEAN
[2015] WASAT 13
•13 FEBRUARY 2015
JOSTIN PTY LTD and TOWN OF BASSENDEAN [2015] WASAT 13
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 13 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:137/2014 | 27 NOVEMBER 2014 | |
| Coram: | MS R MOORE (MEMBER) | 13/02/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Development approval granted with conditions | ||
| B | |||
| PDF Version |
| Parties: | JOSTIN PTY LTD TOWN OF BASSENDEAN |
Catchwords: | Town planning Development application Multiple dwellings Split residential density coding R20/R40 Development shall be considered acceptable where existing streetscape is being preserved |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 31 State Planning Policy 3.1 Residential Design Codes (2013) Town of Bassendean Local Planning Scheme No 10, cl 1.6, cl 2.1, cl 4.2, cl 4.2.1, cl 4.3, cl 5.2.2, cl 5.2.3, cl 5.3.1, cl 5.3.1.2, cl 10.2, Pt 5 |
Case References: | Nil |
Orders | On the application heard on 27 November 2014 by Member Rebecca Moore, it is on 13 February 2015 ordered that: ,1. The application for review is allowed.,2. The decision of the respondent made on 26 August 2014 to refuse development approval for eight multiple dwellings at Nos 102 - 104 (Lot 446 and Lot 447) First Avenue, Bassendean is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(a) The development must be carried out in accordance with the plans prepared by Lee Syminton Architect, dated 18 July 2014, varied by the following conditions.,(b) The development must be substantially commenced within two years from 15 February 2015 and the approval will lapse if the development has not substantially commenced before this date.,(c) Prior to the issue of a building permit for this development, Lot 446 and Lot 447 First Avenue, Bassendean shall be amalgamated into a single lot on a Certificate of Title, or the owner shall enter into a legal agreement with the Town of Bassendean prepared by the Town's solicitors at the owner's cost requiring amalgamation to be completed within 12 months of the issue of a building permit or the completion of development, whichever occurs earlier.,(d) The following major opening(s) shall be screened to the requirements of the State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) (as amended):,(i) The north facing kitchen and living windows to Unit 5 and Unit 7 shall be obscured glazing up to 1.6 metres above the finished floor level as noted on the floor plan.,(e) Unit 1 and Unit 5 shall be provided with a solar hot water system (as shown on the approved drawings), details of which shall be incorporated into the working drawings submitted for a building permit to the satisfaction of the Town of Bassendean.,(f) A detailed landscape plan being submitted prior to or with the application for a building permit for the Town of Bassendean's approval which address the following:,(i) details of the location and type of proposed trees, shrubs, groundcover and lawn areas to be planted;,(ii) low water use;,(iii) provision of suitably sized deciduous trees (both at the time of planting and expected ultimate size relative to size of courtyard space) within the courtyard area of each of the ground floor dwellings;,(iv) landscaping of the verge area adjacent to the development site, including the provision of a substantial (100 litre) street tree to the south of the proposed crossover to replace the existing Callistemon which is to be removed. The replacement street tree shall be in accordance with the Town of Bassendean's adopted Street Tree Master Plan; and,(v) details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months.,(g) Pedestrian paths to be constructed which provide wheelchair accessibility connecting all entries to buildings with the public footpath and car parking areas.,(h) Provision of lighting to pathways and car parking areas.,(i) The site shall be landscaped in accordance with the approved landscaping plan and shall be maintained thereafter.,(j) The Callistemon street tree being removed and replaced with a new 100 litre street tree in accordance with the Town of Bassendean's adopted Street Tree Master Plan.,(k) The existing Eucalypt tree within the street verge located to the north of the proposed crossover for the development site being protected with barricades during construction in accordance with the Town of Bassendean's Street Tree Protection Policy.,(l) The existing crossovers on the First Avenue frontage of the development site being removed and the verge and kerbing being reinstated to the satisfaction of the Town of Bassendean.,(m) Separate approval being obtained from the Town of Bassendean's Asset Services for the proposed crossover on the First Avenue frontage of the development site and this crossover being constructed in accordance with that approval.,(n) The sealing and kerbing of all car parking and accessways to the Town of Bassendean's specifications.,(o) The car parking spaces and access ways being constructed and maintained thereafter to the Town of Bassendean's satisfaction.,(p) Visitor parking spaces being clearly marked for 'Visitors Only' and used as such.,(q) A minimum of three and one bicycle bays shall be provided for the residents and visitors respectively. The bicycle parking spaces shall be located in the area identified on the approved drawings and shall be constructed in accordance with the provisions of Australian Standard 2890.3 (as amended).,(r) All stormwater being contained and disposed of on site. Details of the method of stormwater containment and disposal shall be included with the drawings submitted for a building permit.,(s) Prior to the issue of a building permit, a development bond for the sum of $4,000 is to be lodged with Council to ensure the satisfactory completion of all works associated with landscaping, car parking, access ways and fencing.,(t) The incorporation of public art into the proposed development or a cash-in-lieu payment of 1% of the construction cost of the proposed development in accordance with the adopted Town of Bassendean Local Planning Policy No 15 Percent for Art Policy. Detailed arrangements and agreement with respect to art to be provided onsite or, alternatively, payment of the required fee shall be made prior to or in conjunction with the application for a building permit.,(u) The street number being prominently displayed at the front of the development.,(v) The provision of side and rear fences, behind the street setback line, of 1.8 metres in height. Where the ground levels vary on either side of the fence, the required 1.8 metre height shall be measured above the higher ground level.,(w) The provision of letterboxes and bin storage in materials to complement the development to the satisfaction of the Town of Bassendean.,(x) External clothes drying facilities shall be screened from view of the street or any other public place at all times. No drying of clothes from upper floor balconies (Unit 5 and Unit 6) or ground floor outdoor living areas (Unit 1 and Unit 2) is permitted.,(y) Airconditioning units and external fittings shall be incorporated into the building or screened from view. Details of the treatment of such external fittings to the building being submitted prior to the issue of a building permit to the satisfaction of the Manager Development Services.,(z) The applicant submitting to the satisfaction of the Manager Development Services a construction management plan that addresses issues of dust and noise control, hours of work, and provides contact details of a person to deal with complaints.,(aa) A Waste Management Plan is to be submitted for the Town of Bassendean's approval prior to or in conjunction with the application for a building permit. The Waste Management Plan shall address matters including, but not necessarily limited to, the following:,(i) measures to be implemented for the purpose of minimising the delivery of waste to landfill during occupation, including: the onsite separation of materials for recycling and the expectations of owners and/or tenants;,(ii) a site plan showing the location and size of the onsite rubbish disposal area, including the number of general rubbish and recycling bins, to be provided for the development, including sharing arrangements where the number of bins is less than the number of dwellings;,(iii) an estimation of the volume of waste to be generated by the proposed development and the capacity of this volume of waste to be accommodated by onsite bin storage capacity;,(iv) details of intended method of collection (private contractor or Council contractor);,(v) details of arrangements for transferring bins from the bin storage area to the verge for collection and subsequently from the verge back to the bin storage area, including timeframes at each stage;,(vi) details of where the bins would be located when waiting collection;,(vii) details of advice to be provided to owners and occupiers regarding the Waste Management Plan; and,(viii) details of how the Waste Management Plan will continue to be applied in perpetuity across the life of the development, including the Waste Management Plan being incorporated into the strata by-laws for the proposed development;,4. All building works to be carried out under this planning approval are required to be contained within the boundaries of the subject lot.,5. The building hereby approved shall not be occupied until all of the conditions of planning consent have been complied with to the satisfaction of the Manager Development Services, unless the applicant has entered into an agreement with Council to comply with those conditions within a specific period.,6. The issue of a building permit prior to the commencement of any onsite works. |
Summary | This matter involved an application for review of the Town of Bassendean's decision to refuse a development application for eight multiple dwellings at No 102 - 104 First Avenue, Bassendean. ,The site was located within an area with a split residential density coding of R20/40. Clause 5.3.1 of the Town of Bassendean Local Planning Scheme No 10 provides the criteria to be satisfied in order to develop sites at the higher density code of R40. A number of properties in this section of First Avenue have been developed at a density of R40 but most have been developed as single storey grouped dwellings, with the exception of a two storey multiple dwelling development on the corner of Anzac Terrace.,The issue to be determined by the Tribunal was whether the proposed development the subject of this review would preserve the existing streetscape. ,The respondent contended that the two storey built form of the development with the proposed setbacks would not preserve the existing streetscape, particularly given the site's location in the middle of the street block and at a distance greater than 800 metres from the Bassendean train station.,The applicant argued that the Town of Bassendean had approved R40 development within the street at lesser setbacks than proposed in this application and the two storey multiple development on the corner of Anzac Terrace would be more dominant than this proposal.,The Tribunal found that the proposed development would preserve the existing streetscape and that it was appropriate to exercise discretion pursuant to cl 5.3.1 of the Scheme and approve the development of the site at the higher density code of R40. The Tribunal therefore allowed the application for review and set aside the Town of Bassendean's decision to refuse development approval and substituted a decision granting conditional approval to the proposed development. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JOSTIN PTY LTD and TOWN OF BASSENDEAN [2015] WASAT 13 MEMBER : MS R MOORE (MEMBER) HEARD : 27 NOVEMBER 2014 DELIVERED : 13 FEBRUARY 2015 FILE NO/S : DR 137 of 2014 BETWEEN : JOSTIN PTY LTD
- Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Town planning Development application Multiple dwellings Split residential density coding R20/R40 Development shall be considered acceptable where existing streetscape is being preserved
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes (2013)
Town of Bassendean Local Planning Scheme No 10, cl 1.6, cl 2.1, cl 4.2, cl 4.2.1, cl 4.3, cl 5.2.2, cl 5.2.3, cl 5.3.1, cl 5.3.1.2, cl 10.2, Pt 5
Result:
Application for review allowed
Development approval granted with conditions
Summary of Tribunal's decision:
This matter involved an application for review of the Town of Bassendean's decision to refuse a development application for eight multiple dwellings at No 102 - 104 First Avenue, Bassendean.
The site was located within an area with a split residential density coding of R20/40. Clause 5.3.1 of the Town of Bassendean Local Planning Scheme No 10 provides the criteria to be satisfied in order to develop sites at the higher density code of R40. A number of properties in this section of First Avenue have been developed at a density of R40 but most have been developed as single storey grouped dwellings, with the exception of a two storey multiple dwelling development on the corner of Anzac Terrace.
The issue to be determined by the Tribunal was whether the proposed development the subject of this review would preserve the existing streetscape.
The respondent contended that the two storey built form of the development with the proposed setbacks would not preserve the existing streetscape, particularly given the site's location in the middle of the street block and at a distance greater than 800 metres from the Bassendean train station.
The applicant argued that the Town of Bassendean had approved R40 development within the street at lesser setbacks than proposed in this application and the two storey multiple development on the corner of Anzac Terrace would be more dominant than this proposal.
The Tribunal found that the proposed development would preserve the existing streetscape and that it was appropriate to exercise discretion pursuant to cl 5.3.1 of the Scheme and approve the development of the site at the higher density code of R40. The Tribunal therefore allowed the application for review and set aside the Town of Bassendean's decision to refuse development approval and substituted a decision granting conditional approval to the proposed development.
Category: B
Representation:
Counsel:
Applicant : Ms M Butterworth
Respondent : Mr H Dykstra
Solicitors:
Applicant : Allerding & Associates
Respondent : Harley Dykstra
Case(s) referred to in decision(s):
Nil
Introduction
1 These proceedings involve an application brought by Jostin Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Town of Bassendean (Town or respondent) made on 2 April 2014 to refuse development approval for eight multiple dwellings at Nos 102 104 (Lot 446 and Lot 447) First Avenue, Bassendean (site).
Subject site and locality
2 The subject site comprises two lots, Lot 447 and Lot 446, each with a site area of 493.6m². Both lots are rectangular in shape with frontages to First Avenue of 12.27 metres, northern and southern side boundaries of 40.23 metres, and eastern rear boundaries of 12.27 metres, with access from a 4 metre wide right of way to the rear. There is an existing single storey weatherboard dwelling on the site, built across both lots. The subject site has a total frontage of 24.54 metres and a total area of 987.2m².
3 The site is situated between Walter Road East to the north and Anzac Terrace to the south. The Tribunal had the benefit of a site view in the company of the parties on the morning of the hearing. This section of First Avenue consists of single storey dwellings constructed in different eras with varying front setbacks. The older original timber framed dwellings have larger front setbacks (up to 8 metres) while the more recently constructed dwellings have lesser front setbacks, the minimum appears to be approximately 2.5 metres.
4 At the northern end of First Avenue is a recently constructed single storey grouped dwelling development with a central vehicular accessway and car parking within the front setback area. To the south of the site is a single storey grouped dwelling development under construction with garages, associated driveways and crossovers fronting the street with a minimum of 2.5 metres setback. Further to the south, on the corner of Anzac Terrace, are a number of vacant lots which have a current approval for a two storey multiple dwelling development with vehicular access from Anzac Terrace.
5 The dwellings immediately to the north (No 106 First Avenue) and south (No 100 First Avenue) of the subject site are single storey single dwellings. The owners of these adjoining properties both objected to the proposed multiple dwelling development. The dwelling at No 106 First Avenue has a pool to the rear of the lot, is setback more than 6 metres from the street, has brick paving to the majority of the front setback area which appears to be used for off street parking and is accessed by a double width crossover and driveway.
The development
6 The proposed development is the demolition of the existing dwelling on the site and the construction of eight multiple dwellings. Each dwelling contains two bedrooms, two bathrooms, an open plan kitchen/dining/living area, an outdoor living area and a single car garage and adjacent store.
7 The multiple dwellings are to be contained within two separate two storey buildings with a central vehicular accessway. The buildings are to be constructed in a combination of red face brickwork and cream rendered brickwork with a shale grey custom orb roof pitched at 30 degrees.
8 There are four dwellings on each level, two at the front and two at the rear, with stores and garaging for eight cars in between. There are two visitor carparking bays located in the front setback area either side of the central accessway.
9 Units 1, 3, 5 and 7 are contained in the building to the north of the site. This building has a front setback of 4.9 metres at ground floor level and 3.3 metres to the balcony at the upper floor level. Units 2, 4, 6 and 8 are contained in the building to the south of the site which has a front setback of 4.1 metres at both ground and upper floor levels.
Planning framework
10 The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential with a split density coding of R20/R40 under the Town of Bassendean Local Planning Scheme No 10 (LPS 10 or Scheme).
11 Clause 1.6 of LPS 10 provides the following relevant Scheme aims:
(a) to enhance the lifestyle of residents and provide community and leisure facilities for a range of socio-demographic groups;
(b) to encourage a housing stock that provides for a variety of lifestyle choices for a range of socio economic and age groups;
…
(g) to promote greater use of alternative modes of transport and public transport.
12 Clause 2.1 of LPS 10 states that '[e]xcept to the extent that the Local Planning Strategy is inconsistent with the Scheme, determinations of the [Town] … are to be consistent with the Local Planning Strategy.'
13 Clause 4.2 of LPS 10 provides for zone objectives. Clause 4.2.1 provides the objectives of the Residential zone as follows:
(a) to maintain life long or long-time residents as an integral component of the Bassendean community;
(b) to continue and increase the attraction for young families to reside and raise their families in the Bassendean community;
(c) to recognise the role of Bassendean as a middle metropolitan area that is well placed to contribute meaningfully to sustainable urban development for the Perth Region, and therefore facilitate the planned gradual increase in population growth in a manner that provides net environmental, social and economic benefit;
(d) to make provision for housing types that respond to the demands of an ageing population and declining occupancy rates;
(e) to limit non-residential activities to those of which the predominant function is to services the local residential neighbourhood and for self-employment or creative activities, provided such activities have no detrimental effect on the residential amenity;
(f) to ensure the density of development takes cognisance of the availability of reticulated sewerage, the effluent disposal characteristics of the land and other environmental factors; and
(g) to ensure that subdivision and development comply with the Local Planning Strategy and the principles of any Local Planning Policy adopted by the Council.
14 According to the Zoning Table contained in cl 4.3 of LPS 10, 'Multiple Dwelling' is a 'P' use in the Residential zone which means that the use is permitted providing it complies with the relevant development standards and requirements of the Scheme.
15 Part 5 of LPS 10 contains the general development requirements of the Scheme and states at cl 5.2.2 that unless otherwise provided for in the Scheme, development for any residential purpose dealt with by the State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) (Codes) is to conform with the provisions of the Codes.
16 Clause 5.2.3 of LPS 10 states that the density applicable to the land within the Scheme area is to be determined by the Codes density number on the Scheme map which for the review site is a split density coding of R20/40.
17 Clause 5.3.1 deals with split density codes as follows:
5.3.1.1 Where a Split Density Code is depicted on the Scheme maps, any development shall conform to the lower density code applicable to the lot, unless Council determines that development up to the middle or higher density code is acceptable, having regard for subclause 5.3.1.2.
5.3.1.2 Subdivision or development in excess of the lower density coding shall be considered to be acceptable to Council where:-
(a) [I]n the opinion of Council the lot has a road frontage sufficient to allow at least two homes and a shared accessway, where required to service development to the rear;
(b) There is due regard for relevant Local Planning Policies;
(c) Identified heritage objectives are not compromised;
(d) The proposal demonstrates elements of water sensitive urban design; and
(e) The existing streetscape is being preserved.
(a) the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area, including the Metropolitan Region Scheme;
(b) the requirements of orderly and proper planning including any relevant proposed new Local Planning Scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c) any approved statement of planning policy of the Commission;
…
(e) any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
…
(i) the compatibility of a use or development with its setting;
(j) any social issues that have an effect on the amenity of the locality;
(k) the cultural significance of any place or area affected by the development;
(l) the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(n) the preservation of the amenity of the locality;
(o) the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(p) whether the proposed means of access to and egress from the site area adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(r) whether public transport services are necessary and, if so, whether they are available and adequate for the proposal;
…
(v) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
…
(x) the potential loss of any community service or benefit resulting from the planning approval;
(y) any relevant submissions received on the application;
…
(za) any other planning consideration the local government considers relevant.
The Town's decision
19 The original application for planning approval was advertised to surrounding landowners and the public submissions received included 10 objections. The application was refused by the Town under delegated authority from the Council on 2 April 2014. The applicant then applied to the Tribunal for a review of that decision pursuant to s 252(1) of the PD Act. The Tribunal referred the matter to mediation following which the Town was invited to reconsider an amended application in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Town considered this amended application at its meeting on 26 August 2014 and resolved to refuse the development application for the following reasons:
1. The application does not qualify for the higher density code under the split coding R20/R40 and is not consistent with the requirements set out in [cl] 5.3.1.2 of the Town of Bassendean's Local Planning Scheme No. 10, namely the preservation of the existing streetscape.
2. Non-compliance with the Deemed-to-comply and Design Principle provisions of the Residential Design Codes of Western Australia 2013, with regards to Clause 6.1.3 'Street Setback' relating to the street setback of the balcony to unit 5 from First Avenue.
3. Non-compliance with the Deemed-to-comply and Design Principle provisions of the Residential Design Codes of Western Australia 2013, with regards to Clause 6.3.2 'Landscaping' relating to the amount of hard surface within the street setback area.
4. Non-compliance with the Deemed-to-comply and Design Principle provisions of the Residential Design Codes of Western Australia 2013, with regards to Clause 6.3.5 'Vehicular Access' relating to the vehicular access proposed on-site.
5. Non-compliance with the Deemed-to-comply and Design Principle provisions of the Residential Design Codes of Western Australia 2013, with regards to Clause 6.4.6 'Utilities and Facilities' relating to the internal dimensions of the storage areas to Units 1, 2, 3 and 4.
(f) The cumulative impact of this lack of compliance will have a negative impact on the scale of the development in comparison to neighbouring lots and the existing single residential character of the area.
20 The amended proposal was not re-advertised by the Town as, according to the planning officer's report prepared for Council consideration, 'the plans have been significantly amended to overcome the previous variations and to address the objections from adjoining properties relating to the aspects of the RCodes requiring design principle assessment … The current proposal comprises variations which do not require consultation with the adjoining properties. In light of this no additional consultation has been undertaken.'
Issues
21 The primary issue arising for determination by the Tribunal is whether discretion should be exercised pursuant to cl 5.3.1 of LPS 10 to permit the development of the site at a density of R40.
22 As stated earlier, cl 5.3.1 of LPS 10 provides the following:
5.3.1.1 Where a Split Density Code is depicted on the Scheme maps, any development shall conform to the lower codes applicable to the lot, unless Council determines that development up to the middle or higher density code is acceptable, having regard for sub-clause 5.3.1.2.
5.3.1.2 Subdivision or development in excess of the lower density coding shall be considered to be acceptable to Council where:-
(a) in the opinion of Council the lot has a road frontage sufficient to allow at least two homes and a shared accessway, where required to service development to the rear;
(b) There is due regard for relevant Local Planning Policies;
(c) Identified heritage objectives are not compromised;
(d) The proposal demonstrates elements of water sensitive urban design; and
(e) The existing streetscape is being preserved.
24 The parties were both represented by planning consultants during the hearing: Mr Henry Dykstra appeared on behalf of the respondent and Ms Amanda Butterworth appeared on behalf of the applicant. The Tribunal had the benefit of expert planning evidence from Mr David Maiorana (for the respondent) and Mr Stephen Allerding (for the applicant). The respondent also filed two witness statements prepared by the immediately adjacent neighbours to the north and south of the subject site: Ms Leanne Glossop and Ms Wendy Pascoe of 106 First Avenue, and Mr Salvatori Sanfilippo and Ms Linda Sanfilippo of 100 First Avenue. These witness statements were accepted as exhibits but the neighbours were not required to give oral evidence at the hearing.
25 Although Mr Maiorana was originally of the opinion that the proposal did not satisfy criteria cl 5.3.1.2(b) of LPS 10, he conceded during the hearing that the only outstanding issue was cl 5.3.1.2(e) and that in fact there had been due regard to relevant local planning policies, including the Town of Bassendean Local Planning Policy No 2 Energy Efficient Design and the Town of Bassendean Local Planning Policy No 3 Water Sensitive Design.
26 There was significant discussion regarding the Town of Bassendean Local Planning Strategy (Strategy), particularly as the Strategy has the status of a local planning policy under LPS 10. The Town has undertaken a review of the current Strategy which has been advertised for public comment and is pending modification in response to submissions received prior to endorsement by the Western Australian Planning Commission. The respondent did not rely on the draft Strategy Review and the parties agreed that the draft Strategy Review did not yet have the status of a seriously entertained planning instrument.
27 The Executive Summary of the Strategy contains general population objectives which seek to maintain existing residents within the Bassendean community, attract young families to live in Bassendean, and facilitate gradual population growth. The Strategy also contains general housing objectives which seek to recognise the unique qualities and character of various housing areas, ensure that medium density does not undermine the identified single residential areas, provide variety of housing types and densities, and to reverse urban decline.
28 The review site is located within Housing Precinct B. The specific Objectives for this precinct are:
• To promote Housing Precinct B as an area suitable for redevelopment and revitalisation for medium density housing in the short to medium term.
• To make provision for a quality and mix of housing types that will attract population across the age spectrum, including family housing.
29 The Strategies for Housing Precinct B are:
• To apply a Residential zone with a coding of R20/40 to lots within 800m of a train station, and R20/30 to lots not within 800m of a train station under Local Planning Scheme No. 10, and introduce performance based Scheme standards for the coding category on the basis of the following criteria:
R20
All development and subdivision is to comply with the Residential Design Codes
R30/40 & R20/40
Subdivision or development in excess of the lower density coding shall be considered to be acceptable to Council where:
(a) in the opinion of the Council the lot has a road frontage sufficient to allow at least two homes and a shared accessway, where required to service development to the rear;
(b) there is due regard for relevant Local Planning Policies;
(c) identified heritage objectives are not compromised;
(d) the proposal demonstrates elements of water sensitive urban design; and
(e) the existing streetscape is being preserved.
…
• Promote, facilitate and undertake the preparation of relevant Local Planning Scheme policies, providing guidelines to the design and implementation of medium density housing proposals within this precinct, including concepts such as:
i) Corner lot subdivisions for residential homes on smaller lots;
ii) Encouraging grouped housing design over multiple lots to improve efficiency and streetscape; and
iii) Density development incentives for high quality design and or refurbishment of existing character homes[.]
31 Ultimately, it was agreed by the parties that the population and housing strategies for Housing Precinct B had been incorporated into LPS 10. The experts agreed that the location of the review site was not unsuitable for R40 development as long as it satisfied the criteria set out in cl 5.3.1 of LPS 10.
32 The parties also agreed that the proposed development meets the design principles of the Codes for R40 development in relation to street setback, landscaping within the street setback area, vehicular access and provision of stores. Where they disagreed was whether the development should be approved at R40 instead of R20, given its built form and impact on the existing streetscape.
33 Mr Maiorana defined the streetscape in terms of the height of buildings, setback of buildings, architectural style of buildings, the landscaping of public and private areas including trees, soft vegetation, fencing design, and the frequency and width of crossovers. He said this section of First Avenue was characterised by single level residential development with an open streetscape, a number of street trees and generous landscaped areas in front verges and front setback areas.
34 Mr Maiorana was of the view that even though the front setbacks varied significantly in the street, the predominant existing development was single storey at either R20 or R40 and a two storey development at R40, with the proposed front setback and built form, would have a negative impact on the existing streetscape. He said that the location of the building bulk across the site and the use of the front setback area for visitor car parking would impact on the openness of the streetscape.
35 In regard to the approved, but not yet constructed, R40 multiple dwelling development on the corner of Anzac Terrace, Mr Maiorana was of the opinion that its proximity to the Bassendean train station and corner location at the end of a street block meant it would be less incongruous in the streetscape. He was concerned that the subject site was mid-block and would be the only other two storey development in the street. He also said that there were various other forms of medium density housing that would be suitable in this location and would satisfy the requirement of cl 5.3.1 of LPS 10 to preserve the existing streetscape.
36 Mr Allerding agreed that the streetscape contains single storey dwellings built in different eras, in different materials and with various front setbacks. He also referred to recent examples of R40 grouped dwelling development in the street, some of which had visitor parking in the front setback area, double garages set back 2.5 metres from the street, and accessed by double width crossovers. He was of the view that the approved two storey development on the corner of Anzac Terrace (which is set back 4 metres generally and 2.4 metres to the balconies) will be fully visible and more exposed because of its corner location and lack of separation between the dwellings.
37 It was the opinion of Mr Allerding that the proposed development will preserve the existing streetscape because it is designed to appear as two two storey dwellings. It has a front setback greater than the required 4 metres (3.3 metres to one balcony), a central vehicle accessway minimising the number of crossovers and providing visual separation between the two buildings, high quality landscaping, retains an established street tree, has open fencing and all parking (except for visitor parking) is located behind the front dwellings.
38 In regards to the preservation of the existing streetscape, the Tribunal prefers the evidence of Mr Allerding. It is evident that the existing streetscape has been evolving over time and includes a wide range of dwellings built in a range of architectural styles, materials and with varying front setbacks. The street is further in transition as some of the existing housing stock is being redeveloped at the higher density code of R40. Generally the newer development is in the form of single storey grouped dwellings with the exception of the two storey multiple dwelling development on the corner of Anzac Terrace to the south of the subject site. Front setbacks are not consistent and vary between 2.5 metres and 8 metres; nor is there a consistent approach in terms of width or location of crossovers and garages, or even parking in front setback areas. For example, the grouped dwelling development to the north of the subject site contains two parking bays in the front setback area as proposed in this development. Also the site immediately adjoining the subject site to the north (No 106) has a double width crossover accessing a wide paved area covering the majority of the front setback area of the site and appears to be used for off street parking. Further to the south, the grouped dwelling development at Nos 92 - 98 First Avenue has a minimum front setback of 2.5 metres with garages accessed directly off First Avenue.
39 The Tribunal is of the view that the proposed development has responded to the existing streetscape by providing residential accommodation in the form of two separate buildings which will not look dissimilar to two large two storey single dwellings that could be built on the two existing lots. The proposal also reduces the impact on the streetscape of hard surfaces by providing a common vehicular access way to off street parking which is located behind the front dwellings and will be less visible to the street. The provision of off street visitor parking in the front setback area will be offset by the retention of the existing Eucalypt (gum) tree located on the verge and the provision of an established street tree to replace the existing Callistemon (bottlebrush), and the provision of open fencing allowing the visual connection of the private front setback area of the development to the street. The upper floor balconies and the location of outdoor living areas in the front of the development will enhance the surveillance and safety of the street.
40 The Tribunal is not convinced by the respondent's argument that the location of the subject site in the middle of a street block, and further from the Bassendean train station than the corner of Anzac Terrace, means that the two storey built form with the proposed setbacks is not appropriate. The distance from the train station is a little over 800 metres which is considered an appropriate walkable distance to public transport and there is a bus route along Walter Road East to the north of the site. A corner site is not the only suitable location for two storey development.
41 In regard to the matters set out in cl 10.2 of LPS 10, the Tribunal is of the view that the development is compatible within its setting, will preserve the amenity of the locality, will not have a detrimental effect on the adjoining properties, and the amount of traffic will not have a detrimental effect on traffic flow or safety. The proposal satisfies the provisions of the Codes in terms of setbacks, privacy and car parking. The Tribunal notes that both adjoining neighbours made submissions regarding the impact of the proposal on the enjoyment of their properties. The Tribunal is of the view that while there will definitely be a change in built form, that change will not have an unreasonable impact on the neighbouring properties, particularly given the compliance of the proposal with side setback, overshadowing and privacy provisions of the Codes.
42 Having regard to the relevant planning framework which relevantly includes the split coding provisions in cl 5.3.1 of LPS 10, the Residential zone objectives in cl 4.2 of LPS 10, the matters to be considered in cl 10.2 of LPS 10, the Codes and the Strategy, the Tribunal finds that it is appropriate to exercise its discretion under cl 5.3.1 of LPS 10 to approve this development at R40.
Conditions
43 The respondent provided the Tribunal and the applicant with a set of conditions which it contended should be imposed if the Tribunal was to approve the development application. The applicant accepted all conditions except the conditions relating to the provision of a landscape plan and the retention of existing street trees. The applicant proposed modifications to these conditions requiring the retention of only the existing Eucalypt tree and allowing for the replacement of the existing Callistemon. The respondent agreed to this.
Conclusion
44 The Tribunal has determined that the proposed development does preserve the existing streetscape and that in the circumstances it is appropriate to exercise discretion pursuant to cl 5.3.1 of LPS 10 and approve development of the subject site at the higher density coding of R40. It follows that the application for review should be allowed and the decision of the respondent to refuse development approval should be set aside and a decision substituted that the proposed development be approved subject to conditions.
Orders
45 For these reasons the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 26 August 2014 to refuse development approval for eight multiple dwellings at Nos 102 - 104 (Lot 446 and Lot 447) First Avenue, Bassendean is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(a) The development must be carried out in accordance with the plans prepared by Lee Syminton Architect, dated 18 July 2014, varied by the following conditions.
(b) The development must be substantially commenced within two years from 15 February 2015 and the approval will lapse if the development has not substantially commenced before this date.
(c) Prior to the issue of a building permit for this development, Lot 446 and Lot 447 First Avenue, Bassendean shall be amalgamated into a single lot on a Certificate of Title, or the owner shall enter into a legal agreement with the Town of Bassendean prepared by the Town's solicitors at the owner's cost requiring amalgamation to be completed within 12 months of the issue of a building permit or the completion of development, whichever occurs earlier.
(d) The following major opening(s) shall be screened to the requirements of the State Planning Policy 3.1 Residential Design Codes of Western Australia (2013)(as amended):
(i) The north facing kitchen and living windows to Unit 5 and Unit 7 shall be obscured glazing up to 1.6 metres above the finished floor level as noted on the floor plan.
(e) Unit 1 and Unit 5 shall be provided with a solar hot water system (as shown on the approved drawings), details of which shall be incorporated into the working drawings submitted for a building permit to the satisfaction of the Town of Bassendean.
(f) A detailed landscape plan being submitted prior to or with the application for a building permit for the Town of Bassendean's approval which address the following:
(i) details of the location and type of proposed trees, shrubs, groundcover and lawn areas to be planted;
(ii) low water use;
(iii) provision of suitably sized deciduous trees (both at the time of planting and expected ultimate size relative to size of courtyard space) within the courtyard area of each of the ground floor dwellings;
(iv) landscaping of the verge area adjacent to the development site, including the provision of a substantial (100 litre) street tree to the south of the proposed crossover to replace the existing Callistemon which is to be removed. The replacement street tree shall be in accordance with the Town of Bassendean's adopted Street Tree Master Plan; and
(v) details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months.
(g) Pedestrian paths to be constructed which provide wheelchair accessibility connecting all entries to buildings with the public footpath and car parking areas.
(h) Provision of lighting to pathways and car parking areas.
(i) The site shall be landscaped in accordance with the approved landscaping plan and shall be maintained thereafter.
(j) The Callistemon street tree being removed and replaced with a new 100 litre street tree in accordance with the Town of Bassendean's adopted Street Tree Master Plan.
(k) The existing Eucalypt tree within the street verge located to the north of the proposed crossover for the development site being protected with barricades during construction in accordance with the Town of Bassendean's Street Tree Protection Policy.
(l) The existing crossovers on the First Avenue frontage of the development site being removed and the verge and kerbing being reinstated to the satisfaction of the Town of Bassendean.
(m) Separate approval being obtained from the Town of Bassendean's Asset Services for the proposed crossover on the First Avenue frontage of the development site and this crossover being constructed in accordance with that approval.
(n) The sealing and kerbing of all car parking and accessways to the Town of Bassendean's specifications.
(o) The car parking spaces and access ways being constructed and maintained thereafter to the Town of Bassendean's satisfaction.
(p) Visitor parking spaces being clearly marked for 'Visitors Only' and used as such.
(q) A minimum of three and one bicycle bays shall be provided for the residents and visitors respectively. The bicycle parking spaces shall be located in the area identified on the approved drawings and shall be constructed in accordance with the provisions of Australian Standard 2890.3 (as amended).
(r) All stormwater being contained and disposed of on site. Details of the method of stormwater containment and disposal shall be included with the drawings submitted for a building permit.
(s) Prior to the issue of a building permit, a development bond for the sum of $4,000 is to be lodged with Council to ensure the satisfactory completion of all works associated with landscaping, car parking, access ways and fencing.
(t) The incorporation of public art into the proposed development or a cash-in-lieu payment of 1% of the construction cost of the proposed development in accordance with the adopted Town of BassendeanLocal Planning Policy No 15 Percent for Art Policy. Detailed arrangements and agreement with respect to art to be provided onsite or, alternatively, payment of the required fee shall be made prior to or in conjunction with the application for a building permit.
(u) The street number being prominently displayed at the front of the development.
(v) The provision of side and rear fences, behind the street setback line, of 1.8 metres in height. Where the ground levels vary on either side of the fence, the required 1.8 metre height shall be measured above the higher ground level.
(w) The provision of letterboxes and bin storage in materials to complement the development to the satisfaction of the Town of Bassendean.
(x) External clothes drying facilities shall be screened from view of the street or any other public place at all times. No drying of clothes from upper floor balconies (Unit 5 and Unit 6) or ground floor outdoor living areas (Unit 1 and Unit 2) is permitted.
(y) Airconditioning units and external fittings shall be incorporated into the building or screened from view. Details of the treatment of such external fittings to the building being submitted prior to the issue of a building permit to the satisfaction of the Manager Development Services.
(z) The applicant submitting to the satisfaction of the Manager Development Services a construction management plan that addresses issues of dust and noise control, hours of work, and provides contact details of a person to deal with complaints.
(aa) A Waste Management Plan is to be submitted for the Town of Bassendean's approval prior to or in conjunction with the application for a building permit. The Waste Management Plan shall address matters including, but not necessarily limited to, the following:
(i) measures to be implemented for the purpose of minimising the delivery of waste to landfill during occupation, including: the onsite separation of materials for recycling and the expectations of owners and/or tenants;
(ii) a site plan showing the location and size of the onsite rubbish disposal area, including the number of general rubbish and recycling bins, to be provided for the development, including sharing arrangements where the number of bins is less than the number of dwellings;
(iii) an estimation of the volume of waste to be generated by the proposed development and the capacity of this volume of waste to be accommodated by onsite bin storage capacity;
(iv) details of intended method of collection (private contractor or Council contractor);
(v) details of arrangements for transferring bins from the bin storage area to the verge for collection and subsequently from the verge back to the bin storage area, including timeframes at each stage;
(vi) details of where the bins would be located when waiting collection;
(vii) details of advice to be provided to owners and occupiers regarding the Waste Management Plan; and
(viii) details of how the Waste Management Plan will continue to be applied in perpetuity across the life of the development, including the Waste Management Plan being incorporated into the strata by-laws for the proposed development;
4. The building hereby approved shall not be occupied until all of the conditions of planning consent have been complied with to the satisfaction of the Manager Development Services, unless the applicant has entered into an agreement with Council to comply with those conditions within a specific period.
5. The issue of a building permit prior to the commencement of any onsite works.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER
0
0
5