JOYDEM PTY LTD and CITY OF NEDLANDS

Case •

[2022] WASAT 69

•

8 AUGUST 2022

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   JOYDEM PTY LTD and CITY OF NEDLANDS [2022] WASAT 69

MEMBER:   MS R LAVERY, MEMBER

HEARD:   5 AND 10 MAY 2022

DELIVERED          :   8 AUGUST 2022

FILE NO/S:   DR 5 of 2022

BETWEEN:   JOYDEM PTY LTD

Applicant

AND

CITY OF NEDLANDS

Respondent


Catchwords:

Town planning - Development application - Grouped dwellings - Locality in transition from R10 to R60 and R160 - Whether proposed development satisfies relevant design principles in relation to building height bulk and scale - Whether proposed development satisfies relevant design principles in relation to outdoor living areas - Whether proposed development satisfies relevant design principles in relation to visitor parking spaces - Whether proposed development would have unacceptable impact on residential amenity for adjoining properties and streetscape - Whether development is compatible with its setting

Legislation:

City of Nedlands Local Planning Scheme No 3, cl 16, cl 26. Sch 1
City of Nedlands Local Planning Strategy, cl 4.1, cl 5.9.11
Local Planning Policy ­ Residential Development Single and Grouped Dwellings, cl 4.5.1, Table 2
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2), cl 75(1), cl 75(2)
Planning and Development Act 2005 (WA), s 252(1), s 257B(3)
Residential Design Codes Explanatory Guidelines
State Administrative Tribunal Act 2004 (WA), s 31(1)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 1.3.1, cl 5.1, cl 7.3.1, Pt 5 cl 5.1.6, Pt 5 cl 5.3.1, Pt 5 cl 5.3.3, Vol 1 cl 2.4, Vol 1 cl 2.5, Table 3, Vol 2 Appendix A2

Result:

Application for review allowed
Development approval granted subject to conditions

Category:    B

Representation:

Counsel:

Applicant : Mr Craig Wallace
Respondent : Mr Peter Wittkuhn

Solicitors:

Applicant : Lavan Legal
Respondent : McLeods

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

Prosser v City of Bunbury [2018] WASAT 41

Ridgecity Pty Ltd and City of Albany [2006] WASAT 187

Sapphire Development Alliance Pty Ltd and City of Nedlands [2020] WASAT 149

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. Joydem Pty Ltd (applicant) made application to the City of Nedlands (respondent or Council or City) for development approval to construct six grouped dwellings (proposed development) at No 24 (Lot 165) Louise Street, Nedlands (subject land or No 24).

  2. The application for development approval was lodged with the respondent on 15 September 2021 and on 11 January 2022 the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking an order that the Tribunal determine the planning application and grant development approval as the respondent had not determined the application within the statutory period.

  3. On 28 January 2022 the Tribunal made orders in accordance with s 31(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act) inviting the respondent to make a determination in relation to the proposed development. 

  4. The Council considered the proposed development at its meeting of 22 February 2022, at which the motion to approve the proposed development was lost, no subsequent motions were made or resolved by the Council and therefore no decision made.

  5. The proposed development is therefore deemed refused under cl 75(1) and cl 75(2) of Sch 2 (deemed provisions) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPSRegulations)

  6. The Tribunal made orders on 25 February 2022 granting the applicant leave to file amended plans that form the basis of the proposed development by 4 March 2022 and those plans were filed on 4 March 2022.  However, the applicant provided further amended plans on 8 April 2022 to the respondent which was included in the s 24 bundle of documents filed on 11 April 2022.  Both parties relied on these plans and it is this iteration of the plans that are the subject of this review.[1] 

Subject land

[1] Respondents s 24 Bundle of Documents  dated 11 April Exhibit 3 - Tab 27.

  1. The subject land is more particularly described as Lot 165 being the whole of the land described on Certificate of Title Volume 1043 Folio 845, is 1,011m2 in area and is situated on Louise Street, the third lot north of the Jenkins Street intersection with Louise Street, on the eastern side of Louise Street between Jenkins Street and Stirling Highway.

  2. The subject land has an east-west orientation and slopes down from the north-east to the south-west by 1.6 metres.  Existing development on the subject land includes a single storey single house.  The subject land abuts a single storey single house at No 22 Louise Street (No 22) to the north, a five grouped dwelling development under construction at No 26 Louise Street (No 26) to the south and a vacant lot to the east at No 23 Mountjoy Street.

The proposed development

  1. Development approval was sought for six attached grouped dwellings; one grouped dwelling fronts the street with the remainder fronting a common property driveway to the north of the site adjacent to the common boundary with No 22.  Five of the grouped dwellings are proposed to be three storeys with the rear grouped dwelling proposed to be two storeys.

  2. Vehicular access to all grouped dwellings is from the common property driveway, as is the access to the visitor parking space, with a single crossover to the street.  Each grouped dwelling is provided with two car parking spaces and there is one visitor parking space proposed in the front setback area.

Planning framework

  1. The subject land is zoned 'Urban' under the Metropolitan Region Scheme and is land within the Scheme Area as identified in the Scheme Map of the City of Nedlands Local Planning Scheme No 3 (LPS 3 or Scheme). LPS 3 comprises the Scheme Text, the deemed provisions as set out in Sch 2 of the LPS Regulations, the Scheme Map and the supplementary provisions set out in Sch 1 of the Scheme Text. The Scheme is to be read in conjunction with any local planning strategy for the Scheme Area.[2]

    [2] LPS 3, cl 7.

  2. Pursuant to s 257B(3) of the PD Act to the extent of any inconsistency between a deemed provision with another provision of LPS 3, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.

  3. The Scheme Maps of LPS 3 designate the subject land as zoned 'Residential' with a density coding of R60.  Residential development is a permitted land use in the Residential zone.  The R60 coded land is part of a transition of intensity of development southwards from the R­AC1 coded land adjacent to Stirling Highway, to R160 coded land predominantly adjacent to the Memorial Rose Garden reserve, then the R60 coded land within which the subject land is located which extends to Jenkins Street, with the established low density R10 coded residential land south of Jenkins Street.

  4. The City of Nedlands Local Planning Strategy (LP Strategy) seeks to ensure there is a transition of built form and density from the high density mixed use development proposed for Stirling Highway through to the established streetscapes of low density single dwellings.  The LP Strategy map depicts 'Urban Growth Areas' abutting Stirling Highway with a 'First Transition Zone' and a 'Second Transition Zone' then the 'Established Residential Areas' heading south away from Stirling Highway. 

  5. The LP Strategy in cl 4.1 Explanatory Notes explains that the urban growth areas will contain the most intense development in the City with multiple dwellings, commercial and mixed use development.  The transition zones are for the purpose of creating a buffer between the high intensity urban growth areas and the low intensity established residential areas to 'visually smooth' the built form in terms of height and bulk and assist in mitigating any impacts of incompatible land uses.  It explains that the transition zones will contain mostly multiple dwelling and grouped dwelling residential developments and may allow for some small scale non-residential uses.  The first and second transition zones roughly, but not exactly, appear to be reflected in the R160 and R60 coded areas of LPS 3.

  6. Clause 16 of the Scheme specifies the objectives of the Residential zone.  The objectives applicable to this case are:

    •To provide for a range of housing and a choice of residential densities to meet the needs of the community.

    •To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.

    …

    •To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.

  7. Clause 25(1) of the Scheme provides that '[t]he R-Codes, modified as set out in clause 26, are to be read as part of this Scheme'.  Clause 26 of LPS 3 does not modify the State Planning Policy 7.3 Residential Design Codes Volume 1 (R­Codes) in its application to the site.

  8. Clause 1.3.1 of the R-Codes sets out the following objectives for residential development:

    (a)To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.

    (b)To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.

    (c)To encourage design which considers and respects heritage and local culture.

    (d)To facilitate residential development which offers future residents the opportunities for better living choices and affordability.

  9. Clause 7.3.1 of the R-Codes permits the adoption of local planning policies that may contain provisions that amend or replace the deemed to comply provisions set out in Pt 5 of the R-Codes including cl 5.1.6 relating to maximum building height. 

  10. The City adopted Local Planning Policy - Residential Development: Single and Grouped Dwellings (LPP-RD) on 17 December 2019 to provide guidance and supplementary requirements to LPS 3 and the R­Codes in relation to single and grouped dwellings within the City.  The LPP-RD is to be read in conjunction with the R­Codes and cl 26 of LPS 3.  The objectives of the LPP-RD are:

    3.1To enhance the amenity and aesthetics of areas within the City.

    3.2To provide for residential development that is consistent with established or desired streetscapes.

    3.3To reduce the dominance (scale, mass and bulk) of buildings as viewed from the street.

    3.4To provide for building heights which are consistent with the character of the area and the topography of the site.

    3.5To prevent inappropriate buildings within rear setback areas in order to protect the amenity of surrounding properties and maintain the spacious green character of the City.[3]

    [3] Respondent’s s 24 Bundle of Documents (Exhibit 3), tab 20, LPP - RD 3.0 Objectives.

  11. Clause 2.4 of the R-Codes Volume 1, which is entitled 'Judging merit of proposals', states as follows:

    Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes Volume 1 and addresses design principle(s), the decision­maker is required to exercise judgement to determine the proposal.

    Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).

  12. Clause 2.5 of the R-Codes Volume 1, which is entitled 'Exercise of judgement', states, in part, as follows:

    2.5.1

    Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1.

    The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed­to­comply provision(s).

    2.5.2

    In making a determination on the suitability of a proposal, the decision­maker shall exercise its judgement, having regard to the following:

    (a)any relevant purpose, objectives and provisions of the scheme;

    (b)any relevant objectives and provisions of the R-Codes Volume 1;

    (c)a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the R-Codes Volume 1; and

    (d)orderly and proper planning.

    …

    2.5.4

    The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the R-Codes Volume 1 and the relevant provisions of the scheme and any relevant local planning policy.

  13. The parties agree that the proposed development satisfies all relevant deemed-to-comply requirements of the R-Codes Volume 1 other than the following clauses that require consideration under the design principles:

    5.1.6 - Building height;

    5.3.1 - Outdoor living areas; and

    5.3.3 - Parking.

  14. It is therefore common ground that the Tribunal is required to exercise judgment to determine the proposal having regard to the objectives and consideration of the design principles of the R-Codes, including the objectives of cl 5.1 Context:

    (a)To ensure residential development meets community expectations regarding appearance, use and density.

    (b)To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.

    (c)To ensure adequate provision of direct sunlight and ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.

    (d)To ensure open space (private and communal) is provided on site that:

    •is landscaped to enhance streetscapes;

    •complements nearby buildings; and

    •provides privacy, direct sunlight and recreational opportunities.

    (e) To ensure that design and development is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing transition, development achieves the desired future character identified in local planning framework.

  15. Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The relevant matters in cl 67(2) of the deemed provisions to which the Tribunal is to have due regard in determining this application are as follows:

    •the aims and provisions of LPS 3 (subclause (a));

    •the requirements of orderly and proper planning (subclause (b));

    •any approved State planning policy (subclause (c));

    •the compatibility of the development with its setting, including —

    (i)the compatibility of the development with the desired future character of its setting; and

    (ii)the relationship of the development 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 development (subclause (m));

    •the amenity of the locality including amongst other matters, the character of the locality (subclause (n));

    •any submissions received on the application (subclause (y)); and

    •any other planning consideration the local government considers appropriate (subclause (zb)).

  16. Schedule 1 of LPS 3 adds an additional subclause (zc) 'any advice of the Design Review Panel' for consideration by the local government.

Issues

  1. The parties identified the following issues for determination in relation to this matter:

    1.Whether the development achieves the R-Codes Volume 1 design principles for:

    a.Clause 5.1.6 building height;

    b.Clause 5.3.1 outdoor living areas; and

    c.Clause 5.3.3 parking.

    2. Whether the development complies with the relevant subclauses (a), (b), (m), (n), (y) and (zb) of Clause 67(2) of the deemed provisions?

  2. Issue 2 is in essence the specific matters for consideration in cl 67(2) of the deemed provisions to be considered in determining this development application, all these matters form part of Issue 1 and will be dealt with as part of the consideration of the relevant components of that issue.

Whether the proposed development demonstrates compliance with the design principles in cl 5.1.6 - Building Height of the R-Codes and cl 67(2)(m) and cl 67(2)(n) of the deemed provision is relation to amenity and compatibility with setting

  1. The R-Codes Table 3 provides for a deemed-to-comply maximum height of building for a Category B dwelling which is a default provision to be used in the absence of a local planning policy.  As cl 4.5.1 of the LPP-RD replaces cl 5.1.6 C6 of the R-Codes, Table 2 of the LPP-RD provides for a deemed-to-comply maximum height to top of external wall for a concealed roof, as indicated in this case, of 8.5 metres. 

  2. The proposed development seeks building heights above natural ground level for each of the dwellings as follows:

    •Unit 1 - 8.9 metres;

    •         Unit 2 - 8.93 metres;

    •Unit 3 - 8.86 metres;

    •Unit 4 - 8.73 metres;

    •Unit 5 - 8.7 metres; and

    •Unit 6 - 6.12 metres.

  3. The parties agree that the deemed-to-comply provision relevant to maximum building height in this case is cl 4.5.1 Table 2 of LPP-RD for the top of external wall (concealed roof) and is 8.5 metres. The parties also agree that Unit 6 meets this requirement and that Units 1-5 inclusive do not meet this deemed-to-comply requirement and therefore the acceptability of the proposed height is to be determined in accordance with the corresponding design principles of cl 5.1.6 P6 of the R-Codes. There was no dispute between the parties that the proposed development height would maintain:

    •Adequate access to direct sun into buildings and appurtenant open spaces;

    •Adequate daylight to major openings into habitable rooms; and

    •Access to views of significance.[4]

    [4] Clause 5.1.6 (Building Height) Design Principle P6 ­ R­Codes (Exhibit 16).

  4. Therefore the consideration in regard to the proposed height and the associated bulk and scale in this case is whether the development achieves:

    Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape[.][5]

    [5] Clause 5.1.6 (Building Height) Design Principle P6 ­ R­Codes (Exhibit 16).

  5. Parry J in Sapphire Development Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 (Sapphire) at [38] sets out the considerations in relation to amenity:

    The term 'amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. Planning law in relation to the assessment of amenity impact is well settled. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116, Barker J held at [21] that '[t]he general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed'. In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Town Planning Appeal Tribunal observed at 304 that '[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. However, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker accepted at [20] a submission that this observation in Tempora Pty Ltd v Shire of Kalamunda as to the approach to the assessment of amenity impact was formulated in a case 'which did not raise the issue of future amenity' and held at [22] that it 'does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity'. Furthermore, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker held at [21] that 'the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents'. His Honour endorsed the Tribunal's recognition in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] that 'in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity,] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents [of the locality] … [who] are often well-placed to identify the particular qualities and characteristics which contribute to their residential amenity'. Finally, Justice Barker also determined in Sunbay Developments Pty Ltd and Shire of Kalamunda at [28] that it is open in a planning assessment to focus on, and indeed to ultimately refuse to grant development approval for a particular development in the exercise of planning discretion because of, the extent of the amenity impact 'on a part of the locality or on a single property'. His Honour reasoned and held as follows:

    Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.

  1. In determining the acceptability of the proposed development within its locality, the extent of that locality must first be determined.  Mr Simon Bain a town planner and witness for the respondent contends that the locality for the purpose of town planning impacts of the matters to be considered in this case can be viewed as a broader locality if looking at the LP Strategy and the strategic intentions for the area or a narrower locality if looking at the area which best reflects the current character of the site.

  2. Mr Bain contends that it is reasonable to use the area delineated in the LP Strategy including the Urban Growth Areas, First Transition Zone, Second Transition Zone and the Existing Residential areas within the Nedlands South precinct which is bounded by Bay Road, Stirling Highway, Melvista Avenue, Hillway, Kingsway and the rear (southern) boundaries of the properties fronting Stirling Highway,  as being part of the same locality even though they may perform different roles.[6]   He argues that a development approval outcome for  'a "Second Transition Zone" site would "affect" the "Urban Growth Areas", the "First Transition Zone" and the "Existing Residential Areas" as well, even though they might each have quite different existing and/or future characters'.[7]

    [6] Witness Statement of Mr Simon John Bains dated and signed 26 April 2022 (Exhibit 6), Annexure 2, Part 5.9, page 18.

    [7] Witness Statement of Mr Simon John Bains dated and signed 26 April 2022 (Exhibit 6), para 50.

  3. Mr Bain considers however, that the broader locality should not extend as far east as Kingsway as the properties to the east of Bruce Street are somewhat influenced by their sloping topography and their proximity to Broadway and the University of WA.

  4. Mr Bain contends that in terms of the narrower view of the locality, by reference to the area which best reflects the current character of the site ­ the area with which the subject land shares the most character.[8]  This includes both sides of Louise Street, Vincent Street and Mountjoy Road, from Jenkins Avenue in the south, to the southern boundaries of the lots abutting Stirling Highway, in the north and the properties fronting Jenkins Avenue within that area.

    [8] Witness Statement of Mr Simon John Bains dated and signed 26 April 2022 (Exhibit 6) Annexure 3, Surrounding Area, page 35.

  5. Ms Bianca Sandri, a town planner and witness for the applicant contends that the locality is the streetscape of Louise Street between Stirling Highway to the north and Jenkins Avenue to the south.[9]  Ms Sandri reasons that the length of Louise Street should be included to provide the streetscape context and character of the development providing examples of existing and future development typology within the R160 and R60 coded properties acknowledging the area is in transition and adjacent to public open space; and it includes the varying topography of Louise Street.

    [9] Witness statement of Bianca Sandri dated and signed 26 April 2022 (Exhibit 7), Annexure BS 2, page 30.

  6. As articulated in Ridgecity Pty Ltd and City of Albany [2006] WASAT 187 at [42] the determination of the boundaries of the locality is generally concerned with the town planning impacts and is the topographical area which relevantly affects or is affected by a proposed development. In this case, I find that the locality is generally as depicted by Ms Sandri however it is relevant to also include the properties immediately to the rear of the subject land being No 21-25 Mountjoy Street inclusive which may be impacted by the development and the issues under consideration.

  7. The parties agree that in the context of this case the issues of building height, compatibility with setting and impact of the development on the amenity of the locality are interlinked and should be addressed together. Therefore Issue 1 (a) and the relevant components of Issue 2, being cl 67(2) (m) and (n) of the deemed provisions, will be considered together.

  8. The respondent contends that consideration should be given to the LP Strategy in relation to height and in particular the description of low rise in determining the number of storeys applicable to the site.  It is agreed by the parties, and a requirement of LPS 3, that the LP Strategy should be read in conjunction with the Scheme and that Transition Zone 2 roughly correlates with but does not fully emulate the R60 coding in this location. 

  9. The LP Strategy says, for cl 5.9.11 - Nedlands South Strategies, that for the transition tones adjoining Stirling Highway the strategy is to ensure that the 'height, scale and bulk of residential development smoothly integrates back to the established residential character of the area' and that for the second transition zone to '[f]acilitate low rise, diverse residential built form within the Second Transition Zone'.

  10. It is acknowledged there is no definition of low rise in the LP Strategy.  Mr Bain in his evidence contends that the most authoritative meaning of 'low rise' is found in R-Codes Volume 2, Appendix A2 ­ 'Streetscape Character Type', page 16 (Annexure 4) as follows:

    SUBURBAN CONTEXTS

    Low-rise

    Context: Neighbourhoods that provide a mix of detached housing, group housing and apartments. They are predominately 1­2 storeys but may include 3-storey development on neighbourhood connector streets, adjacent to open space and/or on key sites. Apartment development should be located within walking distance of public transport, local shopping and local open space and may create a transition zone between a lower density residential area and higher density land uses.[10]

    [10] Witness Statement of Simon John Bain dated and signed 26 April 2022 - Annexure 4, Extract from R-Codes Vol 2, Appendix A2 (Exhibit 6).

  11. Ms Sandri in evidence says that this definition relates to R40 and R50 densities and that is shown clearly in the associated diagram for low­rise in the R-Codes Volume 2.  Ms Sandri says that based on the LPS 3 the medium-rise is a more appropriate description as the illustration in the R-Codes Volume 2 for medium rise shows R60 and Table 2.1 ­ Primary Controls Table, of R-Codes Volume 2 also indicates R60 as medium rise.[11]  The definition of medium rise in R-Codes Volume 2 is:

    Medium-rise

    Context: Neighbourhoods with a landscaped residential setting that include a diversity of detached housing, group housing and apartment developments up to 3-4 storeys. The neighbourhood has good walkability to public transport, local services and quality open space, and may be located adjacent to higher density land uses or an urban corridor.[12]

    [11] Witness Statement of Bianca Sandri dated and signed 26 April 2022, Annexure BS6, page 47.

    [12] Witness Statement of Simon John Bain dated and signed 26 April 2022, Annexure 4, Extract from R-Codes Vol 2, Appendix A2 (Exhibit 6).

  12. Regardless of this evidence, the application is being assessed under the R-Codes Volume 1 which does not include such descriptions of low and medium rise and Volume 2 of the R-Codes was not gazetted until 24 May 2019, almost two years after the endorsement of the LP Strategy by the Western Australian Planning Commission on 26 September 2017, so it is not evident that this description of low-rise was what was contemplated in the LP Strategy.  R-Codes Volume 2 does not apply in the circumstances of this case.

  13. Whilst there was considerable discussion in regard to the appropriate number of storeys, this is not a relevant consideration of whether this development is compatible with the adjoining properties or the streetscape.  Neither the R-Codes nor LPP-RD describe height in terms of storeys and the definition of "Height, wall" in the R-Codes is:

    This is the vertical distance between the point where the base of the wall meets the natural ground level at the boundary immediately adjacent to the wall to the roof or top of the parapet.[13]

Impact on amenity of adjoining owners

[13] R-Codes July 2021 Appendix 1, Definitions, page 49.

  1. In regard to the impact of amenity on adjoining properties it was agreed that there is no impact of height to the properties at No 21-25 inclusive Mountjoy Road as the proposed rear Unit 6 is well below and thus compliant with the maximum height.  The adjoining properties to the subject land to be considered in relation to building height include:

    1.No 22 - property immediately adjoining the subject land to the north;

    2.No 26 - property immediately adjoining the subject land to the south;

    3.The properties on the opposite side of Louise Street that will have a view of the proposed development.

  2. No 22 Louise Street is a character single storey single house set well back from the street and at a higher level than the subject land with the lowest point of No 22 adjacent to the front boundary and adjacent to the boundary with No 24 is 11.40 metres Reduced Level (RL).  Unit 1 has a finished floor level for the ground floor of 10.1 metres RL for the garage and 10.2 metres RL for the remainder of the ground floor, which is 1.3 metres and 1.2 metres respectively for the garage and ground floor, lower than the natural ground level of No 22 adjacent to its boundary with the subject land at the closest level to the road reserve provided by the survey plan.[14]  The proposed development has been set at a level lower than the natural ground level of the subject land adjacent to the road reserve which is 10.22 metres RL adjacent to the boundary with No 26.

    [14] Respondent’s s 24 Bundle of Documents dated 11 April 2022 (Exhibit 3), tab 6, Survey Plan.

  3. The respondent argues that No 22 will not be developed for some time due to the quality of the development and the price paid for the development recently and that due to this, the development proposed for the subject land should, within its site, perform a transition role within the R60 coded area and step down to No 22.  To the contrary, the applicant argues that the R60 coded area is the transition between the R160 coded area stepping down to the R10 coded area and that the transition should occur at the interface of the change in R-coding and not internally within the R60 coded area as it is likely that given the current rate of transition evident in the locality, the area will continue to transition and there will likely come a time when even No 22 is redeveloped to a higher intensity R60 development.

  4. I find the applicant's evidence is preferrable in these particular circumstances, given the amount of redevelopment and approvals for redevelopment evident in the immediate locality, and the likelihood of this development pattern continuing in the future.  There is a need to consider the impact on the adjoining property at No 22 and in doing so I have heard from the parties that the development has been set back from No 22 by the siting of the common driveway adjacent to No 22's common boundary, the proposed finished floor levels are significantly lower than the property at No 22 and I therefore prefer the evidence of the applicant that the height proposed has no impact on No 22 beyond the impact that would be anticipated of a development that complies with the deemed­to­comply maximum height.

  5. In regard to the impact of the development on the amenity of No 26, Mr Bain did not raise address any adverse impact other than overshadowing and in oral evidence conceded that there were no adverse impacts of overshadowing to the outdoor living areas for the five grouped dwellings at No 26 currently under construction as the development overshadows its own outdoor living areas. 

  6. Ms Sandri says in relation to the height of the proposed development on the subject land and its impact on No 26 that the height of the proposed development provides an appropriate transition to the adjoining two-storey development with pitched roofs on No 26 and refers to the site streetscape drawing.[15]  This plan shows the elevations of both street front units of the developments at No 24 and No 26 and indicates the proposed development on the subject land is lower than the development on No 26.  Ms Sandri asserts that as the development at No 26 is two storeys with a pitched roof and at a higher finished floor level it is a similar height to that proposed for No 24 and that the resultant total height of the developments as viewed from the streetscape is similar.

    [15] Respondent’s s 24 bundle of documents dated 11 April 2022 (Exhibit 3), page 252.

  7. This would also be the view from the properties on the opposite side of Louise Street which would experience the development at No 26 as being marginally lower than the proposed development on the subject land as may be anticipated with the topography of Louise Street.  As there are two mature street trees to be retained on the verge of No 24, the view is also partially obscured by the canopy of the existing street trees which further lessens its impact.  On that basis I am satisfied that the height will be similar to the development proposed for the western side of Louise Street and while the front of the proposed development may be seen from the residential properties on the western side of Louise Street, the parties agreed those properties would not be able to see the entirety of the height of the proposed development due to the established street trees which are to remain.

  8. I am therefore of the view that the proposed development has taken advantage of the topography of Louise Street and the proposed height does not impact on the amenity of the adjoining properties.

Impact on Streetscape

  1. The Louise Street streetscape is, as agreed by the parties, in transition from a leafy green streetscape of original single houses on quarter acre lots to a streetscape likely to be characterised by R60 redevelopment, predominantly as grouped dwellings and also R160 coded development likely to take the form of multiple dwellings, located in proximity to the Memorial Rose Garden public open space.

  2. The respondent asserts that the additional height proposed for this development is over a significant portion or approximately half of the development and contributes to the bulk of the development and that 8.5 metres is not a comfortable height for any neighbour to have to endure within a suburban context.  The R-Codes do not ask the decision­maker to consider the extent of the exceedance as such, but rather whether the additional height will impact on adjoining properties and the streetscape.

  3. The respondent asserts that whilst the applicant does not think 43 centimetres is a lot of additional height, it is a lot of height in a human scale in an urban design context, that the height is excessive, is a result of the amount of development sought for the site and indicative of the development asking a great deal of the site.  The respondent contends that the proposed development is 'muscling in on a single storey to its north and a two-storey development to the south and that this is unprecedented and out of kilter with the rest of the streetscape'.[16]  The respondent asserts that the single dwelling at No 22 was sold recently for a considerable sum and is unlikely to be redeveloped in the future.

    [16] ts 109, 10 May 2022.

  4. In the context of using the 43 centimetres in terms of its variation from the deemed-to-comply height requirements of the LPP-RD to assess satisfaction or otherwise of the design principles, the Tribunal has articulated a number of times that this is impermissible under the R­Codes Volume 1.[17]  As indicated earlier, cl 2.5.1 of the R-Codes Volume 1 states that '[t]he decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s)'.

    [17] Sapphire at [47].

  5. By focussing on the evidence provided to the Tribunal on the variations to the deemed-to-comply requirements for building height depicted in the building height map, both parties have in effect applied the corresponding deemed-to-comply provision to the assessment of the proposed development that addresses the design principles, contrary to cl 2.5.1 of the R-Codes Volume 1.[18]

    [18] Respondent’s s 24 Bundle of Documents dated 11 April 2022 (Exhibit 3), tab 7, Building Height Map.

  6. The respondent argues that the proposed development on the subject land is a 'boxy, bulky building' adjacent to a traditional pitched roof on the south that 'regardless of the precise relativities of height, this is still going to present in a manner - a bulky end, incompatible'.[19]

    [19] ts 110, 10 May 2022.

  7. The applicant contends that the height of the development is not inconsistent with the likely future character and built form to be expected as this area redevelops.  Ms Sandri told the Tribunal that the development has thoroughly considered its current and future context in terms of what could be developed at No 22 and that the height of the development appropriately steps down the hill as would be expected in considering the likely future context of the area with redevelopment at an R60 coding. Ms Sandri says the topography of the streetscape and lowering the finished floor levels to less than the natural ground level, demonstrate that the proposed development has sought to address the height both to the adjoining properties and within the streetscape. 

  8. The parties agreed that there is approval on the opposite side of Louise Street at No 17 and No 19 Louise Street (No 17 and No 19) for a single development incorporating a grouped dwelling development at two storeys generally over No 19 and a multiple dwelling development generally on No 17 at 6 storeys on the R160 Coded land adjacent to the Rose Garden public open space.  At No 21 and No 23 Louise Street (No 21 and No 23) there is also one development approved over two R60 lots with a three storey grouped dwelling development on No 21 and a two storey grouped dwelling development at No 23 at the intersection with Jenkins Street, providing for the transition to R10 on the southern side of Jenkins Street. 

  9. In my considerations of impact of the height on the amenity of the adjoining properties and streetscape, and the compatibility of the height and the development within its setting I find firstly, that the locality is designated as transition zones in the LP Strategy and zoned for redevelopment as Residential with codings R160 generally indicative of transition zone 1 in the LP Strategy and R60 generally indicative of transition zone 2 and it is clear that there have been several developments approved in close proximity to the subject land have taken advantage of these zonings and with some currently being developed in accordance with that these zonings.  It is apparent that the area is in transition and approved development includes within the immediate streetscape buildings ranging from two to six storeys.

  10. Secondly, No 22 was purchased after the gazettal of LPS 3 within an area of R60 coding and there should have been an expectation that there could be R60 development adjacent to it.

  11. Thirdly, No 24 has set back the buildings from the single dwelling at No 22 by locating the driveway adjacent to its common boundary with No 22.

  12. Fourthly, the proposed development on the subject land has reduced finished floor levels that at street frontage are lower than the natural ground level, not dissimilar to the grouped dwellings under construction on No 13-22 Jenkins Street which were considered by the parties to be a half submerged garage with two storeys above. 

  13. Fifthly, in regard to No 24 being a boxy bulky development instead of a traditional pitched roof it is noted that the LPP-RD allows for a concealed roof and makes provision for it in the building height provisions and there are similar roof forms existing and proposed in the locality.  The built form of the proposed development is within what can be reasonably expected in the locality.

  14. Sixthly, there are already a significant number of properties in the locality that are under development or have been approved for redevelopment and the future character of the area is likely to be significantly different to the current character.

  1. Given these considerations and in particular the existing character and likely future character of the streetscape as evidenced by the developments approved for the streetscape in this locality, I am satisfied that the building height of the proposed development on the subject land creates no adverse impact on the amenity of adjoining properties or the streetscape and is compatible with the setting of the existing and likely future character of the area.

Whether the proposed development demonstrates compliance with the design principles in cl 5.3.1 - Outdoor Living Areas of the R-Codes

  1. The parties agree that the balconies to the grouped dwellings are the outdoor living areas accessible from primary living spaces and that they are to be assessed under design principle 5.3.1 P 1.1 of the R-Codes:[20]

    P1.1 A consolidated outdoor living area is provided to each single house and grouped dwelling which provides space for entertaining, leisure and connection to the outdoors that is:

    •of sufficient size and dimension to be functional and usable;

    •capable of use in conjunction with a primary living space of the dwelling;

    •sufficient in uncovered area to allow for winter sun and natural ventilation into the dwelling;

    •sufficient in uncovered area to provide for landscaping, including the planting of tree(s); and

    •optimises use of the northern aspect of the site.[21] 

    [20] R-Codes Volume 1, July 2021, Definition of Outdoor Living Area,  page 50. 

    [21] Applicant’s SIFC dated 12 April 2022 (Exhibit 4), para 43.

  2. The first and second dot points of cl 5.3.1 P1.1 are not in contention and the parties agree that the balconies are directly accessible and capable of use in conjunction with the primary living space of the dwellings. The respondent contends that the proposed development does not demonstrate compliance with the third, fourth, and five dot points of cl 5.3.1 P1.1.

    •sufficient in uncovered area to allow for winter sun and natural ventilation into the dwelling

  3. In Units 2 and 5 the balconies are totally covered by the upper floor, balconies for Units 1, 3 and 4 are only partially open and Unit 6 is without permanent roof cover.  Ms Sandri contends that the winter sun will enter the balconies at an angle of 34 degrees with a 2.7 metre ceiling height the winter sun penetrates 3.98 metres into all of the balconies but because the balconies are of different depths the amount of winter sun penetration into the primary living spaces of the dwellings differs.  Mr Bain informed the Tribunal he had not undertaken the calculation but had undertaken the exercise graphically by providing cross sections of the outdoor living areas.[22] 

    [22] Witness Statement of Mr Simon John Bain dated and signed 26 April 2022, Annexure 10, Cross Sections of Outdoor Living Areas (Exhibit 6), page 42.

  4. Mr Bain contends in relation to Units 2 and 5 that he has plotted the angle of the sun in the middle of winter and it shows that the sun doesn't actually enter the living space, that it is entirely located in the deeper part of the balcony, and that it extends back almost to the bifold door.  He goes on to say that there is only minimal sun penetration onto the balcony and that it doesn't penetrate into the dwelling.

  5. The applicant contends that for Units 2 and 5, the winter sun penetrates into the dwelling through the glass kitchen door by 0.98 metre and that this can be considered to meet the design principle because the kitchen forms part of an integrated living area with the dining room and lounge room and is the section of the dwelling that has the focus of life and activity, which she says directly speaks to the definition of primary living space in the R-Codes.[23]

    [23] R-Codes Volume 1, July 2021, Appendix 1, Definition of Primary living space, page 50.

  6. The respondent contends for Units 3 and 4 that the depth of the balconies combined with the 1.6 metre high screening means there will be minimal winter sun on these outdoor living areas which will result in these areas being dark and gloomy.  Mr Bain says there is some winter sun exposure for these units and it projects into the primary living space by approximately 3m2.

  7. Ms Sandri disputes that the units will be dark and gloomy and points out that from the plans and the illustration of the screening, it appears to be permeable so it will allow filtered light through the outdoor living areas.  She says that regardless, the balconies facing north receive northern sunlight between the 1.6 metre high and the 2.7 metre ceiling height.  Ms Sandri says that for Units 3 and 4 this means that the winter sun will penetrate into the primary living space at the dining room and that there are also substantial north facing windows to the lounge room portion of the primary living space that provide additional winter sun.

  8. The Residential Design Codes Explanatory Guidelines (Explanatory Guidelines) published in July 2021 state that '[t]hese guidelines supplement State Planning Policy 7.3 Residential Design Codes Volume 1 and are to be read in conjunction with the that policy.

  9. The Explanatory Guidelines describe that the R-Codes provide a performance approach to control residential development through the application of design elements and provisions.  Deemed-to-comply provisions provide a straightforward means for development to comply with principles and objectives.  Design principles enable an alternate pathway for innovative development proposals to be considered and the deemed-to-comply provision is just one way of achieving the design principles.[24]  

    [24] R­Codes Explanatory Guidelines, July 2021.

  10. The Explanatory Guidelines state for cl 5.3.1 that:

    At least one outdoor area for each dwelling is required for entertaining and leisure that is:

    •large enough to be functional and usable;

    •directly accessible from primary living space; and

    •with access, if possible, to winter sun.

    Outdoor living areas should be oriented to make best use of northern sunlight, (where climatically appropriate) and provide opportunities for natural ventilation by cooling breezes.

    Additionally, where an outdoor living area is provided in the street setback area, it should have visually permeable fencing or balustrading (for balconies) to facilitate casual street surveillance.[25]

    6.1.1 Outdoor living areas – Part 5 of R-Codes Volume 1

    Because of the importance of providing shade in summer, especially in conjunction with outdoor living areas, a part of the outdoor living area (up to one-third) can be roofed (refer to Figure 13 in the R-Codes Volume 1). The unroofed area(s) is to ensure access to natural light from the outdoor living area and primary living space is maintained.[26]

    [25] R­Codes Explanatory Guidelines, July 2021, cl 6.1, Outdoor living areas, page 34.

    [26] R­Codes Explanatory Guidelines July 2021, cl 6.1.1, Outdoor living areas ­ Part 5 of R­Codes Volume 1, page 34.

  11. The explanatory guidelines indicate that the intent of providing for 'unroofed areas is to ensure access to natural light from the outdoor living area and primary living space is maintained'.  In the design of Units 1, 3,  4 and 6 winter sun is additionally available through windows directly into primary living spaces and I find that the design outcome achieves what the design principle is seeking in regard to provision of access to natural light to these units.

  12. For Units 2 and 5 which have balconies that traverse the full width of the unit on the northern façade, the 3.98 metre penetration of winter sun into the balcony, or as Mr Bain indicates the penetration of the sun almost to the bifold doors, means that the full-length glass kitchen door to both units which is 3 metres from the edge of the balcony.  The winter sun will therefore penetrate across the balcony and into the kitchen, which forms part of the primary living area of the dwelling, through that door by 0.98 metre.  The applicant also asserts that the extent of winter sun that may be achieved is assisted by the provision of floor to ceiling glass between the kitchen and the larger portion of the balcony.  However, the intention for this to be glass is not conclusive from the relevant elevation and is not annotated on the plans, but the applicant is supportive of a condition to this effect should the application be approved. There is 3.98 metres of winter sun penetration into the balconies with 0.98 metre penetration into the primary living space of Units 2 and 5 and I find this meets the intent of the achieving winter sun into the dwellings.

  13. I am therefore persuaded that the design outcome achieves the intent of the design principles P1.1 of cl 5.3.1 of the R-Codes.

    •sufficient in uncovered area to provide for landscaping, including the planting of tree(s)

  14. With respect to this design principle requirement Mr Bain contends that there is minimal space on the balcony and that there is nothing indicated in terms of a planter box or certainly not a tree on the balcony.  Mr Bain told the Tribunal that there is agreement that the balconies are the outdoor living areas and that therefore the courtyards are not part of the consideration.

  15. Ms Sandri contends that while she accepts outdoor living areas as proposed are not proposing a tree, they do have planters and it would be remiss to discount the ground floor courtyards as whilst they do not have access to a primary living area, they are still outdoor areas in terms of functionality and they are proposed to be planted with trees.

  16. The first floor plans indicate planter boxes to the balconies for Units 1-5 and adjacent to the balcony for Unit 6 (in front of the living room and kitchen windows).  Whilst it may be possible to provide a planter box that could accommodate a small tree on the balconies, the ground floor courtyard provides a second area open space area that is proposed to accommodate at least one tree per unit including two Magnolias in the front setback area for Unit 1, a Snow Pear each for Units 2 and 5, a Magnolia and a Snow Pear for Units 3 and 4, and a Magnolia for Unit 6.  There are also four frangipani and two capital Pear trees proposed in the common area.

  17. The Explanatory Guidelines provide that cl 5.3.1 should be read in conjunction with cl 5.3.2 'to ensure tree planting and associated areas are taken into consideration in the design and assessment of this area'.[27]  Clause 5.3.2 states:

    P2 Landscaping of open spaces that:

    •contribute to the appearance and amenity of the development for the residents;

    •contribute to the streetscape;

    •enhance security and safety for residents;

    •contribute to positive local microclimates, including provision of shade and solar access as appropriate; and

    •retains existing trees and/or provides new trees to maintain and enhance the tree canopy and local sense of place.

    [27] R-Codes Explanatory Guidelines July 2021, page 34.

  18. It is my view that design outcome of the provision of trees in the secondary courtyard satisfies the intent of the provision which seeks to provide for tree canopy and maintenance or provision of tree canopy which may not be otherwise contemplated by the R-Codes where a balcony fulfills the role of the outdoor living area and planting would need to occur in planter boxes on the balconies.

    •optimises use of the northern aspect of the site.[28] 

    [28] Applicant’s SIFC dated 12 April 2022 (Exhibit 4), para 43.

  19. With regard to whether the development optimises the northern aspect, the respondent contends that it does not.  Mr Bain contends that it is not only Unit 1 with its south-west orientated balcony where the design doesn't optimise that northern aspect, he says that there is a sense of enclosure resulting from the coverage of the balconies by upper floors and the development being side by side.  Mr Bain also told the Tribunal that the balconies for Units 3 and 4 are narrow and only approximately half of the frontage of each of those units, and there is also 1.6 metre high privacy screening which combine to preclude the north facing units from optimising their northern aspect.

  20. The applicant's contention is that the only unit that may not achieve at first glance this particular element is Unit 1, as the outdoor living area is located to the south-west of that proposed unit but that the remainder of the units have been orientated to face the common driveway and make best use of their northern aspect with balconies and large windows facing north.  Ms Sandri says that all of the outdoor living areas face north, with the exception of Lot 1 which faces west to address the street, optimise the northern aspect.

  21. When looking at all matters for consideration it seems clear that there has been an attempt to optimise the northern aspect not only with the location of the balconies, albeit that they are compromised to an extent by the 1.6 metre high privacy screening, but also by the location of large north facing windows to primary living areas for each unit with particular reference to Units 1, 3, 4 and 6 and full height floor to ceiling glass and a glass door to the kitchen areas adjacent to the balconies for Units 2 and 5.  While the setting back of the balconies at 7.5 metres from the northern boundary to eliminate the privacy screening for Units 2-5 inclusive but with particular reference to Units 2 and 5, which also are totally covered by the upper floor, may have taken further advantage of the northern aspect, this would require significant redesign of the dwellings, would need to be balanced with the impact on the internal area of the primary living space and the consideration before the Tribunal is whether the current design meets the design principles.

  22. I am persuaded by the applicant's arguments that the design has sought to optimise the northern aspect of the development and has been impacted by the requirement for privacy screening and has countered this by providing where possible large windows that provide winter sun into the primary living spaces of the units. 

Whether the proposed development demonstrates compliance with the design principles in cl 5.3.3 - Visitor Parking of the R-Codes

  1. The R-Codes at cl 5.3.3 C3.2 require the provision of visitor parking and for development including 5-8 grouped dwellings, the requirement is two (2) visitor carparking spaces.  The proposed development includes the provision of one visitor parking space in the front setback area adjacent to Unit 1.  Where the application does not meet the deemed­to­comply requirement, it is to be assessed under the design principles of cl 5.3.3 and P3.1 and P3.2 are relevant in this instance.

  2. The respondent contends that whilst the proposed development may only be deficient by one visitor parking space, this is a further indicator of the over development of the site.  The R-Codes cl 5.3.3:

    P3.1 Adequate car parking to be provided on site in accordance with projected need related to:

    •the type number and size of dwellings;

    •the availability of on-street and other off-street parking; and

    •the proximity of the proposed development to public transport and other facilities.

    P3.2 Consideration may be given to a reduction in the minimum number of on-site car parking spaces for grouped and multiple dwellings provided:

    •Available street parking in the vicinity is controlled by the local government; and

    •The decision-maker is of the opinion that a sufficient equivalent number of on-street spaces are available near the development.[29]

    [29] R-Codes Volume 1, cl 5.3.3, Parking, page 30.

  3. While the design principle does not stipulate what proximity to public transport means, the respondent argues that guidance comes from the deemed-to-comply provision which is very specific that proximity is 250 metres of a high frequency bus route or multiple bus routes and there is agreement between the parties that the distance is measured in a straight line.  There is also agreement that the subject land is within 250 metres of public transport on Stirling Highway and the timetables and routes for the bus service indicate it is a high frequency route to many destinations.[30]

    [30] Witness Statement of Bianca Sandri dated and signed 26 April 2022 (Exhibit 7), Annexure BS7, Bus Routes and Timetables.

  4. As the subject land is within proximity to public transport, under the deemed-to-comply provision cl 5.3.3 C3.1 it is within Location A and the required minimum carparking per dwelling with 2+ bedrooms is one car parking space per dwelling.  The proposed development indicates that each dwelling is to be provided with two car parking spaces.  While this is twice the required rate of parking for Location A, the parties agree that in this locality it is likely that both car parking spaces will be utilised by the occupants of the dwellings.

  5. Satisfaction of the design principle is therefore focussed on the question of availability of on-street parking in Louise Street as to the acceptability of one visitor parking space for this development given that the applicant has not proposed alternative off-street parking. 

  6. In regard to on-street parking, Mr Bain says that there is no on-street parking on the western side of Louise Street as there is a 'No Parking' restriction from 8 am to 5 pm Monday to Friday and there is some on­street parking available on the eastern side.  He concludes that all properties are 20 metres wide and as such when allowing for driveways to each property only two car parking spaces can be achieved on the street in front of each property and that this results in a total of 24 car parking spaces available in the street for the 16 original properties and for visitors to the Memorial Rose Garden.  Mr Bain considers that if one on-street car parking space was required for visitor parking for each of those properties, that would total 16 car parking spaces with eight car parking spaces remaining for the Memorial Rose Garden.  No evidence was provided in relation to whether all visitor parking spaces had been provided on site for the other approved developments on Louise Street, other than No 26 which has been approved with one visitor car parking space in lieu of the two visitor parking spaces that would have been required if it met the deemed-to-comply provisions.

  7. The respondent argues that further similar development is anticipated in the street in the future and there may be a cumulative impact of the lesser number of on-site visitor car parking spaces if shortfalls are approved.

  8. The applicant contends that the provision of one visitor parking space is a minor component of the totality of carparking on the site and that the provision of two car parking spaces per dwelling allows for the utilisation of the second space by the residences and avoids them parking in the visitor parking space.  They say that on the approved plans produced in relation to No 26, this development also has only one visitor parking space for five units in lieu of the two required by the deemed provisions.  No evidence was provided in relation to the assessment and reasons for approval of the one visitor parking space for the development at No 26.

  9. The parties agree that parking restrictions apply to the on-street parking adjacent to the subject site on the western side of Louise Street although Ms Sandri says this is during the hours of 9 am to 5 pm Monday to Friday.  Ms Sandri contends that this does not impact on the availability of parking for visitors as visitors generally visit outside of ordinary business hours, consistent with times when parking is available, and that in any case, visitors can still park along the eastern side of Louise Street at all times.[31]

    [31] Witness Statement of Bianca Sandri dated and signed 26 April 2022, paras 99-100.

  10. The width of the subject land allows for two on-street parking spaces immediately in front of the proposed development. Given Mr Bain's analysis of parking spaces in the street and the likely level of development proposed in the street and also taking into consideration the additional parking spaces provided on site, I find that there is available street parking in the vicinity of the subject land that is controlled by the local government and that I am persuaded that there is a sufficient equivalent number of on-street spaces available near the development. I therefore find that the proposal meets the design principles of cl 5.3.3 P3.1 and P3.2 of the R-Codes.

Conclusion

  1. The purpose of the review in accordance with s 27(2) of the SAT Act is 'to produce the correct and preferable decision at the time of the decision upon the review'. The function of the Tribunal in regard to this matter is to consider the evidence before it and to form its own view as to whether the application demonstrates compliance with the R-Codes Volume 1 design principles for cl 5.1.6, cl 5.3.1 and cl 5.3.3 having consideration of LPS 3 the LPS and LPP-RD and the matters it is required to consider under cl 67(2) of the deemed provisions.

  2. The Tribunal concludes that in the circumstances of this case, for all the reasons above, the correct and preferable decision in the circumstances of this case, is to approve the development application subject to the imposition of appropriate conditions.

Conditions:

  1. The respondent provided without prejudice conditions dated 22 April 2022 consisting of 13 conditions and three advice notes.  The applicant in its response to the conditions dated 27 April 2022 opposed the imposition of two of the conditions.

  2. At the commencement of the final hearing I requested that the patties make submissions in regard to the conditions in dispute, however this was not addressed by the parties' representatives in closing.

  3. The two conditions opposed by the applicant are Condition 9 and Condition 13:

    9. Prior to the issue of a Building Permit, a list of sustainability initiatives shall be submitted for approval by the City. Initiatives contained within the list are to be carried out and maintained as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.

    13. For the purpose of these conditions, visually permeable means the vertical surface has:

    •Continuous vertical gaps of 50mm or greater width occupying not less than one third of the total surface area;

    •Continuous vertical or horizontal gaps less than 50mm in width, occupying at least one half of the total surface area in aggregate; or

    •A surface offering equal or lesser obstruction to view as viewed directly from the street.'

  4. The applicant says in their objection to proposed Condition 9 that there is no specific State or Local Planning Policy which requires a list of sustainability initiatives to be submitted to the City, prior to the issuing of a building permit application; that this condition and associated requirements have not previously been discussed with the Applicant; and that the condition is unusual in their opinion.

  5. The assessment of the Design Review Committee which in relation to Principle 5 ­ Sustainability identifies SPP7.3 [Residential Design Codes] 'Element Objectives' as relevant and states that:

    5a. Comments

•There is a lack of information and commitments in relation to sustainability.

•Design allows for appropriate solar penetration.

5b. Recommendations

• An ESD consultant should be employed.[32]

[32] Respondent’s s 24 Bundle of Documents date 11 April 2022 (Exhibit 33), tab 21, Design Review Panel (DRP) minute 4 October 2021, pages 220-221.

  1. Sustainability initiatives are identified in the R-Codes and a condition that seeks to support sustainability initiatives as part of the proposed development satisfies the Newbury tests,[33]  as it is my view that there is a planning purpose; there is a nexus to the proposed development; and it is a reasonable condition to impose in these circumstances.

    [33] Prosser v City of Bunbury [2018] WASAT 41 at [37] ­ [38].

  2. The wording of Condition 13 is inappropriate as a condition and would not be appropriate to impose as a condition on the development approval as it is providing a definition of a term used in Condition 5. Condition 13 will not be imposed as a condition on the development approval. Advice notes will also not be imposed on the approval.

Orders

  1. For the above reasons, the Tribunal makes the following orders:

    1.The application for review is upheld.

    2.The deemed refusal by the respondent dated 11 January 2022 pursuant to cl 75(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) ­ Deemed Provisions for a six unit grouped dwelling development at No 24 (Lot 165) Louise Street Nedlands is set aside and a decision is substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and the City of Nedlands Local Planning Scheme No. 3 subject to the conditions in Attachment A.

    I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

    MS R Lavery, MEMBER

    8 AUGUST 2022

Attachment A – Conditions of approval

1. This approval relates only to the development as indicated on the plans date stamped received by the City of Nedlands on 8 April 2022, hereinafter referred to as the 'approved plans'.

2. The development, including the use approved by this development approval, must be implemented (and where relevant maintained in implementation) only in accordance with the approved plans, except in the event (but only to the extent) that any of these conditions require a variation from what is depicted in the approved plans.

3. The development must be substantially commenced within the period of 2 years commencing on the date of the State Administrative Tribunal's decision to grant development approval in Tribunal proceeding DR 5 of 2022. The development approval lapses if the development has not substantially commenced within that period.

4. All works indicated on the approved plans shall be wholly located within the lot boundaries of the subject site.

5. The development shall not be occupied for residential habitation until and unless it is ensured that all fences (if any) within the primary street setback:

(a) do not exceed 1.8m in height from natural ground level; and

(b) are visually permeable above 1.2m in height to the satisfaction of the City of Nedlands.

The said fences (if any) are to continue to comply with the requirements of (a) and (b) as long as the grouped dwellings or any of them remain in place.

6. The development shall not be occupied for residential habitation until and unless it is ensured that the north elevations of the first floor balconies of Units 2-6; and all other screening and obscure windows shown on the approved plans, are screened in accordance with the Residential Design Codes by either:

a. fixed and obscured glass to a height of 1.6 metres above finished floor level; or

b. fixed screening devices to a height of 1.6 metres above finished floor level that are at least 75% obscure and made of a durable material; or

c. a minimum sill height of 1.6 metres above the finished floor level; or

d. an alternative method of screening approved by the City of Nedlands.

The required screening shall be thereafter maintained to the satisfaction of the City of Nedlands as long as the grouped dwellings or any of them remain in place.

7. The development shall not be occupied for residential habitation until and unless landscaping has been completed in accordance with the approved plans or any approved written modifications, to the satisfaction of the City of Nedlands. All landscaped areas are to be maintained on an ongoing basis as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.

8. Prior to the issue of a demolition permit and/or a building permit, a Demolition and Construction Management Plan shall be submitted and approved to the satisfaction of the City. The approved Construction Management Plan shall be observed at all times throughout the construction process to the satisfaction of the City.

9. Prior to the issue of a Building Permit, a list of sustainability initiatives shall be submitted for approval by the City. Initiatives contained within the list are to be carried out and maintained as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.

10. The waste management plan prepared by Big Sky Developments prepared September 2021 forms part of this development approval and shall be complied with at all times as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.

11. The development shall not be occupied for residential habitation until and unless walls on or adjacent to lot boundaries are finished externally to the same standard as the rest of the development in:

a) Face brick;

b) Painted render;

c) Painted brickwork; or

d) Other clean finish as specified on the approved plans

and are to be thereafter maintained as long as the grouped dwellings or any of them remain in place, to the satisfaction of the City of Nedlands.

12. All storm water discharge from the development shall be contained and disposed of onsite unless otherwise approved by the City of Nedlands.

13.The wall between the outdoor living area and the kitchen indicated on the approved plans for Units 2 and 5 as a single line is to be constructed of floor to ceiling glass panels to the satisfaction of the City of Nedlands.



Outdoor living area - The area external to a single house, grouped or multiple dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use and is readily accessible from the dwelling.


Primary living space -The area within a dwelling that is the focus of life and activity and usually the largest room.  This area is connected with the outdoor living area or balcony, and includes the following room types: living room, lounge room, games room, family room, or an integrated living area that has one of these room types together with a kitchen or dining area.

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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SAPPHIRE DEVELOPMENTS ALLIANCE PTY LTD and CITY OF NEDLANDS [2020] WASAT 149
Sunbay Developments Pty Ltd and Shire Of Kalamunda [2006] WASAT 74
Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272