Keating and City Of Nedlands
[2006] WASAT 329
•10 NOVEMBER 2006
KEATING and CITY OF NEDLANDS [2006] WASAT 329
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 329 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:120/2006 | 15 AUGUST 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 10/11/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The refusal of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | DEBORAH ANN KEATING CITY OF NEDLANDS |
Catchwords: | Town planning Development refusal Single house Two stories above undercroft garage Reduced side boundary setbacks Parapet walls on both side boundaries Vehicle access from street frontage Right of way access available at rear Impact of bulk on neighbours and street Concessions required on design standards Cumulative effect |
Legislation: | City of Nedlands Town Planning Scheme No 2, cl 5.1, cl 5.1.1, cl 5.2.3, cl 5.5.1, cl 6.4.2, cl 6.5.1 Residential Design Codes of Western Australia 2002, cl 3.2.6, cl 3.3.1, cl 3.3.2, cl 3.5.4 |
Case References: | Gianna Developments PL v Kingston CC [2001] VCAT 1889 Willicombe and City of Gosnells [2006] WASAT 13 Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KEATING and CITY OF NEDLANDS [2006] WASAT 329 MEMBER : MR J JORDAN (MEMBER) HEARD : 15 AUGUST 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : DR 120 of 2006 BETWEEN : DEBORAH ANN KEATING
- Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning Development refusal Single house Two stories above undercroft garage Reduced side boundary setbacks Parapet walls on both side boundaries Vehicle access from street frontage Right of way access available at rear Impact of bulk on neighbours and street Concessions required on design standards Cumulative effect
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 5.1, cl 5.1.1, cl 5.2.3, cl 5.5.1, cl 6.4.2, cl 6.5.1
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Residential Design Codes of Western Australia 2002, cl 3.2.6, cl 3.3.1, cl 3.3.2, cl 3.5.4
Result:
The application for review is dismissed
The refusal of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr P de Villiers (Acting as Agent)
Respondent : Ms V Lummer (Acting as Agent)
Solicitors:
Applicant : Urbanizma
Respondent : City of Nedlands
Case(s) referred to in decision(s):
Gianna Developments PL v Kingston CC [2001] VCAT 1889
Willicombe and City of Gosnells [2006] WASAT 13
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The City of Nedlands refused an application by Ms Deborah Ann Keating for planning approval to develop a two-storey house with undercroft garage at 38 Reeve Street, Swanbourne.
2 The City considered the proposal to be in conflict with the Residential Design Codes of Western Australia 2002 (WA) standards for side boundary setbacks, walls on boundaries and vehicular access. On the basis of its analysis the City was concerned the proposed house would have an adverse impact on the amenity and the character of the locality.
3 The applicant referred to previous approvals for development on the land, submitted that the proposed house would have limited impact on the neighbours and said similar forms of development had already been allowed in the street.
4 The Tribunal noted that if individual instances of concessions on standards were considered separately they might have been acceptable, but when the cumulative effect was considered the development as a whole was unacceptable. The concessions being sought would result in a building of bulk and scale that would have an undesirable impact on the local character and amenity. The Tribunal dismissed the application.
Introduction
5 This is an application by Deborah Ann Keating (applicant) for a review of the refusal by the City of Nedlands (respondent) to grant development approval for a two-storey single house with an undercroft garage at Lot 55 (No 38) Reeve Street, Swanbourne (subject land).
6 The subject land has an area of 296 square metres and a frontage of 10.06 metres to Reeve Street at the northern end. The eastern boundary is 30.48 metres in length and the lot would be rectangular but for the intrusion of an area 2.75 metres by 4 metres at the southwest corner which is part of Lot 54 to the west. At the rear of the subject land is a right of way named Maritama Lane (ROW) and the subject land has a common boundary of 7.31 metres with the ROW.
7 To the east No 36 Reeve Street has on it a simple, 1970's brick and tile single storey house set back about 1 metre from the common boundary with the subject land. The applicant was of the opinion that this house was a prime prospect for redevelopment, but as there was no
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- evidence of any development application the proposal was considered in the light of the existing development. To the west, No 40, on the corner of Reeve Street and Kirkwood Road, is a two-storey brick and tile dwelling which has a single storey section of parapet wall on the common boundary with the subject land.
Background
8 In about 1974, Mr JF Keighley, the then owner of No 38 and No 40 Reeve Street, amalgamated these two lots and built a house. In March 2002 he demolished the house and re-subdivided into the subject land and No 40 Reeve Street.
9 In March 2002 the respondent approved an application from Mr Keighley for approval of a two-storey dwelling on each of No 38 and No 40 Reeve Street. Vehicle access to each of the houses would have been from the ROW. The houses were never built. He subsequently built the house at No 40 in April 2005.
10 The applicant acquired the subject land and in July 2003 received development approval for a two-storey residence with vehicle access from the ROW at the rear. This house was not built and the current application for approval to commence development was lodged in March 2006. The application was refused and is the subject of this application for review.
Proposed development
11 The proposed house was not of traditional form with a pitched roof and eaves. Simply put, and with acknowledgement that the designer put considerable effort into the architectural detail, the main section of roof has a pitch of six degrees to the east and the side walls are sheer up to 7.7 metres high at the northern part of the house and up to 6.2 metres at the southern part. The eastern wall at the first floor level and above is divided into two sections by an 8.5 metre wide courtyard.
12 The ground floor of the proposed house comprises, in the northern half, an undercroft double garage about 1 metre below footpath level with a setback of 6 metres from Reeve Street, a wine cellar and storage space. The stairs to the upper floors are located centrally at the western side. Beyond the stairs are two steps up to a laundry, bathroom, home theatre and bedroom. This section of the house is level with a garden courtyard which opens onto Maritama Lane at the rear.
13 The first floor, above the garage, is approximately 1.65 metres above pavement level. At the western side is a front door which opens onto an
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- entrance vestibule which has a parapet wall on the western boundary. Steps adjacent to the boundary rise from the footpath to the front door. A living room has an angled terrace across the front of the house set back between 4.2 and 4.9 metres from Reeve Street. Beyond the living room are a dining room and a kitchen. Beyond the central staircase and up four steps are a bedroom and en suite. The courtyard on the eastern side opposite the stair case provides light and ventilation to the bedroom, kitchen and dining room.
14 The second floor comprise a bedroom, en suite and study all located toward the front of the house between the stairs and the Reeve Street facade. The bedroom would also have an angled terrace facing the street, set back between 4.2 and 4.9 metres from the front boundary.
Planning framework
15 The subject land is zoned residential R35 in the respondent's Town Planning Scheme No 2 (TPS 2). Clause 6.4.2 of TPS 2 requires that certain conditions and standards be met when applying for development approval. Among the requirements are that:
"(b) the plot ratio, site coverage, setbacks, height, landscaping and parking provisions are in keeping with the general character of the locality;
(c) the form, layout, appearance and material of any building is in keeping with the existing character of the locality; … "
16 Clause 6.5.1 of TPS 2 requires that in determining an application regard be had to the orderly and proper planning of the area. Clause 5.5.1 further provides that the respondent may refuse to approve:
" … any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect of the locality in terms of the external appearance of the development, traffic congestion and hazard, noise or any factor inconsistent with the use for which the lot is zoned."
17 Clause 5.1 and cl 5.2.3 of TPS 2 both require that development in the residential zone be in accordance with the provisions of the Residential Design Codes of Western Australia 2002 (WA) (the Codes).
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18 Element 3 of the Codes is concerned with boundary setbacks. The objective of this element is:
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties."
19 For boundary setbacks it states under the heading "Performance Criteria" that new development should meet the criteria set out in cl 3.3.1 P1, which are:
"Buildings set back from the boundaries other than street boundaries so as to:
• provide adequate direct sun and ventilation to the building;
• ensure adequate direct sun and ventilation being available to adjoining properties;
• provide adequate direct sun to the building and appurtenant open spaces;
• assist with protection of access to direct sun for adjoining properties;
• assist in ameliorating the impacts of building bulk on adjoining properties; and
• assist in protecting privacy between adjoining properties."
20 Clause 3.3.1 A1 of Element 3 sets out that if development complies with listed acceptable standards it is deemed to meet the relevant Performance Criteria. The acceptable development standards are:
"Buildings which are set back in accordance with the following provisions, subject to any additional measures in other Elements of the Codes:
i. Buildings set back in accordance with Table 1, Table 2 (for all heights 10m and less) and Figure 2 and Figure 3 (for wall heights in excess of 10m).
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- ii. Unenclosed balconies, terraces, verandahs, and other areas accessible for use as outdoor living areas, whether roofed or not, if elevated 0.5m or more above natural ground level, set back as though they were major openings to habitable rooms with a wall height of 2.4m above their floor level."
21 Buildings built on the boundary are treated separately in the Codes. At cl 3.3.2 P2 of Element 3 the performance criteria for buildings on the boundary are:
"Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
• make effective use of space; or
• enhance privacy; or
• otherwise enhance the amenity of the development; and
• not have any significant adverse effect on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
22 Acceptable development standards for buildings on a boundary deemed to comply with the performance criteria are listed at cl 3.3.2 A2. These are:
"Except where otherwise provided for in an adopted Local Planning Policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9:
i. Where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension; or
…
iii. In areas coded R30 and higher, walls not higher than 3.5m with an average of 3m for 2/3 the
- length of the balance of the boundary behind the front setback, to one side boundary…"
23 Element 9, mentioned in cl 3.3.2 A2, states relevantly under acceptable development at cl 3.9.1 A1:
"Notwithstanding the boundary setbacks in Element 3, development … shall be so designed that its shadow cast at midday, 21 June onto any other adjoining property does not exceed the following limits:
…
· On adjoining properties coded R30 to R40 inclusive – 35% of the site area;"
"Vehicular Access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape."
25 Acceptable development deemed to comply with the performance standard for vehicular access, in cl 3.5.4, includes the following:
"A4.1 Access to on-site parking to be provided, where available, solely from a right-of-way available for the use of the relevant lot and adequately paved and drained from the property boundary to a constructed street, or from a secondary street where a right-of-way does not exist.
A4.2 Primary or secondary street driveways, where their provision is necessary, are limited as follows:
• …
• subject to a minimum width of 3m, driveways not to occupy more than 40 per cent of the frontage of a property, excluding any part of that frontage required for an access leg to a battleaxe lot;
• no single driveways wider than 6m and driveways in aggregate no greater than 9m for any one property."
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Issues
26 At the hearing the issues agreed between the parties and addressed were as follows:
1. Whether the proposed house is in accordance with the provisions of the Codes, particularly in relation to:
i. side setback from boundaries;
ii. boundary walls; and
iii. vehicular access.
2. Whether the amenity of the surrounding area would be adversely affected by the overall bulk, scale and external appearance of the proposed house in a manner sufficient to justify refusal pursuant to cl 5.5.1 of TPS 2.
3. Whether the setbacks, form, layout and appearance of the proposed house are in keeping with the general and/or existing character of the locality in accordance with cl 6.4.2 of TPS 2.
Discussion
27 In this matter there was no dispute between the parties that the front and rear set backs and height complied with the development standards of the Codes and TPS 2. It was also common ground that the side set backs to walls on both the east and the west side of the development did not meet the acceptable development standards, set out in Table 1 and Table 2 referred to in cl 3.3.1 A1, of the Codes. The parties were in dispute over whether it was required that vehicle access to the development comply with the acceptable development standards of cl 3.5.4 A4.1 and A4.2, or, in any event, if a concession were granted whether the access applied for would satisfy the performance criteria.
28 At the heart of the respondent's submissions on the matter was that the proposal did not comply with the relevant planning controls and the cumulative effect of the non-compliance with the standards supported its resolution that the application be refused. The respondent acknowledged that, if considered individually, certain of the concessions being sought by the applicant might be acceptable, but argued that it was necessary to have regard to the cumulative effect of the concessions to determine the impact of the proposed development.
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29 The Tribunal notes that the cumulative effect argument, as a consideration when assessing a proposed development, has been brought before the Tribunal in other instances. Its application was considered at some depth by the Tribunal in Willicombe and City of Gosnells [2006] WASAT 13.
30 The issues raised by the parties set out above can each be examined, but to be borne in mind is that if there is a cumulative effect it is necessary to relate the concessions sought on particular aspects of the development to each other and to the form of the overall development.
Side boundary setbacks
31 Side boundary setbacks are a significant element in consideration of the bulk of a building and the effect this has on neighbours and the locality. In addition to the main part of the house, there were two parts of the building with a parapet wall on the western boundary and one with a parapet wall on the eastern boundary. These walls on the boundaries are discussed separately below.
32 The proposed reduced setbacks from the eastern side boundary were:
(a) ground floor - 1.25 metres in lieu of 1.5 metres;
(b) second floor bedroom/terrace - 1.25 metres in lieu of 1.4 metres;
(c) second floor remainder of dwelling - 4.55 metres in lieu of 5.4 metres.
33 The Tribunal agrees with Mr Patric de Villiers, a planner who appeared for the applicant, that on a north facing lot, a two storey building would affect direct afternoon sun to the eastern neighbour at No 36 in any event. The development would also comply with overshadowing requirement of Element 9 of the Codes.
34 Significant, however, is that the introduction of the undercroft garage increased the height of the front half of the house from that previously approved. It was the applicant's submission that the increased width of the courtyard midway along the eastern side of the house at the first floor level helped ameliorate the impact of this additional height. The owner and resident of No 36 did not agree with this. Minutes included with the respondent's bundle of documents included an objection to the development from the neighbour at the application stage. He objected to the additional height at a reduced set back and pointed out that the effect
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- of the wider courtyard was in part lost because the 1.7 metre high screening of the courtyard raised the wall height at that point to 3.5 metres and higher.
35 The proposed house, in addition to the increased height, also included front terraces extending forward of the building line of the house on No 36 and a 5.5 metre long parapet wall on the boundary toward the rear. The Tribunal is of the view that these together result in a building bulk that has a direct impact on the neighbouring house. Increasing the upper level setbacks to the minimum requirements would make a small but measurable improvement to that impact. While the improvement might be argued to be marginal, the Tribunal is of the view that it is an improvement that should be made. It might also be mentioned at this point that the reduced side setback contributes to how the building presents to the street. This is discussed further below under impact on the character of the locality.
36 At the western side of the subject land, the reduced setbacks to the proposed house were:
(a) ground floor - 1.25 metres in lieu of 1.5 metres;
(b) first floor - 1.2 metres in lieu of 2.4 metres;
(c) second floor - 1.25 metres in lieu of 2.3 metres.
37 As stated above, the undercroft garage made the front half of the house higher than was proposed in the previous application. There is no articulation in this western wall, but Mr de Villiers argued that the proposed design at the second floor of the reduced setback would in his opinion, have less impact on No 40 than would a wall at the required setback with a conventional eaves overhang projecting 0.75 metres into that setback. Such a design was not, however, before the Tribunal.
38 Mr Keighley, the owner and resident of No 40, was called as a witness by the respondent. It was his opinion that the overall bulk of the proposed house was excessive and this would adversely affect the amenity of his house. He said that that the reduced setbacks, especially at the first and second floors, would result in a high solid wall in close proximity to his boundary.
39 Mr Keighley also considered the building would reduce sunlight and airflow to his windows and his adjacent clothes drying courtyard. Mr de Villiers was able to demonstrate that any effect of the proposed
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- building would be marginal compared to that of the previously approved two-storey house. He demonstrated that, in any event, the proposal complied with the standard for overshadowing in Element 9 of the Codes.
40 Ms Jennifer Heyes, a planner who appeared as a witness for the respondent, provided sketches comparing the relative heights of the proposed house and the house at No 40, which is at a slightly lower ground level. These illustrated the bulk of the proposed house. Mr de Villiers argued that there would be only a marginal variation in impact were the building set further back, particularly in respect of those parts of No 40 that were not put to everyday use or had no aspect onto the proposed house.
41 The variation in setback might have limited impact on the neighbour, but the Tribunal considers the reduced side setbacks together with the other concessions required, would result in the bulk and scale of the proposed house being enhanced. As with the setback at the eastern side of the house, the impact of the bulk is emphasised by the extension of the building forward of the building line and, on the western side, two parapet walls on the boundary. This reduced setback also contributes to how the proposed house presents to the street. Again, although increasing the set back to at least the minimum requirement would have a small impact, it is one that the Tribunal considers should be made in the context of addressing the overall effect of the proposed building.
Boundary walls
42 On the eastern boundary would be a parapet wall 3 metres high and 5.246 metres long. The wall would start 3.76 metres from the rear boundary and in the earlier design was the side wall of a double garage. In the current proposal the wall would be of a large bedroom which includes living space for use by the applicant's elderly parents.
43 The owner of No 36 Reeve Street objected to this wall because, if it were built, No 36 would have a parapet wall on both its east and west boundaries. He also was of the opinion that a section of wall 3 metres high would contribute to the impact of the bulk of the remainder of the building at the reduced setback. Ms Heyes made the submission that she considered the subject land to be of sufficient area and the proposed house to have sufficient floor space to accommodate a bedroom of the type proposed without the need for a parapet wall.
44 This parapet wall complies with the standards of cl 3.3.2 A2 of the Codes for a wall on a boundary. If this parapet wall were the only
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- element of the design in contention there would an argument for allowing it on the basis of the acceptable development standards. The Tribunal has accepted that the parapet wall would contribute to the impact of the bulk of the proposed building as it would be experienced from No 36. It has also been necessary to consider this parapet wall as part of the overall development, particularly in the circumstances where the proposal was that there be parapet walls on both side boundaries in conflict with cl 3.3.2 A2 ii of the Codes.
45 On the western boundary would be two parapet walls. At about 18 metres from the Reeve Street frontage would be a laundry wall agreed between the parties to be 2.64 metres high and 2.5 metres long. This wall is adjacent to a 7.67 metre wide courtyard of the house at No 40 Reeve Street.
46 At about 8 metres from the front boundary there would be a further parapet wall on the western boundary. This would be the side wall of the vestibule onto which the front door opens. This wall would be 4.4 metres high and 3 metres long. To note is that as a consequence of the proposed undercroft garage the front door at the first floor level would be 1.65 metres above footpath level. Steps from the foot path up to the front door would be adjacent to the boundary and to provide privacy to No 40 Reeve Street the plans showed a 1.8 metre high screen wall along the side of the boundary rising with the steps. Effectively this boundary wall would rise from 1.8 metres at the footpath to about 3.3 metres high at the front door.
47 The entrance parapet would be adjacent to the front end of a 9 metre long parapet wall at No 40 Reeve Street also on the boundary. The parties agreed that the entrance parapet would be 1.7 metres higher than the parapet on No 40. The entrance parapet is sited opposite a side window to a bedroom of No 40 set back about 1.25 metres from the common boundary.
48 Mr Keighley, in his submissions, made particular mention of the impact he believed the over height parapet wall to the front entrance would have on his property, particularly the side window to his bedroom. He was also concerned that the screen wall in excess of 1.8 metres in height, adjacent to the steps to the entrance, would exacerbate the bulk and scale of the parapet wall. While concerned about the height of the screen wall, he was also concerned that were the stairway to have a lower fence, people would be able to stand on the boundary and look directly into his property.
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49 The proposed walls on the western boundary means the development would have walls on both side boundaries in conflict with the development standard of cl cl 3.3.2 A2 ii of the Codes. To grant a relaxation of this requirement it is necessary to consider the contribution the walls make the impact of the development. Having the front door at the side of the house at the raised level of the first floor has resulted in the increased height of the entrance wall and the increased elevation of the screen wall to the steps. These features do accentuate the bulk of the building. The house on No 40 has parapet walls on the boundary, but as noted, the laundry parapet is adjacent to a courtyard and the entrance parapet is higher than the wall it abuts. The Tribunal is of the view that, as submitted by Ms Heyes, the two walls on the western boundary do contribute to the apparent bulk of the proposed house.
Vehicle access
50 The plan approved in 2003 included a double garage at the rear with access from the ROW. The applicant explained that the reason for amending the plan in the current proposal was that access from the ROW was less than satisfactory because of the constrained 7.31 metres frontage and the 3 metre width of the ROW. No specific evidence of vehicle turning circles was produced, but it was Ms Keating's submission that the turning circle would be inadequate for her long wheel base vehicle and so she instructed her architect to follow the precedent of other newer houses in the locality which had access from the street.
51 Mr de Villiers submitted a sketch to demonstrate that vehicle sightlines where the rear access met the Row would at one side be less than required by cl 3.2.6 of the Codes because of the narrowness of the boundary. The Tribunal notes that the concession on the standard would be small and formed the view that the width of the rear boundary would, if it were to remain open to 7.3 metres, provide sufficient width to manoeuvre into and out of the site. This was not considered of itself to be a reason for abandoning rear access.
52 Clause 3.5.4 A4.1 of the Codes requires that vehicle access be from a ROW "where provided and adequately paved and drained from the property to a constructed street". This distance to the nearest street would be about 20 metres. Mr de Villiers considered the ROW not to be of sufficient standard as it was unpaved. He also pointed out that the respondent resolved in 2004 that there was to be no major upgrading programme for rights of way and that levies accumulated for the purpose would be refunded.
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53 Ms Heyes submitted that the Codes did not require the ROW to be sealed and that the respondent graded and compacted the ROW twice a year. She said the ROW had been considered adequate for access as part of earlier approvals and was still considered to be adequately paved and drained for the purposes of vehicle access under the Codes.
54 Photographs provided and the descriptions given indicate the ROW to be trafficable all year round. The Tribunal has formed the view that the ROW access to a rear garage could be provided consistent with the acceptable development provisions of cl 3.5.4 A4.1 of the Codes. The applicant has chosen not to do so and is seeking the discretion of the Tribunal to allow a garage at the front of the house and access to it via a crossover from Reeve Street.
55 Ms Keating provided a sketch from a survey she had conducted showing that about half the houses in the street block had vehicle access from Reeve Street. Mr de Villiers argued that, because of the number of crossovers, some recently approved, the crossover proposed for the development would have little discernable impact on the streetscape and so would be consistent with the performance criteria for vehicle access. Ms Heyes argued that to allow the proposed crossover would not be minimising the number of crossovers to the street, and at 5.7 metre wide would be greater than the 40% maximum proportion of frontage considered desirable under cl 3.5.4 A4.2 of the Codes.
56 From the submissions on this matter, it is apparent that the width of the crossover might be narrowed at the kerb line and the impact on the streetscape would be marginal. As submitted by Ms Heyes, however, this is an additional area of non-compliance that, combined with the varied setbacks, parapet walls and overall bulk of the building, would have an impact on the amenity of the locality.
57 The Tribunal is of the view that the garage proposed for the front of the house would also contribute to impact on the streetscape. The proposed garage is not at ground level, but is effectively an undercroft 1 metre below pavement level. This raises the front half of the proposed house a further 1.67 metres and results in side walls close to maximum height and although walls of this height might otherwise be acceptable they would be at reduced setbacks. Mr de Villiers highlighted the contemporary dwelling with undercroft garage below two floors at No 29 Reeve Street, opposite the subject land. The Tribunal noted that this house did not extend to both boundaries and the wall it did have on a boundary adjoined a wall of similar height. The Tribunal was not
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- convinced that the house at No 29 established the standard by which other developments with an undercroft garage might be approved in this street.
58 In the view of the Tribunal, the concession applied for in respect of the location of the garage throws into greater prominence the concessions sought on the reduced setbacks and walls to both side boundaries.
Impact on the amenity and character of the locality
59 The applicant described the locality as one undergoing change. Most new houses being built in the redevelopment of the area are two-storeys. Both parties provided photographs of contemporary development that had occurred in Reeve Street, particularly in the vicinity of the subject land, as well as in neighbouring streets. Ms Heyes advised that there were no design guidelines and the photographs revealed a range of styles and materials.
60 Features of the proposed house such as materials and the roofline would not be out of place in this locality. The proposed front balconies at the first and second floor levels would also not be out of place, but it is noted that they would be forward of the building line of neighbouring houses and in this respect would emphasise the bulk of the proposed house in the streetscape.
61 Clause 5.1.1 of TPS 2 requires the impact of a proposed development on the amenity of the surrounding area be considered having regard to overall bulk, scale and exterior appearance. As indicated above, there is an example of an undercroft garage opposite the subject land, and other examples were identified in the streets to the north and the south of Reeve Street. These examples, however, serve to illustrate how it is necessary to assess how a proposed development sits on its lot and relates to the buildings around it. In this instance the Tribunal has formed the view that the undercroft garage and other design features as discussed above, including the reduced side setbacks and walls on the boundary, all contribute to the overall bulk and scale of the development. It is considered by the Tribunal the resultant scale and bulk of the proposed development would have a negative impact on the amenity of the surrounding area.
62 Clause 6.4.2 requires that the impact the proposed house would have on the character of the locality be assessed. It can be seen that some of the newer houses in Reeve Street have some of the features requiring a departure from the acceptable development standards being sought in this instance. This was acknowledged by the respondent and there was some
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- discussion between the parties on the impact individual departures on other sites had on the local character. No examples were identified, however, where all of the concessions were to be found in a single building.
63 As indicated in the analysis of the issues above, the Tribunal has found that the concessions required would have a cumulative effect on how the proposed house would present to the street. It has been concluded that how proposed house sits on the lot and relate to its neighbours would produce an unacceptable impact on the local character.
Conclusion
64 It was the submission of the applicant that she is simply attempting to develop a contemporary house which includes those amenities which are reasonably expected in a modern home. How she is seeking to achieve those amenities, however, requires there to be concessions granted on particular development standards. If considered in isolation particular concessions might be acceptable, but the development has been considered as a whole. The assessment has included how the proposed house relates to the lot on which it is sited, to neighbouring developments and to the locality in which it is situated.
65 In this regard reference can be made to the comment, cited by Member McNab in Willicombe and City of Gosnells at [30], from the Victorian Civil and Administrative Tribunal, in Gianna Developments PL v Kingston CC [2001] VCAT 1889 at [28]:
"To conclude that an application [sic] had overdeveloped a site, there usually needs to be evidence of sacrifices in any or all of the following touchstones; density, site coverage, setbacks, opens space, car parking, vehicular access, sunlight, or privacy. If there are casualties with some or all of these, a conclusion can be reached that the developer has 'squeezed' the site too much." [Original emphasis]
66 In this instance the Tribunal has concluded the cumulative effect of the concessions required to achieve the desired design would result in a development of a bulk and scale that would have an impact on the amenity and character of the locality that cannot be supported. The Tribunal has therefore decided to dismiss the application.
Orders
1. The application for review is dismissed.
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- 2. The decision of the respondent is affirmed.
- I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
2