Kimber and Town Of Vincent
[2008] WASAT 58
•11 MARCH 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KIMBER and TOWN OF VINCENT [2008] WASAT 58
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 4 MARCH 2008
DELIVERED : 11 MARCH 2008
FILE NO/S: DR 349 of 2007
BETWEEN: MURRAY SAMUEL KIMBER
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development application Demolition of house and erection of three grouped dwellings High density coding Boundarytoboundary development Policy encourages maintenance of existing side setbacks Plot ratio Whether there is discretion to vary maximum plot ratio under Residential Design Codes of Western Australia (2002) Building height Buildings on boundaries Residential amenity Amenity of locality in terms of side setbacks in streetscape
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.3.4, cl 3.3.1, cl 3.3.2, cl 3.7.1, Table 1
State Administrative Tribunal Act 2004 (WA), s 31
Town of Vincent Town Planning Scheme No 1, cl 10, cl 13, cl 19(2), cl 20, cl 38(5)
Result:
Application for review dismissed
Development application refused
Category: B
Representation:
Counsel:
Applicant: Mr JCW Skinner
Respondent: Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant: Jackson McDonald
Respondent: SJB Planning and Urban Design (Town Planners)
Case(s) referred to in decision(s):
Busen Pty Ltd and City of Subiaco [2007] WASAT 49
Cafarelli and Town of Vincent [2008] WASAT 45
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Kimber sought review of the deemed refusal of a development application for the erection of three grouped dwellings. When invited by the Tribunal to reconsider its decision, the Council resolved to refuse the development application. The proceedings were deemed to be for the review of that decision.
The proposed building would occupy the whole of the width of the site at the street facade. The development would exceed the maximum plot ratio prescribed by the Residential Design Codes of Western Australia (2002). The development would not satisfy the Acceptable Development provisions of the Residential Design Codes in relation to building height, building setbacks and buildings on boundaries.
The Tribunal determined that the proposed development does not conform to the Residential Design Codes in relation to plot ratio, building height, building setbacks and buildings on boundaries. The Tribunal determined that, although the local planning scheme allows variations to the Residential Design Codes where acceptable levels of residential amenity can be achieved, a two-storey boundary wall in the proposed development would result in unacceptable visual impact on an adjoining residential property. The local planning scheme, therefore, required the refusal of the proposed development.
The Tribunal also determined that, if the proposed development were capable of approval under the local planning scheme, it would be refused approval in the exercise of discretion, because it would have an unacceptable impact on the amenity of the locality. The Tribunal found that the proposed development would have an unacceptable impact in relation to amenity in two respects: first, in terms of the residential amenity of the adjoining property, and second, in terms of streetscape character, because boundary-to-boundary development at the street façade is uncharacteristic and is contrary to the policy framework that guides development in the locality.
The decision of the Council to refuse development approval was affirmed.
Introduction
These proceedings involve an application brought by Mr MS Kimber under s 252(1) of the Planning and Development Act 2005 (WA) for review of a decision of the Town of Vincent (Town or Council) to refuse development approval for the demolition of a house and the erection of three grouped dwellings at No 19 Glendower Street, Perth (site).
The application to SAT was originally for review of the deemed refusal of the development application. Under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal invited the Town to reconsider its decision, that is, in effect, to make a determination in relation to the development application.
The development application was recommended for approval, subject to conditions, by the Town's assessing officer. The Town accepted its officer's recommendation, but imposed an additional condition as follows:
"The upper floor eastern boundary wall being set back a minimum of 1 metre from the boundary for a portion of the length not less than 1/3 of the full length."
Mr Kimber's solicitors wrote to the Town stating that it is impossible to proceed with the proposed development in compliance with the additional condition, and that the imposition of that condition is tantamount to refusal of the development application.
Pursuant to s 31 of the SAT Act, the Tribunal again invited the Town to reconsider its decision. The Town's officers advised the Council that the additional condition would necessitate a total redesign of one of the dwellings. The officers recommended that the development application should be approved, subject to conditions excluding the additional condition imposed by the Council. The officers also advised that, if the Council considers that the development should only be approved subject to the additional condition, then it would be more appropriate to refuse the proposal.
The Council resolved to refuse the development application for the following reasons:
"1.Extensive building boundary walls adjacent to the eastern and western boundaries, especially given their height, length, and nil setbacks.
2.Excessive plot ratio variation.
3.Significant building wall height variation.
4.Significant building setbacks variation.
5.Significant undue overlooking from habitable spaces onto adjacent properties.
6.Consideration of objections received.
7.The development, as a result of the number and extent of variations to the relevant requirements, will have an undue impact on the amenity of the area."
In accordance with s 31(3) of the SAT Act, the proceedings are taken to be for the review of the Council's substituted decision, that is, the refusal of the development application.
Site and locality
The site has a regular, rectangular shape with a street frontage and width of 15.09 metres, a length of 45.83 metres and an area of approximately 691.5 square metres. The site is located on the southern side of Glendower Street opposite Hyde Park. The site also has access to a rear lane to its south.
To the east of the site at No 15 Glendower Street is a property on the corner of Glendower Street and Irene Street that contains a single storey building in the Art Deco style of architecture that is divided into three residential units. Each of these units has windows facing the site. However, whereas the principal internal living area of Unit 1 (1/15) is oriented east towards Irene Street and the principal open space of 1/15 is oriented north towards Glendower Street and Hyde Park, principal internal living areas and only open space of Unit 2 (2/15) and Unit 3 are oriented west towards the site. Number 15 Glendower Street is listed on the Town's Municipal Heritage Inventory with the management category "Category B ‑ Conservation Recommended".
To the west of the site at No 21 Glendower Street is a two-storey building housing the Theosophical Society of Western Australia. This building apparently includes offices and a library on the lower level and a residential unit on the upper level. The residential unit has a kitchen window and dining room window facing east towards the site. However, a large air conditioning unit blocks part of the dining room window, and the kitchen and dining areas appear to be part of a large open plan living area with large windows and orientation to the north towards Glendower Street and Hyde Park.
The streetscape along the southern side of Glendower Street in the vicinity of the site is eclectic and includes one to three storey houses, a 1960s three storey walk-up residential flat building, a row of six two‑storey Paddington style terrace houses, with a third storey within the roof form presenting as a gabled dormer to the street, a disused church, the single storey Art Deco flats to the east of the site and the two-storey Theosophical Society building to the west of the site.
The majority of buildings in Glendower Street are set back from the side boundaries of their lot at the street façade. The exceptions are the party walls between the terraces at No 9 to No 13, a party wall between a pair of original semi-detached houses at No 37 and No 39, a party wall between a pair of contemporary semi-detached houses at No 41 and No 41A, an original house at No 53 that is built to its western boundary and a contemporary house at No 55 that abuts the house at No 53. The easternmost terrace house at No 9 is set back from its eastern boundary and the westernmost terrace house at No 13 is set back from its western boundary.
Other than the four internal terrace houses, none of the buildings in this section of Glendower Street occupy the whole of the width of their site from side boundary to side boundary at the street frontage. In addition to the party wall, the contemporary three storey pair of houses at No 41 and No 41A each have an approximately 5 metre long two-storey component that abuts the other side boundary so that these houses occupy the whole of the width of their lots from side boundary to side boundary for a two-storey component. While the two-storey component is apparent from the street in close proximity to these properties, it is set back from the street façade.
Proposed development
The proposed development involves the demolition of an existing single storey house and the erection of three two-storey grouped dwellings on the site.
With the exception of three lightwells 3.881 metres in length and approximately 1.5 metres ‑ 1.8 metres in width, located centrally, the proposed building would occupy the whole of the width of the site from side boundary to side boundary for a distance of approximately 24.5 metres behind a setback of 4.610 metres from Glendower Street. The proposed building would also occupy the whole of the width of the site at its rear or southern end for a distance of 4.730 metres behind a 1.5 metre setback from the rear laneway.
Each unit would have a two space tandem garage and store area accessed from the laneway.
A courtyard is proposed at ground level between the front part of the building and the rear garage/store component of the building with a roof deck above. Other than the southernmost 4.730 metre section of the roof deck, which would have no side setback, the roof deck would be set back from the side boundaries of the site by between approximately 1.1 metres and 2.8 metres.
The proposed development would present to each of the adjoining properties at No 15 and No 21 with three sections of boundary wall. From Glendower Street to the rear lane, these sections of boundary wall would have dimensions of approximately 11.6 metres width by approximately 6.2 metres height, approximately 8.75 metres width by approximately 6.3 metres height and approximately 5.2 metres width by approximately 4.6 metres height. The first and second sections of boundary wall would be separated from each other by approximately 3.8 metres and the second and third sections of boundary wall would be separated from each other by approximately 10 metres.
Planning framework
The site is zoned "Urban" under the Metropolitan Region Scheme and "Residential" under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). Grouped dwellings are a use that is permitted by the Scheme: see cl 13.
The site is located in the Hyde Park precinct for the purposes of cl 10 of the Scheme. Multiple dwellings are not permitted in this precinct: cl 20(4)(e).
Clause 20(1) of the Scheme provides that the site density per hectare under the Residential Design Codes of Western Australia (2002) (Codes) for any land is to be determined by reference to the density number illustrated on the Scheme Map for the land. The density number illustrated on the Scheme Map for the site is "R80". The R80 code is referred to in Table 1 of the Codes as a "high density" code.
Clause 19(2) of the Scheme states as follows:
"Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the [Codes] is to conform to the provisions of those Codes."
However, cl 20(5) of the Scheme enables the Council to vary requirements of the Codes: Cafarelli and Town of Vincent [2008] WASAT 45 at [33]. Clause 20(5) states as follows:
"The Council will consider variations to the [Codes] where it considers that acceptable levels of residential amenity can be achieved."
Clause 38(5) of the Scheme sets out matters for consideration in the exercise of planning discretion under TPS 1. The matters for consideration include:
"(a)the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policy;
…
(h)the conservation of the amenities of the locality;
…"
The term "amenity" is defined in the Scheme, unless the contrary intention appears, as follows:
"'Amenity' means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity."
The site is located in the area subject to the Robertson ‑ Locality Plan 23 Policy No: 3.3.23 (Robertson Policy). The Robertson Policy states that the locality is one of the oldest settled areas in the Town. The Robertson Policy includes the following statement in relation to desired future character:
"New contemporary developments are encouraged provided that the design responds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation."
In relation to the requirement for new contemporary developments to respond to "the established character" and, in particular, "building location", cl 3 of the Robertson Policy contains the following special policy concerning setbacks:
"Maintaining existing side and rear setbacks is strongly encouraged."
Issues for determination
The following five issues arise for determination in this review:
1.Whether the proposed development conforms to the Codes in relation to plot ratio.
2.Whether the proposed development conforms to cl 3.7.1 of the Codes in relation to building height.
3.Whether the proposed development conforms to cl 3.3.1 of the Codes in relation to building setbacks and cl 3.3.2 of the Codes in relation to buildings on boundaries.
4.If the proposed development does not conform to one or more of the provisions of the Codes referred to in issues 1, 2 and 3:
(a)whether the Tribunal considers that acceptable levels of residential amenity can be achieved for the purposes of cl 20(5) of TPS 1; and, if so,
(b)whether any relevant variation to the Codes should be allowed in the exercise of discretion under cl 20(5) of TPS 1.
5.Whether the proposed development is acceptable in relation to impact on the amenity of the locality.
The Tribunal will address each of these issues in turn.
Plot ratio
Table 1 of the Codes prescribes a maximum plot ratio of 0.65 for grouped dwellings on land coded R80. Mr NA Teo, a town planner who gave evidence on behalf of Mr Kimber, and Mr SJ Bain, a town planner who gave evidence on behalf of the Town, agree that the plot ratio of the proposed development is 0.8. This involves a substantial exceedance of the maximum plot ratio prescribed by the Codes in the order of 23%. Mr Bain estimates that the exceedance of the maximum plot ratio involves 103.5 square metres of floor space. Mr Teo does not dispute this estimate.
Mr JCW Skinner, counsel for Mr Kimber, submits that cl 2.3.4 of the Codes confers a discretion on the Town, and on the Tribunal on review, to approve the application notwithstanding the exceedance of the maximum plot ratio control. Mr Skinner relies on the Tribunal's decision in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [67] ‑ [69].
The Tribunal set out relevant parts of cl 2.3.4 of the Codes in Canning Mews Pty Ltd and City of South Perth at [68]. At [69], the Tribunal observed that the meaning of the clause "is far from clear". It concluded its analysis as follows:
"On balance, it would appear that discretion is available, although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question."
At [70], the Tribunal determined that, on the assumption that a discretion is available under cl 2.3.4 of the Codes, it did not consider that it should be exercised so as to permit the application notwithstanding the exceedance of the maximum plot ratio.
Similarly, in this case, it is not necessary to come to a concluded view in relation to whether discretion is available under cl 2.3.4 of the Codes to vary the maximum plot ratio prescribed by Table 1. On the assumption that a discretion is available, the Tribunal does not consider that it should be exercised so as to permit the proposed development to be approved notwithstanding the exceedance of the maximum plot ratio.
As Mr Bain said in evidence, "the extra plot ratio results in a larger development which is bulkier and wider in the streetscape". For reasons discussed in relation to issue 5 below, the proposed development is not acceptable in relation to impact on the amenity of the locality in terms of streetscape, because the siting of the proposed development from boundary to boundary at the street façade is uncharacteristic and is contrary to the applicable policy framework.
Furthermore, the excess plot ratio is manifested in two-storey boundary walls. For reasons discussed in relation to issues 2, 3 and 4 below, the middle boundary wall on the eastern side of the development would have an unacceptable impact on the visual residential amenity of 2/15.
Mr Teo gave evidence that the intent of the R80 density coding is to support high density accommodation on the site and in the locality. He notes that the majority of housing stock in the street consists of two to three storey dwellings, some with a plot ratio exceeding 0.65.
However, the zoning and density coding of the site and locality is unusual, in that although the coding is R80, multiple dwellings are prohibited in the Hyde Park precinct. The prohibition of multiple dwellings and the limitation of the plot ratio of grouped dwellings to 0.65 may have the consequence that the development potential of a property is less than that suggested by the coding. In any case, assuming that discretion is available under cl 2.3.4 of the Codes, each application for the exercise of discretion must be assessed on its own merits and having regard to the specific context. It may well be the case that the site can be developed to a plot ratio exceeding 0.65. However, discretion should not be exercised to permit the proposed plot ratio of 0.80, because the proposal would stretch from boundary to boundary at the street façade and would have an unacceptable impact on residential amenity in consequence of the siting and massing of the building on its eastern side.
It follows that the proposed development does not conform to the Codes in relation to plot ratio.
Building height
The planning experts agree that the proposed development has wall heights of slightly beyond 6 metres and a roof height of just beyond 7 metres, with the result that it does not conform to the Acceptable Development provision in relation to building height in cl 3.7.1 A1.1 of the Codes. The corresponding Performance Criteria in cl 3.7.1 P1 is as follows:
"Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms; and
•access to views of significance."
The Tribunal held in Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50 at [42] as follows:
"Although the performance criteria in cl 3.7.1 of the Codes expressly refer to three particular aspects of amenity, the consideration is not restricted to these aspects. Adverse visual impact from excessive bulk and scale of built form would detrimentally affect the amenities of adjoining properties."
Mr Teo considers that the proposed development conforms to the Performance Criteria. In contrast, Mr Bain considers that, having regard to the location of the proposed boundary walls, the building height would have "an over-towering effect" on the adjoining property at No 15.
As noted earlier, No 15 comprises three units. Mr B Vintila, the co‑owner of No 15 and the resident of 1/15, gave evidence and expressed the concern that the location and height of the proposed boundary walls would deprive the west facing windows of his unit of substantial light. Mr Terry Wilson, the other co‑owner of No 15 and the resident of 2/15, did not give evidence, but wrote a letter of objection to the Town in which he expressed the concern that the boundary walls "will present as a solid, impenetrable block" and "will cause serious loss of amenity". During the view of the site and locality, the Tribunal inspected No 15, and Mr Teo and Mr Bain identified the location of the proposed boundary walls relative to the internal and open space areas of No 15.
The Tribunal agrees with Mr Teo that the proposed building height is consistent with the desired height of buildings in the locality, although, for reasons discussed below, the lack of side setbacks at the street façade is not consistent with desired built form.
However, the Tribunal finds that the proposed building height does not recognise the need to protect the amenities of 2/15, because of the excessive visual bulk and scale of the boundary wall, or, as Mr Bain put it, the "over‑towering effect", relative to the limited internal and external living areas of 2/15.
Significantly, a sitting room, dining room and the external living area of 2/15 are oriented towards the site. The external living area comprises a small courtyard between the unit and the common boundary with the site. The proposed development would place a two-storey high boundary wall opposite the sitting room and most of the dining room of 2/15 and right next to most of its only outdoor living area.
Mr Skinner notes that there is existing dense vegetation along much of the western boundary of No 15 and that this "will substantially block any view of the proposed development". However, as the Tribunal observed in Dunbar and City of Stirling at [44]:
"As a matter of planning principle, a proposed development should generally mitigate or accommodate its impact on site. It is not, therefore, generally appropriate for a development to rely on landscaping on adjoining properties to mitigate the impacts of proposed excessive bulk and scale."
Furthermore, assuming that the existing vegetation survives the construction of the development, it would not adequately mitigate the adverse visual effect of a 6.3 metre high wall along most of the boundary with 2/15.
However, the proposed building height does recognise the need to protect the amenities of 1/15, because the proposed development incorporates a lightwell, with the two-storey component set back between approximately 1.5 metres and 1.8 metres from the common boundary, opposite the west facing window of 1/15 that provides light and visual amenity to a sitting room, and indirect light to the kitchen and a bathroom beyond.
While Mr Vintila also expressed concern in relation to the effect of the front section of boundary wall on daylight and visual amenity for a small study and bedroom beyond, the level of daylight and visual amenity that is currently available to the study and bedroom through the west facing window is so poor that the building height in the relevant part of the proposal satisfies the performance criteria.
In light of the visual amenity impacts on 2/15, the proposed development does not conform to the Codes in relation to building height.
Building setbacks and buildings on boundaries
Mr Teo and Mr Bain agree that the proposed development does not conform to the Acceptable Development provision in relation to boundary setback requirements in cl 3.3.1 A1 of the Codes or the Acceptable Development provision in relation to buildings on boundaries in cl 3.3.2 A2 of the Codes. The corresponding Performance Criteria in cl 3.3.1 P1 and cl 3.3.2 P2 include the following:
"Buildings set back from boundaries other than street boundaries so as to:
…
•assist in ameliorating the impacts of building bulk on adjoining properties;
…" (cl 3.3.1 P1).
"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;
…" (cl 3.3.2 P2).
For reasons discussed earlier in relation to building height, the Tribunal finds that the proposed development does not conform to the Performance Criteria, because the building is not set back so as to "assist in ameliorating the impacts of building bulk" on 2/15, and has a "significant adverse effect on the amenity" of the unit.
In particular, having regard to the limited extent of internal and external open space for 2/15 and the orientation of the internal and external open space to the site, the location of a two-storey boundary wall along most of the boundary between the site and this unit would have a significant adverse effect on the amenity of the unit.
It follows that the proposed development does not conform to the Codes in relation to building setbacks and buildings on boundaries.
Should the Codes be varied?
As noted earlier, cl 20(5) of TPS 1 enables variation of the Codes where the Council, or the Tribunal on review, considers that acceptable levels of residential amenity can be achieved.
However, for reasons set out earlier in relation to plot ratio, building height and setbacks, the Tribunal does not consider that acceptable levels of residential amenity can be achieved. In particular, the effect of the location of the proposed building abutting the courtyard of 2/15 is unacceptable in terms of the visual amenity of that unit. As Mr Bain said, the proposed development would have a "severe impact" on 2/15, because of its excessive bulk and scale relative to the limited internal and external living areas of that unit.
Impact on the amenity of the locality
As noted earlier, the Tribunal is required to have regard to "the conservation of the amenities of the locality": TPS 1 cl 38(5)(h). As also noted earlier, the term "amenity" is defined to mean "all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity".
The proposed development is unacceptable in relation to its impact on the amenity of the locality in two respects.
First, for reasons discussed in relation to plot ratio, building height and setbacks, the proposed development would have an unacceptable impact on the residential amenity of 2/15.
Mr Teo expressed the opinion that the amenity impacts of the proposed development are within the contemplation of the high density coding of the site and locality. He considers that similar scaled, or even more intense, recent developments at No 41, No 41A and No 55 demonstrate "the clear need to optimise development space within higher density residential areas, as they are built to the nil side boundary or boundaries". Mr Teo also refers to an approval granted in March 2001 for redevelopment of No 15 which "provides a useful reference to a '… likely future amenity', that is appropriate for consideration in regard to No 15".
However, as Mr Bain said, even in a high density code, a development cannot ignore its context. As noted earlier, No 41 and No 41A are a pair of semi-detached contemporary houses with a common party wall. Although it is the case that these houses also contain a 5 metre wide two-storey component that abuts the other side boundaries, the Tribunal is not aware of the particular amenity impacts of those sections of wall. As also noted earlier, No 55 adjoins an historic boundary wall on the property to the east. While No 55 is a three-storey building, it has a generous setback to its other neighbour to the west. Ultimately, each case must be assessed on its own merits, having regard to its particular context. The March 2001 approval for redevelopment of No 15, if granted again and implemented, would not alter the impact of the proposed development on 2/15.
The second aspect of amenity in relation to which the proposed development is unacceptable involves streetscape character.
Mr Teo gave evidence that the proposed development is consistent with the desired future character articulated in the Robertson Policy, as the building would be consistent with the height of other buildings in the locality and the design consists of pitched roofs, verandahs and deep red or green roof colours "which make a worthy contribution to respecting the style of housing along the Glendower Street streetscape". Mr Teo also expressed the opinion that side setbacks within a high density R80 residential area "are not considered to be significant contributing factors to the amenity and/or streetscape of an area". Rather, in such areas, built form is the significant contributing factor in terms of streetscape. Finally, Mr Teo notes that certain existing developments along Glendower Street exhibit nil side setbacks.
In contrast, Mr Bain gave evidence that the development is contrary to the pattern of development in the area, particularly due to the two‑storey walls on the boundaries.
The Tribunal considers that the proposed development is unacceptable in relation to impact on streetscape character, because the siting of the building from boundary to boundary at the street façade is uncharacteristic and contrary to the applicable policy framework. As noted earlier, with the exception of the four internal terrace houses, no building in the locality of the site stretches from boundary to boundary at the street façade. As also noted earlier, the Robertson Policy requires that the design of contemporary developments should respond to the established character, which does not include boundary to boundary development at the street façade. Indeed, the special policy in relation to setbacks states that:
"Maintaining existing side and rear setbacks is strongly encouraged."
It is well established that a policy cannot replace the discretion of the decision-maker in the sense that it is to be applied inflexibly regardless of the merits of the particular case: see Busen Pty Ltd and City of Subiaco [2007] WASAT 49 at [33]. However, there is no reason in the circumstances of this case to depart from the policy.
The Tribunal considers that the conservation of the amenities of the locality requires a setback from the side boundaries at the street façade. Whether or not side setbacks are a significant contributing factor to the streetscape character of R80 coded areas generally, building location is "of particular importance" ‑ to quote the Robertson Policy ‑ in the area in question. In this area, which is arguably unusual for a high density coded area in light of historic development, the prohibition on multiple dwellings and the special policy in relation to setbacks in the Robertson Policy, side setbacks are an important contributing element to streetscape character and, therefore, amenity.
Conclusion
As the proposed development does not conform to the Codes in relation to plot ratio, building height, setbacks and buildings on boundaries, and as the Tribunal does not consider that acceptable levels of residential amenity can be achieved for the purposes of cl 20(5) of TPS 1, the development application must be refused under cl 19(2) of the Scheme. If the development application were capable of approval under the Scheme, it should be refused consent, because it would have an unacceptable impact on the residential amenity of 2/15 and on the streetscape character of the locality.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the Town of Vincent made on 18 December 2007, in accordance with s 31(1) of the State Administrative Tribunal Act 2004 (WA), to refuse development approval for the demolition of a house and the erection of three grouped dwellings at No 19 (Lot 3) Glendower Street, Perth is affirmed.
I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
1
4
4