LAZIDIS and CITY OF SOUTH PERTH

Case •

[2007] WASAT 91

•

20 APRIL 2007

No judgment structure available for this case.

LAZIDIS and CITY OF SOUTH PERTH [2007] WASAT 91



STATE ADMINISTRATIVE TRIBUNALCitation No:[2007] WASAT 91
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:32/200717 APRIL 2007
Coram:MR R EASTON (SENIOR SESSIONAL MEMBER)20/04/07
29Judgment Part:1 of 1
Result: The applications for review are allowed
B
PDF Version
Parties:SHARON LESLIE LAZIDIS
CITY OF SOUTH PERTH

Catchwords:
Two storey dwelling
Undercroft garage
Height
Scale
Bulk
Overshadowing
Driveway gradient
Streetscape
Privacy
Boundary walls
Focus area

Legislation:
City of South Perth Town Planning Scheme No 5
City of South Perth Town Planning Scheme No 6, cl 1.6, cl 1.6(1), cl 1.6(2), cl 1.6(2)(f), cl 3.2, cl 4.1, cl 4.3, cl 4.5, cl 4.10, cl 6.10(2), cl 7.5, cl 7.5(j), cl 7.5(n), cl 9.6, cl 9.6(8)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.3.2 A2(i), cl 3.8.1 A1, cl 3.9.1, cl 3.9.1 A1, Table 1

Case References:
Nil

Orders
DR 32 of 2007:,1. The application for review is allowed subject to the following conditions.,(i) The approved drawings show that a proposed crossover will interfere with a street tree situated within the road reserve.  The applicant is required to pay a sum of $497.75 for the cost of removing and replacing this tree as detailed in a tax invoice that will be issued by the City of South Perth prior to the collection of a building licence.,(ii) The approved drawings show that a proposed crossover will interfere with services maintained by a service authority or private company.  The applicant is required to make arrangements with the responsible service authority or private company for the relocation of this infrastructure prior to the construction of the proposed crossover.  Details of the acceptance of that authority for the relocation of the infrastructure shall be provided prior to the issuing of a building licence.,(iii) The proposed driveway gradient exceeds that which is normally accepted by the City of South Perth.  The driveway gradient is acceptable if a letter is received from the property owner which acknowledges responsibility for any access difficulties that may arise, without any future recourse from the City of South Perth.  The gradient is to comply with the gradient requirements of AS 2890.1 including requirements of transition zones if required.  Compliance with gradient requirements must not result in any building height increase beyond the prescribed maximum of 7.0 metres.,(iv) The surface of the boundary wall on the southern side (Lot 8) and northern side (Lot 9) of the lot shall be finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City of South Perth.,(v) External clothes drying facilities shall be screened from view from the street or any other public space.,(vi) The applicant shall construct a crossover between the road and the property boundary.  The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within specification SP30 attached to this approval.  The existing verge levels at the front property boundary shall not be altered.,(vii) Apart from the tree described in condition 1, no street trees shall be removed, pruned or disturbed in any way.,(viii) Details of the proposed colours of the external materials shall be submitted for approval by the City of South Perth, prior to the issuing of a building licence.  The selected colours shall demonstrate compatibility with neighbouring buildings.,(ix) Unless otherwise approved, fences of brick, timber capped or manufactured pre coloured metal sheet, capped corrugated fibre cement sheet or brushwood construction, 1.8 metres in height, shall be provided along the north, east and south boundaries of the site.  Any fencing forward of the building line shall not be of fibre cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City of South Perth.  The fence height at any point shall be measured from the level of the ground adjacent to the fence.  If the ground levels on each side of the fence are not the same at any point along the boundary, the fence height at that point shall be measured from the higher side.,(x) The existing boundary fencing shall not be removed, until such time as the required new fencing is to be erected.,(xi) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.,(xii) Any required retaining walls along lot boundaries shall be constructed immediately after the excavation or filling has been carried out.,(xiii) All existing trees intended to be retained as indicated on the site plan shall be identified for retention on the working drawing and shall be protected prior to and during construction, and shall not be removed without prior approval of the City of South Perth.,(xiv) The height of the letter box, electricity installation, bin enclosure, or other structure, fence, wall or hedge within 1.5 metres of any vehicle driveway where it meets a street alignment shall not exceed the 0.75 metres limit imposed under the provisions of cl 3.2.6 A6 of the Residential Design Codes of Western Australia (2002).,(xv) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.,(xvi) This development shall be constructed concurrently with the development approved in SAT proceeding DR 33 of 2007.,DR 33 of 2007:,1. The application for review is allowed subject to the following conditions:,(i) The approved drawings show that a proposed crossover will interfere with services maintained by a service authority or private company.  The applicant is required to make arrangements with the responsible service authority or private company for the relocation of this infrastructure prior to the construction of the proposed crossover.  Details of the acceptance of that authority for the relocation of the infrastructure shall be provided prior to the issuing of a building licence.,(ii) The proposed driveway gradient exceeds that which will normally be accepted by the City of South Perth.  The driveway gradient is acceptable if a letter is received from the property owner which acknowledges responsibility for any access difficulties that may arise, without any future recourse from the City of South Perth.  The gradient is to comply with the gradient requirements of AS 2890.1 including requirements of transition zones if required.  Compliance with gradient requirements must not result in any building height increase beyond the prescribed maximum of 7.0 metres.,(iii) The surface of the boundary wall on the southern side (Lot 8) and northern side (Lot 9) of the lot shall be finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City of South Perth.,(iv) External clothes drying facilities shall be screened from view from the street or any other public space.,(v) The applicant shall construct a crossover between the road and the property boundary.  The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within specification SP30 attached to this approval.  The existing verge levels at the front property boundary shall not be altered.,(vi) No street trees shall be removed, pruned or disturbed in any way.,(vii) Details of the proposed colours of the external materials shall be submitted for approval by the City of South Perth, prior to the issuing of a building licence.  The selected colours shall demonstrate compatibility with neighbouring buildings.,(viii) Unless otherwise approved, fences of brick, timber capped or manufactured pre coloured metal sheet, capped corrugated fibre cement sheet or brushwood construction, 1.8  metres in height, shall be provided along the north, east and south boundaries of the site.  Any fencing forward of the building line shall not be of fibre cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City.  The fence height at any point shall be measured from the level of the ground adjacent to the fence.  If the ground levels on each side of the fence are not the same at any point along the boundary, the fence height at that point shall be measured from the higher side.,(ix) The existing boundary fencing shall not be removed, until such time as the required new fencing is to be erected.,(x) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.,(xi) Any required retaining walls along lot boundaries shall be constructed immediately after the excavation or filling has been carried out.,(xii) All existing trees intended to be retained as indicated on the site plan shall be identified for retention on the working drawing and shall be protected prior to and during construction, and shall not be removed without prior approval of the City of South Perth.,(xiii) The height of the letter box, electricity installation, bin enclosure, or other structure, fence, wall or hedge within 1.5 metres of any vehicle driveway where it meets a street alignment shall not exceed the 0.75 metres limit imposed under the provisions of cl 3.2.6 A6 of the Residential Design Codes of Western Australia (2002).,(xiv) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.,(xv) This development shall be constructed concurrently with the development approved in State Administrative Tribunal proceeding of DR 32 of 2007.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LAZIDIS and CITY OF SOUTH PERTH [2007] WASAT 91 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 17 APRIL 2007 DELIVERED : 20 APRIL 2007 FILE NO/S : DR 32 of 2007
    DR 33 of 2007
BETWEEN : SHARON LESLIE LAZIDIS
    Applicant

    AND

    CITY OF SOUTH PERTH
    Respondent

Catchwords:

Two storey dwelling - Undercroft garage - Height - Scale - Bulk - Overshadowing - Driveway gradient - Streetscape - Privacy - Boundary walls - Focus area

Legislation:

City of South Perth Town Planning Scheme No 5


City of South Perth Town Planning Scheme No 6, cl 1.6, cl 1.6(1), cl 1.6(2), cl 1.6(2)(f), cl 3.2, cl 4.1, cl 4.3, cl 4.5, cl 4.10, cl 6.10(2), cl 7.5, cl 7.5(j), cl 7.5(n), cl 9.6, cl 9.6(8)

(Page 2)

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.3.2 A2(i), cl 3.8.1 A1, cl 3.9.1, cl 3.9.1 A1, Table 1

Result:

The applications for review are allowed

Category: B


Representation:

Counsel:


    Applicant : Mr P Webb (Acting as Agent)
    Respondent : Mr S Allerding (Acting as Agent)

Solicitors:

    Applicant : Peter D Webb & Associates (Town Planners)
    Respondent : Allerding Associates (Town Planners)



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

Nil

(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 These matters involved two applications for review of the City of South Perth's refusal of two development applications for two new adjoining two storey dwellings with undercroft garages at No's 124 and 124A Coode Street, South Perth.

2 The respondent's reasons were related to non compliance with boundary wall requirements, excessive overshadowing of adjoining lots, overlooking, excessive driveway gradients and excessive bulk in the context of the local focus area.

3 The Tribunal found the boundary walls were acceptable if constructed concurrently.

4 The Tribunal found that although the proposal failed to meet acceptable development standards for solar access, it met performance criteria and the overshadowing was acceptable.

5 The Tribunal found that the overlooking was acceptable and was well within the expectations set by performance criteria.

6 The Tribunal found there were no grounds to refuse the application on the basis of the increased driveway gradient.

7 The Tribunal found that although approaching the threshold of acceptability because of the maximum height, the proposals were considered to meet Scheme and Policy objectives and that the proposals would not have a detrimental impact on the streetscape, visual amenity and character of the Coode Street focus area and allowed both applications for review.




Introduction

8 These proceedings involve two applications brought by Sharon Lazidis (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for a review of the decisions of the City of South Perth (respondent) made on 19 December 2006 to refuse development approval for two adjoining two storey residences at 124 and 124A Coode Street, South Perth.

9 Although the dates on the forms are marginally different, the respondent records that the applications for both proposals were lodged on


(Page 4)
    8August 2005. The two dwellings have similar themes but are distinctly different dwellings. However, both dwellings are contained in one set of drawings.

10 The planning issues affecting both dwellings are similar. Most of the documentation, including witness statements referred jointly to both applications. The applications were heard together before the Tribunal. The Tribunal's reasons for the determination of both applications are contained within this one document. Where appropriate, the reasons identify matters that refer specifically to one application.

11 The respondent refused both applications for the same reasons at a Council meeting held on 19December 2006. The reasons for refusal were:


    1) The dimensions of the proposed boundary walls do not comply with the normal maximum length and height prescribed in Council Policy P376_T "Residential Boundary Walls";

    2) The extent of overshadowing to the adjoining property to the south exceeds the 25% maximum prescribed under the acceptable development provision in cl 3.9.1 A1 of the Residential Design Codes of Western Australia (2002) (Codes);

    3) Overlooking into the properties at No 122 Coode Street and No 9 Fortune Street will occur with the setback distances not complying with acceptable development provisions in cl 3.8.1 A1 of the Codes relating to visual privacy;

    4) The driveway gradient exceeds the maximum prescribed in cl 6.10(2) of the City of South Perth's Town Planning Scheme 6 (TPS 6); and

    5) City of South Perth's city council (Council) is of the opinion that, due to the bulk of the proposed dwellings, they will not be visually in harmony with the predominantly single storey houses in the focus area. In this regard, the Council considers that the proposal does not meet TPS 6 objective (f) listed in cl 1.6 and items (j) and (n) listed in cl 7.5 "Matters to be Considered by Council" of TPS 6.


12 The applicant's agent, Mr Webb, lodged applications to review the respondent's refusals. The documentation was dated 16 January 2007. On 7 February 2007, the Tribunal issued orders setting out processes and dates for the parties to prepare for a hearing on 17 April 2007.

(Page 5)



13 Although both proposed dwellings have different plans and are on different lots they share some essential characteristics. Both have an undercroft basement for three cars and a cellar set approximately 1.2 metres below footpath level. Both proposals are two storey dwellings over the undercroft garage with the ground floor levels at approximately 1.5 metres above footpath level and set back just over 6 metres from Coode Street. Both dwellings have two storey high boundary walls which adjoin each other on the common boundary. Both dwellings are set back from the side boundaries of their respective neighbours.

14 The parties agreed on five issues to be determined. Three issues are common for both proposals.


    1) "[W]hether the development would have a significant and detrimental impact on the streetscape, visual amenity and character of the Coode [S]treet focus area";

    2) "[W]hether the two storey boundary wall should be permitted"; and

    3) "[W]hether the discretion to permit a driveway gradient greater than prescribed in the Scheme should be permitted".


15 A separate issue for Lot 8 (No 124) Coode Street (DR 32 of 2007) (Lot 8) is:

    4) "[W]hether the overlooking into the properties at 122 Coode Street and 9 Fortune Street complies with the visual privacy provisions of the [Codes]."

16 A separate issue for Lot 9 (No 124A) Coode Street (DR 33 of 2007) (Lot 9) is:

    5) "[W]hether the development complies with cl 3.9.1 of the [Codes] because of the overshadowing of the property at 126 Coode Street."

17 The Tribunal had the benefit of a view of the site and locality in the company of representatives of the parties.

18 The respondent submitted a without prejudice list of conditions on the day before the hearing. The applicant did not have time to submit a response to the conditions. At the hearing the applicant identified two conditions that appeared to contradict each other.

19 Draft Condition (1) states:


(Page 6)
    "The approved drawings show that the proposed crossover will interfere with a street tree situated within the road reserve. The applicant is required to pay a sum of $497.75 for the cost of removing this tree and replacing the tree, as detailed in a tax invoice that will be issued by the City, prior to the collection of a building licence."

20 Draft condition 7 states:

    "No street trees shall be removed, pruned or disturbed in any way."

21 After discussion, the parties agreed it was consistent with the without prejudice conditions to delete condition 7.

22 After review, the Tribunal finds that it is most likely that the site plan indicates the one street tree involved is close to the edge of the cross over to 124 and that condition 1 applies to that lot. Condition 7 appears to apply generally to all remaining nearby street trees. Therefore condition 1 together with an appropriately modified condition 7 applies to Lot 8 and only condition 7 (unmodified) applies to Lot 9.




Subject land

23 The subject land consists of two lots which adjoin each other. Both lots are vacant land and are zoned "Residential R15". They are on the eastern side of Coode Street near the intersection with South Terrace.

24 The subject land is described as Lot 8 and Lot 9 Coode Street, South Perth (Lot 8, Lot 9 or subject lots as context requires). Lot 8 has an area of 367 square metres, a frontage to Coode Street of 10.06 metres and a depth of 36.45 metres. Lot 9 (adjoining to the south of Lot 8) has an area of 336 square metres, a frontage of 10.06 metres to Coode Street and a depth of 33.48 metres.

25 The subject lots are relatively flat although there is a gentle rise to the rear. The site plans show levels at the front of the site at just over 10.0 metres and levels on the adjoining rear properties at the boundary of 11.0 metres.

26 The subject lots are consistent in size with other residential lots on the east side of Coode Street between Pilgrim Street and South Terrace. They are also similar in size to the adjoining lots at the rear.

(Page 7)



27 The subject lots are close to commercial development on the corner of South Terrace and Coode Street, and the South Perth Community Hospital in South Terrace. The photographic evidence submitted by the applicant shows houses 118 to 138 Coode Street. There is a mix of single storey dwellings and new two storey dwellings. The photographs indicate there has been some redevelopment of properties. Of the nine properties shown, six have double width garage doors as a significant component of the streetscape.

28 The properties to the rear, in Fortune Street are two storey dwellings with double width carports (some with garage doors) and single storey components to the rear of the subject lots.




Planning framework

29 The subject lots are zoned "Urban" under the Metropolitan Region Scheme and "Residential R15" under the respondent's TPS 6. The proposed land use is "single house" for each of the lots and is a "P" use in TPS 6.

30 Table 1 of the Codes indicates the average lot size for R15 is 666 square metres. The subject lots of 337 square metres and 366 square metres are substantially less the size normally associated with R15 and are more typical of R25 coding where average sizes are 350 square metres. However, the lots are existing lots and consistent with the lot size in the super block contained within Coode Street, South Terrace, Fortune Street and Pilgrim Street.

31 Clause 1.6(1) of TPS 6 states:


    "[T]he overriding objective of the Scheme is to require and encourage performance-based [sic] development in each of the 14 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each Precinct."

32 Clause 1.6(2) lists the Council objectives. One of the reasons for refusal cited the following objective:

    "(f) Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development."

(Page 8)



33 Clause 3.2 of TPS 6 describes the creation of 14 precincts within the scheme area. The subject lots are located in Precinct Plan 3: South Perth Civic (precinct plan).

34 The Section 24 bundle did not include the precinct plan for this precinct. TPS 6 contains zoning and height maps for the precinct. It appears the precinct plan remains in draft form.

35 The only relevant information about the precinct plan requirements is contained in the respondent's witness statement. The precinct plan provides the following objectives for the R15 Code:


    "(i) to conserve existing character housing and streetscapes in areas not previously the subject of substantial redevelopment.

    (ii) to retain a significant proportion of single houses within Precinct 3."


36 The desired future character for this precinct is described as:

    "To preserve areas of predominantly low density, high quality 'character housing' stock by precluding any redevelopment other than on specific sites adjoining Canning Highway."

37 The respondent stated that the Council has instituted precinct wide controls for the South Perth Civic Precinct. Of the three controls listed, the first control is not relevant because it relates to demolition of existing dwellings and the third control is not relevant because it refers to redevelopment of lots with non-conforming density and height rights. Only the second control is relevant and states:

    "(ii) In assessing development proposals, regard will be had to the objectives for the Precinct, and the coding of the area, the impact of the proposal on an adjoining residential amenity and the character of the existing streetscape."

38 Clause 4.1 of TPS 6 requires development of land for residential purposes to conform to the provisions of the Codes.

39 Clause 4.3 describes variations/special applications of the Codes, however, the parties have not identified any relevant variations.

(Page 9)



40 There are three relevant sections of the Codes, namely: cl 3.3.2 – Buildings on Boundary, cl 3.8.1 – Visual Privacy and cl 3.9.1 – Solar Access for Adjoining Sites.

41 Clause 4.5 of TPS 6 headed "General Design Guidelines" requires:


    "In considering an application for planning approval for any residential development in any zone, the Council shall have regard to any planning policy adopted under clause 9.6 relating to the design of residential development."

42 Clause 4.10 headed "General Requirements for Residential Uses" requires:

    "In addition to compliance with other provisions of Part IV, the development of land for residential purposes shall also comply with the relevant provisions of Part VI."

43 One of the reasons for refusal referred to excessive gradient. These requirements are specified in cl 6.10(2) of TPS 6 which state:

    "The floor level of any parking structure … shall be calculated to achieve a driveway gradient generally not exceeding 1:12 within 3.6 metres of the street alignment and 1:8 for the remainder of the driveway."

44 The reasons for refusal also referred to items (j) and (n) in cl 7.5 of TPS 6 which state:

    "(j) all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;

    ...

    (n) the extent to which a proposed building is visually in harmony with neighbouring ... buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details; ..."


45 Clause 9.6 of TPS 6 describes processes associated with planning policies adopted under it. Clause 9.6(8) deems the precinct plans to be planning policies made pursuant to TPS 6.

(Page 10)



46 The term "focus area" listed in cl 7.5(n) is defined in Schedule 1 as meaning:

    "[T]he section of a street extending from one cross intersection to the next cross intersection, together with the residential properties fronting onto both sides of that section of the street."

47 Council's Planning Policy P376_T – Residential Boundary Walls (Policy P376_T) is directly relevant to one of the issues to be determined.

48 Council's Planning Policy P370_T (Policy P370_T) is also generally relevant to the issues in this review. It makes continual reference to the City of South Perth's Town Planning Scheme No 5 and includes the statement that this policy will remain in place until the gazettal of the TPS 6, at which time a range of modified policies will be introduced. However, new policies have not been introduced and Council continues to apply Policy P370_T. The Tribunal has accepted that Policy P370_T is a relevant policy.

49 The objectives of the Policy P370_T are:


    "(a) To preserve or enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings.

    (b) To enhance residential amenity standards generally …"


50 Policy P370_T provisions for "Streetscape Character" require:

    "All residential development shall be designed in a manner that will preserve or enhance desired streetscape character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area. In assessing the design compatibility of a proposed development, the Council will have regard to the primary and secondary contributing elements as defined in the preceding definition of the term 'designcompatibility'."

51 Design Compatibility is defined in Policy P370_T as meaning:

    "[T]he extent to which a proposed residential building is visually in harmony with neighbouring existing buildings within the focus area. Primary elements contributing to design

(Page 11)
    compatibility are generally scale; colour; form or shape and rhythm. Secondary elements included construction materials; setbacks from the street and side boundaries; the extent and nature of site landscaping visible from the street; and architectural details."




Streetscape, visual amenity and character of the focus area

52 The respondent argued that the focus area extends from South Terrace to Hensman Street and that in this focus area the streetscape is characterised by low density single storey dwellings in a garden setting.

53 Mr Allerding, for the respondent, stated:


    "Council's [Policy P370_T] prescribes that all residential development shall be designed in a manner that will preserve or enhance the desired streetscape character and to demonstrate design compatibility between the proposed building and the existing buildings within the focus area ... [W]hilst it is recognised that the development is compliant with a number of the development standards, overall it is not considered that the proposed development is consistent with the Coode Street focus area in terms of its scale, shape, form, height, bulk or rhythm per the requirements of Council's [Policy P370_T]."

54 Mr Allerding noted that while the planning officers recommend approval of the proposal, they did state that the proposal was not in scale with the surrounding residential development of the focus area and that the officers did report to Council that " '[s]cale' is identified as a primary design element contributing to the compatibility of a proposed dwelling within the existing streetscape".

55 The Policy P370_T defines scale as:


    "[T]he perceived visual magnitude of a building in relation to neighbouring existing buildings within the focus area. The perceived scale is determined by the height and bulk of the proposed building and its spatial separation from the street and adjacent buildings."

56 During examination of the experts, Mr Allerding explained that two of the other issues in these reviews directly related to scale and building bulk. The issues were the driveway gradient and the boundary walls.

(Page 12)



57 The driveway gradient when combined with the undercroft garage lifts the ground floor level approximately 1.5 metres above the footpath level. It is the respondent's position that not only does this add a new element into the streetscape it directly contributes to a bulk and scale that is inconsistent with the focus area.

58 Similarly, Mr Allerding argued that even if the boundary walls were approved on the basis of concurrent construction, the boundary walls are still unacceptable because they directly contribute to excessive bulk and scale by creating a continuous two storey facade on an exposed basement, extending for 17 metres along the front street.

59 Mr Webb, for the applicant, disagreed with the respondent's argument that the area is characterised by single storey dwellings in garden settings. Photographs were submitted that show several nearby two storey dwellings including a "bank" of two storey dwellings abutting the rear boundary of the subject lots. Although these dwellings are in a different focus area they are in the same precinct. Photographs also include two storey dwellings at No's 118, 118A and 136 Coode Street.

60 To counter the argument of garden settings, Mr Webb submitted photographs of double width carports (some within the front setback area) dominating the streetscape. The photographs show several properties behind the subject lots in Fortune Street together with houses in Coode Street at No's 118, 118A, 126, 132 and 136.

61 The applicant argued that there is no consistent streetscape or pattern of design compatibility when the subject lots are viewed in the context of several properties on either side of the subject lots.

62 The applicant further argues that reasonable expectations of bulk and scale are set by Council's requirements and policies relating to height and setbacks. Even though the proposal is built on an undercroft garage, the proposals comply with the height limit. There is a 1.5 metre side setback to both adjoining neighbours and the front setback is 6 metres. The front setback is not averaged nor does it include a car port or garage as is the case of some nearby properties.

63 The original application was submitted in July 2005. Without presenting evidence on early designs, the applicant stated that the designs were developed by consultation with Council's planners. One example was the boundary walls. At the suggestion of the Council's planners the boundary wall does not continue all the way to the front of the building. There is a 1.2 metre setback between the bulks of the two dwellings for


(Page 13)
    the first 6.3 metres. The joined boundary walls are set back over 12 metres from the front boundary.

64 The applicant further supports this statement of working with the Council staff by referring to the planners report to Council that recommend approval for the proposal.

65 The undercroft garage and the associated issue of driveway gradient is seen by the applicant as a positive contributor to the streetscape rather than as a negative element portrayed by the respondent. Mr Webb stated:


    "It is my opinion that the proposed garages associated with this development, being situated below natural ground level, have a lesser impact on the streetscape than similar double garages placed at ground level and at a minimum setback from the street frontage."

66 The interpretation of what is the relevant focus area is a matter that requires attention. The definition refers to the section of a street between one cross intersection to the next cross intersection. If a cross intersection is a four way junction rather than a T-junction, then the focus area extends along Coode Street from South Terrace to Hensman Street.

67 However, if that is the case then a similarly technical interpretation would define a focus area for Mill Point Road extending from the cross intersection at Mends Street to the next cross intersection at Coode Street.

68 There is, however, room in the Tribunal's view for practical common sense. The streetscape in Coode Street from Hensman Street to South Terrace is relatively consistent on the west side and is also consistent with the east side between Hensman Street and Pilgrim Street.

69 The consistency disappears on the east side of Coode Street between Pilgrim Street and South Terrace. This part of the focus area has no consistency with the rest of the focus area. The east side of Coode Street between Pilgrim Street and South Terrace is characterised by smaller lots, narrower frontages, a mix of single and two storey dwellings, double width garages, reduced front setbacks and a large two storey office building and car park on the South Terrace corner.

70 This part of the focus area is an area clearly in transition moving from older style single storey dwellings to modern two storey dwellings. This is recognised in the planner's report to Council: "There is a


(Page 14)
    well-established trend towards larger dwellings of comparable size to the proposed dwellings as redevelopment occurs progressively."

71 The report states that "the focus area does not have a particularly cohesive streetscape theme". The Tribunal agrees with the statement and adds that the lack of cohesion is most obvious in the part of the focus area on the east side of Coode Street between Pilgrim Street and South Terrace.

72 Policy P370_T requires:


    "All residential development shall be designed in a manner that will preserve or enhance desired streetscape character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area."

73 In this part of Coode Street, some of Policy P370_T's requirements cannot be met. Whereas it may be possible for a new project to enhance desired streetscape character (that is, if it is possible to determine a desired streetscape character in a mixed area); it is not possible to preserve the current streetscape character because there is currently no consistent streetscape character.

74 Similarly in this instance, it is not possible to demonstrate design compatibility between the proposed buildings and existing buildings because the existing buildings have a range of styles, scales, quality, colours, textures and setbacks.

75 Given the difficult task in this particular part of the focus area, the proposed buildings have achieved a commendable outcome. The Tribunal agrees with the planners report to Council that "the design of proposed development is considered aesthetically pleasing, causing the new dwellings to make a positive contribution to the streetscape character".

76 The planner's position may have been influenced by the comments from Council's Design Advisory Consultants (Consultants). The planner's report states: "The design of the proposed development was considered by the City's Design Advisory Consultants at their meeting held on 18 August 2006. The proposal was favourably received by the Consultants who had no objection to the design."

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77 The Consultants did express some concern about the gradient and the risk that any adjustments may increase the floor heights and cause the height to exceed the prescribed 7.0 metre maximum.

78 The proposal is a new building form (two storeys over an undercroft garage) in this particular locality although it is a new form in an area in transition. Just because it is different in this locality does not mean it is unacceptable.

79 This form of development (two storeys over an undercroft garage) is becoming more apparent in redevelopment areas. This building form addresses the difficult urban design problem of garage dominated streetscapes in narrow lots. The City of South Perth has recognised the problem and limits garage doors to 60% of the width of the site. The photographs submitted by the applicant indicate that even if the requirement is met, garage doors have a dominant and unpleasant impact on the streetscape. The perspective sketch of the proposal and photographs of similar developments in the City of South Perth all indicate that undercroft garages have a positive impact on streetscape by reducing the impact of the garage doors.

80 The Tribunal notes the qualification in this precinct plan's objective as quoted from Mr Allerding's witness statement "to conserve existing character housing and streetscapes in areas not previously the subject of substantial redevelopment".

81 The area of Coode Street between Pilgrim Street and South Terrace and consistent with Fortune Street at the rear of the subject lots, is undergoing redevelopment that may reasonably be described as substantial.

82 The Tribunal finds that although approaching the threshold of acceptability because of the maximum height, the proposals are considered to meet TPS 6 and Policy objectives and they will not have a detrimental impact on the streetscape, visual amenity and character of the Coode Street focus area.




The two storey boundary wall

83 The respondent's concerns with the boundary walls centre around two issues. The first issue, "impact on streetscape" has been dealt with in the review of the issues concerning streetscape and the Coode Street focus area. The second issue concerns the impact of the boundary wall on streetscape if only one dwelling is constructed. Furthermore, the


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    respondent argues that if it was the northern most dwelling that was constructed, then the boundary wall would contribute to unacceptable overshadowing of the southern lot.

84 If only the southern dwelling was constructed, the exposed boundary wall would be approximately 16 metres long and two storeys high and between 6 metres and 7 metres high. If only the northern dwelling was constructed the exposed boundary wall would be over 21 metres long and between 6 metres and 7 metres high.

85 In the context of only one dwelling being constructed, there is no Acceptable Development standard for a boundary wall in the R15 code. The closest being walls not higher than 3.0 metres with an average of 2.7 metres and up to 9 metres in length in the R20 zone.

86 Council's policy on boundary walls (Policy P376_T) is not tied to density. Policy P376_T indicates the maximum likely approval is for a wall not exceeding 3.0 metres average height and 4.0 metres maximum height with a preferred maximum length of one quarter of the boundary. Based on the boundary in these reviews, the maximum length is approximately 9 metres.

87 Both walls, if only one dwelling is constructed, clearly exceed standards contemplated by the Codes and by Council's Policy P376_T. Leaving aside the streetscape issue, it is difficult to consider that such a wall would meet the performance criteria of "no significant adverse impact on the amenity of the adjoining property".

88 However, cl 3.3.2 A2(i) of the Codes would allow the proposed walls; "[w]here the wall abuts an existing or simultaneously constructed wall of similar or greater dimension."

89 Similarly in the report to Council, there is an indication of flexibility for simultaneously constructed walls.


    "The City normally does not permit two storey boundary walls under Policy P376_T unless such walls are proposed in conjunction with the development of the adjoining lot, as in this case."

90 Mr Allerding for the respondent confirmed this position:
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    "If the two walls were to be constructed concurrently then I would have no objection because of themselves the walls would not impact the streetscape or each of the review properties."

91 However, Mr Allerding expressed concern that despite the applicant's stated intentions that they would be constructed concurrently; they remained two separate planning applications on two separate green titled lots.

92 Both Mr Webb, for the applicant, and Mr Lazidis (the applicant's husband and a witness) confirmed the intention that both dwellings were to be constructed currently and both indicated they would accept any appropriate condition to ensure that concurrent construction occurred.

93 The Tribunal's position is that either wall, if constructed independently, would fail to meet both the performance standards of the Codes and the policy requirements of the respondent and would have an adverse impact on the amenity of the future adjoining neighbour if one of the subject lots was sold.

94 However, the Tribunal finds that if both walls are constructed simultaneously as contemplated by the cl 3.3.2 A2(i), then both walls are deemed to meet the Acceptable Development criteria. The Tribunal agrees with both expert planning witnesses that if the boundary walls are part of simultaneous construction on both adjoining sites, then there is no adverse impact on either the adjoining neighbour or the streetscape.




Driveway gradient

95 The complexity of this issue was increased by the respondent's very late inclusion of an expert witness who raised a new issue concerning pedestrian safety. The applicant did not have time to organise expert evidence on this new issue but decided to proceed with the hearing on the scheduled date.

96 Prior to the evidence of the expert witness, the contentions on this issue related to building bulk and streetscape.

97 One of the reasons for refusing both applications was stated as "[t]he driveway gradient exceeds the maximum prescribed in [cl] 6.10(2)" of TPS 6.

98 The paragraph headed "Driveway Gradient" in the report to Council is informative on this issue. The first part of the paragraph states:


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    "The [driveway] gradients are greater the prescribed by [cl] 6.10(2) 'Maximum Ground and Floor Levels' of TPS 6. The long-standing [sic] practice of the City is to accept greater driveway gradients where the proposed gradient complies with the Australian Standard, and a letter is received from the landowner accepting responsibility for any possible difficulties in relation to the vehicular access to the site (see standard condition 358 in the recommended action). The proposed gradient is 1:6.5 which complies with the Australian Standard."

99 Based on this part of the paragraph, there appear to be no problems. Council has a long standing practice of approving driveway gradients greater than 1:6.5. The application meets the conditions for the continuation of the long standing practice; it complies with the Australian Standard and the owner (in evidence to the Tribunal) is willing to provide a letter or accept the standard condition requiring the letter.

100 However, the paragraph continues:


    "It should be noted however, that in permitting this concession, Council would be supporting a design solution that contributes to an increase in the perceived building bulk by allowing the ground floor levels of the proposed dwelling to be raised."

101 This last part of the paragraph has clearly formed the basis of Council's refusal based on the driveway gradient. The two contentions raised in the respondent's original contentions on this issue were:

    "The building design of the proposed development requires the ground floor level to be raised which will in turn cause an increase in the scale and bulk of the building."

    and

    "The discretion to permit the increased driveway gradient should not be exercised because the resulting increase in the bulk and scale of the building would have a significant and detrimental affect on the streetscape, visual amenity and the residential character of the focus area."


102 These matters have been addressed by the Tribunal in consideration of the first issue dealing with streetscape and the focus area.

(Page 19)



103 The respondent submitted a last minute expert witness statement and an amended Statements of Issues, Facts and Contentions just three days before the hearing.

104 The new contention raised dealing with the issue of driveway gradient was stated as "[t]he discretion to permit the increased driveway gradient should not be exercised because the resulting gradient poses safety concerns for pedestrians arising from vehicles reversing from the review site".

105 The respondent's expert was Mr Klyne, a professional engineer whose field of expertise is "road safety, traffic engineering and transportation". Mr Klyne's evidence was there is a blind zone on the left side of a reversing vehicle, not adequately covered by rear vision mirrors. He states that vehicles reversing up the gradient will need speed and this increases the likelihood of injury to pedestrians and the likelihood of increased severity of injury.

106 During examination Mr Klyne stated there was no such thing as perfect safety, rather there are degrees of risk. Risk factors Mr Klyne identified were the parking capacity for three cars in each garage, the high pedestrian traffic along the footpath adjoining the driveway and the gradient of the driveway.

107 When questioned about the relevance of compliance with the relevant Australian Standard on gradient, Mr Klyne replied that compliance with Australian standards did not guarantee safety, it is necessary to "look at safety beyond the standards".

108 When questioned about the high pedestrian traffic, Mr Klyne replied that this was a reasonable assumption based on the use of a pedestrian phase at the nearby traffic lights on the corner of Coode Street and South Terrace.

109 After further questioning by Mr Webb and the Tribunal about the degree of pedestrian traffic, Mr Klyne would go no further than repeating that it was clear because of the high pedestrian volume at the nearby intersection was high enough to require pedestrian phases.

110 Mr Webb asked Mr Klyne on more than one occasion to explain why the proposed gradient of 1:6.5 was not acceptable whereas as the gradient of 1:8 preferred by the Council was acceptable. Mr Klyne's response to this line of questioning was that it was degrees of risk and that a flat driveway or a rising driveway was safer than a declining driveway.

(Page 20)



111 The planter boxes were identified in Mr Klyne's statement as a problem because they restricted a reversing driver's view of pedestrians. When asked by Mr Webb if the problem could be overcome by reducing the length of the planter boxes, Mr Klyne indicated that even if the planter boxes were removed the resultant space was still in the driver's blind spot.

112 There was also evidence presented relating to the need for a transition zone to prevent bottoming out when the gradient exceeds 1:8 (12.5%). The applicant did not see this as a problem because there was sufficient headroom clearance to accommodate alterations. On this matter the Tribunal acknowledges the respondent's concern that any adjustments to gradient may cause an increase in overall height of the proposal. In view of the Tribunal's findings on streetscape, any approval would require a condition restricting height increases.

113 The Tribunal acknowledges Mr Klyne's expertise but found his evidence lacking detail when it came to the precise issue as to whether an increase in the gradient from 1:8 to 1:6.5 is acceptable.

114 The view of the site and locality was informative for the Tribunal on this matter. The pedestrian phase for north-south movement of pedestrians occurs at the same time as the north-south movement of vehicles. The same combined movement of pedestrians and vehicles occurs in the corresponding east-west phase.

115 There is commercial and retail development on all corners of the intersection and extending a small way down the streets away from the intersection except in an easterly direction, where development continues to the South Perth Community Hospital. Mr Klyne was unable to provide data on actual pedestrian movements; in terms of numbers, destinations and how far along each street away from the intersection the numbers extended.

116 The Tribunal is not convinced that there is any evidence or reasonable basis to assume significantly higher than normal pedestrian movement on the footpath adjoining the subject lots. Furthermore, the Tribunal is not convinced that an increase of gradient from 1:8 to 1:6.5 will make any significant difference to pedestrian safety especially in the contest of the Australian Standard's maximum driveway gradient of 1:4 and the Council's long standing practice of accepting gradients greater than 1:6.5.

117 The findings dealing with the relationship between driveway gradient and streetscape have been dealt with earlier in these reasons. Leaving


(Page 21)
    aside streetscape, the Tribunal finds there are no grounds to refuse the application on the basis of the increased driveway gradient.




Overlooking

118 The respondent has submitted limited evidence on this issue. It is not addressed in the witness statements. The report to Council stated:


    "Some overlooking will occur into the adjoining properties, being No 122 Coode Street and No 9 Fortune Street. The overlooking is from the rear al fresco area of the northernmost proposed dwelling. The area of overlooking is considered to be in compliance with the Performance Criteria contained in [cl] 3.8.1 P1 of the [Codes]. The overlooking into No 122 Coode Street is to the south-east corner of this lot which is a small section of an extensive back garden. The overlooking into No 9 Fortune Street is restricted to a view of a garden shed in the south-west corner of this property."

119 Although Council had access to this relatively positive assessment (the area of overlooking is considered to be in compliance with the Performance Criteria) the Council refused the application for the following reason:

    "Overlooking into the properties at No 122 Coode Street and No 9 Fortune Street will occur with the setback distances not complying with the Acceptable Development provisions in [cl] 3.8.1 A1 of the [Codes] relating to visual privacy;"

120 Failure to comply with Acceptable Development standards is not by itself a valid reason to refuse an application. The respondent must also be satisfied that the proposal fails Performance Criteria.

121 The applicant argues the failure to meet Acceptable Development standards is minor. In the case of 122 Coode Street, the cone of vision covers a small portion in the back corner of an extensive back garden. In the case of 9 Fortune Street, the cone of vision covers a small area that is occupied by a garden shed.

122 The Performance Criteria require new proposals to avoid direct overlooking on neighbouring outdoor living areas. They specifically note that consideration should be given to "the lesser need to prevent overlooking of extensive back gardens". The Tribunal agrees with the


(Page 22)
    applicant that the overlooking is minor and well within generally acceptable performance standards.

123 The Tribunal is also influenced by the level of the al fresco area – the subject of Council's concern. The level of the al fresco area is shown on the plans as 11.257. Natural ground level in the vicinity of the al fresco area is approximately 10.8 metres. A 1.8 metre high boundary fence will screen all seated persons in the al fresco area. At worst, the cone of vision of persons standing in the al fresco area is restricted to a garden shed of one neighbour and a small triangular portion at the rear corner of the other neighbour's extensive back garden.

124 The Tribunal finds that the overlooking is acceptable and is well within the expectations set by performance criteria.




Compliance with cl 3.9.1 of the Codes

125 It is common ground that the overshadowing of the adjoining property is 36% at midday on the 21 June. This exceeds the cl 3.9.1 A1 of the Codes which sets a maximum overshadowing of 25% for properties zoned R25 or lower.

126 However, as stated earlier, failure of the Acceptable Development standard does mean the application fails. The next test is the performance standards. Clause 3.9.1 describes the required performance standards.


    "P1 Development designed with regard for solar access for neighbouring properties taking into account the potential to overshadow:

      • outdoor living areas;

      • major openings to habitable rooms;

      • solar heating devices; or

      • balconies or verandahs."

127 At the hearing, the respondent submitted a 1953 plan of the adjoining dwelling. The site view confirmed the plan appeared to be approximately representative, although there was an indication that internal usage had changed and there appeared to be a living area at the rear adjoining an outdoor covered patio.

(Page 23)



128 It was common ground that there was overshadowing of two major openings on the neighbour's side elevation near the front of the dwelling as well as the front entry porch.

129 The significance of the overshadowing was not agreed. The respondent argued that the overshadowing of the major openings resulted in the failure of one of the Performance Criteria and the overshadowing of the entry porch resulted in the failure of a second namely: overshadowing of a verandah.

130 The respondent's position is that the proposal fails the Acceptable Development standards and two of four nominated Performance Criteria. The overshadowing cannot be overcome by a condition and therefore the application should not be approved.

131 The respondent noted that the Consultants considered that that applicant needed to make a submission seeking specific approval of the overshadowing. This request seems to be related to the comment on page 4 of the Codes where the onus is placed on the applicant to demonstrate that Performance Criteria have been met.

132 The applicant's argument is that the front verandah and the two habitable windows are currently overshadowed by an existing 2.4 metre high boundary wall. The wall was part of a garage that was not demolished when the site was cleared because the wall formed part of the fence. The applicant noted that the overshadowing will not be new but a continuation of the existing situation.

133 The applicant also notes that the neighbour's verandah and habitable rooms are only one metre off the boundary and even a single storey redevelopment will inevitably cause overshadowing in that area.

134 However, that was not the main aspect to the applicant's position but rather a response to the respondent's argument. It is the applicant's position that solar access for the neighbour was a factor in the design and has been specifically taken into consideration. The applicant recognised that any two storey dwelling would overshadow the neighbour and therefore attempted to locate the shadow to cause minimal loss of amenity. The overshadowing is mostly limited to the neighbour's side wall and roof.

135 The applicant's evidence was that the design deliberately ensured no loss of sunlight to the neighbour's rear patio and rear yard. The plans show that the second floor at the rear of the dwelling, is set back over


(Page 24)
    5.0 metres from the side boundary and there is no overshadowing of the neighbour's rear patio of rear yard.

136 The applicant's argument is to some extent supported by the planner's report to Council:

    "… [S]everal conversations between the adjoining landowner at 126 Coode Street and the assessing officer have taken place. This landowner is aware that the amount of overshadowing of his property is greater than permitted by Acceptable Development standards and that it will be recommended to Council to support the amount of overshadowing of his lot under the Performance Criteria of the [Codes]. It was explained to him that the overshadowing was to the front of the property, over the roof and to the rear primarily within the shadow cast by the side boundary fence. The neighbour has not raised any objection to the proposed development."

137 Although these lots are zoned R15, they are small lots and any redevelopment of these lots will inevitably cause a degree of overshadowing on neighbouring properties. In the case of these lots, the long boundary is the east-west axis which increases the potential for overshadowing at 12.00 noon on the 21 June . Although the proposal's overshadowing fails Acceptable Development standards, the Tribunal finds that the proposal meets Performance Criteria. The Tribunal agrees with the applicant that the habitable windows on the neighbour's side walls, set one metre off the boundary will almost inevitably be overshadowed by any redevelopment of the subject lots and they are, in any event, currently overshadowed by an existing 2.4 metre high boundary wall. The Tribunal is satisfied that the proposal has been designed with regard for solar access to the neighbouring property in that there is no overshadowing (apart from the side fence) of the neighbour's rear external living areas and yard.


Orders DR 32 of 2007

138 The Tribunal makes the following orders:


    1. The application for review is allowed subject to the following conditions.

      i) The approved drawings show that a proposed crossover will interfere with a street tree situated within the road reserve. The applicant is required to
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    pay a sum of $497.75 for the cost of removing and replacing this tree as detailed in a tax invoice that will be issued by the City of South Perth prior to the collection of a building licence.
    ii) The approved drawings show that a proposed crossover will interfere with services maintained by a service authority or private company. The applicant is required to make arrangements with the responsible service authority or private company for the relocation of this infrastructure prior to the construction of the proposed crossover. Details of the acceptance of that authority for the relocation of the infrastructure shall be provided prior to the issuing of a building licence.

    iii) The proposed driveway gradient exceeds that which is normally accepted by the City of South Perth. The driveway gradient is acceptable if a letter is received from the property owner which acknowledges responsibility for any access difficulties that may arise, without any future recourse from the City of South Perth. The gradient is to comply with the gradient requirements of AS 2890.1 including requirements of transition zones if required. Compliance with gradient requirements must not result in any building height increase beyond the prescribed maximum of 7.0 metres.

    iv) The surface of the boundary wall on the southern side (Lot 8) and northern side (Lot 9) of the lot shall be finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City of South Perth.

    v) External clothes drying facilities shall be screened from view from the street or any other public space.

    vi) The applicant shall construct a crossover between the road and the property boundary. The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within specification SP30 attached to this approval. The existing verge levels at the front property boundary shall not be altered.


(Page 26)
    vii) Apart from the tree described in condition 1, no street trees shall be removed, pruned or disturbed in any way.

    viii) Details of the proposed colours of the external materials shall be submitted for approval by the City of South Perth, prior to the issuing of a building licence. The selected colours shall demonstrate compatibility with neighbouring buildings.

    ix) Unless otherwise approved, fences of brick, timber capped or manufactured pre-coloured metal sheet, capped corrugated fibre-cement sheet or brushwood construction, 1.8 metres in height, shall be provided along the north, east and south boundaries of the site. Any fencing forward of the building line shall not be of fibre-cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City of South Perth. The fence height at any point shall be measured from the level of the ground adjacent to the fence. If the ground levels on each side of the fence are not the same at any point along the boundary, the fence height at that point shall be measured from the higher side.

    x) The existing boundary fencing shall not be removed, until such time as the required new fencing is to be erected.

    xi) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.

    xii) Any required retaining walls along lot boundaries shall be constructed immediately after the excavation or filling has been carried out.

    xiii) All existing trees intended to be retained as indicated on the site plan shall be identified for retention on the working drawing and shall be protected prior to and during construction, and shall not be removed without prior approval of the City of South Perth.

    xiv) The height of the letter box, electricity installation, bin enclosure, or other structure, fence, wall or hedge within 1.5 metres of any vehicle driveway where it

(Page 27)
    meets a street alignment shall not exceed the 0.75 metres limit imposed under the provisions of cl 3.2.6 A6 of the Residential Design Codes of Western Australia (2002).
    xv) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.

    xvi) This development shall be constructed concurrently with the development approved in SAT proceeding DR 33 of 2007.



Orders DR 33 of 2007

139 The Tribunal makes the following orders:


    1. The application for review is allowed subject to the following conditions:

      i) The approved drawings show that a proposed crossover will interfere with services maintained by a service authority or private company. The applicant is required to make arrangements with the responsible service authority or private company for the relocation of this infrastructure prior to the construction of the proposed crossover. Details of the acceptance of that authority for the relocation of the infrastructure shall be provided prior to the issuing of a building licence.

      ii) The proposed driveway gradient exceeds that which will normally be accepted by the City of South Perth. The driveway gradient is acceptable if a letter is received from the property owner which acknowledges responsibility for any access difficulties that may arise, without any future recourse from the City of South Perth. The gradient is to comply with the gradient requirements of AS 2890.1 including requirements of transition zones if required. Compliance with gradient requirements must not result in any building height increase beyond the prescribed maximum of 7.0 metres.

      iii) The surface of the boundary wall on the southern side (Lot 8) and northern side (Lot 9) of the lot shall be

(Page 28)
    finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City of South Perth.
    iv) External clothes drying facilities shall be screened from view from the street or any other public space.

    v) The applicant shall construct a crossover between the road and the property boundary. The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within specification SP30 attached to this approval. The existing verge levels at the front property boundary shall not be altered.

    vi) No street trees shall be removed, pruned or disturbed in any way.

    vii) Details of the proposed colours of the external materials shall be submitted for approval by the City of South Perth, prior to the issuing of a building licence. The selected colours shall demonstrate compatibility with neighbouring buildings.

    viii) Unless otherwise approved, fences of brick, timber capped or manufactured pre-coloured metal sheet, capped corrugated fibre-cement sheet or brushwood construction, 1.8 metres in height, shall be provided along the north, east and south boundaries of the site. Any fencing forward of the building line shall not be of fibre-cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City. The fence height at any point shall be measured from the level of the ground adjacent to the fence. If the ground levels on each side of the fence are not the same at any point along the boundary, the fence height at that point shall be measured from the higher side.

    ix) The existing boundary fencing shall not be removed, until such time as the required new fencing is to be erected.

    x) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.


(Page 29)
    xi) Any required retaining walls along lot boundaries shall be constructed immediately after the excavation or filling has been carried out.

    xii) All existing trees intended to be retained as indicated on the site plan shall be identified for retention on the working drawing and shall be protected prior to and during construction, and shall not be removed without prior approval of the City of South Perth.

    xiii) The height of the letter box, electricity installation, bin enclosure, or other structure, fence, wall or hedge within 1.5 metres of any vehicle driveway where it meets a street alignment shall not exceed the 0.75 metres limit imposed under the provisions of cl 3.2.6 A6 of the Residential Design Codes of Western Australia (2002).

    xiv) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.

    xv) This development shall be constructed concurrently with the development approved in State Administrative Tribunal proceeding of DR 32 of 2007.



    I certify that this and the preceding [139] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR R EASTON, SENIOR SESSIONAL MEMBER


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