Loxton & Anor and City of Fremantle
[2015] WASAT 46
•29 APRIL 2015
LOXTON & ANOR and CITY OF FREMANTLE [2015] WASAT 46
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 46 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:319/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS M CONNOR (MEMBER) | 29/04/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Decision of the respondent varied | ||
| B | |||
| PDF Version |
| Parties: | GEOFFREY BRUCE LOXTON JANE LOUISE LOXTON CITY OF FREMANTLE |
Catchwords: | Town planning Development Review of condition of approval Requirement to increase setback to southern wall of living/dining room Requirement to reduce wall plate height of bed 3 Overshadowing of adjoining property Accuracy of plans Exceedance of deemtocomply requirement not an appropriate measure for assessing whether development satisfies relevant objective or demonstrates compliance with relevant design principles |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 4.2.1, cl 5.2.2, cl 5.15.1, cl 10.2.1, cl 10.3.1 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 252(1) Residential Design Codes of Western Australia (2013), cl 2.4, cl 2.5.1, cl 2.5.2, cl 2.5.3, cl 5.4(b), cl 5.4.2, Pt 2 State Administrative Tribunal Act 2004 (WA), s 31 |
Case References: | Nil |
Orders | On the application determined on the documents by Member Marie Connor, it is on 29 April 2015 ordered that:,1. The application for review is allowed.,2. The decision of the respondent made on 3 December 2014 for the partial demolition of the existing dwelling and construction of a two storey Single House at No 8 (Lot 1) Inverleith Street, South Fremantle as shown on plans dated 10 November 2014 is varied as follows:,(i) Condition 6 is deleted and replaced with the following condition:,6. The southern wall and the associated eave overhang of the living room be set back 1.83 metres and 1.23 metres respectively from the southern lot boundary of Lot 1. |
Summary | Geoffrey Loxton and Jane Loxton applied to the State Administrative Tribunal for review of a condition imposed by the City of Fremantle on its decision granting approval for partial demolition, additions and alterations to the Single House on No 8 (Lot 1) Inverleith Street, South Fremantle.,The principal issues that arose for determination in this matter included whether the setback of the southern wall of the living/dining room should be increased from 1.530 metres to 2.5 metres and whether the 'wall plate height of the roof of bedroom three' should be reduced to 1.7 metres above finished floor level.,Evidence of the impact of overshadowing on the adjoining property at No 10 Inverleith Street, South Fremantle on the outdoor living area and the north facing major opening to the ground floor dining room as at midday 21 June was adduced and argued by the parties.,In regard to the first requirement to increase the setback of the southern wall of the living/dining room, the Tribunal found that the applicants' suggested increase in the setback of 300 millimetres to the ground floor living area was sufficient to satisfy the concerns raised by the respondent, as the evidence demonstrated that the same shadow cast by the existing dividing fence would be reproduced by requiring a marginal increase in setback to the living area. Any additional setback, as required by condition 6, was considered to be onerous, as it would not have resulted in a better outcome in respect of the shadow cast by the dwelling over the outdoor living area of the adjoining property at midday on 21 June.,As to the requirement to reduce the 'wall plate height of the roof of bedroom three', the Tribunal considered this requirement to be onerous, as it would not produce a better outcome in respect to protecting solar access to the north facing major opening on the adjoining property, and considered that the setback height of the element in question was compliant with the requirements of the Residential Design Codes of Western Australia (2013) and, therefore, the requirement should not be imposed.,Consequently, the application for review was allowed and condition 6 was varied. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LOXTON & ANOR and CITY OF FREMANTLE [2015] WASAT 46 MEMBER : MS M CONNOR (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 APRIL 2015 FILE NO/S : DR 319 of 2014 BETWEEN : GEOFFREY BRUCE LOXTON
- JANE LOUISE LOXTON
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Development Review of condition of approval Requirement to increase setback to southern wall of living/dining room Requirement to reduce wall plate height of bed 3 Overshadowing of adjoining property Accuracy of plans Exceedance of deemtocomply requirement not an appropriate measure for assessing whether development satisfies relevant objective or demonstrates compliance with relevant design principles
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.6.1, cl 4.2.1, cl 5.2.2, cl 5.15.1, cl 10.2.1, cl 10.3.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 252(1)
Residential Design Codes of Western Australia (2013), cl 2.4, cl 2.5.1, cl 2.5.2, cl 2.5.3, cl 5.4(b), cl 5.4.2, Pt 2
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Decision of the respondent varied
Summary of Tribunal's decision:
Geoffrey Loxton and Jane Loxton applied to the State Administrative Tribunal for review of a condition imposed by the City of Fremantle on its decision granting approval for partial demolition, additions and alterations to the Single House on No 8 (Lot 1) Inverleith Street, South Fremantle.
The principal issues that arose for determination in this matter included whether the setback of the southern wall of the living/dining room should be increased from 1.530 metres to 2.5 metres and whether the 'wall plate height of the roof of bedroom three' should be reduced to 1.7 metres above finished floor level.
Evidence of the impact of overshadowing on the adjoining property at No 10 Inverleith Street, South Fremantle on the outdoor living area and the north facing major opening to the ground floor dining room as at midday 21 June was adduced and argued by the parties.
In regard to the first requirement to increase the setback of the southern wall of the living/dining room, the Tribunal found that the applicants' suggested increase in the setback of 300 millimetres to the ground floor living area was sufficient to satisfy the concerns raised by the respondent, as the evidence demonstrated that the same shadow cast by the existing dividing fence would be reproduced by requiring a marginal increase in setback to the living area. Any additional setback, as required by condition 6, was considered to be onerous, as it would not have resulted in a better outcome in respect of the shadow cast by the dwelling over the outdoor living area of the adjoining property at midday on 21 June.
As to the requirement to reduce the 'wall plate height of the roof of bedroom three', the Tribunal considered this requirement to be onerous, as it would not produce a better outcome in respect to protecting solar access to the north facing major opening on the adjoining property, and considered that the setback height of the element in question was compliant with the requirements of the Residential Design Codes of Western Australia (2013)and, therefore, the requirement should not be imposed.
Consequently, the application for review was allowed and condition 6 was varied.
Category: B
Representation:
Counsel:
Applicants : In person
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicants : N/A
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Nil
Introduction
1 Geoffrey Loxton and Jane Loxton (applicants) made application to the City of Fremantle (respondent or Council) on 16 June 2014 for approval to demolish the existing dwelling and construct a two storey Single House on No 8 (Lot 1) Inverleith Street, South Fremantle (subject site).
2 The Planning Services Committee (Committee), at its meeting of 6 August 2014, resolved to refuse the application for the following reasons:
1. The demolition of the existing dwelling is inconsistent with clause 5.15.1 of Local Planning Scheme No.4. The place is considered to be of some cultural heritage significance and should be retained.
2. The proposed upper floor setback is inconsistent with the merit based criteria contained at clause 1.2 of LPP2.9 – Residential streetscapes policy by reason that it is inconsistent with the prevailing streetscape.
- This resolution was adopted at the respondent's ordinary Council meeting of 27 August 2014.
3 The applicants, on 17 September 2014, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
4 As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in modified plans being submitted. The revised proposal proposes only partial demolition of the existing dwelling, some internal alterations to the layout of the ground floor rooms, and the construction of an upper floor addition, rear ground floor additions and garage additions to the existing dwelling. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider its decision in light of the revised plans.
5 The modified plans were presented to the Committee at its meeting of 3 December 2014, where the Committee resolved to approve the application, subject to six conditions, one of which (condition 6) required:
That the design be amended to reduce the extent of over shadowing of the living spaces by increasing the setback of the southern wall of the living/dining room to 2.5 metres and a reduction in the wall plate height of the roof of bedroom three to 1.7 metres above finished floor level.
- It is this condition that is in dispute between the parties.
Subject site and locality
6 The following facts were agreed by the parties:
• The subject site measures 392m2 and is located on the eastern side of Inverleith Street, South Fremantle.
• The subject site is developed with a single storey timber framed, weatherboard and fibrous cement sheet clad dwelling with a corrugated iron roof constructed in 1927.
• The existing dwelling is reasonably maintained, and upon last inspection by the respondent, was occupied and used for residential purposes.
• The subject site adjoins No 10 Inverleith Street on its southern boundary. No 10 Inverleith Street measures 237m² and has a 10.09 metre frontage to Inverleith Street. This site is zoned R30 pursuant to the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme).
• No 10 Inverleith Street is developed with a two storey dwelling.
Proposal
7 The revised proposal seeks approval for the partial demolition of side and rear portions of the existing single storey dwelling, with internal alterations to the layout of the ground floor rooms; the construction of an upper floor addition, rear ground floor additions and garage additions to the existing dwelling; new retaining walls to the primary street and side setback areas; and replacement primary street fencing to Inverleith Street.
8 The rear ground floor addition, which includes a kitchen and dining/living room, extends from the retained dwelling to within 1 metre of the rear (eastern) boundary and set back 1.53 metres, in line with the retained dwelling, to the side (southern) boundary. The eaves overhang to the dining/living room is proposed to be set back 0.93 metres from the side (southern) boundary. Condition 6 of the planning approval seeks to increase the setback of the southern wall of the dining/living room to 2.5 metres.
9 The upper floor addition includes two bedrooms, a bathroom and an activity room. The condition in dispute refers to bed 3 which is set back 1.57 metres from the side (southern) boundary. The height of the corresponding wall is proposed to be approximately 2.4 metres above the floor level of the upper floor. Condition 6 requires a reduction in the wall height to 1.7 metres above finished floor level.
Planning framework
10 The subject land is zoned Urban in the Metropolitan Region Scheme and Residential with a density coding of R30 under LPS 4. A 'Single House' is a 'P' (permitted) use in the Residential zone, providing the use complies with the relevant development standards and requirements of the Scheme.
11 The subject land is also located in the South Fremantle Heritage Area as delineated by the scheme map of LPS 4.
12 The aims of the Scheme and the objectives for the Residential zone are set out in cl 1.6.1 and cl 4.2.1, respectively.
13 Clause 5.15.1 of the Scheme provides:
Council will only grant planning approval for the demolition of a building or structure where it is satisfied that the building or structure:
(a) has limited or no cultural heritage significance, and
(b) does not make a significant contribution to the broader cultural heritage significance and character of the locality in which it is located.
14 The modified plans show the demolition of the side and rear portions of the existing dwelling. The respondent does not contest the demolition of these elements of the existing dwelling as they are considered not to be of significance.
15 Clause 5.2.2 of LPS 4 provides:
Unless otherwise provided for in the Scheme, the development of land for any residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes.
16 Further, the Residential Design Codesof Western Australia (2013) (Codes) are a State planning policy prepared under s 26 of the PD Act, and therefore the Tribunal, pursuant to s 241(1)(a) of the PD Act is to have due regard to 'any State planning policy which may affect the subject matter of the application'.
17 The relevant section of the Codes pertinent to this matter is Design Element 5.4 - Building Design, in particular, cl 5.4.2 - Solar access for adjoining sites. There is no dispute between the parties that the proposed dwelling does not satisfy deemedtocomply provision cl 5.4.2 C2.1 of the Codes and, as such, proposes to address the corresponding design principles, which state:
P2.1 Effective solar access for the proposed development and protection of the solar access.
P2.2 Development designed to protect solar access for neighbouring properties taking account the potential for overshadow existing:
• outdoor living areas;
• north facing major openings to habitable rooms, within 15 degrees of north in each direction; or
• roof mounted solar collectors.
• the provisions of the Scheme (subclause (a));
• the requirements of orderly and proper planning (subclause (b));
• any approved statement of planning policy of the Commission (subclause (c));
• the compatibility of a development within its setting (subclause (i));
• the preservation of the amenity of the locality; (subclause (o));
• the way in which buildings relate to the adjoining lots, including their effects on daylight and sunlight available to private open space and buildings (subclause (s));
• the relationship of the proposal to development on adjoining land (subclause (w));
• any relevant submissions received on the application (subclause (zg)); and
• any other planning consideration (subclause (zj)).
Issues
19 The parties agreed the following issues for determination in relation to these proceedings:
1) Does the proposed development meet the design principles for cl 5.4.2 – Solar access for adjoining sites under the Codes?
2) Is condition 6 of the resolution made at the respondent's Planning Services Committee meeting of 3 December 2014 an appropriate condition in light of issue 1 and having regard to cl 10.2.1(i) and cl 10.2.1(s) under LPS 4?
3) To the extent of the dispute regarding condition 6, what modifications (if any) ought to apply to meet the design principles and following consideration of cl 10.2.1(i) and cl 10.2.1(s) under LPS 4?
- The Tribunal will address each issue in turn. A further issue was raised by the respondent concerning the accuracy of plans provided by the applicants. The Tribunal will consider this issue first.
Accuracy of plans
20 The respondent disputed the true extent of the shadow cast by the development at midday on 21 June as shown in the applicants' overshadowing diagram (contained in the Agreed Bundle of Documents (ABD) page 81) and submitted that the overshadowing was greater than otherwise illustrated. The applicants, in their submissions in reply, conceded that there had been an error in the calculation of overshadowing from the ground floor living area and the upper floor bed 2 and filed a revised overshadowing diagram (see Annexure A). The accuracy of the amended diagram is not contested.
21 The Tribunal, together with representatives of the parties, had the benefit of a view of the subject land and observed three differences on site that were not reflected in the revised overshadowing diagram. The first observation was that the limestone wall (dividing fence) adjacent to the major opening to the ground floor dining room of the adjoining property at No 10 Inverleith Street, South Fremantle (adjoining property) was approximately 190 millimetres higher than that reflected on the revised overshadowing diagram. The second observation was that there was a gradual level difference between the properties which, in effect, reduced the height of the limestone wall towards the rear of the subject land. The third observation was that a lattice screen had been erected on the limestone wall, on the adjoining property's side, which increased the total height of the wall to in excess of the 2.0 metres shown in the revised overshadowing diagram. Notwithstanding these observations, the Tribunal is of the view that the revised overshadowing diagram is indicative of the shadow cast at midday on 21 June.
22 In addition, the respondent contends that the eastern elevation of the applicants' amended plans received by the respondent on 10 November 2014 (page 80 of the ABD) fails to illustrate the location of bed 3 and the true scale of the development as it addresses the adjoining property.
23 The applicants, in their submissions in reply, submit that the respondent's assertion is incorrect, as plans DA1, DA2, DA3 and DA5 (pages 7781 of ABD) illustrate the southern wall of bed 3 set back further than the southern wall of the living/dining area below.
24 An examination of the relevant plans (pages 7781 of ABD) shows the following:
• on the 'Site and Ground Floor Plan' (DA1), the wall of the living/dining area is set back 1530 millimetres from the southern boundary, and the eave overhang of that section of the building is set back 930 millimetres from that boundary;
• on the 'Upper Floor Plan' (DA2), the wall of bed 3 is set back 1570 millimetres from the southern boundary. No eaves are depicted on this section of the building. The wall of bed 2 is set back 3076 millimetres from the southern boundary with an eave overhang set back at approximately 2700 millimetres from that boundary;
• the WIR to bed 3 is visible in the 'West Elevation' (DA3);
• the 'East Elevation' (DA4) shows the upper floor wall on the southern elevation set back approximately 1500 millimetres further than the lower floor wall, which would correspond with the setback for bed 2 shown in the 'Upper Floor Plan'; and
• bed 3 is clearly visible in the 'South Elevation' (DA4).
25 The Tribunal concurs with the respondent and finds that bed 3 is not reflected in the 'East Elevation' of the amended plans received by the respondent on 10 November 2014.
Does the proposed development meet the design principles for cl 5.4.2 Solar access for adjoining sites under the Codes?
26 Both the respondent and the applicants accept that the proposed development does not comply with deemed-to-comply provision cl 5.4.2 C2.1 of the Codes, and therefore, the development is to be assessed against the respective design principles for 'Solar access for adjoining sites'.
27 Part 2 of the Codes addresses the approval process and identifies that where a proposal does not meet deemed-to-comply provision(s) of the Codes and addresses design principle(s), the decisionmaker is required to exercise judgment to determine the proposal: cl 2.4. In the exercise of judgment, subject to cl 2.5.2 and cl 2.5.3 of the Codes, the decisionmaker is to consider the merits of proposals, having regard to objectives and balancing these with the consideration of design principles provided in the Codes: cl 2.5.1. Clause 2.5.1 of the Codes provides further direction and states:
…
The decision-maker, in its assessment of a proposal that addresses the design principles(s), should not apply the corresponding deemedtocomply provision(s).
28 Although the respondent in its written submission addresses the merits of the development in light of the design principles, on a number of occasions, the submission refers back to emphasise the exceedance of the deemedtocomply requirement as a means of demonstrating the impact of the development on the adjoining property. It should also be noted that the only evidence produced, by either party, that materially demonstrates the impact of the proposal on the adjoining property is the overshadowing diagram, which illustrates the shadow cast at midday on 21 June, corresponding with the requirement for cl 5.4.2 C2.1 of the Codes.
29 The exceedance of the development with the deemedtocomply requirement is not an appropriate measure for assessing whether the development satisfies the relevant objective(s) of the Codes, and demonstrates compliance with the design principles. In this matter, the relevant objective is 'to optimise comfortable living, access to sunlight and solar energy to facilitate sustainable housing development with particular regard for place and local conditions' (see cl 5.4(b)) and the applicable design principles to be met (see cl 5.4.2) are:
P2.1 Whether there is effective solar access for the proposed development and protection of the solar access.
P2.2 Whether the development is designed to protect solar access for neighbouring properties taking account the potential to overshadow existing:
• outdoor living areas;
• north facing major openings to habitable rooms, within 15 degrees north in each direction; or
• roof mounted solar collectors.
… [T]he proposed development [at midday on 21 June] will shadow approximately 15.5m2 (or 39% total area) of the 39m2 rear courtyard at No. 10 Inverleith Street, which adjoins the subject site at its southern boundary. The eaves overhang to the ground floor living/dining room will cast a shadow approximately 3.4m into the rear courtyard … and beyond the shadow cast by the existing dividing fence. The second storey Bed 2 will also cast a shadow approximately 5.8m into this courtyard space … also beyond the shadow already cast by the dividing fence. ...
…
... Bed 3 of [the] second storey element will overshadow the existing north facing major openings to the ground floor dining room [of the adjoining property].
31 There are two parts to condition 6, the first relating to the impact of the living/dining room of the proposed development on the outdoor living area of the adjoining property, and the second relating to the impact of bed 3 on the north facing major opening to the ground floor dining room of the adjoining property.
32 The revised overshadowing diagram shows that the living/dining room will cast a shadow that is 300 millimetres longer than that already cast by the existing limestone wall (dividing fence) over the outdoor living area of the adjoining property. In an attempt to ameliorate the impact of the proposed development on this area, the applicants have offered to increase the setback of the ground floor living area by 300 millimetres to 1830 millimetres, to reduce the overshadowing to be in line with the shadow cast by the dividing fence. It is intended that the increased setback would only apply to the living room area of the ground floor, as the dining area is set back in line with the building on the adjoining property and, as such, any further setback of the dining area would not result in any further reduction of overshadowing on the outdoor living area of the adjoining property.
33 The suggested increase in setback of the ground floor living area by the applicants is considered sufficient to satisfy the concerns raised by the respondent, as the evidence demonstrates that it will assist in protecting the solar access for the neighbouring property as it will reproduce the same shadow cast by the existing dividing fence. Any additional setback, as required by condition 6, is considered to be onerous, as it does not result in a better outcome in respect of the shadow cast by the dwelling over the outdoor living area of the adjoining property at midday on 21 June.
34 The applicants have also agreed to removing the eaves on the south and east elevations of bed 2, in an attempt to further reduce the shadow cast over the outdoor living area of the adjoining property. Although the overshadowing diagram shows that this modification will marginally reduce the shadow cast over the outdoor living area of the adjoining property at midday on 21 June, the proposed modification does not promote sound climate design principles in regard to the design of the proposed dwelling. On balance, the Tribunal does not consider the benefit from the removal of the eaves to bed 2 is sufficient to warrant the imposition of such a requirement.
35 In regard to the second leg of condition 6, the revised overshadowing diagram clearly illustrates, at midday on 21 June, that the overshadowing of the north facing window to the ground floor dining room of the adjoining property will not be reduced by the implementation of the requirement to reduce the wall plate height of bed 3 as contained in condition 6. The respondent also contends that the proposed modification to the design will provide greater solar access generally to the major openings; however, no evidence was adduced to demonstrate this assertion. The applicants submit that the setback and height of bed 3 complies with the requirements of the Codes and that bed 3 has been designed without eaves on its southern elevation to reduce perceived bulk and minimise impact on solar access. The Tribunal is satisfied, on the evidence before it, that the proposed design of this element demonstrates compliance with the design principles set out in cl 5.4.2 P2.2 of the Codes.
Is the condition appropriate in light of issue 1 and having regard to cl 10.2.1(i) and cl 10.2.1(s) under LPS 4?
36 The applicants did not contest the validity of the condition - only whether, on the merits of the case, it was reasonable to require the southern wall of the living/dining room to be set back 2.5 metres, and a reduction of the wall plate height of the roof of bed 3 to 1.7 metres above finish floor level.
37 The Tribunal, in [30] to [35] has assessed the proposed development against the design principles for 'Solar access for adjoining sites'. Clause 10.2.1(i) of LPS 4 refers to the compatibility of the development within its setting, and cl 10.2.1(s) relates to the way in which buildings relate to the adjoining lots.
38 In regard to the first part of the condition, the respondent argues that by increasing the setback of the ground floor living/dining room, from 1.53 metres to 2.5 metres from the southern boundary, and the associated eaves overhang, the extent of the shadow cast over the outdoor courtyard would be confined to the location of the shadow already cast over the courtyard by the dividing fence at midday on 21 June and that the courtyard's exposure to sunlight will generally be improved. As shown by the revised overshadowing diagram, this can be achieved by increasing the setback by 300 millimetres, which the applicants have agreed to do. Having regard to cl 5.4.2 P2.2 of the Codes and cl 10.2.1 of LPS 4, it would be reasonable to vary the first part of condition 6 so that the setback of the ground floor living room is increased from 1.53 metres to 1.83 metres from the southern boundary.
39 As to the second part of condition 6, the respondent argues that the reduced ceiling height would significantly ameliorate the bulk and scale of the proposed 5.74 metre high element as viewed from the southern boundary. In regards to overshadowing, the respondent concedes that the reduction in the ceiling height will not alleviate the overshadowing of the north facing major openings to the dining room on the adjoining property measured at midday on 21 June, but asserts that it would provide greater solar access generally to the major openings. The applicants submit that the setback and height of bed 3 complies with the requirements of the Codes, and that bed 3 has been designed without eaves on its southern elevation to reduce perceived bulk and minimise impact on solar access. On the evidence before it, the Tribunal considers the requirement to reduce the wall plate height of bed 3 to 1.7 metres to be onerous, as it will not produce a better outcome in respect to protecting solar access to the north facing major opening on the adjoining property, and the setback height of the element is compliant with the requirements of the Codes. The Tribunal, in having regard to those matters contained in cl 10.2.1 of LPS 4, considers that the requirement should not be imposed.
Having regard to LPS 4 and the Codes, what modifications, (if any) should be made to condition 6?
40 In light of the Tribunal's findings at [30] to [39] in regards to issues 1 and 2 as identified by the parties, condition 6 should be modified to read as follows:
6. The southern wall and the associated eave overhang of the living room be set back 1.83 metres and 1.23 metres respectively from the southern lot boundary of Lot 1.
Orders
1. The application for review is allowed.
2. The decision of the respondent made on 3 December 2014 for the partial demolition of the existing dwelling and construction of a two storey Single House at No 8 (Lot 1) Inverleith Street, South Fremantle as shown on plans dated 10 November 2014 is varied as follows:
(i) Condition 6 is deleted and replaced with the following condition:
6. The southern wall and the associated eave overhang of the living room be set back 1.83 metres and 1.23 metres respectively from the southern lot boundary of Lot 1.
- I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
Key Legal Topics
Areas of Law
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Planning & Development Law
Legal Concepts
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Adverse Possession
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Easements & Covenants
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Judicial Review
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