Metropolitan Management Pty Ltd and Town Of Vincent - [2008] WASAT 261

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: METROPOLITAN MANAGEMENT PTY LTD and TOWN OF VINCENT [2008] WASAT 261

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 22 OCTOBER 2008

DELIVERED : 7 NOVEMBER 2008

FILE NO/S: DR 281 of 2008

BETWEEN: METROPOLITAN MANAGEMENT PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Development application - Single bedroom dwellings - Town of Vincent - Whether proposal should be classified as multiple or grouped dwellings - Compliance with density requirements of the Residential Design Codes of Western Australia (2008) - Adequacy of car parking - Setbacks, overlooking and privacy issues - Bulk, scale, height and quality of design - Impact on local amenity

Legislation:

Dividing Fences Act 1961 (WA)
Residential Design Codes of Western Australia (2008)
Residential Planning Codes of Western Australia
Town of Vincent Town Planning Scheme No 1

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Mr R Sklarski (Acting as Agent)
Respondent: Mr S Bain (Acting as Agent)

Solicitors:

Applicant: RPS Koltasz Smith - Planning Consultants
Respondent: Town of Vincent

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

Filton Pty Ltd and Town of Vincent [2006] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is a review of the Town of Vincent's decision to refuse development approval for seven single bedroom dwellings in Leederville.
The Town of Vincent submitted that the proposed development should not be allowed because it exceeded the allowable density for the land prescribed by the Residential Design Codes of Western Australia (2008) and represented an unacceptable impact on the amenity of the area because of its scale, bulk, lack of design merit, intrusion on the privacy of neighbouring properties and inadequacy of parking.
The Town of Vincent argued that the proposed development was incorrectly characterised as 'Multiple Dwellings' in order to benefit from density advantages for such a classification assigned by the Residential Design Codes of Western Australia (2008). The Town of Vincent submitted that the development should properly be classified as 'Grouped Dwellings' and cited a previous Tribunal ruling in support of its argument.
The applicant argued and sought to show that the proposed development was consistent with the requirements of the Residential Design Codes of Western Australia (2008) and the Town of Vincent's relevant planning policies.
The applicant submitted that the proposed development, characterised as multiple dwellings, conformed with the literal interpretation of the definition of multiple dwellings as set out in the Residential Design Codes of Western Australia (2008). The previous ruling by the Tribunal cited by the Town of Vincent was not relevant because the nature of the development reviewed was quite different in detail.
The applicant sought to demonstrate that issues of overlooking and privacy were simply rectifiable. A local parking study was presented to demonstrate that any inadequacy of onsite parking could be resolved by allowance of offsite (street) parking as contemplated by the Residential Design Codes of Western Australia (2008). The Tribunal referred to the previous decision in relation to the appropriate classification of the development and found that the principles and conclusions arrived at on that occasion were relevant to this review. For reasons set out in the full text of this review, the Tribunal was satisfied that the proposed development was incorrectly characterised as multiple dwellings and should properly be classified as 'Grouped Dwellings'. Grouped dwellings are not benefited with the density advantage associated with multiple dwellings in accordance with the Residential Design Codes of Western Australia (2008). The Tribunal therefore found that the proposed development exceeded the density of development allowable on the site.
The Tribunal found that car parking provision was inadequate on site and that a thorough case had not been made to demonstrate the capacity of offsite car parking to augment parking requirements.
The Tribunal found that although overlooking and privacy issues could be addressed by comprehensive balcony screening, such a measure would be at the expense of the quality and amenity of the development.
The Tribunal accepted the Town of Vincent's argument that the development did not display high quality design standards that would allow exercise of a discretion under the relevant planning policy to grant a reduction of site area per dwelling. Accordingly, additional units should not be accommodated in the development as sought by the applicant.
Given the preceding circumstances, the proposed development does not demonstrate compliance with the Residential Design Codes of Western Australia (2008) or the Town of Vincent's relevant planning policy.
The Tribunal therefore concluded that the application for review should be dismissed.

Introduction

This is a review of the Town of Vincent's (respondent) decision not to grant approval for construction of a complex of seven single bedroom dwellings at No 13 (Lot 15) Melrose Street, Leederville (site).
Metropolitan Management Pty Ltd (applicant) submitted the application for approval to the respondent on 26 June 2008.
Following referral of the proposal to the proprietors of neighbouring properties and the subsequent receipt of five submissions, the respondent refused the application on 8 July 2008.
The applicant lodged an application for review of the respondent's decision with the State Administrative Tribunal on 28 July 2008.
On the application heard before Senior Sessional Member Mr R Easton on 28 August 2008, it was ordered that in view of new information which would be provided by an independent expert planner, the respondent should be invited to reconsider its decision.
Following further consideration of the application in the context of new advice provided by an expert planning consultant, the respondent reiterated its decision of refusal of the application on 23 September 2008.
A letter documenting the decision of refusal and the reasons for the decision was issued to the applicant on 30 September 2008.

The proposed development and its context

Melrose Street is a residential street located in the Oxford Centre Precinct of the Town of Vincent.
Melrose Street is a short eastwest orientated street. It connects with the northsouth orientated Oxford Street at its eastern end. Leederville TAFE and Leederville Oval are located opposite Melrose Street on the other side of Oxford Street.
From its intersection with Melrose Street, Oxford Street becomes more commercial in character progressing south towards the junction with Vincent Street.
Number 13 Melrose Street is a rectangularshaped property on the south side of the street. It has an area of 693 square metres, a frontage of 13.4 metres and a depth of 51.5 metres.
Number 13 Melrose Street is presently occupied by a modest brick and tile residence situated on the front (northern) half of the site. A small shed is located in the southwest corner of the property. The site is fenced.
Adjoining properties are developed with one or two storey residential premises, all of single dwelling type other than a two storey duplex located adjoining the rear western boundary of the site.
The proposed development of the site involves demolition of the existing residence and shed, and subsequently constructing a substantial new building comprising a row of seven single bedroom dwellings.
Each dwelling comprises of a ground floor courtyard entrance, garage and laundry, a first floor living area, and an upper level (or loft) bedroom and bathroom. The upper level floors constitute about half the potential space of each upper level. The balance area is described on the applicant's plans as 'roof space'. The development is designed so that a portion of each dwelling's 'roof space' is set above and overlaps the adjoining dwelling.
The building dimensions (identified from the applicant's plans) identify a structure of 44.3 metres length and 6.3 metres width. The maximum height from ground level to the several peaks of the articulated roof structure is 9.0 metres.
Each dwelling will be serviced by a single car bay garage, integrated into the development. The garages are to be accessed from a common driveway/footpath to be provided along the full length of the eastern side of the site. A visitor's parking bay is to be provided in the front setback area. It is also accessed from the common driveway.
The total of eight car parking bays will be provided on the site.

Statutory and policy instruments

The site is zoned Residential/Commercial R80 under the provisions of the Town of Vincent Town Planning Scheme No 1 (TPS 1).
Residential development of land within the zone is required to conform with the provisions of the Residential Design Codes of Western Australia (2008) (Codes).
The Codes set out the following relevant definitions of dwelling types:
...
Grouped dwelling
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
...
Multiple dwelling
A dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above part of any other but:
•does not include a grouped dwelling; and
•includes any dwellings above the ground floor in a mixed use development.
At Table 1 - General Site Requirements, it is identified that all standards for grouped dwellings within R80 R160 areas are as for the R60 Code.
Multiple dwellings within R80 areas are required to be provided with a minimum of 16 square metres communal open space per unit.
The Codes define 'Communal open space' as:
Open space set aside for the recreational use of the occupants of the dwellings in a common development and does not include driveways or car parking areas.
The Codes provide that single bedroom dwellings with a maximum plot ratio floor area of 60 square metres meet the acceptable development standards for single bedroom dwellings.
The Codes provide that the minimum site area for single bedroom dwellings may be reduced by up to onethird in the pursuit of specific objectives of the local government scheme.
In accordance with the Codes:
•The provision of one parking space per single bedroom dwelling, plus the addition of one visitor space per four dwellings, is described as an acceptable car parking development standard for grouped dwellings.
•The provision of 0.75 parking spaces per single bedroom dwelling, of which 10% should be provided for exclusive use of visitors where more than four dwellings are constructed, is described as an acceptable car parking development standard for multiple dwellings.
The respondent has adopted local Planning Policy 3.4.7 - Single Bedroom Dwellings (Policy 3.4.7) to provide direction on the requirements for single bedroom dwellings in the Town of Vincent.
Policy 3.4.7 allows a qualified discretion to the respondent to approve a maximum plot ratio floor area of up to 70 square metres and to allow a reduction of site area of up to onethird, subject to a development meeting certain criteria pertaining to high quality design features.

The respondent's decision

The respondent refused the application for the construction of seven single bedroom dwellings at the site for the following reasons:
a)Noncompliance with density;
b)Bulk and scale incompatible with single bedroom dwelling;
c)Void space not consistent with the single bedroom dwelling;
d)Lack of diversity in the development;
e)Lack of justification for the Council to exercise its discretion; and
f)Consideration of the objections received.

The respondent's argument

The respondent argued that the proposal was, by its configuration and characteristics, a grouped dwelling development rather than multiple dwellings. Accordingly, the proposal is inconsistent with the requirements of the Codes and the respondent's policy. Additionally, the proposed development is excessively bulky and represents an adverse impact on the amenity of other properties in the locality.
Witness for the respondent, Cr I Ker, a Councillor of the Town of Vincent and a transport planner by profession, expressed his view that the development should not be described as 'Multiple Dwellings' solely because of the 3.5 square metres area of loft floor that projected and overlapped each adjoining dwelling in the case of proposed Unit 2 Unit 7. He stated that the nature of the overlap did not appear to be intrinsically necessary. The external appearance of the development is otherwise indistinguishable from other grouped dwellings.
As the site is zoned R80 with an area of 693 square metres, the Codes would allow 5.5 multiple dwellings or 3.8 grouped dwellings on the property.
Councillor Ker drew attention to Policy 3.4.7 providing scope for the respondent to consider a maximum plot ratio floor area of up to 70 square metres for single bedroom dwellings.
Councillor Ker provided his calculations derived from the applicant's plans to show that the unit floor areas exceed the allowable 70 square metres.
With regard to open space requirements, Cr Ker was of the view that the development would not comply with the requirements of the Codes as no communal open space was provided.
Councillor Ker was of the opinion that the bulk and scale of the building was incompatible with single bedroom dwellings. He cited the 9 metre height and the 44.3 metre unarticulated length of the building as typically excessive dimensions of the development.
Councillor Ker also drew attention to the specific requirement of Policy 3.4.7 at cl 7 which says that a single bedroom dwelling is not to incorporate void areas. The reasons for this exclusion are because:
•A void space adds to bulk and scale; and
•A void space is likely to have potential for later inclusion as floor space increasing the area beyond that qualifying as a single bedroom dwelling.
Councillor Ker was of the opinion that the reference to 'roof spaces' on the applicant's plans should be described as 'voids'.
According to Cr Ker, the proposed development was inconsistent with the respondent's Vincent Vision 2024 project which encourages diversity in the population mix. The proposed development only provides one type of accommodation and appeals to just a single demographic.
Mr S Bain, a qualified and experienced town planner, provided further evidence on behalf of the respondent.
Mr Bain expressed the opinion that the proposed development should be classified as grouped dwellings rather than multiple dwellings. The loft level has been designed to have a slight overhang of the adjoining dwelling solely in order to have the dwellings classified as multiple dwellings and achieve a reduction of the required average site area per dwelling from 118.8 square metres (the R60 standard) to 82.5 square metres (at R80).
At the appropriate R60 standard the site would only support five single bedroom dwellings.
Mr Bain cited Filton Pty Ltd and Town of Vincent [2006]WASAT 70 (Filton), a review of a similar development at 30 Bulwer Street where the Tribunal determined that such an overhang was unreasonably contrived in order to gain a density bonus.
Mr Bain also noted that the proposed development was not provided with communal open space in accordance with the site requirements for multiple dwellings, thus reinforcing his view that the development was better classified as grouped dwellings.
Further, Mr Bain referred to the explanatory notes and diagrams accompanying the 1991 Residential Planning Codes of Western Australia pointing out the distinguishing characteristics between grouped and multiple dwellings. Mr Bain concluded from the illustrations that the proposed development was clearly characteristic of grouped dwellings.
Mr Bain asserted that the development would require visitor parking spaces provided at the rate of one space per four dwellings. For seven dwellings this would be calculated as 1.75 spaces which, for practical purposes, should be rounded up to the provision of two visitor car parking spaces. As the proposed development only provides one visitor parking space it is deficient compared to the Codes' requirements.
Mr Bain summarised the issues raised by objectors. These included:
•Concerns that the development will impact on traffic and parking on Melrose Street. There is inadequate visitors' parking;
•Noise impact on neighbours especially from balconies;
•The development does not blend with the streetscape;
•Concerns that the dividing fence will be removed compromising the security of neighbours;
•The proposal is effectively a three storey building;
•Seven dwellings with up to 14 residents on the lot are unacceptable; and
•The development will tower over adjoining sites.
Mr Bain pointed out that the balconies to the units were 3.499 metres from the eastern boundary and the balcony to proposed Unit 7 was only 3 metres from the southern boundary. In such circumstances, the Codes require a set back of 7.5 metres or to be screened to meet the privacy requirements of the Codes.
The plans of the development indicate screening of the eastern sides of the balconies to a height of 1.6 metres. This would still permit unacceptable overlooking from the remaining sides of the balconies. Mr ain was of the opinion that if all sides of the balconies were screened as required, it would then be undesirable in terms of the amenity of the occupants as the balconies would provide no visual aspect at all.
Mr Bain addressed the applicant's submission that an approved development at No 194 No 196 Carr Place, Leederville was similar in character to the application under review. Further, that it represented a precedent demonstrating that the respondent accepted that a minor projection of floor space over an adjoining dwelling unit constituted a basis for classification as multiple dwellings.
Mr Bain disagreed with the applicant's contention on grounds that the development at Carr Place is very different in character and context to that at Melrose Street. He identified a physical distinction such that the dwelling units would be built above a common basement car park and that dwelling units would be on two separate levels, one above the other. As such, they were properly classified as 'Multiple Dwellings'.
Additionally, Mr Bain contended that the development at Carr Place was subject to different design guidelines associated with the proposed Leederville Masterplan and the Carr Place Residential Precinct which encouraged development at densities between R80 to R160.
Further to the evidence provided by witnesses for the respondent, a submission by Mr and Mrs Kaye of 15 Melrose Street was filed with the Tribunal. Mr and Mrs Kaye's property adjoins the proposed development site to the west.
Mr and Mrs Kaye expressed concerns as to the density and scale of the proposed development, the potential to exacerbate street traffic and parking congestion and the implications for domestic security if the common boundary fence is removed.

The applicant's argument

The applicant argued that the proposed development conformed with the requirements of the Codes and the respondent's relevant policy.
Mr R Sklarski, a qualified town planner with experience in both planning and building surveying, provided evidence on behalf of the applicant.
Mr Sklarski rejected the submissions of objection to the proposed development cited in Mr Bain's evidence. In brief, Mr Sklarski's reasons for rejection were:
•The proposal complies with the parking requirements of the Codes and Policy 3.4.7;
•Occupants of the dwellings have to comply with relevant noise regulations;
•The proposal complies with street setbacks;
•The applicant will remove and replace the dividing fence in accordance with the Dividing Fences Act 1961 (WA);
•The loft is contained between the roof pitch and the top of the ceiling of the storey immediately below. Accordingly the loft is not another storey;
•The proposal complies with the density requirements applicable to the land;
•It is incorrect to assume that seven single bedroom multiple dwellings equates to 14 permanent residents; and
•The proposal complies with height requirements of the policy and is consistent with building heights in the surrounding area.

In addition, Mr Sklarski referred to a series of letters of support for the proposed development submitted by residents of the locality. The letters include a particular expression of support from the proprietor of No 11 Melrose Street, immediately adjoining the proposed development on its eastern boundary. The letters are filed with the Tribunal.
On the issue of classification, Mr Sklarski affirmed his view that because each loft straddles the adjoining dwelling, the proposed development is consistent with the definition of multiple dwellings.
Mr Sklarski also affirmed that because each proposed dwelling contains a living room and only one other habitable room capable of use as a bedroom, the dwellings are consistent with the definition of single bedroom dwellings.
Mr Sklarski advised that the Codes provide that, in the case of a single bedroom dwelling, the required site area may be reduced by up to onethird. This equates to a minimum site area per dwelling of 83.33 square metres instead of 125 square metres at the R80 density. This would allow a maximum of eight units on the site. The development of seven single bedroom dwellings therefore complies with the density requirements of the Codes.
With regard to boundary setbacks, Mr Sklarski expressed the view that the proposed development met the criteria set out in the Codes. With respect to the setback of balconies, Mr Sklarski advised that the applicant agrees to modify the development plan to provide screening to a height of 1.6 metres to all three sides of each balcony, thus complying with the privacy requirements of the Codes.
Mr Sklarski addressed the issue of visitor parking in the context of the relevant performance criteria stipulated by the Codes. In addition, he referred to a document prepared by the applicant, tendered into evidence, titled 'Melrose Street Car Parking Report' (Car Parking Report). Mr Sklarski was of the view that because of the prevailing conditions in the locality identified in the Car Parking Report, including evidence of an adequacy of onstreet parking and accessibility to public transport, the provision of visitor parking on site was sufficient and duly met the performance criteria of the Codes.
Mr Sklarski referred to the general objectives of the respondent's Policy No 3.1.4 Oxford Centre Precinct. The objectives encourage two storey buildings of 'strong urban character'. The proposed development is consistent with these objectives.
On the question of excessive bulk and scale raised by the respondent, Mr Sklarski made two points. First, that plot ratio controls are an effective means of controlling building bulk. In this regard, the proposed development conforms with the relevant plot ratio for the R80 density code. Second, that the proposed development is comparable in terms of building mass and scale to existing development on neighbouring properties.
In relation to the respondent's policy requirement that a single bedroom dwelling should not incorporate any void areas, Mr Sklarski argued that what were described as void spaces by the respondent were more appropriately described as roof spaces. The spaces do not provide the minimum floor to ceiling height of 2.4 metres required for a habitable room. The shape and configuration of the roof space therefore cannot be increased to create additional floor area. Mr Sklarski was of the opinion that because the spaces in question were not 'voids', the proposed development did not conflict with Policy 3.4.7.
Consequent to particular orders of the Tribunal, Mr Sklarski in his resultant submission drew attention to plans for a similar development of multiple dwellings at No 194 No 196 Carr Place, Leederville recently approved by the respondent. It was particularly relevant that the respondent had accepted that the development should be classified and approved as multiple dwellings based on the circumstance that a modest (3 square metres) portion of floor space of each dwelling projected over each adjoining unit. The example is therefore very similar to this application under review.
The development at No 194 - No 196 Carr Place and the development at 13 Melrose Street are distinguished from the Filton decision because they both involve dwellings on a lot vertically above part of another dwelling, not a garage as was the case in Filton.
Given the approval of the development at No 194 - No 196 Carr Place, Mr Sklarski expressed his opinion that the respondent's position that the proposed development for the site is not compliant with the applicable density for the area, is not tenable.

Analysis

The issues that arise from the evidence are addressed in turn.

Issue 1 - Whether the proposed development should be classified as a 'Multiple dwelling' development or a 'Grouped dwelling' development as defined by the Codes?

Key to resolving this issue is a careful interpretation and sensible application of the definitions of 'Multiple dwelling' and 'Grouped dwelling' set out in the Codes.
The applicant has stressed the appropriateness of a straightforward literal interpretation of the multiple dwelling definition and that any manifestation of an overlap of one dwelling over another must be interpreted in favour of the development being classified as a multiple dwelling. The example of the multiple dwelling classification of the development at No 194 - No 196 Carr Place is a case demonstrating this point.
The respondent, by contrast, has relied on analysing the overall characteristics of the development and classifying it in accordance with the definition that best fits the characteristics of the development.
The respondent has drawn upon the Tribunal's decision in Filton where it was concluded that the words 'partly vertically above' in the definition of grouped dwelling and 'any part of a dwelling' in the definition of multiple dwelling should have the meaning 'in relation to a substantial part vertically above' and 'any substantial part of a dwelling', respectively, in order for the definition to be applied reasonably. The Tribunal, in the Filton matter, reached this conclusion and rejected the literal interpretation argument because this path would not conform to the well explained intent of the Codes to maintain the essential distinction between the characteristics of group dwellings and multiple dwellings.
Exercising the Tribunal's previous conclusion, it can be reasonably argued that the minor overlap of the loft floor spaces over the adjoining dwellings, the subject of this review, cannot be accepted as 'substantial'. The approximate area of each overlap amounts to only 3.5 square metres of the 98 square metres total floor space of a typical dwelling unit in the proposed development.
It is also apparent from the plans of the proposed development, that the disposition of the dwelling units on the site is best described as a sidebyside arrangement, with parking and private open space assigned integrally and exclusively to each unit as would be expected for group dwellings. There is no manifestation of dwelling units being placed wholly or substantially above another as might be expected in the case of multiple dwellings and no provision of common open space as required by the codes for multiple dwellings.
The applicant has pointed out that the key distinction between the Filton matter and the present application is that the Filton decision turned on the fact that the overlap in question was characterised by upper level portions of dwelling units situated over the adjoining unit garage space. The Tribunal accepts that there was a difference of characteristics as described but that does not compromise the principles of the argument and conclusion reached by the Tribunal in the Filton case (described in the preceding paragraphs) which did not hinge solely on the characteristics of the dwelling unit spaces in question.
The applicant also drew on the comparison with the respondent's decision to classify and approve the development proposal at No 194 No 196 Carr Place as multiple dwellings.
Upon study of the submissions by the parties in respect of the Carr Place development, the Tribunal is reluctant to draw any conclusion that the example is of assistance to the determination of this review. The reasons for this stance are listed as follows:
•The planning report of the assessing officer for the respondent has not addressed the question of classification and the rationale for describing the Carr Place development as multiple dwellings.
•There is a contextual distinction indicating different planning and design matters to be taken into account in the locality.
•The characteristics of the development are markedly different in that the proposed dwelling units are situated above a common basement car park.
•In the absence of a detailed appraisal and reasoned argument on the issue it cannot be unequivocally assumed that classification of the proposed development at Carr Place as multiple dwelling units was correct.
Having regard to the preceding analysis, the Tribunal is satisfied that the proposed development at the site should be appropriately classified as constituting grouped dwellings.

Issue 2 - Whether, having regard to the resolution of Issue 1, the proposed development conforms in relation to the 'General Site Requirements' of the Codes at Table 1 and the respondent's relevant planning policies?

It follows that because the proposed development should be classified as 'Grouped dwellings' in accordance with the resolution of Issue 1, the Tribunal concludes that the development should be assessed at the R60 density standard and accordingly is deficient in terms of the Codes' requirements for minimum site area per dwelling. The effect of this conclusion is that the site would not support the accommodation of seven dwellings as proposed.

Issue 3 - Whether the development is compliant with requirements for parking in accordance with the Codes and the respondent's planning policies?

Recognising the appropriate classification of the development as single bedroom 'Grouped dwellings', the appropriate rate of car parking provision would be one space per dwelling plus visitors' parking spaces at the rate of one space per four dwellings. Hypothetically, if seven single bedroom grouped dwelling units could be accommodated on site, this would amount to seven spaces associated with the units plus 1.75 spaces (rounded up to two spaces) for visitor parking.
As the proposed development provides eight parking spaces rather than nine as required, the Tribunal concludes that the proposed development is deficient in meeting the acceptable development standards of the Codes.
The applicant has sought, however, to show that the locality is capable of accommodating some parking offsite. To this end, the applicant conducted a survey of street parking, demonstrating that at a time of expected peak usage, Melrose Street parking was only 30% to 35% full. The applicant also emphasised the availability of public transport in the locality.
The Tribunal accepts that offsite parking is a legitimate means of meeting the Codes' 2008 car parking requirements, but is concerned that the single observation in evidence is sufficient to provide assurance that street parking will be adequate and sustainable. For this avenue to be pursued to success, a much more comprehensive investigation would need to be undertaken.
For the purposes of this review it remains that the parking provision for the proposed development is deficient.

Issue 4 - Whether the development is compliant with the requirements for setbacks and privacy in accordance with the Codes?

It has been acknowledged by both parties that the setbacks to the balconies on the eastern side of the proposed building are insufficient to escape the need for screening to a height of 1.6 metres.
The applicant has agreed to modify the development plan to screen the balconies as required by the respondent in order to comply with the Codes' requirements for privacy.
The Tribunal accepts that the proposed development, modified to provide the screening as required on each of the three sides of the balconies would meet the necessary requirements, but notes that such measures then curtail any practical outlook from the living space of the majority of the proposed dwellings. It is arguable that such a measure would result in a much diminished amenity of the dwelling units.

Issue 5 - Whether the bulk, scale, nature and appearance of the development would have an unacceptable impact on the amenity of the area?

Limited evidence was available to the Tribunal to determine this aspect of the proposed development. In particular, there was little information in relation to the nature of other development in the locality against which to compare the proposed development.
Argument was submitted on behalf of the respondent that the proposed building was too high ('towering') but there was no particular height limitation stipulated for the development.
It appears from the elevation plans submitted by the applicant that the two storey duplex on the eastern side is of comparable height to the proposed development.
There was observation that the proposed building would present a lengthy, high, continuous and relatively featureless facade to the eastern and western boundaries of the site, which would be visible from adjoining properties and the street. There are projections of balconies on the eastern side at the midlevel, and indentation of the rear courtyards at the lower level on the western side.
On examination of the plans, the Tribunal agrees that there is a limited visual appeal to the eastern and western elevations. Apart from the balcony projections, the elevations lack visual interest which might otherwise be generated by a greater degree of horizontal and vertical articulation of the building.
Additionally, the Tribunal notes the reduced amenity of the development because of the lack of outlook from the units occasioned by the shallow setbacks to side boundaries and the consequent need for privacy screening.
The Tribunal concludes that, while it would be difficult to form the opinion that the proposed development would have an unacceptable impact on the locality because of its bulk, scale, nature and appearance, it is nevertheless reasonable to argue that the development does not display a high level of design standards in the context of the respondent's single bedroom dwellings policy. In such circumstances, it would be unreasonable to expect exercise of any variation of minimum site area for single bedroom dwellings allowable under the Codes and Policy 3.4.7.

Summation of issues

In summation of the issues considered in the preceding paragraphs, the Tribunal is of the view that the proposed development is substantially and irreconcilably noncompliant with the relevant objectives and requirements of the Codes and the respondent's Policy 3.4.7.
In such circumstances, it is unnecessary to address submissions in relation to draft conditions of approval tendered by the parties.

Conclusion

Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the proposed development of seven single bedroom dwellings at 13 Melrose Street, Leederville should be dismissed.

Order

The Tribunal therefore makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 23 September 2008 to refuse development approval for seven single bedroom dwellings at 13 Melrose Street, Leederville is affirmed.

I certify that this and the preceding [112] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER