Moonvale Enterprises Pty Ltd and City Of Joondalup
[2008] WASAT 179
•11 AUGUST 2008
MOONVALE ENTERPRISES PTY LTD and CITY OF JOONDALUP [2008] WASAT 179
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 179 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:375/2007 | 11 MARCH 2008 (HEARING), 11 APRIL 2008 (DIRECTIONS), 29 APRIL 2008 (DIRECTIONS), 13 JUNE 2008 (DIRECTIONS) - FINAL WRITTEN SUBMISSION 27 JUNE 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR J JORDAN (MEMBER) | 11/08/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Conditional approval granted for amended plans | ||
| B | |||
| PDF Version |
| Parties: | MOONVALE ENTERPRISES PTY LTD CITY OF JOONDALUP |
Catchwords: | Town planning Development application Refusal 14 grouped dwellings Density consistent with R40 medium density coding Setback from internal boundaries Internal overshadowing Internal privacy Setback from internal driveway Private open space Costs |
Legislation: | Planning and Development Act 2005 (WA), s 242, s 252(1) Residential Design Codes of Western Australia (2002) Residential Design Codes of Western Australia (2008), cl 6.2.1, cl 6.3, cl 6.3.1, cl 6.4.1, cl 6.7.1, cl 6.8.1, cl 6.9, cl 6.9.1, Table 1 State Administrative Tribunal Act 2004 (WA), s 31, s 87 |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 |
Orders | 1. The application for review is allowed.,2. The refusal by the respondent is set aside and development of 14 two storied grouped dwellings at No 4 (Lot 11483) Burns Place, Burns Beach is approved subject to the following conditions:,1) The development shall be carried out in accordance with plans drawn by Design and Construct Residential, job no 6111 site plan 26 March 2008 and individual plans and elevations for each unit amended 23 March 2008.,2) The truncated retaining wall adjacent to Unit 7 shall be stepped down in 300 millimetre intervals so as to allow landscaping to be viewed from the common driveway to the satisfaction of the Manager Approvals, Planning and Environmental Services.,3) All landscaping adjacent to the Unit 7 truncated retaining wall shall not be groundcover, and shall be visible from the common driveway so as to contribute to the desired streetscape.,4) The parking bays, driveways and points of ingress and egress to be designed in accordance with the Australian Standard for Offstreet Car Parking (AS/NZS 2890.01 2004). Such areas are to be constructed, drained, marked and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services prior to the development first being occupied. These works are to be done as part of the building program.,5) Visitor car parking bays are to be a minimum of 2,800 millimetres in width.,6) Visitor car parking bays are to be clearly marked and signposted to the satisfaction of the Manager Approvals, Planning and Environmental Services.,7) The driveway/s and crossover/s to be designed and constructed to the satisfaction of the Manager Infrastructure Management before the occupation of the development.,8) An on-site stormwater drainage system with the capacity to contain a 1:100 year storm of a 24-hour duration is to be provided prior to the development first being occupied and thereafter maintained to the satisfaction of the City. The proposed stormwater drainage system is required to be shown on the building licence submission and be approved by the Manager Infrastructure Management prior to the commencement of construction.,9) All highlight windows shall have a sill height not less than 1.6 metres above the finished floor level.,10) Boundary walls and retaining walls shall be of clean finish and made good to the satisfaction of the Manager Approvals, Planning and Environmental Services.,11) All construction works shall be contained within property boundaries.,12) Unit 5 garage shall have a minimum internal dimension of 5.4 metres.,13) Any fencing within the street setback area of Units 1, 8, 9, 10, 11, 12, 13 and 14 shall be visually permeable above 1.2 metres from natural ground level.,14) The lodging of detailed landscaping plans, in accordance with water-sensitive urban design principles to the satisfaction of the Manager Approvals, Planning and Environmental Services, for the development site with the building licence application. For the purpose of this condition, a detailed landscaping plan shall be drawn to a scale of 1:100. All details relating to paving and treatment of verges to be shown on the landscaping plan.,15) Landscaping, reticulation and all verge treatment is to be established in accordance with the approved plans prior to the development first being occupied, and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services.,16) The design of the gable at the southern end of Unit 2 shall be amended so that the roof is within the building threshold envelope to the satisfaction of the Manager Approvals, Planning and Environmental Services.,3. Each party should pay its own costs of the proceedings. |
Summary | In October 2007 the City of Joondalup refused an application by Moonvale Enterprises Pty Ltd to develop 14 grouped dwellings, each of two storeys, at No 4 (Lot 11483) Burns Place, Burns Beach. The City of Joondalup considered that the development required too many variations from the development standards found in the acceptable development provisions of the Residential Design Codes of Western Australia (2002).,At the hearing before the Tribunal it became apparent from the evidence of the two expert planners called by the parties that amendments to the design would address many of the concerns raised about the standards and the development. Amended plans were subsequently produced, but the City of Joondalup maintained its opposition because of variations to the standards that were still required.,The Tribunal examined the amended plans in light of the performance criteria of the now Residential Design Codes of Western Australia (2008) and with the assistance of further evidence and submissions from the two expert planners.,The Tribunal found that the amended plans adequately addressed the significant issues of access to sunlight and ventilation, privacy and overlooking, setbacks and wall height where these directly impacted on the standard of amenity of the development.,The Tribunal determined that the application for review should be allowed and the amended plans were granted conditional approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MOONVALE ENTERPRISES PTY LTD and CITY OF JOONDALUP [2008] WASAT 179 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR J JORDAN (MEMBER)
- Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Refusal - 14 grouped dwellings - Density consistent with R40 medium density coding - Setback from internal boundaries - Internal overshadowing - Internal privacy - Setback from internal driveway - Private open space Costs
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Legislation:
Planning and Development Act 2005 (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008), cl 6.2.1, cl 6.3, cl 6.3.1, cl 6.4.1, cl 6.7.1, cl 6.8.1, cl 6.9, cl 6.9.1, Table 1
State Administrative Tribunal Act 2004 (WA), s 31, s 87
Result:
Application for review allowed
Conditional approval granted for amended plans
Category: B
Representation:
Counsel:
Applicant : Mr C Penheiro (Town Planner)
Respondent : Mrs A Butterworth (Town Planner)
Solicitors:
Applicant : Casimir Penheiro (Town Planners)
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
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Summary of Tribunal's decision
1 In October 2007 the City of Joondalup refused an application by Moonvale Enterprises Pty Ltd to develop 14 grouped dwellings, each of two storeys, at No 4 (Lot 11483) Burns Place, Burns Beach. The City of Joondalup considered that the development required too many variations from the development standards found in the acceptable development provisions of the Residential Design Codes of Western Australia (2002).
2 At the hearing before the Tribunal it became apparent from the evidence of the two expert planners called by the parties that amendments to the design would address many of the concerns raised about the standards and the development. Amended plans were subsequently produced, but the City of Joondalup maintained its opposition because of variations to the standards that were still required.
3 The Tribunal examined the amended plans in light of the performance criteria of the now Residential Design Codes of Western Australia (2008) and with the assistance of further evidence and submissions from the two expert planners.
4 The Tribunal found that the amended plans adequately addressed the significant issues of access to sunlight and ventilation, privacy and overlooking, setbacks and wall height where these directly impacted on the standard of amenity of the development.
5 The Tribunal determined that the application for review should be allowed and the amended plans were granted conditional approval.
Introduction
6 These proceedings involve an application brought by Moonvale Enterprises Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Joondalup (City or Council) on 23 October 2007 to refuse a development application for the development of 14 grouped dwellings at No 4 (Lot 11483) Burns Place, corner Second Avenue, Burns Beach (site).
Site and locality
7 The site has an area of 3,690 square metres and fronts Burns Place to the north, Second Avenue to the west and Ocean Parade to the south. Direct access is not available from the site to Ocean Parade. The site falls generally from
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- the Burns Place frontage to the Ocean Parade frontage.
8 The site is vacant and surrounding areas to the west, north and east are used for single residential purposes. To the south-west across Ocean Parade is the Burns Beach Sunset Village (caravan park) and natural bush which is part of a coastal reserve.
9 The site has only one common boundary with another property, namely, Lot 2 Burns Place, which contains a single house at the head of Burns Place cul-de-sac.
Planning framework
10 The site and surrounding areas to the north, west and east are zoned "Urban" under the Metropolitan Region Scheme (MRS). The land to the south and south-west across Ocean Parade, including the site of the caravan park, is reserved as Parks and Recreation under the MRS.
11 Under the City of Joondalup District Planning Scheme No 2 (DPS 2), the site is zoned "Residential R40", and the surrounding properties to the east, north and west are zoned "Residential R20". The land to the south-west is reserved as Parks and Recreation under DPS 2.
Submission by Mrs L Brandsch
12 Mrs L Brandsch was granted leave to make a written submission to the Tribunal under s 242 of the PD Act as a person who has a sufficient interest in the matter. Mrs Brandsch made submissions in writing on 4 March 2008 and 30 June 2008.
13 Mrs Brandsch sought to identify some 23 issues. Many of these issues are addressed, in substance, in the issues raised by the Council, and are discussed in that context below. Other issues raised by Mrs Brandsch concerned the efficacy of the planning framework, the perceived impact of the proposal on property values and the processes before the Council. These issues are not relevant to planning consideration in this review.
14 Further issues raised by Mrs Brandsch related to traffic and safety. These were addressed in an independent traffic impact study undertaken by Worley Parsons, traffic engineers, on behalf of the Council in October 2007. The findings of the study by the traffic engineers were, in summary:
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- • The existing frontage streets all carry low traffic volumes relevant to their capacity.
• The development includes adequate provision for vehicle access and parking.
• The development includes adequate provision for service vehicle access.
• The development is forecast to generate 91 vehicle trips per day, with nine vehicles in each of the peak hours.
• The increased traffic is forecast to have minor impact on the operation of the existing road network, in that road users along Second Avenue and Burns Place may detect increased traffic volumes. Increases along Ocean Parade and Burns Beach Road are likely to be imperceptible.
• The development site is located in close proximity to public transport (bus) services, and the existing pedestrian and cyclist network.
• The sight distances at the proposed cross-overs have been checked and all found to exceed the minimum requirement of 40m, based on a speed limit of 50 km/hr, a domestic property classification.
Development application
15 Proposed is the development of 14 two storey grouped dwellings on the site, which is a single lot. At the southern edge of the site, Units 1 - 6 abut the site boundary, but have vehicular access to an internal common driveway which provides access to Second Avenue. Unit 7, which is internal to the site, also has access to the internal common driveway, as do two visitor parking bays. Units 8 - 10 have frontage and vehicular access to Second Avenue, and Units 11 - 14 have frontage and vehicular access to Burns Place at the northern edge of the site.
16 The proposed development, as originally submitted, was said to involve approximately 200 variations to the acceptable development provisions of the Residential Design Codes of Western Australia (2002)(2002 Codes). Prior to the hearing, the respective expert planners engaged by the parties, Mr Casimir Penheiro for the applicant and Mrs Amanda Butterworth for the City, met and produced a joint expert report (exhibit 4). The two experts agreed that many of the development standard variations proposed could be addressed by amendment to the plans, with related
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- conditions of approval or simply by conditions of approval.
17 At the hearing on 11 March 2008, the Tribunal required that the applicant provide to the Tribunal and Council amended plans reflecting changes foreshadowed in the evidence.
18 On 26 March 2008, amended plans were produced which addressed many of the variations to the acceptable development criteria of the 2002 Codes. The two planning experts produced a supplementary joint expert report on the amended plans dated 28 April 2008.
19 On 29 April 2008, the Tribunal invited the Council to reconsider the proposed development under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), having regard to the amended plans and Mrs Butterworth's further advice.
Discussion
20 The Council considered the amended plans filed by the applicant at its 10 June 2008 meeting, but again resolved to recommend that the application should be refused. It said that "[t]he extent of variations sought has not resulted in an appropriate standard of development and so did not satisfy the objectives of the Residential Design Codes 2002".
21 In considering this matter, the Tribunal was required to consider the proposed development in the light of the Residential Design Codes of Western Australia (2008) (Codes), which were gazetted on 29 April 2008. There is no material difference, however, between the 2002 Codes and the Codes in the clauses relevant to this matter.
22 Important to the consideration of this matter is that the proposed development involves grouped dwellings on a single lot. There has been no strata subdivision of the lot. The Tribunal is not required to give consideration to any form of subdivision. The amended plans for the proposed development show proposed internal boundaries which delineate the private open space associated with each dwelling unit and the internal common driveway.
23 In its request that the application be refused, the Council identified a number of issues of particular concern. One issue is the internal dimension of the garage of Unit 5. This can be addressed by a condition to make it the required minimum of 5.4 metres. Other issues where particular impacts have been identified are addressed under the following headings.
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Setback variations and access to sunlight and ventilation
24 The Council recommended refusal because it considered:
(1) the setback variations from the upper floor to the eastern boundaries of Units 1, 2 and 3 do not meet the Performance Criteria of the [Codes] as they do not ensure adequate direct sun and ventilation are available to adjoining properties; and
(2) the setback variations from the upper floor to the southern boundaries of Units 9, 10 and 11 do not meet the Performance Criteria of the [Codes] as they do not ensure adequate direct sun and ventilation are available to adjoining properties.
25 At cl 6.3 of the Codes, the objective of boundary setback requirements is "to ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties". Clause 6.9 of the Codes is concerned with design for climate and cl 6.9.1 P1 provides, as performance criteria, protecting solar access for neighbouring properties.
26 Dealing first with access to sun, from the performance criteria at cl 6.3.1 P1 of the Codes, the Council was concerned with the objective of adequate direct sun (first, second and third dot points), and Mrs Butterworth was concerned about assisting in the protection of access to sun (fourth dot point). The performance criteria in cl 6.9.1 P1 requires account to be taken of the potential to overshadow outdoor living areas, major openings to habitable rooms, solar collectors, or balconies or verandahs.
27 Mr Penheiro emphasised that access to sun specifically related to "adjoining properties", and the adjoining property is Lot 2 Burns Place with its single house at the head of the culdesac to the east of the site. He pointed out that development on the site meets the acceptable development criteria for setback, overshadowing and access to sun for that one adjoining property.
28 Under the acceptable development provisions for setbacks at cl 6.3, it provides, at cl 6.3.1 A1(iii), that for group dwelling buildings on the same site, performance criteria would be met if buildings were set back from each other as though there were a boundary between them.
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- Confusingly, there are no performance criteria for grouped dwellings on the same lot with the criteria specifically relating to adjoining properties. For the purposes of determining the impact of grouped dwellings on each other, the planning experts had regard to the performance criteria as though there were a real property boundary between each of the grouped dwellings.
29 Mrs Butterworth said that she does not consider the identified setback variations for Units 1, 2 and 3 - which are orientated generally north-south - and Units 9, 10 and 11 - which are orientated east-west - meet the relevant performance criteria. In her opinion, the setback of Units 1, 2 and 3 from the properties adjoining each to the west - Units 2, 3 and 4, respectively - result in failure to comply with the performance requirement to "assist with protection of access to direct sun for adjoining properties". In particular, overshadowing would be of outdoor living areas.
30 Mr Penheiro said that each of Units 2, 3 and 4 overshadow their own outdoor living area at the rear, or southern side, of the building.
31 The Tribunal does not have the benefit of shadow diagrams, so it is not clear to what extent the rear yards of the dwellings would be in shadow at different times of the day and year. Examination of the plans shows that the topography and orientation of the affected Units 2, 3 and 4 provide an outlook from the balconies and outdoor living areas generally to the south and south-west towards regional open space. The aspect from the northern side of these three units is towards the common driveway and the houses on the opposite side of the driveway.
32 The north facing windows which are to habitable rooms (bedrooms), and front open space of these units, which is adjacent to the internal common driveway, would receive direct access to sun. The Tribunal is of the opinion that, for grouped dwelling developments such as this, having living areas take advantage of the prime outlook is a design opportunity that can be supported. The Tribunal considers that Units 1, 2 and 3 are set back adequately so as to assist with protection of direct sun to Units 2, 3 and 4, respectively, and that these units will receive an acceptable level of solar access in the circumstances.
33 The Council and Mrs Butterworth considered the setback from the presumed southern boundary of the sites of Units 9, 10 and 11 - each orientated east-west - do not meet the performance criterion at cl 6.3.1 P1 of the Codes. This was said to be because the neighbouring units to the south of each of these units - Units 8, 9 and 10,
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- respectively - would not be ensured of adequate access to direct sun.
34 The Tribunal does not have shadow diagrams for these three affected units. It is noted, however, that the units are orientated generally east-west. The rear of the units would receive morning sun to a ground floor sitting room and adjacent open space. At the front, the balconies off the upstairs kitchen, meals, living areas and the front yards would receive afternoon sun. The Tribunal has formed the view that Units 9, 10 and 11 are set back adequately to assist with protection of direct sun to Units 8, 9 and 10, respectively, and that these units will receive an acceptable level of solar access for a grouped dwelling development in the circumstances of this case.
35 Dealing next with ventilation, raised as a concern by the Council, the Tribunal notes that the planning experts do not consider access to adequate ventilation to be an issue. Units 1, 2 and 3 are orientated north-east to south-west. Prevailing breezes that provide ventilation are mostly from the south-west but also include westerly and north-westerly breezes. The east-west orientation of Units 8, 9 and 10 would also have the benefit of these breezes. The Tribunal considers the six units identified and their adjoining neighbours at the proposed setbacks between the buildings would have adequate access to ventilation.
Front setbacks
36 Another reason for refusal identified by the Council was variation to front setbacks of some units. Identified were setbacks to both portico and building from the internal common driveway for Units 2, 5 and 7, and from the internal common driveway to the building of Units 3 and 4.
37 Clause 6.2.1 P1 requires buildings set back from street boundaries to ensure, relevantly, contribution to the desired streetscape, and adequate privacy and open space for dwellings. In the explanatory guidelines of the Codes, it is noted that it is most common to observe the impact of a building on a streetscape from the standpoint of a person moving parallel to the street alignment. The amendments to the plans included landscaping to the internal common driveway to improve the amenity of the streetscape from that originally proposed. In particular, the front entry and associated portico of Unit 4 was modified to allow for additional landscaping. With these treatments, the experts agree that the amended plans meet the performance criteria of cl 6.2.1 P1 of the Codes in relation to Units 2, 3, 4 and 5. The Tribunal concurs.
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38 In respect of Unit 7, it is noted that the floor level of Unit 7 is about 1 metre lower than the neighbouring driveway level beyond its western boundary. The retaining wall on the western boundary of Unit 7 would partially obstruct the landscaping provided in the internal common driveway, and it would not therefore contribute to the desire streetscape.
39 The experts have recommended that the retaining wall be kept to a minimum and be stepped down at 300 millimetre intervals to the front of Unit 7, and that the landscaping be chosen to ensure that it would be visible from the internal communal driveway and thereby contribute to the desired streetscape. The Tribunal has noted the difference in levels and considers that the solution suggested by the experts is one that can be addressed by conditions of approval, and that the overall result would assist in the performance criteria of the Codes being met.
40 The Tribunal has formed the view that the generally consistent setback to each of the buildings and the landscaping together contribute positively to the streetscape of the internal common driveway. With the setbacks of the units and the landscaping established as an integral part of the overall design of the development, the intent of the performance criteria of cl 6.2.1 P1 of the Codes is met in this instance.
Open space
41 The Council objected to the amended plans because there still remained three units on a defined site for which there was a shortfall of open space. Table 1 of the Codes requires for R 40 that 45% minimum of the total site be open space, with the site being the area allocated for the exclusive use of the dwelling. The sites with a shortfall were identified as:
a) Unit 1 has 43.97% open space in lieu of 45%;
b) Unit 8 has 44.8% open space in lieu of 45%; and
c) Unit 12 has 44.83% open space in lieu of 45%.
42 The planning experts concluded that the open space variations sought were minor, with the greatest shortfall being 2.43 square metres for Unit 1. The experts were of the opinion that if no fencing or open-style fencing were proposed to the Second Avenue frontage for Units 1 and 8 and the Burns Place frontage for Unit 12, then the performance criteria of cl 6.4.1 P1 of the Codes would be satisfied.
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43 The Tribunal considered the open space provision and has noted that, for each of the units, the minimum outdoor living area is provided within the open space, and that each has a balcony which will also contribute to the outdoor living requirements of the residents. The Tribunal also formed the view that the open space provided for the proposed grouped dwellings satisfies the open space performance criteria at cl 6.4.1 P1 of the Codes, which includes allowing an attractive streetscape and suiting the future needs of residents, having regard to the type and density of the dwelling.
Privacy requirements: Cone of vision variations
44 To address concerns about lack of visual privacy for some units, the amended plans modified the design of those units by the use of:
• screen walls to balconies;
• highlight windows;
• relocation of windows; and
• obscure glazing to windows and conversion of sliding window openings to awning windows.
45 The Council considered the amended plans, having regard to the assumed site boundaries identifying the private open space of each unit, and resolved that eight cone of vision variations remained unacceptable. These were:
a) Unit 1 balcony to Unit 2 boundary 3 metres instead of 7.5 metres acceptable development;
b) Unit 3 balcony to Unit 2 boundary 2 metres instead of 7.5 metres acceptable development;
c) Unit 4 balcony to Unit 3 boundary 2.7 metres instead of 7.5 metres acceptable development;
d) Unit 5 upper floor family room to Unit 6 boundary 2.3 metres instead of 6 metres acceptable development;
e) Unit 5 upper floor family room to Unit 6 boundary 1.5 metres instead of 6 metres acceptable development;
f) Unit 6 rear balcony to Unit 5 boundary 1.2 metres instead of 7.5 metres acceptable development;
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- g) Unit 6 front balcony to Unit 14 boundary 6.2 metres instead of 7.5 metres acceptable development; and
h) Unit 10 balcony to Unit 11 boundary 2.1 metres instead of 7.5 metres acceptable development.
46 The two planning experts considered the amended plans and agreed that all units now meet the privacy performance criteria of cl 6.8.1 P1 of the Codes.
47 In respect of items a), b), and c) above, the Tribunal notes that the intrusion would be small triangular areas at the corner of the neighbouring unit site. In each case, this is a small area away from outside areas adjacent to external doors from family and meals areas. It is concluded that for these three units, the performance criteria of cl 6.8.1 P1 of the Codes are met in that the modifications to the designs have removed direct overlooking of active habitable spaces and outdoor living areas of adjacent dwellings.
48 In respect of d) and e) above, the outlook from the upper floor family room of Unit 5 is to a blank wall of Unit 6 and a small area of the driveway to the Unit 6 garage adjacent to the internal common driveway. Again, these two items are considered acceptable under the performance criteria of cl 6.8.1 P1 of the Codes.
49 The view from the rear balcony of Unit 6 to Unit 5, f) above, overlooks a larger area of Unit 5 than in the other examples cited. The yard overlooked, however, is at the rear corner furthest from the outdoor living area of Unit 5, adjacent to the ground floor activity room. The cone of vision may intrude slightly into an area adjacent to the laundry of Unit 5. Unit 5 is designed so that any overlooking of the building would be to either the roof of the single storey section, or to a wall with a highlight window at the upper level. Again, in the context of these grouped dwellings, this level of overlooking is considered to be consistent with the intent of the performance criteria of cl 6.8.1 P1 of the Codes.
50 The Council's item g) above is not understood, as Unit 14 is beyond the cone of vision of the front balcony of Unit 6, if there were a boundary between them. The cone of vision would, however, extend about 1.5 metres beyond the boundary of Unit 7 opposite, but this would be onto a 1 metre wide side accessway approximately 1 metre lower than Unit 6, and to the blank side wall and roof of the single storey section of that unit.
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51 The balcony referred to in item h) above is at the Second Avenue frontage of Unit 10. The side screening installed on that balcony restricts the view to Unit 11 to a triangular area at the front of the front yard which would, in part, be visible from the public roadway in any event.
52 The Tribunal has found that the amendments made to the design of the proposed dwellings have resulted in any variation from the cone of vision standards being consistent with the privacy requirements of the performance criteria of cl 6.8.1 P1 of the Codes.
Other wall setback variations
53 The Council identified some 33 instances where it considered setbacks from site boundaries would not meet the acceptable development standards of Tables 1 and 2a and 2b of the Codes.
54 In this regard, the Tribunal notes that the Codes state, at cl 6.3, that the acceptable development standards illustrate one way of meeting the associated performance criteria. The performance criteria at cl 6.3.1 P1 refer to buildings being set back from boundaries to ensure such matters as adequate direct sunlight, ventilation, and privacy for the building, adjoining properties and appurtenant open spaces. These issues have been addressed under the headings above and, other than simply identifying the variations, no submissions were made by the Council on what impacts, other than those above, might result from the setbacks proposed for this grouped dwelling development. As concluded under the headings where setback was considered to contribute to a variation from acceptable development standards, the Tribunal has found the variations proposed meet the performance criteria.
Wall height variations
55 The Council's refusal also referred to "boundary wall variations". Although not identified in the Council resolution, the Tribunal has noted the proposed variations from wall heights set out in Table 3 of the Codes. The wall heights in Table 3 are referred to in cl 6.7.1 A1.1 as acceptable development, which is one way to meet the performance criteria.
56 The performance criteria for height at cl 6.7.1 P1 refer to adequate direct sun to buildings and open spaces, adequate daylight to major openings, and access to views. Again, the first two items have been assessed under the headings above and found acceptable. Access to views was not raised as an issue, although the Tribunal has noted in the discussion under setbacks that Units 1 - 4 particularly are orientated so that habitable areas might take best
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- advantage of available views.
57 The Tribunal has also noted that the analysis by the expert planners found that, where the proposed grouped dwellings extended beyond the City's building envelopes, there was little adverse impact. The one exception was for the southern gable of Unit 2, and this was altered to conform with the building envelope requirement in the amended plans.
Conclusion
58 The Tribunal has considered the proposed development as set out in the amended plans, having regard to the concerns raised by the City and the evidence and submissions of the two planning experts, and has concluded that the performance criteria of the Codes are satisfied such that the amended plans should be granted conditional approval.
59 As set out above, the Tribunal has found that the arrangement of the units relative to each other provides each unit with sufficient access to sunlight and ventilation. Three units have access to less sunlight than have the remainder, but the Tribunal has noted that these three units are orientated so that occupants can take advantage of the best views from the site from their living rooms.
60 Units 1 - 7 will have front setbacks less than is normally required for frontage to a public road. The experts concluded, and the Tribunal agreed, that as this setback was from the internal common driveway rather than a public road, and landscaping will be in place as part of the development, the resultant internal streetscape and amenity of the units will be acceptable.
61 The amended plans include boundaries delineating open space for the exclusive use of each unit. Three units have less open space than the 45% required for an R40 dwelling on its own lot. The Tribunal has noted that the shortfall is 1.03% or less for these three units, and each has an outdoor living area of the required minimum dimensions and area. The Tribunal has found that the allocation of open space for the units would suit the future needs of residents of this type and density of development as required by the Codes.
62 Overlooking and privacy was initially raised as a significant issue. The amended design includes screening to balconies and highlight windows in sensitive locations. The Tribunal has examined the remaining areas of concern identified by the Council, and concluded that any overlooking within the cone of vision standard would be of minor
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- corners of yards, blank walls or front yards open to view from public areas. The amended design is considered to adequately address privacy and overlooking requirements of the Codes.
63 The Council raised setback between buildings as a general concern. This is a grouped dwelling development on a single lot, and where setbacks were a concern because they might have given rise to problems with privacy and access to sunlight, this has been addressed, as set out above. The Tribunal has concluded that the resultant amenity sufficiently addresses the performance criteria of the Codes.
64 Wall heights was also raised as an issue by the Council. With this development, it was found that the buildings fell within the required building envelopes of the Council's policy except for some minor extrusions. One unit - Unit 2 - was found to extend beyond the building envelope in an unacceptable manner, and it is has therefore been modified in the amended design.
65 The performance criteria of the Codes associated with wall heights include consideration of access to sunlight for habitable rooms and open space, and to views. These issues have been considered, as set out above, and found to be adequately addressed.
66 In summary, it can be said that the Council raised concerns that the required variations to standards in the Codes would result in the proposed units having an unacceptable standard of design and level of amenity. The Tribunal has examined the variations that are required, and concluded that the proposed grouped dwelling development can be granted conditional approval, as it sufficiently addresses the performance criteria of the Codes.
Conditions
67 As required by the Tribunal, the Council provided a schedule of conditions, without prejudice to its position, that it would want imposed should the Tribunal be minded to approve the application. There is no dispute between the parties about the conditions, and the Tribunal considers that they will ensure that the proposed dwelling units will be developed to an adequate standard.
Costs
68 The applicant seeks an order under s 87(2) of the SAT Act that the Council should pay its costs of the proceedings and in particular its costs of having had to retain Mr Penheiro. The applicant argues that the City failed
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- to genuinely attempt to make a decision on the merits of the development application (SAT Act s 87(4)(b)), acted unreasonably by not raising its concerns about the variations with the 2002 Codes at earlier meetings, and, in effect, forced the applicant to retain Mr Penheiro because the City did not rely on evidence from its planning officers, who supported the application, but rather retained Mrs Butterworth, who did not.
69 The Tribunal's established practice in relation to the exercise of its discretion as to costs in review proceedings is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246. The Tribunal does not consider that it should depart from its usual practice in the circumstances of this case.
70 Although the City did not accept its assessing officer's recommendation that it should approve the development application subject to conditions, it made a decision on the merits of the application to refuse consent owing to some 200 proposed variations to the 2002 Codes. The City then obtained independent planning advice from Mrs Butterworth that substantially supported its original position.
71 Although it would have been preferable for the City to have identified the variations as issues of concern and given the applicant the opportunity to address the variations before the City refused the application, in the circumstances, this was not unreasonable conduct. In particular, although the applicant was aware of the variations through the refusal, it proceeded to the hearing in the Tribunal without seeking to amend the plans.
72 The City did not act unreasonably in deciding not to call its own planning officers, but rather retaining Mrs Butterworth. As noted earlier, the City's officers supported the application whereas Mrs Butterworth is an independent planning expert who substantially supported the Council's decision.
73 Furthermore, the applicant was not forced to retain Mr Penheiro because the City retained Mrs Butterworth. The applicant originally proposed 200 variations, many of which could and should have been addressed by amendment of the plans before the matter proceeded to a hearing before SAT. The applicant should in fact have retained Mr Penheiro or another consultant town planner when it received the Council's refusal, if not earlier, and should have
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- amended the plans at the outset as it ultimately did after the expert's conferral and the hearing.
74 It is arguable that the Council acted unreasonably when it was invited to reconsider its decision under s 31 of the SAT Act by maintaining that the application should be refused for reasons that were not supported by its own planning witness. However, Mrs Butterworth maintained some concerns in relation to the amended plans and, as ultimately the application was determined on the documents, no substantive costs were incurred by the applicant as a result of the Council's action.
75 It follows that each party should bear its own costs of the proceedings.
Orders
76 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The refusal by the respondent is set aside and development of 14 two storied grouped dwellings at No 4 (Lot 11483) Burns Place, Burns Beach is approved subject to the following conditions:
1) The development shall be carried out in accordance with plans drawn by Design and Construct Residential, job no 6111 site plan 26 March 2008 and individual plans and elevations for each unit amended 23 March 2008.
2) The truncated retaining wall adjacent to Unit 7 shall be stepped down in 300 millimetre intervals so as to allow landscaping to be viewed from the common driveway to the satisfaction of the Manager Approvals, Planning and Environmental Services.
3) All landscaping adjacent to the Unit 7 truncated retaining wall shall not be groundcover, and shall be visible from the common driveway so as to contribute to the desired streetscape.
- 4) The parking bays, driveways and points of ingress and egress to be designed in accordance with the Australian Standard for Offstreet Car Parking (AS/NZS 2890.01 2004). Such areas are to be constructed, drained, marked and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services prior to the development first being occupied. These works are to be done as part of the building program.
5) Visitor car parking bays are to be a minimum of 2,800 millimetres in width.
6) Visitor car parking bays are to be clearly marked and signposted to the satisfaction of the Manager Approvals, Planning and Environmental Services.
7) The driveway/s and crossover/s to be designed and constructed to the satisfaction of the Manager Infrastructure Management before the occupation of the development.
8) An on-site stormwater drainage system with the capacity to contain a 1:100 year storm of a 24-hour duration is to be provided prior to the development first being occupied and thereafter maintained to the satisfaction of the City. The proposed stormwater drainage system is required to be shown on the building licence submission and be approved by the Manager Infrastructure Management prior to the commencement of construction.
9) All highlight windows shall have a sill height not less than 1.6 metres above the finished floor level.
10) Boundary walls and retaining walls shall be of clean finish and made good to the satisfaction of the Manager Approvals, Planning and Environmental Services.
11) All construction works shall be contained within property boundaries.
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- 12) Unit 5 garage shall have a minimum internal dimension of 5.4 metres.
13) Any fencing within the street setback area of Units 1, 8, 9, 10, 11, 12, 13 and 14 shall be visually permeable above 1.2 metres from natural ground level.
14) The lodging of detailed landscaping plans, in accordance with water-sensitive urban design principles to the satisfaction of the Manager Approvals, Planning and Environmental Services, for the development site with the building licence application. For the purpose of this condition, a detailed landscaping plan shall be drawn to a scale of 1:100. All details relating to paving and treatment of verges to be shown on the landscaping plan.
15) Landscaping, reticulation and all verge treatment is to be established in accordance with the approved plans prior to the development first being occupied, and thereafter maintained to the satisfaction of the Manager Approvals, Planning and Environmental Services.
16) The design of the gable at the southern end of Unit 2 shall be amended so that the roof is within the building threshold envelope to the satisfaction of the Manager Approvals, Planning and Environmental Services.
- 3. Each party should pay its own costs of the proceedings.
- I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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