Neurosurgica Pty Ltd and Town of Cambridge

[2006] WASAT 337

NEUROSURGICA PTY LTD and TOWN OF CAMBRIDGE [2006] WASAT 337

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 337
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:248/2006	Heard:	DETERMINED ON THE PAPERS
Coram:	MR L GRAHAM (SESSIONAL MEMBER)	Delivered:	20/11/06
No of pages:	19	Judgment Part:	1 of 1
Result:	The application for review is upheld
Category:	B
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Parties:	NEUROSURGICA PTY LTD TOWN OF CAMBRIDGE
Catchwords:	Retrospective planning approval Off­white (Surfmist) colorbond roof Orderly and proper planning Presentation of amenity Solar reflectivity index Performance criteria Colorbond cladding Roof pitch Precedent
Legislation:	Cambridge Endowment Lands Act 1920 (WA) Metropolitan Region Scheme Planning and Development Act 2005(WA), s 252(1) Residential Design Codes of Western Australia (2002) Town of Cambridge Town Planning Scheme No 1, cl 38, cl 38(4), cl 39, cl 39(3) Local Law 43 (Building on Endowment Lands and Limekilns Estate), cl 2B, cl 4(7), cl 4(8)
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) Nil
Orders	1. The application for review is upheld.,2. The decision under review is set aside.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEUROSURGICA PTY LTD and TOWN OF CAMBRIDGE [2006] WASAT 337 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 20 NOVEMBER 2006 FILE NO/S : DR 248 of 2006 BETWEEN : NEUROSURGICA PTY LTD

Applicant

AND

TOWN OF CAMBRIDGE
Respondent

Catchwords:

Retrospective planning approval - Off­white (Surfmist) colorbond roof - Orderly and proper planning - Presentation of amenity - Solar reflectivity index - Performance criteria - Colorbond cladding - Roof pitch - Precedent

Legislation:

Cambridge Endowment Lands Act 1920 (WA)

Metropolitan Region Scheme
Planning and Development Act 2005(WA), s 252(1)
Residential Design Codes of Western Australia (2002)
Town of Cambridge Town Planning Scheme No 1, cl 38, cl 38(4), cl 39, cl 39(3)

(Page 2)

Local Law 43 (Building on Endowment Lands and Limekilns Estate), cl 2B, cl 4(7), cl 4(8)

Result:

The application for review is upheld

Category: B

Representation:

Counsel:

Applicant : Mr M Hardy
Respondent : Mr P Bracone (Acting as Agent)

Solicitors:

Applicant : Hardy Bowen
Respondent : Town of Cambridge

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

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988)

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This review has resulted from a decision of the Town of Cambridge to refuse an application from Neurosurgica Pty Ltd for retrospective planning approval for an existing off-white (Surfmist) colorbond roof; the colour of which is contrary to the approval (Woodland Grey).

2 The principal reasons for refusal were non-compliance with the relevant provisions of Local Law 43, that the glare from the roof would unduly impact on the neighbouring properties and the street in general, and that there had been opposition from an adjoining neighbour to the north.

3 In considering this matter, the Tribunal had regard to the relevant legislation, the matter of precedent and the orderly and proper planning of the locality and the preservation of its amenity. It was assisted with technical information relating to the impact of incident light on the roof and its reflectivity in summer and winter.

4 In the view of the Tribunal the weight of argument falls in favour of the applicant in this particular case because of the east-west orientation of the dwelling and the moderate north-south upward pitch of the roof which does not present directly to the street. It is believed that any glare from the subject roof or cladding would not unduly impact on the neighbouring property to the south or others in the street, and any impact on the adjoining property to the north would be minimal and could be lessened further by appropriate screening, including vegetation.

5 The application for review is upheld.

Introduction

6 The application for review, dated 17 July 2006, has been lodged by Hardy Bowen on behalf of Neurosurgica Pty Ltd (applicant) against a decision of the Town of Cambridge (respondent) on 27 June 2006, to not grant retrospective planning approval for an existing off-white (Surfmist) colorbond roof at 36 Sudbury Way, City Beach.

7 The application was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).

8 The Notice of Planning Refusal dated 28 June 2006 stated:

(Page 4)

"Approval to commence development in accordance with the Application for Planning Approval dated 8 March 2006 and the plans dated 8 March 2006 is REFUSED by the Council, at its meeting held on 27 June 2006, in accordance with the provisions of the Town of Cambridge Town Planning Scheme No 1, and having regard to the matters it is required to consider by the Scheme generally and in particular for the following reasons:

(i) non-compliance with Clause 4(8) of Local Law 43 (Building on Endowment Lands and Limekilns Estate);

(ii) the glare from the off-white roof would unduly impact on the neighbouring properties and the street in general;

(iii) the neighbour to the north has objected to the roof."

Subject land and legislative framework

9 The subject land is located at Lot 136 (No 36) Sudbury Way, City Beach. It is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential" in the Town of Cambridge Town Planning Scheme No 1 (TPS 1).

10 Of importance in this matter are the Town of Cambridge Residential Design Guidelines – Development Requirements (RDGs).

Respondent's position

11 The position of the respondent is outlined in the document titled "Respondent's Grounds for Opposing the Application" dated 20 September 2006. It argues:

(a) The Cambridge Endowment Lands Act 1920 (WA) was gazetted to assist the development of the area known as the Endowment Lands and Limekilns Estate. The area includes the subject land.

(b) Local Laws were prepared under this Act, including Local Law 43(Building on Endowment Lands and Limekilns Estate) (Local Law 43). The contents of Local Law 43 reflect the development control needs and statutory processes available at the time of gazettal (1950s).

(Page 5)

(c) The land use provisions of Local Law 43 have been made redundant by TPS 1 and the Residential Design Codes of Western Australia (2002) (Codes) and the RDGs have superseded a number of other requirements. However, there are some development requirements within Local Law 43 such as materials of construction, roof reflectivity and outbuildings that are still relevant and are used to assess development proposals.

(d) In relation to materials of construction, cl 4(7) of Local Law 43 states:


"(i) All single storey single occupancy dwelling houses and all buildings other than dwelling houses shall be constructed of brick, stone, concrete or similar material, or of brick veneer.

(ii) All other dwelling houses shall be constructed of brick, stone, concrete or similar material.

(iii) Notwithstanding the provisions of this paragraph, the Council may at its discretion permit wooded gables to be incorporated in any building."

(e) The development has colorbond cladding used for the roof, wrapping down both sides of the dwelling to form part of the walls.

(f) Clause 2B of Local Law 43 allows Council to approve development proposals that do not comply if satisfied by absolute majority that:


"(i) the development would be consistent with the orderly and proper planning of the locality and the preservation of its amenities, and

(ii) the use to be made of the land and the non-compliance with the prescribed standard or requirement will not have any adverse effect upon the occupiers or users of the development or the property in or the inhabitants of the locality or the likely future development of the locality."

(Page 6)

(g) In assessing the provisional building application and building licence application, a variation to the materials of construction clause of Local Law 43 to allow metal cladding was allowed on advice from the architect that the cladding would not be reflective.

(h) If the architect had advised that the cladding would be reflective (that is, off-white/Surfmist) then approval of this colour for the roof and wall may not have been forthcoming.

(i) In relation to roof reflectivity, cl 4(8) of Local Law 43 states:


"All buildings shall be roofed with materials of terracotta, concrete, slate, metal or other incombustible material approved by the Council provided that metal roofs, with a pitch of more than 5[degrees] shall not be constructed with metal sheeting having a solar reflectivity index exceeding 40% unless approved by the Council."

(j) Zincalume (silver) and Surfmist (off-white) colorbond are deemed to exceed the 40% solar reflectivity index.

(k) There are performance criteria in the RDGs to assist Council in determining variations to Local Law 43. In relation to roof reflectivity the performance criterion is:


'"Where, due to the position, location, and pitch, the proposed roofing is not considered to result in excessive glare upon neighbours and the streetscape."
(l) In the view of the Council, the roof and colorbond cladding wrapping down the walls resulted in excessive glare upon neighbours and the streetscape and the application for retrospective approval was refused.

12 In its conclusions the respondent argues that the roof has not been constructed in accordance with approved plans, the colour does not comply with cl 4(8) of Local Law 43 and the roof and colorbond cladding wrapping down the walls will cause some glare and reflectivity to the adjoining property to the north and to the street. Also, approval of
(Page 7)

off-white roof colour will establish a precedent for future development in City Beach.

Applicant's position

13 The position of the applicant is outlined in the "Applicant's Submissions" dated 17 September 2006. It is argued:

(a) The roof is Lysaght Steel Custom Blue Orb Ultra sheeting in Surfmist and is already constructed at a pitch of 11 degrees facing north.

(b) The roof has north and south springing points (700 millimetre radius) where the same finish is utilised for external wall cladding.

(c) The roof structure is set back 11 metres from the front boundary of the property.

(d) The northern springing point:


(i) extends down (vertically) approximately 2.6 metres;

(ii) across for a length of 13 metres; and

(iii) is set back 2 metres from the northern side boundary.


(e) To facilitate the application for retrospective approval, the applicant lodged two reports with the respondent:

(i) "Submission to Council – Amendment to Planning Approval", February 2006, prepared by Hartree and Associates Architects (Hartree Submission); and

(ii) "Report on Roofing Finish for Council Approval – 36 Sudbury Way, City Beach" prepared by Ecostrat (Ecostrat Report).


(f) The Hartree Submission and Ecostrat Report demonstrate that the property's roof is consistent with:

(1) the requirements of TPS 1 and Local Law 43 in that there is no excessive glare prejudicially

(Page 8)

affecting the streetscape or the adjoining properties, particularly 34 Sudbury Way in that:

(i) The design of the offending roof has the pitched section facing north at an angle of 11 degrees. This orientation and low angle of pitch does not present to nor affect the streetscape and any incidence of angle of direct sunlight will not reflect or glare excessively on the adjoining northern property (34 Sudbury Way);

(ii) The visible ridge of the roof is 9.5 metres from the southern boundary and does not present any circumstance of excessive glare on the adjoining southern neighbour.

(iii) The section of pitched roof does not present directly to the street, and any askance view if set back over 11 metres; thereby presenting no opportunity for reflected direct sunlight or glare. There will be limited or no impact on the streetscape.

(iv) The northern vertical springing point will have no impact on the adjoining northern property due to:


• the low angle of incidence reflecting away from the north;

• the significant potential for the dwelling on the adjoining northern property, once constructed, to overshadow the vertical plane of the roof on the subject land;

• the fact that plans for the dwelling on the adjoining northern property show no major window or door openings directly facing the roof on the subject land;

(Page 9)

• the main outdoor living area of the dwelling on the adjoining northern property is to the northern, rather than the southern, side of the property; thereby positioned away from the off-white roof.

(2) the principles of orderly and proper planning are met; particularly in that:

(i) it accords with the provisions of cl 2B of Local Law 43 in that the position, location of the subject roof will not result in excessive glare or any other adverse effect upon the occupants of the dwelling on the adjoining northern property and the streetscape;

(ii) it accords with the principles of climate sensitive design prescribed by the Codes in reducing the heat absorbed by residential developments;

(iii) it is environmentally sustainable in that it provides energy efficiency and reduced energy consumption of amenities (for example, air conditioning and heating) and resultant cost savings associated with residential developments;

(iv) it is consistent with TPS 1 and enhances the natural and built environment of the locality in that it does not have any undue adverse effects on:


• the occupiers or users of the development;

• the property in or the inhabitants of the locality;

• the likely future development of the locality.

(Page 10)

Planning issues

14 The principal planning issues are:

(a) Does the subject roof accord with the provisions of the relevant statutory documents and guidelines; and

(b) Is the subject roof consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality?

Assessment of proposal

Background

15 The following series of events have been advised in the submissions of the parties:

(a) On 26 August 2003, the respondent received an application from Hartree and Associates Architects (the architect) seeking provisional building approval for a two storey dwelling and swimming pool on the subject land.

(b) On 28 October 2003, the respondent approved the application. The architect had previously advised that the colorbond roof would not be off-white (Surfmist).

(c) On 28 October 2004, the respondent received an application from Palazzo Homes for a building licence which proposed an off-white (Surfmist) colorbond roof. The building licence was issued on 21 January 2005 following advice from the architect in writing that the roof colour would be changed to dark grey (Woodland Grey).

(d) During a site inspection of a neighbouring property in late 2005, the respondent noted that the roof colour was off-white (Surfmist). An explanation from the architect was requested.

(e) On 8 March 2006, an application for retrospective planning approval was lodged by the architect for the off-white (Surfmist) colorbond roof with the following explanation:

(Page 11)

"During the approval process, it was required that the nominated Surfmist Colorbond finish to the roof be amended to another colour. Subsequently, Woodland Grey was chosen. However, during construction, our instruction to utilise Zincalume or Surfmist Colorbond on the concealed lower level, parapet roof, was either misunderstood or misinterpreted as to being acceptable for the entire roof."

(f) Owners of adjoining properties at 34 and 38 Sudbury Way and at 6 and 8 Calver Place and across the road at 35, 37 and 39 Sudbury Way, were notified of the application. The owner of 34 Sudbury Way lodged the only objection on the grounds that the off-white colorbond resulted in excessive glare upon neighbours and the streetscape; particularly on 34 Sudbury Way.

(g) The application for retrospective approval was considered by the respondent's Council on 26 April 2006 and the applicant was advised that an approval would not be given in its present form. However, the resolution also stated:


"(ii) The Council would be prepared to give favourable consideration if plans were submitted showing that the off-white (Surfmist) roof will have a limited impact on the property at 34 Sudbury Way by demonstrating that due to the location of outdoor living areas, windows and overshadowing that any glare will not adversely affect the occupants of the property at 34 Sudbury Way."
(h) On 20 June 2006, the respondent's Development and Environmental Services Committee (DESC) considered a further report in accordance with g(ii) above and resolved to recommend an approval to Council. On 27 June 2006, the application was refused by Council for the reasons outlined in [8] above.

16 From the information before the Tribunal the following is clear:
(Page 12)

(a) The applicant was aware, before construction, that the off-white (Surfmist) colour for the colorbond roof was unacceptable to the respondent.

(b) The subsequent construction of the off-white (Surfmist) colorbond roof is not in accordance with the approved plans.

(c) The applicant was given the opportunity, in the respondent's advice of 26 April 2006, to submit evidence that the off-white (Surfmist) colorbond roof would have a limited impact on the adjacent 34 Sudbury Way.

(d) The resultant submissions from the applicant were unable to convince the respondent, and the application for retrospective approval was refused on 27 June 2006.

Town Planning Scheme No 1 and Local Law 43

17 Under cl 38 of TPS 1 are the general provisions for the determining of applications for planning approval. Clause 38(4) states:

"(4) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:-

(a) the provisions of this Scheme …;

…

(e) any submission accompanying or related to the application;

(f) the orderly and proper planning of the locality;

(g) the conservation of the amenities of the locality; and

(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."

18 Clause 39 of TPS 1 provides for the determination of non-complying applications for planning approval. Clause 39(3) states:
(Page 13)

"(3) The Council cannot grant planning approval for a non-complying application unless it is satisfied by an absolute majority that:-

(a) if approval were to be granted, the development would be consistent with:-

(i) the orderly and proper planning of the locality;

(ii) the conservation of the amenities of the locality; and

(iii) the statement of intent set out in the relevant Precinct Planning Policy; and

(b) the non-compliance would not have any undue adverse effect on:-

(i) the occupiers or users of the development;

(ii) the property in, or the inhabitants of, the locality; or

(iii) the likely future development of the locality."

19 Under the RDGs at Appendix 2 there are performance criteria used to assess variations to Local Law 43. These include:

"General (clause 2B of Local Law 43)

(i) the development would be consistent with the orderly and proper planning of the locality and the preservation of its amenities, and

(ii) the use to be made of the land and the non-compliance with the prescribed standard or requirement will not have any adverse effect upon the occupiers or users of the development or the property in or the inhabitants of the locality or the likely future development of the locality."

20 As explained in [11(i)] above, cl 4(8) of Local Law 43 requires that metal roofs with a pitch more than 5 degrees shall not be constructed with
(Page 14)

metal sheeting having a solar reflectivity index exceeding 40%, unless approved by Council.

21 In [11(k)] above are the performance criteria for roof reflectivity which, as in [20] above, allow the Council discretion in determining variations where, due to position, location and pitch, the proposed roofing is not considered to result in excessive glare upon neighbours and the streetscape.

22 In the view of the Tribunal, both TPS 1 and Local Law 43 place a strong emphasis on a development being consistent with the orderly and proper planning of the locality and the preservation of its amenity.

23 In relation to reflectivity, off-white (Surfmist) colorbond roofing is deemed to exceed a solar reflectivity index of 40%. As such, a case needs to be made that in this instance there would not be excessive glare upon the neighbours and the streetscape.

The Hartree Submission

24 The arguments contained in the Hartree Submission are largely covered in [13(f)] above. Additional arguments include:

(a) "The State Government Sustainability Strategy provides clear visions, objectives and actions to achieve sustainable development. Two areas of interest are under the headings of Energy and Settlement which identify the need for a reduction in energy consumption and the utilisation of materials and methods to achieve a sustainable built environment to the benefit of all …

(b) It is clear [sic] demonstrated and widely accepted that the use of light colours and reflective material and finishes provides a significant advantage in regards to reducing energy consumption …

(c) Precedence will not be set in permitting the use of Surfmist Colorbond as an alternative finish to the roofing material due to the proposal presenting unique circumstances of design, position on the site, the orientation of the site, and pitch of the roof. Given these, the proposed roof does not result in excessive glare upon neighbours and the streetscape."

(Page 15)

25 Detailed technical publications containing field and laboratory research results show that a reflective roof colour can cut cooking loads significantly (10% – 60%) in buildings and could, if introduced widely, help to reduce the neighbourhood ambient air temperature.

26 The Tribunal finds no argument against such findings and would be confident that the off-white (Surfmist) colorbond roof would reduce energy consumption within the residence on the subject land. But that is not the issue here. The issue is whether the roof would result in excessive glare; particularly on 34 Sudbury Way and whether there is a high level of risk that the amenity of the locality would be compromised.

The Ecostrat Report

27 The report addresses the solar angle of incidence and reflectivity in the following way:

(a) "… at the summer solstice, solar energy (light and heat) will impact at approximately 89 [degrees] to the angle of the roof, reflecting back into the atmosphere at an equal angle. Some scatter will occur due to minor imperfections within the surface and to the undulations of the Custom Blue Orb finish, though due to the parallel nature of the incident light this is not expected to lead to significant variation of angle of reflection.

In mid-winter data, incident light impacts at approximately 35 [degrees] to the horizontal or 133 [degrees] to the roof.

These angles are illustrated in Plate 6. The outline of the proposed new residence at 34 Sudbury Way, City Beach is shown. It is important to note that the height of this residence will prohibit any significant reflection off the curved section of the roof (or vertical wall section). This is particularly the case in summer given the angle of the incident light.

In the high solar radiation period of summer, it is concluded that the angle of incidence of solar radiation and its subsequent reflection prohibits direct reflection of radiation onto adjacent properties."

(Page 16)

(b) "It is also noted that the restriction on the use of Colorbond finish Surf Mist is arbitrary given that a number of alternative Colorbond colours exhibit reflectivity equal to that of Surf Mist or greater than allowed, but are considered to be acceptable."

28 Plans associated with the report show the front elevation to the street (east elevation) of the proposed two storey dwelling on 34 Sudbury Way adjacent to the dwelling on the subject land. Also, the plans dated 26 April 2006 (Building Licence Approval No 154 BA – 2006) show the southern elevation with no major doors or openings facing the northern elevation of the already built residence on the subject land. The plans show obscure glazing to the principal upper floor windows and a 1600 millimetre privacy screen at the rear of the proposed residence at 34 Sudbury Way.

29 Although the Tribunal notes the logic of the applicant's arguments with respect to the solar angle of incidence and reflectivity, it would have assisted further if calculations of overshadowing of the proposed two storey dwelling onto the subject land had been made for both the winter and summer solstice. The length of the shadow could then have been transposed onto the site plan taking account of the orientation of the buildings and the slope of the land.

30 It would also have assisted if the claim that alternative colorbond colours exhibit reflectivity equal to "Surfmist" could have been substantiated.

31 What can be accepted is that if the proposed building at 34 Sudbury Way is built in accordance with the approved plans, the effect of reflectivity (if any) from the roof and north wall of the subject land will be minimal because of the absence of major openings (doors and windows) on the south elevation of the proposed building.

The matter of precedent

32 In the applicant's response to the respondent's submission dated 22 September 2006, it is argued that an approval of the Surfmist roof colour will not establish a precedent for future development in City Beach, in that the respondent has already exercised its discretion to approve houses in the immediate vicinity with roofing materials coloured off-white. The location of these houses is shown at attachment 4 to the applicant's submission of 19 September 2006.

(Page 17)

33 In its response of 25 September 2005, the respondent does not dispute the existence of off-white roof colour on the subject houses, other than one home having white coloured tiles which was not considered a variation to Local Law 43.

34 In their submissions, both parties agree that the matter should be decided on its individual merits.

35 The matter of precedent is addressed in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) wherein it is argued that precedent is not to be treated as a "stand alone" argument, but is but one factor to be taken into account.

36 The Tribunal accepts that there are many instances where an approval in one case is used as a precedent by others to advance similar proposals elsewhere. However, the precedent argument should not be used to stifle proper judgment; either in the support of or opposition to individual cases.

Orderly and proper planning

37 In determining whether a development is consistent with orderly and proper planning and the preservation of amenity, the Tribunal is obliged to have regard to the provisions of TPS 1 and Local Law 43 and any other relevant State or local policy or information that applies to the subject land.

38 In this particular case, the amenity issue is confined to the question of whether the glare from the off-white roof would unduly impact on the neighbouring properties and the street in general.

Conclusions

39 This review has resulted from a decision of the respondent to refuse an application for retrospective planning approval for an existing off-white (Surfmist) colorbond roof. The off-white colour was not in accordance with the approved colour (Woodland Grey).

40 The principal reasons for refusal were non-compliance with cl 4(8) of Local Law 43, that the glare from the off-white roof would unduly impact on the neighbouring properties and the street in general, and the specific opposition from the adjoining neighbour to the north.

41 In considering this matter the provisions of cl 4(8) of Local Law 43 are critical to the determination as they specify that a metal roof with a

(Page 18)

pitch of more than 5 degrees shall not be constructed with metal sheeting having a solar reflectivity exceeding 40% unless approved by Council. Both Zincalume and off-white (Surfmist) colorbond are deemed to exceed the 40% reflectivity index.

42 In order to assist Council in determining variations; the performance criteria in relation to roof reflectivity allow an approval where the position, location and pitch of the proposed roofing is not considered to result in excessive glare upon neighbours and the streetscape.

43 In its considerations, Council is required to have regard to the principles of orderly and proper planning and the preservation of amenity of the locality.

44 The difficulty the Tribunal has had in this matter is that there is no technical information before it that the off-white Surfmist colour exceeds the 40% reflectivity index, or that if it does that in the circumstances of this case the glare is excessive on both the neighbouring properties and the street in general.

45 Alternatively, the applicant argues without technical proof that a number of alternative colour finishes exhibit reflectivity equal to and potentially greater than that of Zincalume (silver) and Surfmist.

46 What is noteworthy from the applicant is that in the high solar radiation period of summer, the angle of incidence of solar radiation, and its subsequent reflection, prohibits direct reflection of radiation onto adjacent properties. Also, that the height of the proposed residence at 34 Sudbury Way will prohibit any significant reflection off the curved section of the roof (or vertical wall section).

47 It would certainly have assisted the applicant if overshadowing diagrams had been presented to support their case, as it is both from the roof and its curved section (wall) from which reflectivity could emanate if not in shadow.

48 In considering this matter, the Tribunal would accept that a light coloured roof, despite its energy efficiency, is aesthetically unappealing to some and is perceived as highly reflective. However, in this particular case the building on the subject land is oriented east-west and the roof angles upwards from north to south but at a moderate pitch of 11 degrees. This low angle of pitch and the design of the roof means that it does not present directly to the street, or to the adjacent neighbour to the south. In the case of the latter, it would only be the cladding on the southern

(Page 19)

elevation which would be visible, and in all probability it would always be in shade.

49 This may explain why there were no objections to the development from neighbours, other than from the owner of the adjacent property to the north.

50 However, if the adjacent dwelling to the north at 34 Sudbury Way is constructed in accordance with approved plans, there will be no major doors or windows on its southern elevation, and the larger windows at the upper level are protected by obscure glazing. It is hard to imagine any significant "glare" effect, having regard to the angle of incidence of the light or viewing opportunities from 34 Sudbury Way onto the roof or cladding of the development on the subject land.

51 A further factor is that the outdoor rear living areas, including an upper level balcony are mainly positioned to the north, and if views of the offending roof and cladding are to be seen from various locations at the rear they can be minimised by effective screening, including vegetation.

52 On balance, the weight of the argument falls in favour of the applicant as the Tribunal believes that any glare from the subject roof or cladding would not be excessive, and would not unduly impact on neighbouring properties on the street.

53 Although some "glare" effect and reflectivity may impact on 34 Sudbury Way, it will be limited to views from the rear outdoor living areas and could be minimised by screening, including vegetation.

Orders

54 For the foregoing reasons, the orders of the Tribunal are as follows:

1. The application for review is upheld.

2. The decision under review is set aside.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR L GRAHAM, SESSIONAL MEMBER