PARKER and CITY OF SOUTH PERTH - [2010] WASAT 35

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PARKER and CITY OF SOUTH PERTH [2010] WASAT 35

MEMBER: MR J JORDAN (MEMBER)

HEARD: 11 DECEMBER 2009

DELIVERED : 11 MARCH 2010

FILE NO/S: DR 234 of 2009

BETWEEN: SANDRA LEE PARKER
Applicant
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning Development refusal Construction of garage, patio and sauna on closed former right of way Balcony and timber deck additions to existing two storey house on adjoining lot Garage to be used by residents of house Primary school adjoining site to east Garage with parapet wall on boundary Size and bulk of proposed garage Overshadowing Relevance of Residential Design Codes Relevance of Council policy on residential boundary walls Length of parapet wall and height of parapet wall Objections of neighbours Whether two lots should be amalgamated Use of open space and existing and proposed buildings on school site Orderly and proper planning Impact on local amenity Impact on amenity of school site

Legislation:

City of South Perth Town Planning Scheme No 6, cl 1.2, cl 1.2.1(e), cl 4.1(3), cl 7.5, cl 9.6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2008), cl 5.3, cl 5.3.1, cl 6.2.6 A6, cl 6.3.2, cl 6.3.2 A2, cl 6.3.2 P1, cl 6.3.2 P2, cl 6.9.1
State Administrative Tribunal Act 2004 (WA), s 31
Transfer of Land Act 1893 (WA), s 167A

Result:

Application for review allowed
Decision of the City of South Perth set aside and conditional approval granted for the proposed development of Lot 69 and Lot 204 Riverview Street, South Perth

Category: B

Representation:

Counsel:

Applicant: Mr S Allerding (Representative)
Respondent: Mr J Skinner

Solicitors:

Applicant: Allerding & Associates (Town Planners)
Respondent: Jackson McDonald

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant in these proceedings owns Lot 69 Riverview Street, South Perth and adjoining Lot 204 on which there is a house. Lot 69 is 5.2 metres wide and was once subject to an easement burden of a right of carriageway. In April 2009, duplicate freehold title was issued for Lot 69 free from the encumbrances of the easement. These proceedings involved an application for review of the refusal by the City of South Perth to grant planning approval for development of a garage on Lot 69 and a first floor balcony at the rear of the existing house on adjoining Lot 204.
Riverview Terrace is a culdesac at the head of which is a primary school, which also abuts Lot 69. The proposed garage would have a parapet wall on the boundary adjacent to a space at the rear of two classrooms on the school site. The school had also lodged with the City of South Perth an application to replace the classrooms in this location with a new building containing classrooms and an art room.
The City of South Perth refused the application because it considered the development would not be consistent with orderly and proper planning and would have an adverse impact on the amenity of the locality, which included the street and the adjoining school.
The Tribunal concluded that the proposed development satisfied general residential development standards and was in this respect consistent with orderly and proper planning.
The Tribunal further found that the proposed development would not have an adverse impact on the amenity of the locality. The Tribunal formed the view that the proposed development, being for residential purposes at the head of a culdesac adjacent to a nonresidential use, had little impact on the streetscape of Riverview Court.
The Tribunal also concluded that, because of the setback to existing buildings and the design of the proposed buildings on the school site and the character of the space between those buildings and the boundary, the proposed garage wall on the boundary would not have an impact on the amenity of the neighbouring primary school site sufficient to warrant refusal of the development.
From the conclusions reached, the Tribunal concluded that, in this instance, discretion could be exercised and the proposed development was approved.

Introduction

These proceedings involve an application brought by Ms Sandra Lee Parker (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 South Perth (respondent, Council or City) to refuse an application for planning approval for development on Lot 69 and adjoining Lot 204 Riverview Street, South Perth.

The lots and the locality

Lot 69 is 5.2 metres wide, 90 metres long, has an area of 473 square metres and is bituminised for its full length. It has frontage to Riverview Street at the southern end, where it is accessible to vehicles, and at the northern end has steps to the Angelo Street footpath. Prior to April 2009, Lot 69 was a freehold title subject to an easement burden for right of carriageway purposes pursuant to s 167A of the Transfer of Land Act 1893 (WA). It was, in effect, then a right of way (ROW). In April 2009, Lot 69 was created as a freehold title free from the encumbrances of the easement. Lot 69 now has a gate at each end.
To the west adjoining the southern half of Lot 69 is Lot 204 (No 32) Riverview Street. Lot 204 is 10 metres wide, 45.26 metres deep and has an area of about 456 square metres. Lot 204 is developed with a two storey single house which has a parapet wall on the boundary with Lot 69. At the rear of the house on Lot 204 is a double garage with access from Lot 69.
Adjoining Lot 69 to the east is the South Perth Primary School (primary school). The primary school is on a 1.8 hectare lot with frontage to Angelo Street to the north, Forrest Street to the east and Karoo Street to the south.
The section of Riverview Street in which Lot 69 and Lot 204 are located runs eastward from King Edward Street and terminates at the western boundary of the primary school site as a culdesac. Each side of this approximately 110 metre length of Riverview Street is developed with single houses.
On the primary school site, at the head of the culdesac, set back about 1 metre from the boundary is the rear wall of the school library. Northward, next to the library opposite the southern end of Lot 69 is a prefabricated classroom set back 1 metre from the boundary. There is then a gap of about 6 metres to a second prefabricated classroom set back about 9 metres from the boundary and then a third prefabricated classroom, also set back about 9 metres. The first and second classrooms have no openings in the walls facing the boundary. The third classroom has windows facing the boundary. Between these classrooms and the Angove Street boundary, adjacent to Lot 69, are a basketball court, and then, preprimary classrooms.
From Riverview Street, running south to Karoo Street, between the primary school site and houses is a 5.2 metre wide right of way. This right of way is constructed for half its length connecting to a constructed eastwest leg providing rear vehicle access to houses fronting Riverview Street and Karoo Street. From the eastwest leg south to Karoo Street, the right of way is grassed and has the appearance of an extension to the primary school oval.

Proposed development on the site and on the primary school site

Proposed for Lot 69 is the construction of a double garage the full 5.2 metres width of the lot and 17.2 metres long. The garage would be set back 7.41 metres from the Riverview Street boundary to align with the front verandah of the house on Lot 204. The finished floor level of the garage would be at about ground level at the street frontage, which would result in fill of about 1 metre at the rear of the garage. The eastern wall of the garage would be a brick parapet wall on the boundary said by the applicant to be 3.2 metres above natural ground level at the southern end and 3.8 metres above at the northern end. The eastern wall of the house would form the western wall of the garage. The roof of the garage would be attached to this wall of the house. The parties agreed that three cars in tandem could fit the length of the garage and, with two cars side by side, the potential capacity of the garage was six cars. The garage would be opposite the first and second classrooms on the primary school site described above.
A door at the rear of the garage would open on to a landing which connects to a proposed deck at the rear of the house on Lot 204. Steps from that deck would lead back down to Lot 69 to a 13.97 metre length of grass and paving, opposite the third classroom described above. There would then be steps up to a 6.6 metre long deck with a barbecue and adjacent to which would be a small prefabricated sauna with an attached lavatory. The remainder of Lot 69 to Angove Street would not be altered.
On Lot 204 at the rear of the house adjacent to existing rooms would be added a timber deck extending to a new below ground swimming pool which would replace the existing brick garage. At the first floor level of the house above the deck opening out from a living room would be erected a balcony which would overlook the landscaped and paved improvements within Lot 69 and beyond to the primary school site.
Relevant to the consideration of this matter is the development proposed for the primary school site. A development application lodged with the City in August 2009 included replacing the three prefabricated buildings adjacent to the boundary of Lot 69 with a new 'L' shaped brick building. Adjacent to the library set back about 11.5 metres from the boundary would be a rear wall with no windows, about 17 metres long, of a classroom, a store and a teachers' preparation area. This wall would be opposite the proposed garage wall on Lot 69. The new school building would then step in to within 4 metres of the boundary with the blank wall of two store rooms and a kiln room facing the boundary. In the wall perpendicular to the boundary is a door opening from an arts and craft room to a brick paved area of about 8 metres square. The plans provided show no other improvements on the remainder of the space between the new building and the boundary.

Planning framework

Lot 204 and Lot 69 are both zoned Residential under the City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme) with a density coding of R25. The adjoining primary school site is reserved under TPS 6 as 'public purpose primary school'. Clause 7.5 of TPS 6 requires that, in considering an application for planning approval, regard shall be had to and conditions may be imposed in respect to the following matters where relevant to the proposed development:
…
(b)the requirements of orderly and proper planning …
(c)the provisions of the Residential Design Codes and any other approved Statement of Planning Policy of the Commission …
(d)any other policy of the Commission …
…
(f)any planning policy, strategy or plan adopted by the Council under the provisions of cl 9.6 of this Scheme;
…
(i)the preservation of the amenity of the locality;
(j)all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;
…
(w)any relevant submission received on the application …
(x)any other planning considerations which the Council considers relevant.
Clause 4.1(3) of TPS 6 states:
Unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
The Residential Design Codes of Western Australia (2008) (Codes) include, relevantly:
•Clause 6.3.2 'Buildings on boundary';
•Clause 6.9.1 'Solar access for adjoining sites'.
Under the Codes, at cl 6.3.2 'Buildings on boundary', the performance criteria are listed as follows:
P2Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
The Codes at Appendix 1 'Definitions' include the following:
Adjoining property
Any lot:
•on which any dwelling for which provision is made in the Codes may be constructed under the Scheme; and
•which shares a boundary or a portion of a boundary with a lot on which there is a proposed residential development site or is separated from that lot by a right-of-way, vehicle accessway, pedestrian accessway, access leg of a battleaxe lot or the equivalent not more than 6 m in width.
Height, wall
The vertical distance from natural ground level to the roof or parapet at any point in accordance with Figures 2A, 2B and 2C.
Outdoor living area
The area external to a single house or grouped dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use but excludes any area with a dimension of less than 1 m minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling.
Clause 5.3.1 of the Codes provides that local planning policies may be adopted that vary or replace acceptable development provisions of various elements of the Codes, including for boundary walls (cl 6.3.2 A2).
The respondent has adopted Policy 350.2 Residential Boundary Walls (Boundary Walls Policy) pursuant to cl 9.6 of TPS 6. Clause 1(b) of the Boundary Walls Policy states that 'this policy replaces the provisions of the RCodes relating to boundary walls'. The objective of the Boundary Walls Policy at cl 2 is stated as:
To achieve built outcomes that demonstrate appropriate consideration of the impact of the design of a proposed dwelling on the streetscape and amenity of the adjoining residents.
More particularly, at cl 5, it states
… this policy replaces clause 6.3.2 of the RCodes dealing with boundary walls. Accordingly, the following provisions apply to any boundary wall:
(a)A proposed boundary wall will not be approved where the City considers that such wall would adversely affect the amenity of an adjoining property or the streetscape in relation to the following amenity factors:
(i)streetscape character;
…
(iii)visual impact of building bulk where the proposed boundary wall is situated alongside an outdoor living area on an adjoining lot; and
(iv)the amount of overshadowing of a habitable room window, or an outdoor living area, on the adjoining lot …
Clause 6 of the Boundary Walls Policy states:
Where a proposed boundary wall is situated adjacent to an outdoor living area on an adjoining lot, in addition to meeting the provisions of cl 5 of this policy, such a wall shall be no higher than 2.7 metres measured above the finished ground level on the adjoining lot.
Clause 8 of the Boundary Walls Policy states:
Boundary walls will normally be permitted to abut only one side boundary of a lot. However, the City may approve walls on both side boundaries in the following circumstances:
(a)where the development site is 12.0 metres wide or less and the siting of a wall on both side boundaries would ameliorate the visual dominance of a garage as a component of the front elevation of a dwelling, provided that one of the boundary walls is set back at least 3.0 metres further from the street alignment than the other boundary wall; or
(b)where the development site is wider than 12.0 metres, in the interest of maintaining streetscape compatibility, and avoiding the visual impact of unrelieved building bulk, walls will only be permitted to abut both side boundaries where one of the boundary walls is set back at least 6.0 metres further from the street alignment than the other boundary wall.
In respect of the planning controls against which the planning merit of the proposed development is to be assessed, both parties made submissions on the relevance of cl 6.3.2 of the Codes and of the respondent's Boundary Walls Policy. It was common ground, and the Tribunal agrees, that cl 6.3.2 of the Codes was not applicable in respect of residential development in South Perth. This is because cl 6.3.2 of the Codes has been replaced by the respondent's Boundary Walls Policy.
Mr Allerding, for the applicant, also pointed out that, had cl 6.3.2 of the Codes been applicable to residential development, it would not have been relevant to weighing the impact of the proposed boundary wall on the primary school site. This submission was based on the Codes at cl 6.3.2 P2, which sets out performance criteria and includes consideration of the effects of the development on the adjoining property. As quoted above, under the Codes, by definition, relevant adjoining properties are those on which there is a dwelling or which is a residential lot. A primary school site is neither.
Mr Allerding also made the submission that the Boundary Walls Policy, by its wording, was only intended to be relevant in considering the impact of a proposed development on a neighbouring residential lot.
Mr Skinner, for the respondent, said the Boundary Walls Policy had life under two limbs, one as a policy replacing cl 6.3.2 of the Codes and the second as a policy beyond the Codes adopted under cl 9.6 of TPS 6. Such policies are required to be a consideration pursuant to cl 7.5(f) of TPS 6.
The Tribunal is inclined to the interpretation that the Boundary Walls Policy is directed to consideration of the impact of a residential development on streetscape and on adjoining lots. In respect of adjoining lots, however, the consideration of the impact is restricted to impact on an adjoining residential lot. This is because of the reference to adjoining residents in the objective at cl 2 of the Boundary Walls Policy, to adjoining dwellings in the amenity factors at cl 5(a)(ii), to outdoor living areas in cl 5(a)(iii) and habitable rooms in cl 5(a)(iv) and the reference in cl 6 to wall heights relevant to adjoining outdoor living areas.

Leave to make submissions

Residents in the immediate area of Lot 69 dispute the validity of the cancellation of the easement over Lot 69. These residents and the Department of Education also assert certain rights at common law in relation to rights to use Lot 69.
In July and September 2009, the President of the Tribunal, Justice Chaney, considered an application by Mr H Anstey for leave to intervene in this matter, and an application by Mr R Grayden on behalf of a group of immediate neighbours for leave to make submissions in the matter as interested persons, pursuant to s 242 of the PD Act. It was foreshadowed by those applicants at that time that proceedings had been or were going to be commenced or continued in the Supreme Court to establish any rights over Lot 69 asserted by the interested parties. At the hearing on 15 September 2009, the President said, at 12, in respect of the review of the respondent's refusal of the planning application:
… it seems to me, as I indicated in exchanges with the parties and counsel this morning, that it would work an unfairness to the applicant to deal with the matter on the basis that there might exist some right of way in the absence of any party taking any step to establish that right at law. Ultimately the question as to the existence of a right of way has to be determined in the Supreme Court if it is not completely abandoned by those who assert it.
Referring the matter back to council will enable it to consider the matter. It can take whatever view it likes in relation to the right of way question but assuming it were to approve the application, the consequence would be that the applicant would be free to proceed with the development, but at its risk that it might be found in proceedings, if any are commenced, in the Supreme Court to be developing over a right of way.

The President issued orders inviting the respondent to reconsider the matter as provided for under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At the Council meeting on 13 October 2009, the respondent resolved to refuse the proposed development for reasons relating squarely to planning issues.
On 27 October 2009, the President granted Mr H Anstey, Dr A Anstey, Ms S Falvay, Mr W Grayden, Mrs J Pitcher, Mr R Grayden and Mrs M Grayden leave to make submissions pursuant to s 242 of the PD Act. These submissions were filed on 13 November 2009.
Immediately prior to the commencement of the merits review hearing, Mr H Anstey said the Minister for Education was to commence proceedings in the Supreme Court. The interested parties asked an officer of the Education Department to attend the hearing, but the officer did not arrive.
Subsequent to the hearing, the Tribunal was informed that the State Solicitor's Office, on behalf of the Minister for Education had filed pleadings in the Supreme Court in respect of a prescriptive easement over Lot 69, but that no date had been set. The Tribunal has no advice of any action in the Supreme Court on behalf of either the interested parties or the respondent. At the hearing, Ms C McLeod of Cullen Babington Hughes, Solicitors, said, reflecting the comment of Chaney J cited above:
In any event, I would say, sir, if the action had been started, proceeding today, my client takes the risk on board that if the application approval is granted and he proceeds with the development and at a later date the Supreme Court decides, yes, there is an easement, then he takes that at his own risk.
With respect, the Tribunal accepts the views of the President and Ms McLeod. The Tribunal proceeded to hear the parties on the planning merits of the proposed development and determine the application accordingly.

Respondent's decision

At its meeting on 13 October 2009, the Council resolved to refuse the development for the following reasons:
The application is contrary to the principles of orderly and proper planning because:
(i)the size and bulk of the proposed boundary wall will have a deleterious impact on the visual amenity of the adjoining property. Therefore discretion should not be exercised to waive the usual setback required in relation to the eastern boundary wall;
(ii)the proposed development will likely require the removal of an established sheoak tree, some 10 12 metres high and situated within 50 60 cm of the eastern boundary of the development site; and
(iii)the proposed boundary will overlook the primary school site.

Issues

In its substituted statement of issues, facts and contentions, filed on 20 October 2009, the respondent identified the following issues:
1)whether the proposed development is contrary to orderly and proper planning;
2)whether the proposed development will adversely affect the preservation of the amenity of the locality; and
3)whether discretion should be exercised to approve the proposed development.
The respondent informed the Tribunal that it did not seek to pursue as an issue any perceived threat of removal of the sheoak tree on the boundary. If the development on Lot 69 were allowed, then an appropriate condition could ensure any impact on the tree could be managed.

Discussion

Issue 1: Whether the proposed development is contrary to orderly and proper planning

For the purposes of this review, the closure of the right of way and claims to rights of carriageway are not issues before the Tribunal. To determine whether the proposed development is contrary to orderly and proper planning, it is necessary that it be weighed against the requirements and standards of the relevant provisions of TPS 6 and the relevant policies. Clause 7.5 of TPS 6, in particular sets out matters it is necessary to have regard to when weighing a development proposal. At cl 7.5(i) of TPS 6, one of the matters it is necessary to consider is the 'preservation of the amenity of the locality'. The parties have identified preservation of the amenity of the locality, particularly in respect of the adjoining primary school, as critical to the consideration of the matter. The impact of the proposal on local amenity has therefore been separated from other considerations of orderly and proper planning and is dealt with more particularly as issue 2 below.
Lot 69 is zoned Residential in TPS 6, and a domestic garage is an appropriate use in this zone. The Tribunal would comment, however, that it would be inconsistent with orderly and proper planning for a single lot to be developed just for a garage. The respondent submitted that, should the development of the garage be allowed, Lot 69 and Lot 204 should be amalgamated as a condition of approval. The applicant said amalgamation was to occur in any event and should not be a condition of any development approval.
The Tribunal considers that amalgamation of Lot 69 and Lot 204 would be an appropriate condition of any approval of the proposed development. This is because the applicant has proposed that the new garage replace the existing garage at the rear of the house on adjoining Lot 204. It is an established planning principle that a single development in this instance, a house and its associated garage should not extend across lot boundaries to ensure that the development remains a single entity. The Tribunal also notes that, in this proposal, the garage relies on the house to provide a common wall and the roof of the garage is affixed to that wall to ensure structural integrity. In addition, access to the remainder of Lot 69 from the garage is via the deck at the rear of Lot 204. The Tribunal has therefore approached this matter on the basis that, should the development be allowed, a condition of the approval must be that Lot 69 and Lot 204 are amalgamated to create a single residential lot.
TPS 6 requires that residential development comply with the requirements of the Codes, or a Council policy adopted to replace an element of the Codes. There was no evidence that, for the combined area of Lot 69 and Lot 204, the proposed development would not comply with the front and rear setback, private open space or site coverage standards of the Codes and any Council policy relevant to these standards and requirements. In that respect, the development is consistent with TPS 6.
The Boundary Wall Policy is relevant to the consideration of the siting of a building on a lot and streetscape. At cl 8 of the Boundary Wall Policy, reference is made to boundary walls normally only being permitted to abut one side boundary. The proposed development would, if the two lots are amalgamated, only abut one side boundary, the boundary adjoining the school site. Unless there are other factors that lead to a conclusion that the proposed garage wall should be set back from that boundary, the planning controls do contemplate consideration of a wall of a residential development being located on a boundary as proposed in this instance. In that regard, other factors being acceptable, the proposed development could be consistent with orderly planning.
A consideration raised by Mr Ray Haeren, a town planner called by the respondent, was what he referred in his evidence as a policy of the Western Australian Planning Commission (WAPC). This, he said, was to usually require a road or ROW rather than a residential lot to have 'interface' with a school site. This was previously achieved by Lot 69 being a ROW. Mr Haeren suggested this was relevant to the need for a school to have 'access to fresh air, light etc, as you would expect for an outdoor living area'. This policy, he said, might be a reason why the Codes were silent on the relationship between residential use and an adjoining school use. Mr Haeren referred to the policy as a means of achieving a 'buildfree zone' to provide distance between development and the school.
The Tribunal notes that WAPC Policy DC.2.4 School Sites (WAPC Policy) states at cl 3.6.1:
Common boundaries of school sites with residential uses should be avoided whenever possible. There are a number of activities conducted on school sites which can adversely affect the amenity of residential properties, particularly where they are located very close to a school site. This is a growing problem with the trend towards increased community use of school facilities after hours. To avoid potential conflict with residential properties it is therefore preferable that school sites be surrounded by a combination of roads and amenities generally, including public open space and other compatible community, cultural recreation and sporting facilities.
It appears to the Tribunal that the purpose of the WAPC Policy is not to protect schools from the impact of neighbouring houses, as suggested by Mr Haeren, although this might be a consequence, but to protect houses from the impact of schools. The Tribunal does not accept that the availability of the WAPC Policy can be cited as the reason why the Codes, or the Boundary Walls Policy, are silent on any relationship between residential uses and adjoining school sites.
In this instance, it is not a consideration of whether this residential lot should abut the primary school site. The closure of Lot 69 has resulted in the juxtaposition of the two sites in any event.
Clause 7.5(j) of TPS 6 requires reference to aspects of the design of a development, including height, bulk, materials and appearance. The respondent did not question the materials to be used in the garage, but did question the design. The respondent disputed the need for the proposed garage to be double width, which requires use of the full width of Lot 69 and, at 17 metres, of such length as to potentially accommodate six cars. The respondent said that the visual impact of a building of the proposed width, length and height, on the boundary, would be one of excessive bulk and scale. The planning objective of providing an adequate garage for off street parking could be achieved with a building of significantly less length set back from the boundary at the standard setback. The respondent said Lot 69 was not created as a residential lot and so it should not be expected that concessions must be granted to accommodate residential development.
The applicant said she would be prepared to amend the design so that the boundary wall would be no more than 3.5 metres above natural ground level at any point.
The Tribunal would comment that a wall 17.2 metres in length and about 3.5 metres in height on the boundary of an adjoining residential lot, which would typically be of about 40 metres length, would, in most circumstances for R25 coded lots, be unacceptable because of excessive scale and bulk. The comment is also made that, the additional development being a garage that could accommodate up to six cars is not of itself a reason to refuse the development, particularly where the development abuts a nonresidential use. In this matter, it is necessary to consider the relationship of the proposed development to the use made of the adjoining school site.
In this matter, the school boundary is some 200 metres in length. Proportionally, just the length of the wall proposed is not sufficient to warrant a refusal of the development. However, the primary school site comprises areas of different character, including large areas of open space, clusters of buildings and more intimate spaces adjacent to and framed by buildings. To be considered is where the garage wall is to be located, and the impact this could have on the immediately adjacent development on the primary school site.
The Tribunal has formed the view that, generally, the development of Lot 69 and Lot 204 is in most respects consistent with the relevant planning controls and therefore is consistent with orderly and proper development. There remains, however, the significant overlap between orderly and proper planning and the impact of the development on the amenity of the locality. This leads to consideration of issue 2.

Issue 2: Whether the proposed development will adversely affect the preservation of the amenity of the locality

Clause 7.5(i) of TPS 6 requires consideration of the preservation of the amenity of the locality. The locality includes Riverview Street and the primary school site.
In the submission of the interested parties, the erection of the garage would not preserve the amenity of the locality because it would permanently prevent the use of Lot 69 as a carriageway (more particularly as a footpath) by the interested parties and schoolchildren. Access to the primary school site, at this section of the school boundary, and to Angove Street and the nearby commercial precinct would be prevented.
The Tribunal is considering this matter on the basis that no right of carriageway currently exists over Lot 69. Until the Supreme Court determines otherwise, the amenity of the interested parties would not alter in this regard, even if the garage were not built.
It was common ground between the planning experts who appeared as witnesses, that the construction of the garage would have a 'benign' impact on the Riverview Street streetscape. This was because the garage would be at the end of this culdesac at the same setback and of the same materials as the applicant's house. The appearance of the resultant development will be similar to that of neighbouring houses. In this regard, the Tribunal respectfully agrees with the planning experts.
Both parties provided evidence and made submissions in respect of the impact on the amenity of the adjoining primary school by both the garage parapet wall and the first floor balcony.
It must be pointed out that no witness from the primary school appeared before the Tribunal. The only submission from the primary school was a copy of an email dated 1 July 2009 from Mr Darryl Mansfield, Deputy Principal, to a planning officer at the City (at 63 and 64 of the respondent's bundle of documents). Mr Mansfield made no comment on the use currently made of the space between the boundary and the existing classrooms or what the space would be used for when the new building was constructed. He did say in respect of the proposed garage wall and the proposed new school building that 'a wall this close to the boundary may set our classrooms/facilities back a greater distance which would in turn further reduce our very limited playing area for our children'. Mr Mansfield was not available for examination of the basis of this comment.
The comment by Mr Mansfield has the implication that space adjacent to the boundary was not at that time considered as play space. Notwithstanding Mr Mansfield's comment, the parties and the witnesses proceeded on the basis that the area between the boundary and both the existing and proposed new school buildings might be a place where children would at times gather for activities.
It was a submission of the respondent that cl 6.3.2 of the Codes was relevant to the degree that it was analogous to the circumstances of this case. The analogy was said to arise because the use made of the primary school site adjacent to the proposed garage wall would be like that made of the outdoor living areas of a residential lot. The respondent and its witnesses assumed the space would be used by the children for play, and in particular, the paved area would be used in conjunction with the art and craft room in the new building.
It was the submission of Mr Allerding for the applicant that, while cl 6.3.2 of the Codes did not apply, in any event, the proposed development would satisfy the performance criteria for boundary walls at cl 6.3.2 P1. Similarly, while the Boundary Wall Policy was not applicable in this regard because the adjoining lot was not residential, the proposed development, in his opinion, satisfied the amenity factors at cl 5 of that policy, which reflected those of cl 6.3.2 of the Codes. This, Mr Allerding said, was because there would be no 'significant adverse impact on the amenity' of the neighbouring space and there would be no restriction on direct sun to rooms or the open space, at least until near school closing time, or to light, ventilation, and heating of the school building because of the setback and the design.
Mr Haeren agreed that there would not be any adverse impact on these elements for the school because of the proposed development, but he maintained that there would simply be better amenity in the space if the garage wall were smaller and set back from the boundary.
The Tribunal is of the view that the analogy of the school with a residential lot is strained. In this respect, the Tribunal is inclined to the view expressed by the applicant. A house lot of, say, 750 square metres would have limited outdoor space available at all times for private use, which should not be impacted upon by a neighbouring development. A school is different. The outdoor space in this instance would only be used at specific times during the school day, if at all. After school hours, on nonschool days and during holidays, that space would not be used.
As mentioned above, there was no evidence before the Tribunal of how the space on the primary school site adjacent to the boundary would be used. The space is to the rear of buildings linked via paths to the north to a basketball court and then, beyond, to the preprimary at the northern edge of the primary school site. To the south of the space is the blank side wall of the library building. A path between the new building and the library leads beyond to other classrooms and an amphitheatre and then the oval. There is no apparent reason why the space behind the proposed building should be used as a thoroughfare between these various parts of the school, as opposed to available access routes contained at the front of the new building.
As pointed out by Mr Haeren, there is a door from the proposed art room to a paved area labelled 'courtyard'. This courtyard appears to have some reference to the adjacent art room, but actual use of the space was guessed at by the representatives of the parties and the witnesses. The Tribunal did not consider that the presence of the wall would inhibit practical use of the paved area.
With the gate between Lot 69 and the schoolyard now closed, the use of the space on the school as a means of access to the school site has ceased. It is not readily apparent to the Tribunal that the space, with the characteristics described, surrounded by blank walls and separated from the remainder of the open spaces of the primary school, might be useful for random play. Although the primary school site is small at 1.8 hectares, compared to a standard primary school site of 4 hectares the aerial photograph and annotated site plans revealed the school to be reasonably well served with separate spaces for organised sport, casual play and outdoor assembly.
Mr Mansfield also made the comment that the proposed wall would be an eyesore to the school community. Again, he was not available to be examined on this assertion. Examination of the site plan for the primary school reveals that the view of the proposed wall would mostly be obscured by existing and proposed buildings, with some glimpses of the wall from limited locations between buildings. The most impact would be felt by a person standing in the space between the new buildings and the proposed garage wall. It is not apparent, other than in association with the art room, what use would be made by the school community of a space of this character in this location.
The Tribunal has concluded that the presence of the garage wall might make the space between the boundary and the school buildings less pleasant than if there were no development on the boundary. However, in the absence of a clear understanding of just what that space is to be used for, the extent of the impact can only be guessed at. The Tribunal accepts that there might be certain buildings or spaces on the school site used for a sufficiently sensitive purpose to warrant particular consideration. The Tribunal has formed the view that the space adjacent to the proposed garage is not such a location, and the amenity of the space would not be so affected that it would not be available for some useful purpose.

Dealing with the proposed balcony at the first floor level at the rear of the house on Lot 204, this balcony would be 6.2 metres from the primary school boundary. If the Codes were applicable, that boundary would be within the 7.5 metre cone of vision standard for setbacks from habitable spaces.
It was the respondent's submission that, because the primary school was a place where children congregated, the development should be subject to at least the same assessment as would occur in respect of the privacy of a private dwelling. The Tribunal notes that the balcony would not materially change the limited opportunities for overlooking the relatively small areas of the primary school currently existing from the windows of the residence. The view would shift to the balcony adjacent to those windows. There would also remain views to the school from the surrounding houses, roads and the ROW to the south. Mr Allerding made the comment that, consistent with the generally accepted planning objective of designing out opportunities for crime, the opportunity for casual observation of the primary school site after hours and on nonschool days would remain.
The Tribunal does not consider there are any grounds for refusing the development of the proposed balcony on the basis of the impact it would have on the amenity of the school site.

Issue 3: Whether discretion should be exercised to approve the proposed development

From the consideration of issue 1 and issue 2, the Tribunal has concluded that the proposed development would be consistent with the orderly and proper planning of the locality and would generally preserve the amenity of the locality. In this instance, therefore, the Tribunal has formed the view that discretion can be exercised and the proposed development allowed.

Conclusion

Issue 1 was concerned with whether the proposed development is contrary to orderly and proper planning. Orderly and proper planning requires that a development address the planning standards and requirements to achieve an outcome consistent with planning objectives. The Tribunal has concluded, as set above in the discussion on issue 1, that the proposed development satisfies general residential development standards. In this respect, the proposed development is considered to be consistent with orderly and proper planning. The Boundary Wall Policy does allow consideration of buildings proposed to be built to one boundary. In this matter, whether that discretion should be exercised depends upon the impact of the proposed development of the amenity of the locality.
The second issue was whether the proposed development will adversely affect the preservation of the amenity of the locality. As indicated in the discussion above, the Tribunal has formed the view that the proposed development, being for residential development at the end of a culdesac adjacent to a nonresidential use, has little impact on the streetscape of Riverview Street and is acceptable in this respect.
The Tribunal has also concluded that the proposed garage wall on the boundary will not have an impact on the amenity of the neighbouring primary school site sufficient to warrant refusal. This is because the impact of the garage would be restricted to a limited area behind particular classrooms on the school site. The character of the space and the design of the existing and proposed buildings would result in negligible impact from the garage wall on overshadowing, light and ventilation. There was insufficient evidence to conclude that space adjacent to the wall could not be put to some useful purpose because of the presence of the wall.
The third issue was whether discretion should be exercised to approve the proposed development. From the conclusions reached in the deliberations on issue 1 and issue 2, the Tribunal has concluded that, in this instance, discretion can be exercised and the proposed development approved.
In the circumstances, the Tribunal has decided to allow the application for review and approve the proposed development.

Conditions

As required by order of the Tribunal, the respondent provided a schedule of conditions it would want imposed, were the Tribunal to allow the development. As indicated above, the Tribunal is of the opinion that the amalgamation of Lot 204 and Lot 69 is necessary in the circumstances of this case. The applicant said she was prepared to reduce the height of the wall to not more than 3.5 metres. The only other discussion between the parties was for the purposes of refining the wording of the recommended conditions, particularly in respect of impact on the sheoak tree.

Orders

1.The application for review is allowed.
2.The decision of the City of South Perth dated 13 October 2009 is set aside and the proposed development of Lot 69 and Lot 204 Riverview Street, South Perth is approved subject to the following conditions:
a)The surface of the boundary walls on the eastern and northern sides of Lot 69 shall be finished to the satisfaction of the adjoining neighbour or, in the case of a dispute, to the satisfaction of the City of South Perth.
b)For the purpose of the construction of the development, the existing sheoak tree located on the South Perth Primary School site on the eastern side of the development site shall not be removed and shall only be pruned or disturbed to the extent necessary for the construction of the development.
c)Lot 204 and Lot 69 shall be amalgamated on a compiled diagram of survey and application for a new Certificate of Title shall be lodged with the Land Titles Office. A building licence may not be issued until the new Certificate of Title is issued.
d)Subject to condition a), the external materials and colour finish of the proposed additions (except the sauna) shall match with those of the existing building.
e)Revised drawings shall be submitted to the satisfaction of the City of South Perth, and such drawings shall incorporate the following:
i)Relocation of the proposed crossover a minimum of 0.5 metre from the eastern side boundary of Lot 69; and
ii)Reduction in the height of the eastern boundary wall of the garage to no more than 3.5 metres at the highest point, as measured from natural ground level.

f)The applicant shall construct a crossover between the road and the property boundary. The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within the City of South Perth's specification SP 30. The existing verge levels at the front of the property boundary shall not be altered.
g)The existing crossover shall be removed and the verge and kerbing shall be reinstated to the satisfaction of the Director, Infrastructure Services.
h)Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.
i)Any required retaining walls along the lot boundary shall be constructed immediately after excavation or filling has been carried out.
j)Unless otherwise approved, fences of brick, timber, capped manufactured precoloured metal sheet, capped corrugated fibrocement sheet or brushwood construction, 1.8 metres in height, shall be provided along the eastern boundary of the site. Any fencing forward of the building line shall not be of a fibrocement sheet construction, and shall not exceed 1.2 metres in height unless otherwise required or approved by the City of South Perth. The fence height at any point shall be measured from the level of the ground adjacent to the fence. If the ground levels on each side of the fence are not the same at any point along the boundary, the fence height at that point shall be measured from the higher side.
k)The existing boundary fencing shall not be removed until such time as the required new fencing is to be erected.
l)The height of any letterbox, electricity installation, bin enclosure, or other structure, fence, wall or hedge within 1.5 metres of any vehicle driveway where it meets a street alignment shall not exceed the 0.75 metre limit imposed under the provisions of cl 6.2.6 (A6) of the Residential Design Codes of Western Australia (2008).
m)The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER