Pelliccione and Town of East Fremantle
[2009] WASAT 143
•24 JULY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PELLICCIONE and TOWN OF EAST FREMANTLE [2009] WASAT 143
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JULY 2009
FILE NO/S: DR 421 of 2008
BETWEEN: ALF PELLICCIONE
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning - Development application - Partially built multilevel house with river views - Approval given in 2006 pursuant to consent orders - Variation sought in 2008 to add loft over approved garage - Local Government refusing variation upon basis of previous compromise - Whether appropriate basis to refuse variation - Tribunal holding matter to be assessed upon its planning merits - Consideration of the extent to which already approved or existing development relevant to judgment as to setting and streetscape - Neighbour's views of river disrupted - Test to be applied when considering whether loss of views acceptable - Tribunal finding that loft was relatively marginal in both effect and presentation - Review upheld - Development approval given upon conditions
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia (2008)
Town of East Fremantle Town Planning Scheme No 3, cl 4.3, cl 10.2
Result:
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr E Samec
Respondent: Mr TJ Hockley
Solicitors:
Applicant: Kott Gunning
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36
Masiello v City of Perth [2007] WASAT 65; (2007) 51 SR (WA) 333
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385; [2008] AATA 558
Snedden and Town of Victoria Park [2009] WASAT 18
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review involved a variation to previously approved development for a high quality, multi‑level residence in East Fremantle, with views over the Swan River and Fremantle Harbour. The variation sought to add a loft on top of an already approved garage. The site was partially constructed.
The previous approval was the result of consent orders made by this Tribunal in 2006. These orders reflected a mediated outcome.
Against the recommendation of its town planner, in 2008 the Town of East Fremantle refused to give its planning approval for the loft, citing the 'concessions already granted in the mediated outcome' of 2006 as the only reason for refusal. The Tribunal described this reason for refusal as 'inapposite'.
Rather, the correct approach was to assess the proposal on its merits, taking into account the existing approved development on the site and its immediate precinct.
The review proceeded upon the basis of a further modified proposal submitted in February 2009.
The Tribunal was satisfied that the development ought to be approved, finding that the additional development for the site would be relatively marginal in both effect and presentation. The Tribunal had particular regard to 'the topography, and the current and proposed state of development for the site and its immediate surrounds'. The impact on a neighbour's river views were, after taking everything relevant into account, rated by the Tribunal as 'acceptable'.
The variation was thus approved upon certain conditions.
Introduction and issues
This review concerns, in effect, a 'variation' to previously approved plans (approved in 2006) for a high quality multi‑level residential home on No 25 (Lot 46) Angwin Street, East Fremantle (subject land or site). The subject land has sweeping views of the Swan River and Fremantle Harbour. The previously approved development authorised the demolition and replacement of an existing dwelling.
The parties have approached the matter on the basis that nothing in this review would materially affect that previous 2006 approval.
The variation sought by Mr Pelliccione (applicant) solely relates to the building of a proposed loft, to be constructed on the top of an approved garage on the southern side of the subject land. The garage formed an integrated part of the original approved development and the proposal also affects both the roof of the garage/loft area and the height of various related walls (see below).
The existing approval for the residence on the subject land arose out of previous proceedings in this Tribunal. Following mediation, consent orders for the existing approval (a development now partly constructed) were issued by the Tribunal on 7 November 2006: see proceedings DR 217/2006, Urbanize Architect Pty Ltd and Town of East Fremantle. The revised plans (revision 'E') reflecting the parties' agreement of 2006 were authorised by the respondent on 20 November 2006 and, importantly, are marked 'REV-E. LOFT REMOVED'. (That an original loft was in fact removed from the proposal in 2006 is confirmed by Mr C Warrener, the Town of East Fremantle's town planner, in his report to Council of February 2009.)
During these current proceedings in the Tribunal, the applicant twice, it appears, 'compromised' on his original July 2008 application to the respondent Town of East Fremantle (Town or respondent), an application which was refused by the Town in October 2008.
Mediation conducted by the Tribunal did not resolve the matter between the parties.
Details of these compromises, of January and February 2009, the latter of which has now come forward, by consent, as the basis for this determination, are, so far as is relevant, set out below.
The sole reason for the refusal of 21 October 2008, as regards the July 2008 proposal put forward by the Town, was as follows:
… on the basis of concessions already granted in the mediated outcome and the [State Administrative Tribunal] mediated outcome [of 7 November 2006] should stand.
The Town's town planner, Mr Warrener, had supported both the July 2008 variation and the later 2009 'compromises'.
One key issue for the Tribunal will relate to the extent to which, if at all, regard should be had to the notion that the original November 2006 'compromise' (if that is a correct characterisation) evidenced in the consent orders represents any final position as regards the ideal or maximum development for the subject land. Otherwise, the issue before the Tribunal is whether the modified development proposal currently represents the correct and preferable planning outcome.
Shortly put, the applicant says that the proposal must be assessed upon its merits without regard to any previous approval. Thus, the applicant's designer, Mr SJ Maxwell, said:
I do not agree with the Council's reason for refusal which looks backward in time and appears to treat the earlier approval of the whole house as though it is set hard in concrete.
The site and its context
It is common ground that the subject land is 726 square metres in size with a street frontage of 13.4 metres. The site has a reasonably steep fall of some 12 metres from the street back towards the Swan River (that is, to the west), with a fall of 1.3 metres from north to south.
Mr Maxwell, who is a building designer and director of 'Urbanize Architect', giving evidence for the applicant, has provided the following description of the subject land and its context:
Angwin Street is located on the escarpment on the eastern side of the Swan River in East Fremantle. Angwin Street runs parallel to the Swan River sitting above the Stirling traffic bridge and the Left Bank hotel. Angwin [Street] is situated in a high quality established residential location because the natural topography and proximity to the Swan River offers cooling sea breezes and panoramic river and Fremantle harbour views.
The subject Lot 46 (No 25) is located on the western side of Angwin [Street]. The natural escarpment in this location rises steeply up from the Swan River. The lots on the western side of Angwin [Street] including Lot 46 fall down towards the river by about 11 ‑ 13 [metres] from the Angwin [Street] front boundaries down to the rear boundaries closer to the river.
The existing dwellings on this western side of Angwin [Street] have utilized this natural fall in the land down to the river to develop multi level houses that maximize the views over the Swan River and over Fremantle harbour to the west.
The land opposite Lot 46 on the eastern side of Angwin [Street] continues to rise up the escarpment. The rising natural topography of the land means that the houses on the eastern side of Angwin [Street] are developed at considerably higher level than the Angwin [Street] road reserve.
The houses on the eastern side of Angwin [Street] benefit from being developed on the high side of the street and utilize this natural increase in topography to gain views across Lot 46 and over the tops of the other houses on the western river side of Angwin [Street].
There is an eclectic mix of architectural styles in Angwin [Street] that has evolved over the last 80 ‑ 90 years. Construction, landscaping, setbacks, bulk and scale vary from site to site. Due to the prominence and desirability of the location, however, the existing houses in Angwin [Street] are larger architecturally and technically more sophisticated than other contemporary houses of the time.
The houses on the eastern side of Angwin Street are typically arranged so that vehicle access, pedestrian arrival and building presentation are all orientated towards Angwin [Street] with private open space located at the rear.
The houses on the western side of Angwin [Street] gain their pedestrian, vehicle and visitor access from the street, but the presentation of these houses and private open spaces are oriented towards the Swan [R]iver away from the street.
The steep natural topography of the land on the western and eastern sides of Angwin [Street] provides that the composition of the houses in this location are prominent when viewed from North Fremantle, the old and new traffic bridges and Canning Highway.
I do not understand the respondent's expert witness to object to these general observations.
Details of the July 2008 and February 2009 proposal
The July 2008 proposal, as already indicated, proposed a loft (of 44.6 square metres) to be built over the existing garage. It included a service gangway leading over to the roof of the main house, and a 'minor' 15 square metre 'extension' to the roof. The area of the loft (shown as a 'home office' on the plan) has now been reduced to 34.88 square metres; the roof extension has been withdrawn. Of the February 2009 proposal, Mr Maxwell, for the applicant, says:
I prepared and submitted amended plans to the Council on 13 February 2009 indicating a skillion roof over the loft with a reduced pitch to reduce the overall roof height. I also reduced the internal ceiling height to a minimum in these amended plans to further lower and reduce the overall height of the proposed loft. …
The Council's Town Planner Mr Chris Warrener assessed these amended plans dated 13 February 2009 showing the lowered skillion roof and recommended that the Council grant planning approval to the proposed loft.
Thus, the plans submitted by the applicant to the Tribunal, dated 27 February 2009, which, it is agreed, form the basis of the review, are annotated as follows:
1.Skillion Roof to the proposed loft
2.The pitching height lowered to 2150 AFL ['above floor level'; that is, the height in millimetres of the internal ceiling]
3.The roof pitch lowered to 12 degrees
Mr TJ Hockley, a planner employed by Allerding and Associates and engaged by the respondent, has summarised the main features of the February 2008 proposal as follows (emphasis added):
•No roof shade, as this was an integral element of the original approval for the house and garage.
•The southern side wall for the proposed loft varies in height from 4.2 [metres] closest to Angwin Street to 6 [metres] above natural ground level in lieu of 5.6 [metres] external wall height permitted under the [local planning policy - see below]. Previously the wall height proposed for the southern side wall varied in height from 5.6 [metres] and 6.7 [metres] above natural ground level.
•This southern wall is 8.8 [metres] long and a 4.4 [metre] section of it varies from 5.6 [metres] to 6 [metres] above natural ground level.
•The northern side wall for the proposed loft varies from 5.3 [metres] closest to Angwin Street to 6.2 [metres] above natural ground level. Previously the wall height proposed for the northern side wall varied in height from 5.8 [metres] and 6.9 [metres] above natural ground level.
•The overall roof height of the proposed loft is 7.4 [metres] which is less than the 8.1 [metre] height limit under the policy. It is proposed that the structure will have a skillion roof.
It is convenient to note at this point that the apex height of the loft will be, according to the February 2009 plans, RL 32.242 metres (extrapolated from Australian Height Datum (AHD)). The highest point elsewhere on the site is 30.450 metres (that is, the roof of the approved house, towards the river and the west). The existing neighbouring property's (No 23, to the south) highest point on its site is either 31.250 metres or 31.230 metres (to the west side of that lot).
In 2006, the estimated heights above natural ground level of the three neighbouring existing roofs at their highest points at No 23, No 25 (prior to its demolition) and No 27 Angwin Street were, respectively, 10.1 metres, 8.3 metres and 9 metres high.
The planning framework
The subject land is zoned 'Urban' under the Metropolitan Region Scheme and low density 'Residential' (R12.5) under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3).
The Tribunal has had regard to cl 4.3 of TPS 3 (which refers to certain generalised objectives, and includes approving development 'sympathetic with the character and scale of the existing built form') and cl 10.2 of TPS 3, which includes the following matters as relevant considerations:
(a)the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the provisions of the Local Planning Strategy, including the aims and objectives, the strategy for the relevant sector and any planning proposals for the particular precinct[;]
…
(g)any Local Planning Policy …
…
(j)the compatibility of a use or development with its setting;
…
(o)the preservation of the amenity of the locality;
(p)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(z)any relevant submissions received on the application …
The Residential Design Codes of Western Australia (2008) (RCodes) are applicable to development under TPS 3, but are varied in certain respects as regards development in the 'Riverside Precinct', a precinct which includes the subject land. The precinct description assigned to the subject land is to be found in the Town's Local Planning Strategy (LPS). According to Mr Hockley:
[The LPS] states that variations to the RCodes provide for standards that are peculiar to the precinct's character and will be implemented by way of a local planning policy as [is] provided for under the RCodes. These relate to the varying topography and relate to setbacks and height …
Accordingly, the Town has adopted Local Planning Policy No 142 (LPP 142) which, as Mr Hockley notes, 'addresses issues of building height, streetscape, character and views of the particular locality'. Some of these matters have already been mentioned in Mr Hockley's evidence set out above.
To the extent necessary, the resulting specific planning controls applicable to the subject land will be discussed further below.
I should note at this point, however, my observation, at [38], from Snedden and Town of Victoria Park [2009] WASAT 18 concerning the 'practical situation' where,
… if as a matter of established fact the respondent [local authority] has, by accident or design (and whether, upon reflection, 'correctly' or not), imposed a de facto streetscape standard by a series of approvals closely, perhaps slavishly, following the acceptable development criteria [of either the RCodes or a policy], then that fact of actual resulting streetscape might lead to future approvals which are consistent with that situation.
This observation should, in principle, extend to matters such as bulk, scale, height and form: cf Masiello v City of Perth [2007] WASAT 65; (2007) 51 SR (WA) 333.
The objector's evidence
Protecting amenity in the form of the reasonable protection of views is a recurrent theme found in the planning framework set out above. I will return to this issue below.
The Town led evidence from perhaps the most directly affected neighbour, Mr P Nolan, who resides at No 20 Angwin Street. Mr Nolan, in his thoughtful statement, said:
Our property involves an original East Fremantle character home that is circa 100 years old. Whilst some renovations have been undertaken on it since its original construction, the dwelling is largely intact in its character and construction. Importantly it is a substantial dwelling that I intend to retain and part of the attraction to our acquiring the property was that the rooms have been constructed to orientate and take advantage of views of the Indian Ocean, Swan River, North Fremantle district and Fremantle Harbour.
Along the Angwin Street frontage, our home comprises four primary habitable rooms on the ground floor … In our front yard is our primary habitable outdoor space including our verandah, a gazebo and our swimming pool. All of the areas I have referred to above are well utilised … and all of which have a view of either the Swan River, the Indian Ocean, Fremantle Harbour and the north Fremantle residential area.
The proposed loft structure over the garage that is proposed in the front setback [of the subject land] will be visible from all of these rooms and will have an adverse impact on our access to views of the various features I have referred to above especially as they are on the lower level of the dwelling. The structure is also visible from … the upper level, although the impact the structure has from this room is unlikely to be in relation to views to the features described above, but rather the appearance of the bulk and scale of the development along Angwin Street which has developed with minimal development in the front setback for dwellings on the west side of the street.
Most development in the street has occurred further to the west of the lots to maximise access to views across the features I have described above. (Indeed the applicant has already received concessions to take advantage of these features.) Consequently this has enabled dwellings on the east side of the street to also maintain reasonable access to views. The protection of views is recognised by Council in its Local Planning Policy on Residential Development and consequently we understand the Council has sought specific controls in relation to height within this area. The proposed development exceeds that height standard which I contend should not apply in this instance.
A review of the street will show that only one substantial (albeit single storey) structure exists along this section of Angwin [S]treet but that this development is an old timber structure that would have been developed many years ago and is a development anomaly in Angwin Street. Consequently, if approved, the proposed loft structure will be developed in contrast to the existing development and character of the street that exists and will pose as a detrimental streetscape impact based on the consistent development form along the street, is so far as height, bulk and scale is concerned. This poses further concerns as to the precedent effect that approval to such a development would have on the street.
The Tribunal has received various photographs from the parties (and Mr Nolan) which tend to suggest or even demonstrate, at the moment, in relation to river and harbour views from No 20, a gaping 'hole' reflecting the subject land's current state of partial development, in comparison to the existing residences either side at No 23 and No 27. Speaking generally, these photographs also demonstrate how much some views have already been diminished by the existing developments on the river side of the street.
Of even more relevance are the applicant's plans which show that the nominal eye height view, when measured from No 20, would under the earlier approved development be unaffected, even from the front verandah. Presumably, this is in part why the modified proposal was accepted by the Town back in 2006.
The proposed development would, it appears, partially obstruct views from the verandah but not from the second storey balcony of No 20. However, Mr Hockley believes that there is some artificiality in these view diagrams as 'views would [also] be angled downward'.
Views of the experts
Mr Warrener, the respondent's planner, said in his October report to Council concerning the July 2008 proposal (original emphasis):
The variation in wall height for the loft over the garage is considered relatively minor and will not significantly impact on views from properties on the opposite side of Angwin Street.
The minor wall height variation is necessitated due to the significant topographic characteristics of the property (ie it significantly steeply slopes away and downwards from Angwin Street).
The [Respondent's] Town Planning Advisory Panel considered that "the loft addition compromises the Angwin Street streetscape."
However there is no consistency of streetscape element along Angwin Street that could be said to be compromised by the proposed garage and loft room, particularly along the west side of the street the side of the proposal.
Being setback 7.791 [metres] from the front boundary the building is considered not to have a detrimental impact on the streetscape, and as the height variations sought are at the rear of this structure, the minor height variation will not have a significantly detrimental impact on streetscape amenity or the appearance of the property.
Mr Warrener noted in a February report for Council that the variations sought by the applicant, such as they were, in respect of LPP 142 were minimal (the loft height 7.4 metres was in fact compliant), and that the then February proposal had 'less of an impact on adjoining properties, and result[ed] in reduced bulk and scale' in comparison to the July 2008 proposal.
To broadly similar effect are the views of Mr Maxwell. He particularly emphasised that, when viewed from Angwin Street, the development would present as 'a single story dwelling with a design and scale sympathetic to the approved house under construction'. He noted that development on the eastern side of the street (that is, away from the river side of the precinct and street) took place on elevated sites with two ‑ three storey dwellings. He also drew attention to the garage at No 21 Angwin Street with its high gabled roof and which is a prominent feature of the streetscape by reason of its apparently nil ('near zero') set back on an elevated part of the street ('the crest of the hill'). Finally, he drew attention to the retained and elevated public footpath, mass limestone fence and dense vegetation, in effect, already restricting the views from No 20 Angwin Street. As is mentioned above, he also calculated that there would be little real impact on views or related amenity as regards No 20.
The combined views of Mr Warrener and Mr Maxwell are to the effect that any variations sought are marginal, that the proposal meets any performance‑based assessment required and that the proposal is otherwise not inconsistent with any objective of the planning framework.
Mr Hockley disagrees. He fairly makes a number of concessions where the proposal is compliant or substantially compliant with the planning framework (that is, where the variation sought could be seen as relatively minor), but he is quick to point out that the proposal would present as a 'double storey structure on the eastern portion of the [subject land]' when, apart from No 21, the 'majority of the properties are constructed at a single level height when viewed from the street front'. Mr Hockley has also conducted a detailed assessment against the relevant performance criteria of the RCodes, LPS 42 and the relevant objectives of TPS 3 and his opinion, in summary, is that the proposal is inconsistent with both the existing streetscape (both generally and at specific points) and reasonable goals as regards height, bulk, scale and appearance.
As to the garage at No 21, Mr Hockley describes it as 'anomalous and nonconforming', and that, in any event, the loft will appear as the 'second highest built element' next to the garage.
Discussion of the issues
The first issue is the extent to which, if at all, the mediated outcome of 2006 (expressed in the Tribunal's consent orders) controls the outcome in this review.
There has been no argument presented here to the effect that 'the doctrines of res judicata or issue estoppel meant that the Tribunal had already considered the matter [in 2006] and could not do so again'; or that the application should be dismissed 'on the basis that [it is] frivolous and vexatious': cf Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385; [2008] AATA 558 at [1]; or that '[i]t would be unjust … to have to face a situation where a decision may be made today and re‑litigated tomorrow on the very same facts': see Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526.
In my opinion the previous outcome does not, as a matter of law, control the outcome of this review, except insofar as the development approved in 2006 became a 'fact' which, in combination with the built form and height of other developments, contributes to the judgment to be made as to streetscape, setting and related matters. This 'fact' assists with, for example, consideration of the issue of 'the relationship of [any] proposal to development on adjoining land or on other land in the locality including … the likely effect of the height, bulk, scale, orientation and appearance of the proposal': TPS 3, cl 10.2(p).
I accept that the compromise agreed to by the respondent does represent the local government's expression of community standards, at least as at 2006, of what was considered to be a reasonable and acceptable form of residential development, as regards the form of and heights for the site. However, that position is only a starting point; it does not mandate refusal of a further development application. In this regard, the reasons offered by the Town for refusal may be said to be inapposite.
Thus, this development application must be assessed analogously as would, say, a retrospective application; that is, 'the only considerations relevant … are planning considerations': see Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36 at [181]. And those 'planning considerations' must be the material currently available to the Tribunal concerning the merits of the proposal.
I turn to my conclusions on the merits of the proposal.
Having carefully considered the opinions of the experts, and having studied the various plans and the threedimensional sketches and the many colour photographs provided by the parties, I have concluded that, apart from the partial disruption to Mr Nolan's groundfloor views across the harbour, in truth the additional development for the site will be relatively marginal in both effect and presentation. This is so, having particular regard to the topography, and the current and proposed state of development for the site and its immediate surrounds. I accept the combined evidence of Mr Warrener and Mr Maxwell to this effect.
In reaching this conclusion I have been particularly influenced by the following factors or matters.
First, although the three adjoining sites, No 23, No 25 and No 27, have (or will have) considerable development on them, this situation is ameliorated by 'reduced' development in the large rear setback areas (that is, at the eastern side of the properties) and by the steep falling away of the balance of the site towards the river.
Secondly, previous decisions of the respondent have contributed towards the current state of the streetscape. Although the prominent garage at No 21 may be regarded as anomalous, it does contribute, with other development, to an impression of a lack of consistency as regards the streetscape element.
The view at various points along the street is already compromised by existing and approved development. Planning law and practice is concerned with preserving views to the extent that that could be said to be a 'reasonable' position. In APP Corporation Pty Ltd and City of Perth [2008] WASAT 291, the Tribunal cited with approval the following 'four‑step assessment in relation to view sharing in a case where the planning framework required development to allow for the reasonable sharing of views'. The author was Senior Commissioner Roseth of the New South Wales Land and Environment Court writing in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, at [26] [29]:
The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
Applying this analysis to the facts in this case, I would rate the loss of these important views as minor to moderate. Here, skilful design is evident (for example, the deployment of a skillion roof) and there is substantial compliance with the planning framework. In these circumstances, the loss of views can therefore be considered as 'acceptable'.
In short, the proposed development will have a degree of prominence but it will not be so prominent as to warrant refusal. The application for review will be allowed and planning approval given for the loft structure.
Orders
For the reasons given above, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision under review is set aside and the respondent is directed to issue an instrument of planning approval under the Town of East Fremantle Town Planning Scheme No 3, with effect from the date of these orders, approving the development based upon the applicant's amended plans dated 27 February 2009 upon conditions not inconsistent with those recommended to Council by Mr C Warrener, Town Planner, on 17 February 2009.
3.Liberty to apply is reserved for 21 days.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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