PRODEVELOP PTY LTD and CITY OF NEDLANDS
[2010] WASAT 84
•15 JUNE 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PRODEVELOP PTY LTD and CITY OF NEDLANDS [2010] WASAT 84
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 25 MAY 2010 - FURTHER EVIDENCE FILED ON 4 JUNE 2010
DELIVERED : 15 JUNE 2010
FILE NO/S: DR 496 of 2009
BETWEEN: PRODEVELOP PTY LTD
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning Development application - Single house - Building setbacks - Boundary walls - Extensive southern boundary walls - Detailed Area Plan within local planning scheme - Detailed Area Plan states 'Zero lot lines are permitted on the southern boundary of each allotment as shown' - Depiction of building envelope on Detailed Area Plan extends to southern boundary of site in location of proposed southern elevation of house - Whether, on proper interpretation of local planning scheme, building setbacks and boundary walls must conform to Residential Design Codes of Western Australia (2008) - Overshadowing - Visual impact - Bulk and scale
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 5.1, cl 5.1(a), cl 5.2.3, cl 5.3.10, cl 5.5.1, cl 6.5.1, Amendment No 148
Planning and Development Act 2005 (WA), s 87(4)
Residential Design Codes of Western Australia (2008), cl 6.3, cl 6.3.2 A2, cl 6.3.2 A2 iv, cl 6.9, cl 6.9.1, cl 6.9.1 A1, cl 6.9 P1
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr S Fairfoul (Representative)
Respondent: Mr C Slarke
Solicitors:
Applicant: Greg Rowe & Associates (Town Planners)
Respondent: McLeods
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned a development application for a two storey single house on a newly subdivided lot in a part of Dalkeith that had been recoded from R10 to R20. The locality was subject to a Detailed Area Plan that formed part of the local planning scheme. The Detailed Area Plan showed a designated subdivision pattern splitting each original property into two narrow allotments oriented eastwest. The Detailed Area Plan stated that '[z]ero lot lines are permitted on the southern boundary of each allotment as shown'. It also stated that '[a] 2 metre setback applies to the northern boundary of each allotment as shown'. The Detailed Area Plan showed a building envelope on the lot in question abutting its southern boundary.
The proposed house included extensive single storey boundary walls along the southern boundary with lengths of 7.32 metres and 27.73 metres, separated by a 4.1 metre gap with a wall setback of 1.2 metres. The second level setbacks on the southern elevation were 1.2 metres for a length of 10.7 metres, 2.2 metres for a length of 5.87 metres and 1.2 metres for a length of 9 metres. An essentially identical house was approved on the adjoining property to the north (the northern half of the original block) by officers of the City of Nedlands acting under delegation. However, as the owners of the adjoining property to the south objected to the proposed development, the application which is the subject of this proceeding was referred for determination by the elected Council. The Council refused to grant consent to the application because of bulk, overshadowing and loss of amenity.
The Tribunal held that, on its proper interpretation, the local planning scheme does not require building setbacks and boundary walls on the southern elevation of the proposed house to conform to the boundary setback requirements (Design Element 6.3) of the Residential Design Codes of Western Australia (2008). Rather, the Detailed Area Plan relevantly varies Design Element 6.3 of the Residential Design Codes of Western Australia to enable boundary walls to be located abutting the southern boundary within the building envelope on the Detailed Area Plan.
The Tribunal also determined that the siting and building form proposed in the development application is reasonably contemplated by, and responsive to, the applicable planning framework and, in particular, the Detailed Area Plan. The degree of overshadowing that would result and the visual impact in terms of bulk and scale on the adjoining property to the south (both as presently configured and once subdivided in accordance with the designated subdivision pattern in the Detailed Area Plan) is also reasonably anticipated by the planning framework. While the impacts on the adjoining property to the south may well be unacceptable in other R20 coded areas, they are acceptable in amenity terms when viewed in the planning context that regulates development of the site.
Furthermore, the evidence showed that the proposed house involves appropriate development of the site, notwithstanding the overshadowing and visual impacts that would be caused by the approved house on the adjoining property to the north. Similarly, the adjoining property to the south, once subdivided, will be capable of reasonable development, notwithstanding the overshadowing and visual impacts caused by the proposed development.
The Tribunal therefore determined that the proposed development warrants conditional development approval.
Introduction
This proceeding was initially commenced by Prodevelop Pty Ltd (Prodevelop) as an application for review of the deemed refusal of a development application for consent to the erection of a two storey single house at No 8B Alexander Road, Dalkeith (site). Following the commencement of the proceeding, the State Administrative Tribunal (Tribunal) invited the City of Nedlands (City or Council) to reconsider its deemed refusal under s 31 of the State Administrative Tribunal Act 2004 (WA). Although the City's professional staff recommended that the Council should grant conditional development approval for the proposed development, the Council resolved at its meeting on 30 March 2010 to refuse development approval for the following reasons:
1.bulk;
2.overshadowing; and
3.loss of amenity.
Background
The site and surrounding properties are zoned Residential under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme). Prior to Amendment No 148 to TPS 2, the site and surrounding properties were subject to a residential density coding of R10. Amendment No 148, which was gazetted on 15 February 2005, changed the residential density coding applicable to No 29 Philip Road, located on the northwestern corner of the intersection of Alexander Road and Philip Road, and No 4, No 6, No 8 and No 10 Alexander Road, located on the eastern side of Alexander Road between Philip Road to the north and Waratah Avenue to the south, to R20. Amendment No 148 also changed the residential density coding applicable to the properties at No 3, No 3A, No 5, No 7, No 9 and Lot 251 Alexander Road, located on the western side of Alexander Road, to R25.
Amendment No 148 inserted cl 5.3.10 into the Scheme as follows:
Notwithstanding the requirements under [clause] 5.3.1 and [clause] 5.3.3 the land identified under Appendix V of the Scheme shall be developed in accordance with the Residential Design Codes and or variations as indicated in Residential Design Guidelines and Detail[ed] Area Plan for Rochdale Road, James Road, Knutsford Street/North Street and Alexander Road localities;
Recognising that the Western Australian Planning Commission determines subdivision applications, in order to protect the menity of the area the City would only support 'Townhouse' and 'corner lot' subdivision forms, unless otherwise provided for in the Residential Design Guidelines for a specified locality under Appendix V.
Finally, Amendment No 148 inserted Residential Design Guidelines (Guidelines) and a Detailed Area Plan (DAP) for the Alexander Road Locality and for the other localities referred to in cl 5.3.10 of TPS 2 into the Scheme text as Appendix V. The Alexander Road Locality, as depicted on the DAP, includes the properties that were recoded by Amendment No 148 referred to earlier as well as the properties located at the southwestern and southeastern corners of the intersection of Alexander Road and Philip Road.
The DAP contains both text and a plan of the Alexander Road Locality. The plan shows a 'designated subdivision pattern' splitting each property into two. The designated subdivision pattern for all of the properties on the western side of Alexander Road and for all of the properties, other than the property at the corner of Alexander Road and Philip Road, on the eastern side of Alexander Road, involves the creation of long and, by the standards of the surrounding locality, relatively narrow allotments, each with a frontage of approximately 10 metres to Alexander Road. It appears that, to date, four or possibly five of the 12 properties originally comprising the Alexander Road Locality have been subdivided in accordance with the designated subdivision pattern in the DAP. The subdivided properties include No 8 Alexander Road. The site comprises the southern half of No 8 Alexander Road and has a width of approximately 10 metres, a length of approximately 50 metres and an area of approximately 506 square metres.
The Council has granted development approval for the erection of houses on newly subdivided lots at No 3A, No 4A, No 4B and No 8A Alexander Road. The approved houses have been constructed at No 3A, No 4A and No 4B Alexander Road. It appears that the building at No 3 Alexander Road comprises the northern half of the house that occupied No 3 Alexander Road before it was subdivided into No 3 and No 3A Alexander Road.
The building for which development approval has been granted at No 8A Alexander Road has not yet been constructed. No 8A Alexander Road is the northern half of the original block and adjoins the northern boundary of the site. The approved building at No 8A Alexander Road is a two storey single house that is essentially identical to the building that is proposed for the site. The development application in respect of No 8A Alexander Road was approved by Council's officers under delegation. It appears that the officers were authorised to approve that development application because there was no objection received by the City in relation to it. In contrast, the City received a number of objections to the proposed development from Mr and Mrs Franetovich, who own and reside at No 10 Alexander Road, which adjoins the site to the south. Mrs Franetovich has lived at No 10 Alexander Road for her whole life. Mr and Mrs Franetovich intend to subdivide their property in accordance with the designated subdivision pattern in the DAP.
Mr and Mrs Franetovich applied to the Tribunal for leave to make a submission in relation to the application under s 242 of the Planning and Development Act 2005 (WA) (PD Act). However, they withdrew this application on the basis that the City's case embraced their concerns and their objections formed part of the City's documentary evidence. The Tribunal viewed Mr and Mrs Franetovich's property, accompanied by them and the parties' representatives and town planning witnesses.
Issues for determination
The aspects of the proposed development that led to its refusal by the Council and are the subject of dispute between the parties are extensive single storey boundary walls proposed to abut the common boundary with No 10 Alexander Road and the building setbacks proposed on the same (southern) elevation at the second level. There are two boundary walls proposed. The first, being the southern wall of the garage, has a length of 7.32 metres and a height of 3.3 metres. The second boundary wall, which is separated from the first by a 4.1 metre gap with a wall set back 1.2 metres from the southern boundary, has a length of 27.73 metres and a height of 3.3 metres. The proposed building setbacks at the second level on the southern elevation are, from west to east, 1.2 metres for a length of 10.7 metres, 2.2 metres for a length of 5.87 metres, and 1.2 metres for a length of 9 metres.
The following four issues arise for determination in this review:
1)Whether, on the proper interpretation of TPS 2, the building setbacks and boundary walls on the southern elevation of the proposed house must conform to Design Element 6.3 Boundary setback requirements (Design Element 6.3) of the Residential Design Codes of Western Australia (2008) (Codes).
2)If the answer to issue 1 is 'yes', whether the southern building setbacks and boundary walls conform to Design Element 6.3 of the Codes.
3)Whether the overshadowing of No 10 Alexander Road and of No 10A Alexander Road (following subdivision of No 10 Alexander Road in accordance with the designated subdivision pattern in the DAP) is acceptable.
4)Whether the visual impact of the proposed development on No 10 Alexander Road and on No 10A Alexander Road (following subdivision of No 10 Alexander Road in accordance with the designated subdivision pattern in the DAP) is acceptable in terms of bulk and scale.
The Tribunal will consider these issues in turn. However, because the answer to the first issue is 'no', issue 2 does not arise and is, therefore, not addressed.
Do the building setbacks and boundary walls on the southern elevation need to conform to Design Element 6.3 of the Codes?
As noted earlier, cl 5.3.10 of the Scheme states, in part, as follows:
Notwithstanding the requirements under [clause] 5.3.1 and [clause] 5.3.3 the land identified under Appendix V of the Scheme shall be developed in accordance with the [Codes] and or variations as indicated in Residential Design Guidelines and Detail[ed] Area Plan for … [the] Alexander Road [Locality]; (emphasis in bold added)
Clause 5.1 of TPS 2 states, in part, as follows:
Subject to the provisions of the Scheme, a person shall not commence or carry out the development of any land
(a)within a residential zone, except in accordance with the provisions of the [Codes]; (emphasis in bold added)
Clause 5.2.3 of TPS 2 states as follows:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those codes. (emphasis in bold added)
The DAP text states, in part, as follows:
DETAILED AREA PLAN PROVISIONS AND RCODE VARIATIONS
The provisions of the [Scheme] and the [Codes] apply unless otherwise varied below:
1.Setbacks shall be as per the [Codes] unless otherwise specified below or on the plan;
…
4.Zero lot lines are permitted on the southern boundary of each allotment as shown;
5.A 2 metre setback applies to the northern boundary of each allotment as shown;
…
6.A 2 storey height limit applies to all development in accordance with [TPS 2];
…
8.Neighbour consultation is mandatory for any boundary wall proposals in accordance with the requirements of [TPS 2];
…
(emphasis in bold added)
The plan depicts a 'building envelope' on each lot created by the designated subdivision pattern. The building envelope depicted on each lot on both the eastern and western sides of Alexander Road, other than the property at the southeastern corner of the intersection of Alexander Road and Philip Road, extends to the southern boundary of the relevant lot, except for a 6 metre front setback and a designated rear setback (either 6 metres or, in the case of properties contemplated to take vehicular access from a rear lane or potential lane, 1.5 metres).
Mr Craig Slarke, counsel for the City, contended that, on the proper interpretation of the Scheme, Design Element 6.3 of the Codes continues to apply with respect to southern boundary setbacks in the Alexander Road Locality. While Mr Slarke conceded that there is an acknowledgement that zero lot lines (boundary or parapet walls) will be appropriate and permitted on the southern side boundaries of the relevant lots within the locality, he submitted that this acknowledgement is subject to the proviso that there is to be conformity with the Codes.
Mr Slarke advanced essentially five arguments in support of this contention. First, Mr Slarke submitted that, when one takes into account the history leading to Amendment No 148, and in particular, the Residential Design Guidelines Final Report in relation to the Alexander Road Subprecinct prepared for the City by Allerding Burgess dated March 2003 (Report), it is clear that 'it was always intended' that the Scheme would require conformity with the Codes with respect to southern boundary walls and setbacks. Secondly, Mr Slarke referred to the 'obvious detrimental effect' that long and high southern boundary walls would have on each adjoining property to the south. Thirdly, Mr Slarke submitted that the City's contention is supported by the mandatory consultation provision in paragraph 8 of the DAP text. He suggested that, having regard to the requirement for mandatory neighbour consultation for any boundary wall proposals, it would be 'illogical if the effect of the DAP were to permit zero lot lines along the southern boundary effectively as of right'. Fourthly, Mr Slarke submitted that it would be inconsistent with the planning purpose of the requirement to retain a solar setback on the northern side of each lot under paragraph 5 of the DAP text for there not to have to be conformity with Design Element 6.3 of the Codes. Finally, Mr Slarke observed that, when the Council adopted Amendment No 148 for final approval in October 2004, it apparently did not have the Guidelines or the DAP before it.
In contrast, Mr Sean Fairfoul, who appeared as agent on behalf of Prodevelop, contended that, on the proper interpretation of the Scheme, paragraph 4 of the DAP text and the plan are a variation to the boundary setback requirements in Design Element 6.3 of the Codes. Mr Fairfoul observed that cl 6.3.2 A2 iv of the Codes recognises that walls may be built up to a boundary 'where a detailed area plan applies to the land'.
Mr Fairfoul acknowledged that developments in the Alexander Road Locality are subject to other provisions of the Codes that may indirectly regulate the location and height of southern walls. In particular, Mr Fairfoul accepted that development is subject to Design Element 6.9 Design for climate requirements of the Codes. He recognised that the application of cl 6.9.1 (entitled 'Solar access for adjoining sites') of the Codes may limit the extent to which boundary walls can reasonably be accommodated on a site and may require additional building setbacks in order to achieve the objective of Design Element 6.9, namely, 'to optimise comfortable living and facilitate sustainable development' on the adjoining lot.
The Tribunal considers that, on its proper interpretation, TPS 2 does not require building setbacks and boundary walls on the southern elevation of the proposed house to conform to Design Element 6.3 of the Codes. Rather, the DAP relevantly varies Design Element 6.3 of the Codes to enable boundary walls to be located abutting the southern boundary within the building envelope shown in respect of a lot on the DAP plan.
Clause 5.1(a) and cl 5.2.3 of TPS 2 each contemplate that the general requirement for conformity with provisions of the Codes can be varied by other provisions of the Scheme. Clause 5.3.10 of TPS 2 requires development in the Alexander Road Locality to be in accordance with the Codes 'and or variations as indicated in' the DAP. The text of the DAP, in its introductory part and in paragraph 1, also specifically indicates that the requirement for conformity with the Codes, and in particular with its setback requirements, applies 'unless otherwise specified below or on the plan'. Viewed in this legislative context, paragraph 4 of the text of the DAP is a variation to Design Element 6.3 of the Codes and allows zero lot lines on the southern boundary of lots where the building envelope on the plan extends to the southern boundary.
Mr Slarke submitted that the words 'as shown' in paragraph 4 of the DAP text were added in order to reflect the distinction between townhouse lots (including the site) and corner lots. While that may be correct, even absent the words 'as shown' in paragraph 4 of the text, when the remaining words in paragraph 4 are read in the context of the plan and the other provisions of the Scheme referred to earlier, the interpretation that paragraph 4 of the DAP varies Design Element 6.3 of the Codes is inescapable. The 'legislative intention by reference to the language of the instrument viewed as a whole' (to quote Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320) is clearly to vary Design Element 6.3 of the Codes in the Alexander Road Locality and to enable boundary walls along the southern boundary of lots within the building envelope depicted on the plan in the DAP. As observed by Mr Fairfoul, this approach is anticipated by cl 6.3.2 A2 iv of the Codes.
As the Western Australian Court of Appeal recognised in Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [24], '[c]ontext, in the wide sense to include legal and historical background, is relevant to the interpretation of legislation, including delegated legislation'. However, the historical background relied on by the City in support of its argument that it was always intended that the Scheme would require conformity within the Codes with respect to southern boundary walls and setbacks was well and truly overtaken by events. The Report stated that the Design Guidelines were prepared 'as part of the statutory framework within Council's proposed new Town Planning Scheme' which was to contain 'General Provisions and Zones, under which Local Planning Policies will be applied to each of the broader residential housing precincts'. However, as noted earlier, Amendment No 148 was an amendment to TPS 2, not part of the statutory framework within what was, in March 2003, a proposed town planning scheme. Five years on, the Scheme has still not been replaced by a new local planning scheme. Furthermore, whereas it was contemplated in the Report that Design Guidelines and, if required, Detailed Area Plans, would be prepared under Local Planning Policies, ultimately the DAP was incorporated into the Scheme text itself. Finally, at the time when the Report was presented to and adopted by the Council, the amendments to TPS 2 which were made by Amendment No 148 and, in particular, the DAP, had not yet been formulated.
In relation to Mr Slarke's second argument, it is correct that long and high southern boundary walls located on narrow, east/west oriented blocks will inevitably have detrimental impacts on each adjoining southern property. However, planning law does not preclude a strategic planning authority from varying the Codes so as to contemplate these impacts. Furthermore, the DAP text mitigates these impacts to a degree by requiring a 2 metre setback on the northern boundary of each lot. Finally, development must still conform to Design Element 6.9 of the Codes relating to design for climate requirements and is subject to a general merit assessment under cl 5.5.1 and cl 6.5.1 of the Scheme. Mr Slarke's second argument does not therefore establish the Council's contention as to the proper interpretation of the Scheme.
The mandatory neighbour consultation provision in the DAP for any boundary wall proposal also does not warrant a different interpretation of the Scheme to that set out earlier. Mandatory neighbour consultation is explicable in the context of the DAP that varies Design Element 6.3 of the Codes for two reasons. First, as noted earlier, the DAP does not vary Design Element 6.9 of the Codes or obviate the need for merit assessment under the Scheme. Precisely because, unusually for an R20 coded area, the DAP contemplates southern boundary walls, it is appropriate for neighbours to be consulted in relation to adverse impacts on their amenity by reason of these walls. The consultation may raise issues which may warrant careful consideration in relation to design for climate or on a general merit assessment. Secondly, boundary walls may be proposed on boundaries other than the southern boundary, whereas such walls may not be anticipated by neighbours because of the contemplation of (only) southern boundary walls in the DAP.
In relation to his fourth argument, Mr Slarke relied on the evidence of Ms Amanda Butterworth, a consultant town planner called on behalf of the City. Ms Butterworth expressed the opinion that it 'would be completely inconsistent with the planning purpose of retaining a solar setback on the northern side of the dwellings if the neighbouring property had a long and high wall along a significant part of its southern boundary'. However, the 2 metre northern setback requirement is consistent with the interpretation of the Scheme adopted by the Tribunal. As Mr Jordan Ennis, a consultant town planner who gave evidence on behalf of Prodevelop, explained:
It is my experience that when solar setbacks are imposed within a DAP area more extensive zero lot lines are permitted on the adjacent boundary to compensate for the reduced developable building area consequent of the solar setback. Without zero lot lines the developable area of the [site] would be confined to a width of approximately 6.5 metres reducing the viability of the land and limiting designs to a point that would exceed the necessary requirements to preserve amenity. Given that the lots are of a narrow nature, zero lot lines are appropriate and a common planning outcome.
In relation to Mr Slarke's fifth argument, while it appears that the Council did not have the DAP before it when it adopted Amendment No 148 for final approval in October 2004, the City did not submit that Amendment No 148 was somehow invalid. The DAP forms part of the Scheme text. It has 'full force and effect as if it were enacted' by the PD Act: see s 87(4) of the PD Act.
It follows that, on the proper interpretation of TPS 2, the building setbacks and boundary walls on the southern elevation of the proposed house are not required to conform to Design Element 6.3 of the Codes. Consequently, the question of whether the southern building setbacks and boundary walls conform to Design Element 6.3 of the Codes does not arise.
Is the overshadowing of the adjoining property acceptable?
The Acceptable Development provision in relation to solar access for adjoining sites in cl 6.9.1 A1 of the Codes is, relevantly, that, at midday on 21 June, the shadow cast by a proposed development should not exceed 25% of the site area of the adjoining property. The proposed development casts a shadow over 22.7% of the site area of the adjoining property at No 10 Alexander Road and therefore meets the Acceptable Development provision in terms of the current lot configuration.
However, it appears that both Mr and Mrs Frantenovich's and Ms Butterworth's real concern in relation to overshadowing is in the context of the impact on the northern half of No 10 Alexander Road when it is subdivided in accordance with the designated subdivision pattern in the DAP. In these reasons, this lot will be referred to as No 10A Alexander Road.
Given that Amendment No 148 seeks to facilitate the subdivision of allotments in accordance with the designated subdivision pattern in the DAP and that four or five of the original allotments have already been subdivided in this way, it is appropriate to assess the development application on the assumption that No 10 Alexander Road has been subdivided in accordance with the designated subdivision pattern. The proposed development would overshadow 45.4% of the site area of No 10A Alexander Road. Ms Butterworth considered that the proposed development would have a significant adverse impact on the residential amenity of No 10A Alexander Road because of the degree of overshadowing. She also said that approval of the proposed development would significantly restrict the design of any future dwelling on No 10A Alexander Road and, specifically, the ability to be able to provide for an outdoor living area and major openings to habitable rooms on the ground floor that will not be significantly overshadowed by the development on the site.
Mr Ennis disagreed with Ms Butterworth. Mr Ennis considered that the proposed development does not involve an excessive level of overshadowing and does not unreasonably interfere with residential amenity of No 10A Alexander Road. Mr Ennis gave the following evidence:
Should Lot 383 (No 10) Alexander Road, Dalkeith be subdivided, I am of the view that there will be sufficient space to design a contemporary dwelling that will have unrestricted solar access to major openings to the core living areas. The proposed development is subject to the same amount of overshadowing as the adjoining property to the [site and] will receive direct solar access to the living room, al fresco area, study[,] bedroom 3 and master suite at midday 21 June.
Clause 5.5.1 of TPS 2 states that the Council may refuse to approve any development 'if in its opinion the development would adversely affect the amenity of the surrounding area'. The Tribunal considers that the level of overshadowing that would be caused by the proposed development on the adjoining property at No 10A Alexander Road would be acceptable in terms of amenity for the following reasons.
The siting and building form proposed in the development application is reasonably contemplated by, and responsive to, the applicable planning framework and, in particular, the DAP. Importantly, while extensive boundary walls are proposed (as envisaged by paragraph 4 of the DAP text), the overall wall height of 5.657 metres is not excessive for a two storey building. The degree of overshadowing that would result is therefore also reasonably contemplated. It is not surprising that the percentage of the site area of No 10A Alexander Road that would be overshadowed by the proposed development (45.5%) is similar to the percentage of other southern properties that are or would be (following subdivision in accordance with the designated subdivision pattern in the DAP) overshadowed by the house approved by the Council on the relevant northern lot in the Alexander Road Locality (44% caused by No 3A Alexander Road, 44% caused by No 4A Alexander Road, 42% caused by No 4B Alexander Road and 45% caused by No 8A Alexander Road). While the degree of overshadowing may not be acceptable in a typical R20 area, it is acceptable, having regard to the designated subdivision pattern of long and narrow eastwest oriented lots and the contemplation of zero lot lines permitted on the southern boundary of each lot.
Furthermore, as Mr Ennis explained, the site is subject to a similar level of overshadowing from the approved development at No 8A Alexander Road as would be No 10A Alexander Road from the proposed development on the site. However, by careful, siteresponsive design, the proposed development is able to achieve an acceptable level of solar access, even in midwinter. The only relevant distinction between the site and No 10A Alexander Road is that the likely ground level at No 10A Alexander Road will be 300 millimetres lower than the site, and No 10A Alexander Road would therefore be subject to marginally greater overshadowing from the proposed development than the proposed development would be from the approved development to its north. However, this difference does not have any material impact. The evidence demonstrates that the entry area of the proposed house would receive direct sunlight at midday in midwinter through second level windows and the stairway, and that the principal living areas on the ground floor would receive direct solar access at midday in midwinter, because these areas are generally located adjacent to a single storey component of the approved house at No 8A Alexander Road and are set back appropriately from the common boundary with the property to the north. Furthermore, the rear courtyard area would not be overshadowed at all by the approved development to the north at midday in midwinter. If a similar design were applied to a house at No 10A Alexander Road, the occupants would obtain an acceptable level of solar access.
Furthermore, while the proposed development would not conform to the Acceptable Development provision in cl 6.9.1 A1 of the Codes in relation to No 10A Alexander Road, it would conform to the corresponding Performance Criteria in cl 6.9.1 P1. In particular, the proposed development is designed to protect solar access for No 10A Alexander Road taking into account the potential to overshadow:
•outdoor living areas [which, like the proposed development, can be located at the rear and in the north-eastern part of that property];
•major openings to habitable rooms [which, like the proposed development, can be located adjacent to the single storey component of the proposal and set appropriately back from the common boundary];
•solar collectors [which can be located on the roof]; and
•balconies or verandahs [which, like the proposed development, can be located at the front of the house].
Is the proposed development acceptable in terms of bulk and scale?
Ms Butterworth expressed the opinion that the combined effect of boundary walls and limited setbacks to the upper levels on the southern elevation of the proposed development would result in 'significant bulk and scale to the southern neighbour'. In contrast, Mr Ennis considered that the resultant bulk and scale is acceptable. Mr Ennis stressed that the visual impact is mitigated by the variation of setbacks in the central part of the southern elevation, the modest 25 degree roof pitch proposed and the requirement under the DAP for a 2 metre solar setback in the northern part of the property to the south.
The Tribunal considers that the visual impact of the proposed development in terms of bulk and scale would be acceptable, both in terms of the current configuration of the property to the south and on the assumption that it were subdivided in the manner contemplated in the DAP. As found earlier, the siting and building form proposed is reasonably contemplated by, and responsive to, the applicable planning framework and, in particular, the DAP. While the extent of boundary walls proposed in the development may well be unacceptable in a different planning context, the visual impact is acceptable in the planning context that regulates development of the site. Having regard to the provision that '[z]ero lot lines are permitted on the southern boundary of each allotment', single storey boundary walls of the nature proposed in the application are reasonably anticipated by the planning framework. Moreover, as explained by Mr Ennis, the planning framework mitigates, to a degree, the visual impact of anticipated boundary walls by the 2 metre setback requirement at the northern boundary of each allotment.
Conclusion
On the proper interpretation of TPS 2, the building setbacks and boundary walls on the southern elevation of the proposed development are not required to conform to Design Element 6.3 of the Codes. The siting and building form proposed in the development application is reasonably contemplated by, and responsive to, the applicable planning framework and, in particular, the DAP. The degree of overshadowing that would result and the visual impact in terms of bulk and scale on the adjoining property to the south, both as presently configured and if subdivided in accordance with the designated subdivision pattern in the DAP, is also reasonably anticipated by the planning framework.
The evidence shows that the proposed house involves appropriate development of the site, notwithstanding the overshadowing and visual impacts caused by the approved house on the adjoining property to the north. Similarly, the adjoining property to the south, once subdivided, will be capable of reasonable development, notwithstanding the overshadowing and visual impacts caused by the proposed development.
Consequently, the proposed development warrants conditional approval. The parties agreed on the conditions that should be imposed in the event that the Tribunal determined to grant approval. The agreed conditions should be imposed.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 30 March 2010 to refuse development approval for the erection of a single house at No 8B Alexander Road, Dalkeith is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The development shall be carried out in accordance with the three sheets of plans drawn by M Carbone Design CAD file C./2900DRGS/2909 revision E dated 14 October 2009.
2)All boundary fencing shall be a maximum height of 1.8 metres above the finished ground level.
3)The parapet walls shall be completed with a quality finish and to a professional standard to the satisfaction of the City of Nedlands.
4)The parapet walls and footings shall be constructed wholly within the subject lot.
5)All stormwater from building and paved areas (including driveways) shall be contained onsite by draining to soakwells of adequate capacity to contain runoff from a 10 year recurrent storm event and the capacity of soakwells shall be a minimum of 1 cubic metre for every 80 square metres of paved or roofed surface on the property.
6)A schedule of proposed building materials and finishes shall be lodged with the City of Nedlands for approval prior to a building licence being issued. Any materials or finishes which are reflective or which may have a significant detrimental effect on the amenity of neighbouring property will not be approved. The building must subsequently be constructed in accordance with the approved plan.
7)The existing crossover shall be removed and the verge reinstated with grass or landscaping, in accordance with Council's Verge Development Policy 4.7.
8)Concrete footpaths must be retained across crossovers.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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