PROPERTY PROJECTS WA PTY LTD and TOWN OF BASSENDEAN
[2017] WASAT 37
•27 FEBRUARY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PROPERTY PROJECTS WA PTY LTD and TOWN OF BASSENDEAN [2017] WASAT 37
MEMBER: MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 23 NOVEMBER 2016
DELIVERED : 27 FEBRUARY 2017
FILE NO/S: DR 267 of 2016
BETWEEN: PROPERTY PROJECTS WA PTY LTD
Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Town planning - Development of eight multiple dwellings - Refusal - Split coding - Coded R20/40 under local planning scheme - Local planning scheme requirements for higher density - Local planning policy for energy efficient design - Objectives of policy - Policy checklist - Solar access - Due regard - Preservation of streetscape - Residential design codes design principles for each of streetscape, setbacks, landscaping and vehicular access
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 4, s 252(1)
State Planning Policy 3.1 - Residential Design Codes of Western Australia (2015), cl 5.1.2, cl 5.1.2 C2.1, cl 6
Town of Bassendean Local Planning Scheme No 10, cl 1.6, cl 1.7, cl 4.2.1, cl 5.1.3(e), cl 5.3
Result:
Application for review dismissed
Summary of Tribunal's decision:
Refused was the proposed development of eight grouped dwellings in two blocks of two stories, one at the rear of the site and one at the street frontage. The site had a split residential density coding of R20/40. The development proposed was at a density of R40.
If the density were to be greater than R20, under the provisions of the local planning scheme, it was necessary to find that the development would satisfy certain standards and requirements. In particular, the Tribunal had to have due regard to the provisions of a local planning policy for energy efficient design and to the impact of the development on the streetscape. It was also necessary to weigh the development against relevant design principles in the State Planning Policy 3.1 - Residential Design Codes of Western Australia (2015), which also were, in part, concerned with the impact of the development on the streetscape. The Tribunal considered it necessary to have regard to not only the existing streetscape, but also the desired future built form of the street as expressed in the provisions of the local planning scheme.
The Tribunal found that, on balance and having regard to the aims of the local planning scheme, the development, subject to conditions, could satisfy the purpose of the local planning policy even though four of the dwellings had a southern orientation.
The Tribunal formed the view, however, that because of the reduced street frontage setback of part of the development and the limited amount of soft landscaping in the front setback, the development would have an unacceptable impact on the streetscape intended by the requirements and standards for multiple dwellings under the local planning framework. The Tribunal therefore dismissed the application for review.
Category: B
Representation:
Counsel:
Applicant: Mr J Algeri (Acting as Agent)
Respondent: Mr P Wittkuhn
Solicitors:
Applicant: Altus Planning & Appeals
Respondent: McLeods
Case(s) referred to in decision(s):
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Clive Elliot Jennings and Co Pty Ltd v WAPC (2002) 122 LGERA 433
Hardy and Town of Bassendean [2015] WASAT 27
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application by Property Projects WA Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Town of Bassendean to grant planning approval for the development of eight multiple dwellings at 42 Walter Road East, Bassendean (site).
Site and locality
The site has an area of 1012m2 with frontage of 20.24 metres to Walter Road East at the southern boundary and a depth of 50.29 metres. The site is situated in a residential section of Walter Road East which is currently mostly single dwellings with some multiple dwelling developments on the southern side of the road.
The Tribunal viewed the site and locality accompanied by the parties and the witnesses.
Proposed development
The application for planning approval was first lodged with the respondent in December 2015. Amended plans were refused by the respondent on 22 August 2016. Following further exchanges between the parties, there was before the Tribunal for approval a set of six plans from SK1B to SK6B dated 12 October 2016.
Proposed is the development of eight multiple dwellings in two separate buildings, referred to as Block A at the street frontage and Block B at the rear of the site. The two buildings would be separated by an area which would contain covered car parking bays along the face of each building with vehicle manoeuvring space between. Adjacent to the western boundary would be the individual storage units for each dwelling. A vehicle and pedestrian access way would run from Walter Road East between Block A and the eastern boundary of the site to the parking area.
Block A would comprise a two bedroom and a single bedroom dwelling on each of the ground and first floors, respectively. Unit 4 at the western end of Block A on the first floor would have a balcony set back 2.5 metres from the road frontage. On the ground floor, below the balcony, would be the private terrace for Unit 2. The main wall of Block A would be set back 5.2 metres from the street boundary. A private terrace for Unit 1 on the ground floor and a balcony for Unit 3 on the first floor would be set back behind the front wall of the building. The balconies and terraces for each of the dwellings in Block A, and the living areas adjacent to them, would all face south towards Walter Road East.
Block B would have two units of two bedrooms each on both the ground floor and first floor. The private open space terraces and balconies and respective adjacent living areas for each of these dwellings would face north.
The development would also include two visitor parking spaces parallel to, and situated between, the front boundary and the front wall of unit 1 of Block A with access from the vehicle accessway adjacent to the eastern boundary of the site.
Planning framework
Walter Road East is an 'other regional road' under the Metropolitan Region Scheme.
The site and neighbouring lots are zoned 'Residential' under the Town of Bassendean Local Planning Scheme No 10 (LPS 10). Multiple dwellings are a 'P' use in the Residential zone, which 'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme'.
The site has a split residential density coding of R20/40. The multiple dwelling' development has been designed to a coding of R40, to provide for a plot ratio of up to 0.6 as per Table 4 of the State Planning Policy 3.1 Residential Design Codes of Western Australia (2015) (R Codes), within which eight multiple dwellings are proposed.
The aims of LPS 10 include, at cl 1.6:
(a)to enhance the lifestyle of residents and provide community and leisure facilities for a range of socio-demographic groups;
(b)to encourage a housing stock that provides for a variety of lifestyle choices for a range of socio economic and age groups;
…
(g)to promote greater use of alternative modes of transport and public transport.
The objectives for the Residential zone are found at cl 4.2.1 of LPS 10, and include:
(c)to recognise the role of Bassendean as a middle metropolitan area that is well placed to contribute meaningfully to sustainable urban development for the Perth Region, and therefore facilitate the planned gradual increase in population growth in a manner that provides net environmental, social and economic benefit;
…
(g)to ensure that subdivision and development comply with the Local Planning Strategy and the principles of any Local Planning Policy adopted by the Council.
LPS 10 at cl 5.3.1.1 states:
Where a Split Density Code is depicted on the Scheme maps, any development shall conform to the lower density code applicable to the lot, unless Council determines that development up to the middle or higher density code is acceptable, having regard for subclause 5.3.1.2.
Clause 5.3.1.2 of LPS 10 states:
Subdivision or development in excess of the lower density coding shall be considered to be acceptable to Council where:-
(a)in the opinion of Council the lot has a road frontage sufficient to allow at least two homes and a shared accessway, where required to service development to the rear;
(b)There is due regard for relevant Local Planning Policies;
(c)Identified heritage objectives are not compromised;
(d)The proposal demonstrates elements of water sensitive urban design; and
(e)The existing streetscape is being preserved.
In respect to local planning policies cl 2.3 of LPS 10 states:
2.3.1If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails.
2.3.2A Local Planning Policy is not part of the Scheme and does not bind the local government in respect of any application for planning approval but the local government is to have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its determination.
The respondent has adopted a series of local planning policies and these include Local Planning Policy No 2 - Energy Efficient Design (LPP 2), which, as stated at cl 3, 'shall be applicable where [sic] to all land where split density codes prevail and the application for the highest density code is being considered by Council'. At cl 2 it states that the purpose of LPP 2 is to:
1.Clearly outline the criteria Council regards as having energy efficient benefits in the design of residential dwellings.
2.To provide a basis to encourage those building Residential Dwellings in Bassendean to design energy efficient building(s).
3.State the design standards Council will have regard to when considering higher densities on land zoned with split density code under its Town Planning Scheme.
LPP 2 at cl 4.1 sets out what are considered the benefits of energy efficient design and list the main features of energy efficient housing as:
•Building orientation
•Internal room layout
•Window placement, sizing and shading
•Use of insulation
•Ventilation
•Draught proofing
•Use of heat absorbing building materials
•Landscaping
•Use of energy efficient appliances.
Different elements within these groupings are explained further in cl 5 of LPP 2 under some 20 subheadings categorised as 'policy provisions'.
LPP 2 at cl 6 includes a procedure for assessing a development. The assessment procedure has a table in which are listed seven 'design elements' which have within them a selection of seven design features from the 'policy provisions' of cl 5 plus a reference to a solar hot water system. Each 'design element' in the table has been allocated credit points. LPP 2 states at cl 6:
In order to qualify for the higher density code a score of 70 out of a possible 100 efficiency points is required to establish an acceptable degree of intrinsic energy efficient housing design.
Directly relevant to the determination of this matter are particular provisions of the R Codes. The applicant quoted the following clauses as important in the consideration of the proposal:
2.1.4All residential development is to comply with the requirements of the R-Codes. Approval under and in accordance with the R-Codes is required if the proposed residential development:
(a)does not satisfy the deemed-to-comply provisions of Parts 5 and/or 6 of the R-Codes as appropriate; or
(b)proposes to address a design principle of Parts 5 and/or 6 of the R-Codes which therefore requires the exercise of judgement by the decision-maker.
…
2.5.1Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s).
2.5.2In making a determination on the suitability of a proposal, the decision-maker shall exercise its judgement, having regard to the following:
(a)any relevant purpose, objectives and provisions of the scheme;
(b)any relevant objectives and provisions of the R-Codes;
(c)a provision of a local planning policy adopted by the decision-maker consistent with and pursuant to the RCodes; and
(d)orderly and proper planning.
The design elements of the R Codes identified as directly relevant to determining the merits of the proposed development are:
Clause 6.1.3 - Street setback;
Clause 6.3.2 - Landscaping; and
Clause 6.3.5 - Vehicular access
These are addressed further below.
The refusal and the issues
In refusing the application, the respondent considered that the requirements of cl 5.3.1.2 of LPS 10 were not sufficiently satisfied to allow development at the higher density code of R40. The respondent also concluded that the development would be noncompliant with the requirements of certain provisions of the R Codes.
The parties agreed that because of amendments, as set out in the plans dated 12 October 2016, items (a), (c) and (d) of cl 5.3.1.2 of LPS 10 were no longer at issue. From the documents filed, the Tribunal has found no reason to disagree with the parties.
In respect of cl 5.3.1.2(b) of LPS 10, the respondent listed some 18 local planning policies it said were not 'triggered' by the development, or were more appropriately the matter for conditions if the proposed development were to be allowed. The Tribunal agrees.
The respondent submitted that the local planning policy significant to determining this matter was LPP 2.
The amended drawings have also resulted in certain clauses within the R Codes, referred to in the reasons for refusal, no longer being an issue.
The issue now before the Tribunal is whether the proposed development is to be allowed having regard to:
1)LPS 10 cl 5.3.1.2(b) (particularly LPP 2) and cl 5.3.1.2(e); and
2)R Code requirements:
•Clause 6.1.3 - Street setback;
•Clause 6.3.2 - Landscaping; and
•Clause 6.3.5 - Vehicular access.
It can be seen from the discussion below that there is some overlap in assessing the proposed development against the relevant provisions of the planning framework.
The applicant called as a witness Mr David Maiorana, and the respondent called Mr Christian Buttle, both experienced town planners.
The applicant asserted, quite correctly, and the respondent agreed, that a policy cannot be inflexibly applied, cannot 'mandate' a particular design and cannot override the provisions of LPS 10. The Tribunal would note, however, that a relevant consideration is why a policy, properly arrived at and adopted, should not be applied: Clive Elliot Jennings and Co Pty Ltd v WAPC (2002) 122 LGERA 433 at [24].
Discussion
LPS 10 cl 5.3.1.2(b)
In respect to LPS 10 cl 5.3.1.2(b), for the higher density to be allowed, the respondent said LPP 2 would need to be satisfied and the applicant said there would have to be due regard to LPP 2.
Mr Buttle said that LPP 2 was focussed on passive solar design for individual dwellings, including in multiple dwelling developments, and associated site planning. Mr Buttle's analysis using the table of the assessment procedure of LPP 2 was that none of the eight proposed multiple dwellings would achieve 70 points. He was of the view, however, that Units 5 to 8 in Block B could achieve a score of 70 with the 'simply achievable' modifications of reducing the depth of the cover of the balconies and enlarging certain windows in the north wall.
In the respondent's submission, the issue in respect to LPP 2 was the lack of solar access to the four units in Block A. Mr Buttle said that all of the dwellings in Block A would have south facing balconies and adjacent living areas and so these areas of the dwellings would get no heat from the sun during winter.
In his opinion the advantages of the proposed design argued by the applicant did not outweigh the absence of the benefit of solar access for the respective occupants of Units 1 to 4. LPP 2 also states at cl 1(c)(ii) that at higher density the policy prevails when inconsistent with the R Codes. The development did not therefore satisfy the requirements of LPP 2 and so the design was not acceptable for development at a density higher than R20.
The applicant said that LPS 10 cl 5.3.2.1(b) required that 'due regard' be had to policy LPP 2. In its submission, this had been done in the design of the dwellings.
The applicant said the site sloped up from the street to the rear boundary with a difference in elevation of about two metres. It was argued that for Block A, it was a better design solution to have the living rooms and associated balconies and terraces of Units 1 to 4 orientated to the south because the view north would be directly into the car parking area and the back wall of Block B, which would be at a higher relative level than Block A. This, it was argued, would be a far less desirable living environment than would be provided by the living areas and private open spaces of the units of Block A having a view out over the street to the vegetation and houses to the south.
In addition, Mr Maiorana said the design of the dwellings included design features from the 'policy provisions' of LPP 2 that resulted in energy efficiency consistent with achieving the purpose of LPP 2, including window size, glazing and location, ventilation, insulation, materials and landscape type.
Mr Algeri said the proposed design of Block A would be consistent with the aims of LPS 10, particularly cl 1.6(b), and with the objectives of the Residential zone, particularly at cl 4.2.1(a) and cl 4.2.1(c). The orientation of the development was also said to be consistent with the objective at cl 6.2.1 P1.1 of the R Codes of having habitable rooms and balconies facing the street to provide casual surveillance of the public domain.
Mr Algeri argued that it was not appropriate to take a check list approach, but that the overall merits of a proposed development should be assessed. In his submission, the living environment for the units of Block A proposed by the applicant was better than the living environment favoured by the respondent.
Clause 5.3.2.1(b) of LPS 10 required the Tribunal to have due regard to LPP 2. In considering how to have 'due regard' to LPP 2, the Tribunal adopted, with respect, the approach of Martino J in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46] where it is stated:
In this case I prefer the phrase 'proper, genuine and realistic consideration' to the phrase 'active and positive consideration' because the words 'positive consideration' might suggest that the Town Planning Scheme created an obligation to reach a decision that was consistent with DCP 5.1. That is not my interpretation of the Town Planning Scheme. The obligation was to give proper, genuine and realistic consideration to DCP 5.1.
The Tribunal was concerned that the emphasis of the respondent on achieving compliance with a minimum score before an increase in the density coding could be considered, in effect elevated the table in LPP 2 to a mandatory requirement. In addition, a policy cannot, with its wording, displace that a policy remains a guide to the interpretation of a local planning scheme, particularly in circumstances where the development is a 'P' use.
This led to the question of whether there are, in this matter, circumstances that warrant setting aside LPP 2.
The Tribunal was of the view that the living environment of ground floor Unit 1 is not enhanced by a southern orientation, as suggested by the applicant. This is because the passive solar advantage would be lost for a living room window that abuts visitor car parking spaces and a terrace and kitchen looking directly on to these parking spaces.
The Tribunal has formed the view, however, after 'proper, genuine and realistic' consideration that a sufficient number of the elements of the 'policy provisions' of cl 5 of LPP 2 have been adequately addressed to support an argument for the layout of Units 2, 3 and 4 of Block A. This is particularly so, with added considerations such as aspect from the dwellings, passive overlooking of the street and articulation of the dwellings as they present to the streetscape.
The Tribunal has concluded that, on balance, noncompliance of the design of Block A with the orientation requirement of LPP 2 is not sufficient to refuse to consider increased density in the development of the site.
LPS 10 cl 5.3.1.2(e)
LPS 10 cl 5.3.1.2 (e) requires 'the existing streetscape being preserved'. Streetscape is not defined in LPS 10, or the R Codes.
As to how to approach this requirement, the Tribunal, also when discussing cl 5.3.1.2 (e), in Hardy and Town of Bassendean [2015] WASAT 27, at [29] and [31] stated:
… The Tribunal considers that 'streetscape' includes both the views along the street and the view experienced at a particular point, both by a pedestrian and a motorist.
…
Mr Algeri argued, and Mr Maiorana did not dispute, that in cl 5.3.1.2(e) 'preserve' did not mean that to preserve the streetscape absolutely nothing must be done to change the site. The Tribunal agrees, because too literal an interpretation of cl 5.3.1.2(e) in isolation would render otiose those provisions of LPS 10 and the Strategy setting out planning objectives for the locality and controls set out in LPS 10 to achieve them. For the planning objectives and controls to serve some useful purpose, the Tribunal considers that the streetscape can be said to be preserved where the streetscape is not harmed by the development proposed.
In this current matter, the streetscape in the immediate vicinity of the site is largely single residential. As Mr Maiorana pointed out it is a mixture of houses at different setbacks, front screening walls, side fences of corner lots and examples of twostorey multiple dwelling development on the opposite side of the street to the east and in neighbouring streets.
The lots in the locality, however, have been coded R20/40 under LPS 10. Orderly and proper planning dictates that the planning aspiration of LPS 10 is ultimately to have residential development along this section of Walter Road East consistent with this split coding, subject to the requirements and standards of LPS 10. The Tribunal has viewed the requirements of LPS 10 cl 5.1.3(e) in this light.
Streetscape is also a consideration in all three R Code provisions identified as directly relevant to the issues in this matter. Consideration of the impact of the proposed development on streetscape is included in the discussion below.
R Codes street setback
The applicant argued that the development would satisfy the deemedtocomply provisions for street setback of the R Codes because the setback of 4.5 metres from the primary street to the front wall of the building would be greater than the 4 metre minimum requirement at Table 4.
The R Codes, at cl 6.1.3 'Street setback' provide as follows:
Deemedtocomply
C3.1Development complies with the minimum setback from the primary and secondary street(s) in accordance with Table 4.
C3.2Balconies located entirely within the property boundary.
Design principles
P3Buildings are set back from street boundaries (primary and secondary) an appropriate distance to ensure they:
•contribute to the desired streetscape;
•provide articulation of the building on the primary and secondary streets;
•allow for minor projections that add interest and reflect the character of the street without impacting on the appearance of bulk over the site;
•are appropriate to its location, respecting the adjoining development and existing streetscape; and
•facilitate the provision of weather protection where appropriate.
In support of its submission the applicant referred to the definition of 'setback' in the R Codes, which states:
Setback
The horizontal distance between a wall at any point and an adjacent lot boundary, measured at right angles (90 degrees) to the boundary.
The applicant then went to the definition of 'wall' in the R Codes, which states:
Wall
The vertical external face of a constructed building comprising solid building material and including enclosures to verandahs and balconies.
The proposed balcony would be 2.5 metres from the front boundary, but the applicant said that, as it would have no 'enclosures', the balcony must be excluded from any consideration of compliance with the front setback. Therefore, it was said, the development could be deemedtocomply.
The applicant said that, alternatively, if the setback across the site were to be averaged, as provided for at cl 5.1.2 C2.1 of the R Codes, it would comply. The balcony was also entirely within the site.
Mr Maiorana further said that, in his opinion, the development would satisfy the design principles of cl 6.1.3 P3 of the R Codes. This was because the development would contribute to achieving the streetscape desired by the R20/40 density coding of the locality under LPS 10.
He said that the design included articulation, provided weather protection and would not contribute to an appearance of bulk. Mr Maiorana was of the opinion that the building would add interest to a streetscape of mixed house styles and ages and a variety of high front boundary walls.
The applicant referred to a balcony with a front setback of 3.5 metres in the grouped dwelling development being built at No 102 - 104 (Lot 446 and Lot 447) First Avenue. This development was part of the view conducted by the Tribunal with the parties. The Tribunal has noted the building design, but also the double width site, adequate front landscaping and location in a different street. It is not accepted that, because of this First Avenue development, the reduced setback proposed can be endorsed as a matter of course. The particulars of the design must be weighed against the context of the proposed development and the relevant planning requirements.
The respondent argued that the building could not be categorised as 'deemedtocomply'. This was because the development, which includes the balcony, would only be set back 2.5 metres which did not satisfy the 4 metre primary street setback requirement of Table 4.
The meaning of development is found, by reference from cl 1.7 of LPS 10, in s 4 of the PD Act, as follows:
development means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building[.]
That is, development is any building or structure on the land. The respondent referred to the definition of 'building' defined in Appendix 1 of the R Codes, which states:
Building
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.
On this definition, the respondent said balconies can be argued to be read into the 'such as' list that includes verandahs and patios. It would follow that balconies are to be considered in the measurement from the street to the 'development'.
The respondent further said the balcony was part of the building and could not be considered within 'minor projections', which are permitted under the design principles. To ignore a balcony in circumstances where an allowance for 'minor projections' might be considered was inconsistent when considering the appearance and impact of each.
R Codes Appendix 1 states:
Minor projection
•In relation to the height of a building: a chimney, vent pipe, aerial or other appurtenance of like scale;
•In relation to a wall: a rainwater pipe, vent pipe, eaves overhang, cornice or other moulding or decorative feature, provided that the projection does not exceed 0.75m measured horizontally.
The respondent said that the balcony added to the apparent bulk and that the development would not reflect the character of the neighbouring buildings or the street. The development did not therefore respect adjoining development and the existing streetscape as required by the Performance Criteria at cl 6.1.3 P3 of the R Codes.
To be in a position to consider the merit of the proposed development the Tribunal has formed the view that it would not be useful to take a literal interpretation of cl 6.1.3 C1 of the R Codes because the language results in a contradiction. The intent of the R Codes cl 6.1 'Context' can be found in the objective which states:
To ensure that development of multiple dwellings occurs with due regard to the existing development context and/or the desired future built form for the locality as set out in the local planning framework.
The Tribunal has therefore looked to a purposive interpretation of cl 6.1.3 of the R Codes to provide meaning. To this end, the Tribunal has formed the view that primary street setback of the proposed development is to be weighed against the design principles at cl 6.1.3 P3. The building, including the balcony within the setback, has therefore been considered.
The existing streetscape is mostly comprised of single dwellings. There has been some redevelopment to multiple dwellings over the road to the east. The Tribunal is of the view that it is important to have regard to the form of development LPS 10 is directed toward, that is, neighbouring lots as potential multiple dwelling sites, developed up to R40, if an acceptable design.
The proposed development would be the first multiple dwelling development on the northern side of Walter Road East in this vicinity. The Tribunal does not consider that the two storey multiple dwelling development on the site being adjacent to single dwellings is a reason for refusing the development. There was no evidence that there would be any untoward overlooking or any overshadowing. It is not unreasonable to assume that if the planning objectives of LPS 10 are achieved over time, the built form of neighbouring lots, and the streetscape, will gradually change and two storey multiple dwellings will become a common feature of the streetscape.
The Tribunal is concerned, however, that the proposed development seeks concessions on setback and, as discussed below, landscaping in the front setback. It must be said, the site has no distinguishing physical features that would of themselves warrant concessions on standards being granted for a development. The proposed development would have a significant impact on the streetscape because it would be among the first of this form of development. The Tribunal considers that averaging street setback as provided at cl 5.1.2 of the R Codes is not available because it relates to development at a density less than R40, whereas the proposal relies on development at R40, so the plot ratio is enlivened as the development standard.
It would appear that the starting point for residential density is R20. If certain design features and development standards are satisfactorily met, then the density can be increased to a maximum of R40. The applicant has applied for further concessions on the standards required to achieve R40. The Tribunal does not accept that there is a sound basis for granting approval for development within the front setback, as proposed. The building as proposed will have, albeit marginally, added relative bulk because it is in part closer to the footpath than the standard, and this in turn has some impact on the existing streetscape and will have that extra influence on the streetscape, if considering the desired future built form as required by the objective at cl 6.1 of the R Codes.
For the reasons above, the Tribunal has formed the view that development at the proposed primary street setback cannot be supported.
R Codes - landscaping
The proposed development would not satisfy the deemed to comply requirement for landscaping at cl 6.3.2 C2 of the R Codes. This is because hard landscaping in the primary street setback of the proposed development at 72% exceeds the requirement of not more than 50% hard surface. The R Codes at cl 6.3.2 P2 state as a design principle:
The space around the building is designed to allow for planting. Landscaping of the site is to be undertaken with appropriate planting, paving and other landscaping that:
•meets the projected needs of the residents;
•enhances security and safety for residents; and
•contributes to the streetscape.
The applicant said the landscaping would provide an adequate level of amenity and green relief to the individuals and couples without children who would be attracted to live in the dwellings proposed. In addition, the applicant would plant on the verge an additional tree and irrigated lawn. Overall, it was said the development would make an appropriate contribution to the streetscape.
The respondent pointed out that in the front setback there would be only approximately 27% soft landscaping. It said that, as a new development, the proposal would 'lower the bar' as to the amount of soft landscaping required to add positively to the streetscape.
The Tribunal agrees that verge treatment might enhance a development, but it does not accept that the verge treatment should be an alternative to providing an appropriate level of soft landscaping within the front setback.
The Tribunal has formed the view that there are no circumstances to warrant the proposed reduction in soft landscaping and this in turn will have an unsatisfactory impact on the streetscape.
R Codes - Vehicular access
There was no dispute that the proposed development did not satisfy the deemed to comply requirements for onsite parking set out at cl 6.3.5 C5.3 of the R Codes. This was because there are car spaces less than 15 metres from the street alignment. The parties referred to the design principles for vehicular access under the R Codes which, at cl 6.3.5 P5, state:
Vehicular access provided so as to minimise the number of crossovers, to be safe in use and not detract from the streetscape.
The respondent considered the access arrangements to be unsatisfactory because vehicles entering the site would be required to wait at the front of Block A, adjacent to the visitor parking spaces, while any vehicle exiting the site from the internal carpark vacated the single width accessway. It was the respondent's submission that the waiting vehicle would also likely block the public footpath while waiting and this, it considered, would be unsafe and have an adverse impact on the streetscape.
The Tribunal has formed the view that it would be acceptable for a vehicle to wait at the front of the building for its turn in the access way. The presence of a space for a vehicle to stand in the front setback of lots in this street is not unusual. If the proposed development were to proceed there would likely be vehicles in the visitor parking bays in any event.
The temporary presence of a vehicle blocking, or partially blocking, the footpath is also considered by the Tribunal to not be unusual in localities such as this where vehicles leaving sites must pause before entering the carriageway, particularly in circumstances where the road carries traffic similar to Walter Road East. The evidence was that sight lines would be adequate and the presence of a vehicle partially blocking the footpath would be temporary. The Tribunal has concluded that in respect to vehicle access, the proposed development is acceptable.
Conclusion
Multiple dwellings are a 'P' use in this R20/40 coded Residential zone. The question was whether the proposed multiple dwelling development at a density of R40 was to be approved. As set out above, the Tribunal formed the view that approval of the proposed development could not be supported.
The Tribunal noted the southern orientation of Block A, but concluded that, on balance, subject to conditions and considering the aims of LPS 10, the development could satisfy the intent of LPP 2.
The development was required to satisfy landscaping and setback standards to warrant an approval at the maximum density of R40. The proposal included, however, development within the front setback and concessions on the standard
sfor soft landscaping within the setback. The Tribunal has concluded that, having regard to desired future built form as required by LPS 10 and the R Codes, the proposed setback to part of the development and the reduction in soft landscaping would not make an acceptable contribution to the streetscape.The Tribunal has determined that the application for review is dismissed.
Order
1.The application for approval of eight grouped dwellings as set out in the plans dated 12 October 2016 is dismissed and the refusal of the Town of Bassendean is upheld.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, SENIOR SESSIONAL MEMBER
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