Purdie and Town of Vincent
[2009] WASAT 72
•23 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PURDIE and TOWN OF VINCENT [2009] WASAT 72
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 25 MARCH 2009
DELIVERED : 23 APRIL 2009
FILE NO/S: DR 505 of 2008
BETWEEN: JANE MARGARET PURDIE
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development Construction of two twostorey residences Impact on the amenity of the locality Impact of the boundary walls on adjoining properties Overshadowing of windows on adjoining property Visual impact of a development appearing to be built walltowall Adjoining driveways on affected properties Streetscape character Recognised streetscape Preserve and enhance the visual character of the adjacent dwellings and streetscape Reflect the housing style of the area Impact on the streetscape Bulk and scale of the proposed residences Impact of the proposed double garages on the streetscape Application of Council Policy Larger lot Infill development favoured
Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2008), cl 6.3.2
Town of Vincent Town Planning Scheme No 1, cl 6, cl 6(3)(a), cl 18, cl 19, cl 20(5), cl 38(5), cl 40, cl 47
Result:
The application for review is allowed, and the decision of the respondent to refuse development approval is set aside and a decision is substituted that development approval is granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr M Hotchkin
Respondent: Mr SJ Bain
Solicitors:
Applicant: Hotchkin Hanly
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Stefanovich and City Of South Perth [2007] WASAT 270
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 14 August 2008, the applicant lodged an application with the Town of Vincent seeking approval for the demolition of an existing residence at No 126 Buxton Street, Mount Hawthorn and the construction of two two‑storey residences on the site.
At its Ordinary Meeting of the Council held on 2 December 2008, the Council resolved to refuse the application for the following reasons:
1)impact on the boundary walls to adjoining neighbours;
2)impact on the streetscape;
3)bulk and scale of the building; and
4)impact of the garage doors on the streetscape.
On 18 December 2008, the applicant lodged an application for review of this decision with the Tribunal.
It was agreed that the two issues under review were:
•whether the proposed development complied with the relevant planning instruments; and
•should any aspects of the development not comply with the relevant planning instruments, whether such non‑compliance impacted adversely on the amenity of the locality.
In addressing the second issue, it was further agreed that there were three matters in contention:
•The boundary walls, and more specifically, any impacts of the proposed southern boundary walls on the property to the south at No 122 Buxton Street.
•The impacts of the development generally on the streetscape of Buxton Street.
•The impact of the two proposed double garages on the streetscape of Buxton Street.
While the Tribunal recognised that boundary walls would form part of the considerations of the matters to be assessed in terms of streetscape, on the narrower criterion of the impact of the southern boundary walls on the adjoining property at No 122 Buxton Street, the Tribunal found that these walls were not considered to have an unacceptable impact.
In regard to streetscape impacts, the Tribunal found that the 7.5 metre setback of the side boundary walls from the front boundary, the setback of the two upper storeys from both side boundaries, and the articulation of the street elevation ensured that the proposed dwellings did not compromise the streetscape of Buxton Street.
In the Tribunal's view, the garages had been well integrated into an effectively articulated front elevation and the Tribunal therefore found that the relevant performance criterion of Council policy had been acceptably met.
For these reasons, the application for review was allowed, and the decision of the respondent to refuse development approval set aside and a decision substituted that development approval was granted subject to conditions.
Background
On 14 August 2008, Ms Jane Margaret Purdie (applicant) lodged an application with the Town of Vincent (Council or respondent) seeking approval for the demolition of an existing residence at No 126 Buxton Street, Mount Hawthorn and the construction of two two‑storey residences on the site.
The application was duly advertised by the respondent and a total of 10 submissions were received of which three were in support of the proposal and seven objected to the proposal.
On 21 October 2008, the applicant submitted revised plans which lowered the finished floor level of the proposed southern residence to minimise any impacts on the adjacent dwelling to the south at No 122 (Lot 208) Buxton Street, included contrasting projections to further articulate the treatment of both proposed residences, and reduced the width of both proposed driveways.
On 4 November 2008, the revised plans were presented to the Ordinary Meeting of the Council with a staff recommendation that the application be approved subject to a number of conditions. The Council resolved that the matter be deferred for further consideration.
At its Ordinary Meeting of the Council held on 2 December 2008, a further report was submitted. This report responded to a number of issues raised by elected members and recommended conditional approval of the development. The Council resolved at that meeting to refuse the application for the following reasons:
1)impact on the boundary walls to adjoining neighbours;
2)impact on the streetscape;
3)bulk and scale of the building; and
4)impact of the garage doors on the streetscape.
On 18 December 2008, the applicant lodged an application for review of this decision with the Tribunal. At a directions hearing on the 16 January 2009, the respondent was invited by the Tribunal to reconsider its decision. On 27 January 2009, the respondent resolved to reaffirm its decision of 2 December 2008 to refuse the application.
Site and subject land
The subject land is located at No 126 (Lot 1 on Deposited Plan 12694) Buxton Street, Mount Hawthorn (site or subject land). The lot comprises an area of 736 square metres, with a frontage of 18.29 metres, located on the eastern side of Buxton Street approximately 150 metres south of Scarborough Beach Road. In the area of Buxton Street between Tasman Street in the north and Berrymman Street in the south, the site and the adjacent lot to the north at No 128 Buxton Road are atypical larger lots; all the other lots in the area comprise 491 square metres.
The existing residence on the site comprises a single‑storey brick and tile residence constructed circa 1949 in the Post‑War Conventional Bungalow style. The structure has a hipped roof which extends over the front verandah. The building is set back between 8 metres and 9 metres from the street boundary, and has a driveway to a garage at the rear along the northern boundary. The respondent has determined that the place has little aesthetic, historic, scientific or social heritage significance.
The residential dwellings located to the immediate north of the site at No 128 Buxton Street and south at No 122 Buxton Street are both single storey; No 128 is of weatherboard construction while No 122 is of brick and tile construction. Both adjoining properties have driveways along their common boundaries with the site. Aged accommodation is located on the subject land to the rear of the site.
Locality
The site falls within the Mount Hawthorn Precinct in a predominantly residential area located between Oxford Street to the east, Brady Street to the west, Scarborough Beach Road to the north, and Anzac Road to the south.
The locality is characterised by a rectangular grid road and subdivision pattern, bisected on an angle by Scarborough Beach Road. Buxton Street is a tree‑lined street extending approximately 1 kilometre from Brittania Road in the south to Scarborough Beach Road in the north. It is characterised by predominantly single‑storey residential development with a limited number of two‑storey developments interspersed. The built form comprises a fairly eclectic mix of housing styles with reasonably consistent front setbacks which, in a number of instances, are impacted by carports constructed within the front setbacks.
The locality is starting to undergo a transition with a number of more recent redevelopments both within the street block and the broader area. The majority of these new developments comprise double-storey residential developments.
Statutory and policy provisions
The subject land is zoned 'Residential R30' under the provisions of Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) and falls within the Mount Hawthorn P1 Precinct and the Menzies Locality.
Clause 6 of TPS 1 sets out the objectives and intentions of the Scheme, and subclause (3)(a) establishes the following general objectives:
to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
Clause 18 of TPS 1 delineates the source of development requirements and states that:
Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential Planning Codes.
Clause 19 of TPS 1 requires that unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia (2008) (Codes) is to conform to the provisions of those Codes, while cl 20(5) of TPS 1 states that the Council will consider variations to Codes where it considers that acceptable levels of residential amenity can be achieved.
Clause 38(5) of TPS 1 sets out matters to which the Council shall have regard in determining an application, and includes the following:
…
(b)any relevant planning policy;
…
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Clause 40 of TPS 1 sets out the requirements necessary for the Council to grant approval to a non-complying application. These include advertising, the requirement for an absolute majority in taking the decision, and a requirement that the development would be consistent with the orderly and proper planning of the locality and the conservation of the amenities of the locality; and would not have any undue adverse effect on the property in, or the inhabitants of, the locality.
Clause 47 of TPS 1 provides powers for the Council to make planning policies, which relate to an aspect or aspects of development control or any other matter relevant to this Scheme.
The relevant Council policies are Policy No 3.1.1 Mount Hawthorn Precinct Policy, Policy No 3.3.1 Menzies ‑ Locality Plan 1 Policy Statement and Policy No 3.2.1 Residential Design Elements Policy (policy). The latter, which was adopted by the Council on 18 December 2007, sets out in some detail the provisions for both Streetscape and Building Design Elements, and establishes acceptable development criteria and performance criteria for various elements.
Issues for determination
In the hearing, it was agreed between the parties that the two issues under review were:
•whether the proposed development complies with the relevant planning instruments; and
•should any aspects of the development not comply with the relevant planning instruments, whether such non‑compliance impacted adversely on the amenity of the locality.
In addressing the second issue, it was further agreed that there were three matters in contention:
•the boundary walls, and more specifically, any impacts of the proposed southern boundary walls on the property to the south at No 122 Buxton Street;
•the impacts of the development generally on the streetscape of Buxton Street; and
•the impact of the two proposed double garages on the streetscape of Buxton Street.
The Tribunal shall deal with each of these matters in turn.
The impacts of the southern boundary walls on the property to the south
It was agreed between the parties that the provisions of cl 6.3.2 of the Codes applied to the proposed development, and that in proposing boundary walls on both the northern and southern boundary the application did not comply with provision A2iii of cl 6.3.2. Accordingly the application does not comply with the Acceptable Development Criteria (SADC 11) of the policy.
Thus the application requires to be evaluated against the performance criteria set out in the respondent's policy.
The respondent raised two issues in regard to the impacts of the southern boundary walls.
The first related to the potential impact of the walls on two windows on the property to the south. However, under cross‑examination, Mr Bain, expert witness for the respondent, accepted that the two highlight windows on the northern wall of the adjoining property would not be overshadowed by the southern boundary walls.
The second issue was the visual impact of a development appearing to be built wall-to-wall and boundary-to-boundary. Mr Bain argued this condition was not typical of either the street or the precinct. He did accept that the subject site was zoned 'R30' and constituted a larger lot under the provisions of Policy No 3.3.1 Menzies ‑ Locality Plan 1 Policy Statement. However, in accepting the strategic objective of encouraging infill in Menzies, he submitted that the proposed development, in being built wall‑to‑wall/boundary‑to‑boundary, did not respond to the established character of the locality or match the pattern of development of the area.
Under cross‑examination, the attention of Mr Bain was drawn to the residence at No 101 Buxton Street, which Ms Richards, expert witness called by the applicant, gave evidence was being constructed boundary‑to‑boundary following an approval by the respondent under delegated authority. Mr Bain advised he had been unable to identify precisely where the boundaries were at No 101 Buxton Street and had not viewed the plans of this development. He was not, therefore, able to comment on this particular development.
In her witness statement, Ms Richards provided an assessment of the southern boundary wall against the performance criteria set out in SPC 11 of the respondent's policy. In her view, the walls satisfied the performance criteria for the following reasons:
(a)the walls are limited in height to single storey;
(b)the walls are located behind the street setback line;
(c)the walls occupy significantly less than the permitted two‑thirds of the length of the lot and are 'broken up' by courtyards;
(d)the walls adjoin driveways on both affected properties;
(e)the walls comply with the acceptable development provisions of Element 6.9.1 'Solar Access for Adjoining Sites' of the Codes; and
(f)the walls are consistent with other existing developments in Buxton Street, such as No 87, No 89 and No 118, which have been constructed to the boundary on more than one side.
While the Tribunal recognises that boundary walls form part of the considerations of matters which impact on streetscape, and will be assessed in that context below, on the narrower criterion of the acceptability of the impact of the southern boundary walls on the adjoining property at No 122 Buxton Street, the Tribunal prefers the evidence of Ms Richards, and the views expressed by Council officers in assessing this matter, over the views of the expert witness for the respondent.
The Tribunal is also of the view that the current review can be distinguished from Stefanovich and City Of South Perth [2007] WASAT 270, where the respondent had in place a comprehensive and detailed local planning policy which addresses boundary walls: 'Residential Boundary Walls' (T:376).
The Tribunal therefore finds that these walls are not considered to have an unacceptable impact on the amenity of the property to the south.
The impacts of the development generally on the streetscape of Buxton Street
The respondent's policy, in addressing streetscape, establishes specific criteria to be applied in the case of a 'recognized streetscape'. It was, however, agreed between the expert witnesses that Buxton Street does not constitute a 'recognised streetscape'.
It was further accepted by both of the expert witnesses that the proposed development did not meet the acceptable development criteria of the policy, and therefore required to be assessed against the performance criteria set out under SPC 1 'Streetscape Character. These provisions read as follows:
(i)The prominent characteristic of the streetscape is to be identified and considered as part of the design process.
(ii)Development is to both preserve and enhance the visual character of the adjacent dwellings and streetscape by considering:
•architectural design elements;
•building bulk and scale;
•building setbacks;
•building design;
•relationship between the private and public domain;
•landscape themes; and
•fencing styles.
In regard to building design, the performance criterion reads as follows:
(i)Development is to avoid compromising the streetscape
…
Mr Bain essentially argued that the proposed development did not reflect the housing style of the area, in that the building setbacks were not typical in terms of both side and front setbacks; that is, the development was proposed to be built wall‑to‑wall/boundary‑to‑boundary and projects further forward than adjoining dwellings and other dwellings in the street.
Mr Bain also raised concerns over the extent of space in the front setback areas taken up by driveways/brick paving, and argued the landscaping area was deficient, that there were issues with bulk and scale, and that the proposal did not respect the existing character of the locality and streetscape.
Ms Richards argued the proposed development preserves and enhances the visual character of the adjacent dwellings and streetscape for the following reasons:
(a)The Amended Application incorporates architectural and building design elements which are evident in the street including pitching roofing, balconies, windows facing the street, rendered brickwork, and eaves;
(b)The Amended Application incorporates vehicle storage areas that are setback from the street and integrated into the development thereby improving the visual appearance of the development from Buxton Street;
(c)The proposed dwellings, whilst taller than those immediately to the north and south of the Review site, are comparable to other residential dwellings on Buxton Street including No's 8, 89 and 118, thereby ensuring the development does not visually dominate the streetscape;
(d)The Amended Application complies with the overshadowing requirements under Clause 6.9.1 of the R‑Codes;
(e)The Amended Application does not necessitate removal of the existing street tree thereby ensuring the street (presume "tree" was intended) lined appearance of the street is maintained; (Bracket added)
(f)The bulk of the proposed dwellings is reduced by the upper floors being setback from the front, side and rear boundaries further than the ground floors, the inclusion of balconies on the upper floor above the garages, and the articulation of the facade;
(g)The Amended Application responds to the front setback of residential dwellings in the street which varies from between 2‑3 metres at No 132 Buxton Street up to approximately 8 metres at No 120 and [No] 122 Buxton Street achieving a front setback of between 4.8 metres and 7.5 metres;
(h)The proposed dwellings do not maintain the same side setbacks as the dwellings to the immediate north and south of the Review Site due to the location of the associated driveways, however are consistent with the setbacks of other existing developments in the street including No's 87, 89 and 118 Buxton Street;
(i)The Amended Application addressed the relationship between the public and private domain in a similar manner to adjoining and nearby dwellings through the use of windows and balconies at the street frontage; and
(j)Areas suitable for landscaping to be provided within the front setback area.
The evidence provided by Ms Richards clearly suggests that the applicant has 'considered' the matters identified for consideration in Council policy. The issue is therefore whether the outcomes of those considerations will 'avoid compromising the streetscape'.
In assessing this criterion, the substantive issues are those raised by the respondent, namely, front setbacks, side setbacks and bulk and scale.
The atypical size of the subject site and its potential for two dwellings, the fact that the two proposed dwellings establish narrower frontages than existing residences on the remainder of the street, and the fact that the new dwellings will be double storey, all generate streetscape impacts. However, these impacts need to be read not only in the context of all the relevant planning instruments, but also in terms of the obvious transition taking place in Buxton Street, and previous Council decisions in the locality.
The proposed dwellings will have a general front setback of 7.5 metres while the front verandah of the residences on the adjoining property at No 122 Buxton Street has a setback of 7.8 metres, and the setback of the residence at No 128 Buxton Street is similar. However, the porch to the proposed southern residence projects into this general setback area by approximately 2.65 metres over a length of approximately 3.6 metres. These reduced setbacks are not incompatible with the immediately adjoining properties on either side of the subject site, and are more substantive than the setbacks of the recently constructed residences in the locality at No 132 and No 118 Buxton Street.
It has already been established that the walls on the southern boundary are not considered to have an unacceptable impact on the amenity of the property to the south.
While these walls clearly do have some impact on the streetscape, particularly when viewed obliquely, the 7.5 metre setback from the front boundary will mean that adjoining residences will constrain to some degree the extent of such views. More importantly, the imposition of a side setback requirement would be likely to generate a revised proposal which sought to place carports in the front setback area; the recently built examples of such solutions in Buxton Street suggest this approach would have a far more substantive impact on the streetscape than the current proposal. In addition, Ms Richards gave evidence that precedent for walls on both boundaries in recently constructed dwellings was already evident in the immediate area on sites which were, unlike the subject site, neither atypical nor subject to intensification.
Importantly, the overall impact of the proposed development on the streetscape is mediated by two further factors. The setback of the two upper storeys from both side boundaries substantially diminishes the perceived bulk and scale of the proposed dwellings. In addition, the articulation of the street elevation provided will tend to further mediate the impact of bulk and scale.
Given the zoning of the subject site for two dwellings, the current proposal provides a considered response which has actively addressed the issues associated with impacts of the development on the existing streetscape. In this context, the Tribunal finds that the proposed dwellings do not compromise the streetscape of Buxton Street.
The impact of the double garages on the streetscape of Buxton Street
Council policy at SADC 8 'Setbacks of Garages and Carports' states:
Where vehicular access to car parking, carports and garages are permitted from the street, the following requirements are to be met:
(1)Garages and carports should be integrated into the development, and are to be constructed of compatible materials, colours, scale and roof pitch to the dwelling on the site;
(2)Garages are to be setback a minimum of 500 millimetres behind the line of the front main building line of the dwelling (not open verandah, porch, portico and the like).
At issue between the parties is the question of the required setback from the 'front main building line' and, more specifically, the interpretation of the location of that line in the proposed development.
The expert witness for the respondent argued that the proposed garages project well forward of the front building line of the dwelling and, as such, this criterion is not achieved.
The expert witness called by the applicant argued that the proposed southern residence complies with this provision, while conceding that the northern residence, which was set back behind a portico/open verandah, did not satisfy the relevant provision. However, in acknowledging this fact, Ms Richards noted that under cl 5 of the policy, the Council had discretionary powers to approve a development proposal which did not comply fully with the acceptable development criteria of the policy.
Thus there was agreement between the experts that the proposal should be evaluated against the performance criteria of the policy which reads as follows:
Garages and carports are not to visually dominate the site or the streetscape.
The case put forward by the expert witness for the respondent was based on an interpretation of 'front main building line' which excluded the covered entry space on the proposed southern residence and appeared to be based on the front wall of the upper floor sitting areas. Using this interpretation, it was put that the garages projected well forward of the front main building line (the drawings suggest a distance of approximately 3.5 metres). This led Mr Bain to conclude that the garages will visually dominate the streetscape. In addition, Mr Bain submitted that the width of the garages would exacerbate their impact and that they were located further forward than the predominant pattern of garage setbacks in the street and locality.
In regard to the issue of the width of the proposed garages, Mr Bain, with some reluctance, under cross‑examination conceded that the height of the garages relative to the overall development was a factor to be considered.
Ms Richards argued that the proposed garages do not visually dominate the site or streetscape for the following reasons:
(a)the garages are integrated into the proposed development and will be constructed of the same materials and in the same colours as the remainder of the dwellings;
(b)the garages setback exceeds the requirements of the Codes, being located behind the primary setback line;
(c)the proposed dwellings incorporate balconies at the upper level above the garages;
(d)the façades of the proposed dwelling are articulated; and
(e)garages are set back further than a number of dwellings and carports within the street.
Relevantly, it should be noted that the evidence of Ms Richards was not challenged under cross‑examination.
While not a great deal turns on it, neither the Codes nor Council policy defines 'front main building line', although the wording of cl 6.4.2 of the policy, read in conjunction with the provisions of SADC 5 'Street Setback', would challenge Ms Richards' reliance on the Codes' provisions. With that caveat, in general terms, the Tribunal prefers the evidence provided by Ms Richards to that provided by the respondent's expert witness for the following reasons.
It has been agreed by the parties that two residences on the subject site are, in principle, acceptable. Clearly, double garages on sites which are just over 9 metres wide provide a challenge in terms of the potential impacts on both the site and the streetscape.
The issue is whether, in the context of the overall design, this impact has been adequately managed to ensure the performance criteria of Council policy have been acceptably met. In the Tribunal's view, the garages have been well integrated into an effectively articulated front elevation where the width of the garage on the ground floor has been mediated by both the treatment of the entry arrangements to the residences, and the location and configuration of the upper storey verandahs. In addition, the southern residence technically complies with the policy, and the provision of the (presumably masonry) corner element on the northern residence balcony provides an additional integrative feature.
The Tribunal therefore finds, in relation to the proposed garages, that the relevant performance criterion of Council policy has been acceptably met.
Conclusion
The substantive question in this review was the acceptability of the proposed development in terms of the potential impacts on the streetscape and adjoining properties. While the parties correctly identified the three matters in contention as the boundary walls, the impacts of the development generally, and the two proposed double garages in particular, on the streetscape of Buxton Street, these matters need to be assessed in the broader context of all of the relevant planning instruments.
As counsel for the applicant suggested, there is potentially a tension between a strategic policy objective to 'favour' infill development on larger lots in Menzies and a policy requirement to 'maintain streetscape character'. This is unfortunately likely to result in divergent interpretations of the applicable planning instruments.
In the current context, the larger size (and zoning) of the subject site, and the fact that Buxton Street is clearly undergoing a transition, are highly relevant considerations in setting the framework within which any assessment of impacts is undertaken. In addition, recent decisions by the respondent applying Council policy in the locality will also inevitably have some bearing.
In this context, the Tribunal found that the southern boundary walls on the adjoining property at No 122 Buxton Street were not considered to have an unacceptable impact. In regard to streetscape impacts, the Tribunal found that the 7.5 metre setback of the side boundary walls, the setback of the two upper storeys from both side boundaries, and the articulation of the street elevation ensured that the proposed dwellings did not compromise the streetscape of Buxton Street. Finally, the fact that the garages had been well integrated into an effectively articulated front elevation resulted in a finding that the relevant performance criterion of Council policy had been acceptably met.
For these reasons, the application for review is allowed, and the decision of the respondent to refuse development approval is set aside and a decision is substituted that development approval is granted subject to conditions.
Conditions
The 'Without Prejudice' conditions submitted by the respondent included a condition requiring that 'the proposed garage door shall have a minimum 50 per cent visual permeability'.
The applicant had no objection to the proposed conditions, other than the above condition, to which it objected for the following reasons:
(a)The apparent purpose underpinning the proposed condition is to enhance street surveillance, which was not an issue at the hearing.
(b)The condition is not reasonably necessary for any planning reason, whether it be for street surveillance or for some other amenity reason not disclosed at the hearing.
(c)The condition was not a condition recommended by any planning officer to the Council in its recommendation for approval.
The respondent, however, pressed this condition.
Council policy, in dealing with carports located within the street setback area, requires visual permeability and does not permit roller doors, tilt doors and the like. However, the policy does not establish such constraints on garages where they are integrated into the development. In addition, at the viewing, examples of 'solid' garage doors recently approved by the respondent were evident in the locality at both No 132 and No 118 Buxton Street.
In this context, it would be inappropriate to attach this condition to any approval.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse development approval for the demolition of an existing residence at No 126 (Lot 1 on Deposited Plan 12694) Buxton Street, Mount Hawthorn and the construction of two two‑storey residences is set aside and a decision is substituted that development approval based on drawings by Dale Alcock for Job No. 52941 Lower Floor Plan (amendment 9), Upper Floor Plan (amendment 9) and Elevations (amendment 9) all dated 20 October 2008 is granted subject to the following conditions:
(a)a demolition licence shall be obtained from the Town of Vincent prior to commencement of any demolition works on the site;
(b)an archival documented record of the place(s) including photographs (internal, external and streetscape elevations), floor plans and elevations for the Town of Vincent's Historical Archive Collection shall be submitted and approved prior to the issue of a demolition licence;
(c)all external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, external hot water heaters, air conditioners and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
(d)any new street/front wall, fence and gate within the Buxton Street setback area, including along the side boundaries within these street setback areas, shall comply with the following:
(1)the maximum height being 1.8 metres above the adjacent footpath level;
(2)the maximum height of piers with decorative capping being 2.0 metres above the adjacent footpath level;
(3)the maximum height of the solid portion of the wall being 1.2 metres above the adjacent footpath level, and a minimum of 50% visually permeable above 1.2 metres;
(4)the piers having a maximum width of 355 millimetres and a maximum diameter of 500 millimetres;
(5)the distance between piers should not be less than the height of the piers except where pedestrian gates are proposed; and
(6)the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;
(e)a detailed landscaping plan, including a list of plants and the landscaping of the Buxton Street verge adjacent to the subject property, shall be submitted and approved prior to the issue of a building licence. The landscaping of the verge shall include details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months. The Council encourages landscaping methods which do not rely on reticulation. Where reticulation is not used, the alternative method should be described. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s);
(f)no street verge tree(s) shall be removed unless written approval has been received from the Town of Vincent's Parks Services. Should such an approval be granted, all cost associated with the removal and replacement shall be borne by the applicant/owner(s);
(g)first obtaining the consent of the owners of No 122 and No 128 Buxton Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of boundary (parapet) walls facing No 122 and No 128 Buxton Street in a good and clean condition;
(h)prior to the issue of a building licence, revised plans shall be submitted and approved demonstrating the following:
(1)the northern wall longer than 9 metres of the northern unit, and the southern wall longer than 9 metres of the southern unit, on the upper floor, incorporating appropriate horizontal articulation; and
(2)the northern and southern elevations of the balconies of both units, and the windows to bedroom 2 of the southern unit on the southern elevation, on the upper floor, being screened with a permanent obscure material and be non‑openable to a minimum of 1.6 metres above the finished upper floor level. A permanent obscure material does not include a self‑adhesive material or other material that is easily removed. The whole windows can be top hinged and the obscure portion of the windows openable to a maximum of 20 degrees; OR prior to the issue of a building licence, revised plans shall be submitted and approved demonstrating the subject windows not exceeding 1 square metre in aggregate in the respective subject walls, so that they are not considered to be major openings as defined in the Residential Design Codes of Western Australia (2008). Alternatively, prior to the issue of a building licence, these revised plans are not required if the Town of Vincent receives written consent from the owners of No 122 and No 128 Buxton Street stating no objection to the respective proposed privacy encroachments.
3.The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes of Western Australia (2008) and the Town of Vincent's policies.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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