PURSER and CITY OF NEDLANDS
[2022] WASAT 87
•23 SEPTEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PURSER and CITY OF NEDLANDS [2022] WASAT 87
MEMBER: MS R LAVERY, MEMBER
HEARD: 30 JUNE 2022 AND 1 JULY 2022
DELIVERED : 23 SEPTEMBER 2022
FILE NO/S: DR 262 of 2021
BETWEEN: ANNABELLE PURSER
STEPHEN PURSER
Applicants
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Development application - Single house - Locality in transition from R10 to R60 - Whether proposed development satisfies relevant design principles in relation to lot boundary setbacks - Whether proposed development satisfies relevant design principles in relation to garage width - Whether development is compatible with its setting - Whether proposed development will have unacceptable impact on amenity of adjacent proposed lot
Legislation:
City of Nedlands Local Planning Scheme No 3, cl 16, cl 25(1), cl 26
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1)(a), s 242, s 244, s 257B(3)
Planning Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2)
State Administrative Tribunal Act 2004 (WA), s 31(1), s 83(1)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 1.3.1, cl 1.4, cl 2.4, 2.5, cl 5.1, cl 5.1.3, cl 5.2.2, cl 5.4.2, Table 3
Result:
Application for review allowed
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
| Applicants | : | M J Algeri |
| Respondent | : | Mr C Slarke |
Solicitors:
| Applicants | : | Altus Planning |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 15 July 2021, Anthony and Alison Beamish made application to the City of Nedlands (respondent or Council or City) for development approval to construct a two storey single house (proposed development) at Lot 99 (No 37C) Kinninmont Avenue, Nedlands (subject land or No 37C). The subject land was then sold to Annabelle and Stephen Purser (applicants) with settlement occurring 8 October 2021. The applicants lodged amended plans on 16 November 2021 to seek to address visual privacy concerns that had been raised by the respondent.
Comment was sought from the owners and occupiers of 20 adjacent properties in accordance with the respondent's applicable local planning policy with three objections received, one from an adjoining owner.
The Council considered the amended plans dated 16 November 2021 at is meeting of 23 November 2021 and resolved:
In accordance with Clause 68(2)(c) of the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015, Council resolves to refuse the development application received on 15 July 2021 in accordance with plans date stamped 16 November 2021 for a single house at 37C Kinninmont Avenue, Nedlands, for the following reasons:
1.The proposed development does not meet the design principles of Clause 5.1.3 – Lot Boundary Setbacks of State Planning Policy 7.3 – Residential Design Codes (Volume 1) as the building is not setback from lot boundaries so as to reduce impacts of building bulk on adjoining properties.
2.The proposed development does not meet the design principles of Clause 5.2.2 – Garage Width of State Planning Policy 7.3 – Residential Design Codes (Volume 1) as the streetscape is dominated by the garage door and the visual connectivity between the dwelling and the streetscape is not maintained.
On 13 December 2021 the applicants applied for a review of the respondent's decision of 23 November 2021 to refuse the proposed development. The applicants sought to have the respondent's decision be set aside and the proposed development be approved subject to reasonable conditions.
Following mediation, on 19 January 2022 the Tribunal made orders in accordance with s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) inviting the respondent to reconsider its decision in relation to the proposed development at its meeting of 22 March 2022. The applicants submitted amended plans on 8 February and 15 March 2022.
The Council reconsidered the proposed development at its meeting of 22 March 2022, at which time the motion to approve the proposed development was lost, no subsequent motions were made or resolved by the Council and therefore no further decision was made.
Further modified plans were submitted by the applicants on 5 April 2022 and the parties agree that these are the plans for which approval is now sought. The 5 April 2022 modified plans do not include an obscure glazing strip on the windows adjacent to the stairs facing south, or on the windows from the void facing south, which were included on the 15 March 2022 plans.
Subject land
The subject land, more particularly described as Lot 99 being the whole of the land described on Certificate of Title Volume 4009 Folio 273, is 337m2 in area and is situated approximately 170 metres north of Stirling Highway. The subject land is vacant, relatively flat and is one of three side-by-side, east facing, east-west orientated lots created from the former Lot 247 with Lots 97 and 98 located north of the subject land, all with direct frontage to Kinninmont Avenue. The subject land is 8.52 metres wide and 39.63 metres long.
The subject land abuts a single storey single house at No 39 Kinninmont Avenue (No 39) to the south, newly created Lot 98 (No 37B) Kinninmont Avenue (No 37B) to the north and a single house at No 38 Boronia Avenue to the west.
On 22 April 2022, the owner of No 39 applied to the Western Australian Planning Commission (WAPC) for approval to subdivide the lot such that if approved, the existing single house would be retained on a lot with an area of 730m2, and a new lot with an area of 282m2 and width of 7.14 metres would be created in the northern portion of the existing property to be known as proposed No 39A Kinninmont Avenue (No 39A) for the purpose of this matter.
The respondent has recommended to the WAPC that the subdivision be approved subject to conditions and at the time of the final hearing this subdivision had not been determined.
The owner of No 39 applied to the respondent for development approval for a new single storey dwelling on proposed No 39A on 30 May 2022, however this application has since been withdrawn.
The proposed development
Development approval was sought for a two storey single house facing east onto Kinninmont Avenue with a double width garage and a cantilevered balcony over the garage, facing Kinninmont Avenue. The proposed development comprises a double garage, store, powder room, laundry, open-planned family/meals and kitchen area with an outdoor alfresco and pool on ground level and three bedrooms, two bathrooms and an office on the upper level.
Section 242 Submission - Planning and Development Act 2005 (WA)
On 26 April 2022 Lavan on behalf of the owner of the adjoining property at No 39 submitted a third party request to intervene in this matter pursuant to s 83(1) of the SAT Act. Following submissions, the matter was heard and determined by the Tribunal on 1 June 2022 as follows:
1.The application to intervene is dismissed.
2.The owners of No. 39 Kinninmont Avenue, Nedlands may file a submission outlining the concerns with the development the subject of the proceeding, any such submission is to be filed 7 days prior to the final hearing.
A submission was filed by Lavan on behalf of Ms Fiona Elizabeth Marie Argyle (submitter) on 24 June 2022 pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act). The submission included commentary in relation to an expert report prepared on behalf of the submitter which was appended to the submission.
On 1 July 2022, the Tribunal heard submissions in relation to the inclusion of the expert report and commentary as part of the submission and determined that paragraphs 19-22 of the submission and the expert report would be excluded from consideration in this matter and made an order accordingly, as follows:
1.Paragraphs 19-22 are deleted and Annexure A of the submission filed by Lavan Legal on behalf of Ms Fiona Argyle dated 27 June 2022 is excluded[.]
On 3 August 2022 Lavan on behalf of the submitter made application for judicial review to the Supreme Court of Western Australia of the Tribunal's decision of 1 July 2022. The judicial review was heard on 6 September 2022 and Smith J on 14 September 2022 dismissed the application: Argyle v State Administrative Tribunal [2022] WASC 317. Therefore, the Tribunal's order 1 of the orders dated 1 July 2022 stands and those paragraphs of the submitter's submission do not form part of my consideration in this case.
The substance of the submission on behalf of the submitter is that:
The Submitter contends that she (as the owner of the Proposed Future Lot) will be significantly disadvantaged as the Proposed Development does not satisfy the statutory planning provisions pertaining to the Land the result of which will contribute to:
17.1overshadowing and an acceptable loss of adequate direct sun to the primary outdoor and indoor living areas of the existing dwelling on the Adjoining Land and significant challenges for direct sunlight to be maintained to the Proposed Future Lot;
17.2loss of actual and perceived privacy to the existing dwelling on the Adjoining Land and considerable challenges for an acceptable level of privacy to be achieved on the development of the Proposed Future Lot;
17.3loss of existing amenity enjoyed by the Submitter from the existing dwelling on the Adjoining Lot and a lack of adequate amenity available to future owners of the Proposed Future Lot; and
17.4diminished market value of the Proposed Future Lot owing to limitations and challenges to future development.
The submitter says that 'Relevantly, the impacts set out above are synonymous with the issues foreshadowed by the Respondent in its reasons for refusal dated 23 November 2021'.
The submitter argues that as a result of the proposed development not satisfying the statutory planning provisions, she will be disadvantaged as there will be diminution in the market value of No 39A owing to limitation and challenges to future development.
It is now settled law that, in considering a development application, the possible impacts on property values is not a matter for which due regard is to be given. While historically there may have been some recognition of concerns regarding property value, the then Town Planning Appeal Tribunal ultimately rejected such evidence on the basis that the concerns were 'speculative': Pinder Architects Pty Ltd v City of Stirling[No 1] (1995) 15 SR (WA) 13 at 20. Decisions of this Tribunal in Ienco and City of Armadale [2007] WASAT 56 at [39] and Santelli Architects Pty Ltd v City of Bayswater [2009] WASAT 114 at [19] have also articulated that the impacts on property values as a result of a proposed development are not a relevant planning consideration in the exercise of discretion. A plain reading of cl 67(2) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) further reinforces this point.
Planning framework
The subject land is zoned 'Urban' under the Metropolitan Region Scheme and is land within the Scheme Area as identified in the Scheme Map of the City of Nedlands Local Planning Scheme No. 3 (LPS 3 or Scheme). LPS 3 comprises the Scheme Text, the deemed provisions, the Scheme Map and the supplementary provisions set out in Sch 1 of the Scheme Text. The Scheme is to be read in conjunction with any local planning strategy for the Scheme Area.
Pursuant to s 257B(3) of the PD Act, to the extent of any inconsistency between a deemed provision with another provision of LPS 3, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.
The Scheme Maps of LPS 3 designate the subject land as zoned 'Residential' with a density coding of R60. Residential development is a permitted land use in the 'Residential' zone.
The City of Nedlands Local Planning Strategy (LP Strategy) seeks to ensure there is a transition of built form and density from the high density, mixed-use development proposed for Stirling Highway through to the established streetscapes of low density single dwellings. The LP Strategy map depicts 'Urban Growth Areas' abutting Stirling Highway with a 'First Transition Zone' and a 'Second Transition Zone' then the 'Established Residential Areas' heading north away from Stirling Highway.
The LP Strategy in cl 4.1 of the Explanatory Notes explains that the Urban Growth Areas will contain the most intense development in the City with multiple dwellings, commercial and mixed-use developments. The Transition Zones are for the purpose of creating a buffer between the high intensity Urban Growth Areas and the low intensity established residential areas to 'visually smooth' the built form in terms of height and bulk and assist in mitigating any impacts of incompatible land uses. The LP Strategy also explains that the Transition Zones will contain mostly multiple dwellings and grouped dwelling residential developments and may allow for some small scale non-residential uses. The First and Second Transition Zones roughly, but not exactly, appear to be reflected in the R160 and R60 coded areas of LPS 3.
Clause 16 Table 2 - Zone Objectives of the Scheme specifies the objectives of the Residential zone. The objectives applicable to this case are:
• To provide for a range of housing and a choice of residential densities to meet the needs of the community.
• To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
• To ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.
Clause 25(1) of LPS 3 provides that '[t]he R-Codes, modified as set out in clause 26, are to be read as part of this Scheme.' Clause 26 of LPS 3 does not modify the State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes) in its application to the subject land.
Clause 1.3.1 of the R-Codes sets out the following objectives for residential development:
(a)To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
(b)To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.
(c)To encourage design which considers and respects heritage and local culture.
(d)To facilitate residential development which offers future residents the opportunities for better living choices and affordability.
Pursuant to clause 1.4 of the R-Codes, the R-Codes and associated tables and figures apply to all single houses and all grouped dwellings.
The City adopted Local Planning Policy - Residential Development: Single and Grouped Dwellings (LPP-RD) on 17 December 2019 to provide guidance and supplementary requirements to LPS 3 and the RCodes in relation to single and grouped dwellings within the City. The LPP-RD is to be read in conjunction with the R-Codes and cl 26 of LPS 3. The objectives of the LPP-RD are:
3.1To enhance the amenity and aesthetics of areas within the City.
3.2To provide for residential development that is consistent with established or desired streetscapes.
3.3To reduce the dominance (scale, mass and bulk) of buildings as viewed from the street.
3.4To provide for building heights which are consistent with the character of the area and the topography of the site.
3.5To prevent inappropriate buildings within rear setback areas in order to protect the amenity of surrounding properties and maintain the spacious green character of the City.
Clause 2.4 of the R-Codes, which is entitled 'Judging merit of proposals', states as follows:
Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes Volume 1 and addresses design principle(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
Clause 2.5 of the R-Codes, which is entitled 'Exercise of judgement', states, in part, as follows:
2.5.1
Subject 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 Volume 1.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decisionmaker 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 Volume 1;
(c)a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the R-Codes Volume 1; and
(d)orderly and proper planning.
…
2.5.4
The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the R-Codes Volume 1 and the relevant provisions of the scheme and any relevant local planning policy[.]
The parties agree that the proposed development satisfies all relevant deemed-to-comply requirements of the R-Codes other than the following clauses that require consideration under the design principles:
•cl 5.1.3 - Lot boundary setback; and
•cl 5.2.2 - Garage width.
It is therefore common ground that the Tribunal is required to exercise judgment to determine the proposed development having regard to the objectives and consideration of the design principles of the RCodes, including the objectives of cl 5.1 Context:
(a) To ensure residential development meets community expectations regarding appearance, use and density.
(b) To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.
(c) To ensure adequate provision of direct sunlight and ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.
(d) To ensure open space (private and communal) is provided on site that:
•is landscaped to enhance streetscapes;
•complements nearby buildings; and
•provides privacy, direct sunlight and recreational opportunities.
(e) To ensure that design and development is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing transition, development achieves the desired future character identified in local planning framework.
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The relevant matters in cl 67(2) of the deemed provisions to which the Tribunal is to have due regard in determining this application are as follows:
• the aims and provisions of LPS 3 (subclause (a));
• the requirements of orderly and proper planning (subclause (b));
• any approved State planning policy (subclause (c));
• the compatibility of the development with its setting, including
i)the compatibility of the proposed development with the desired future character of its setting; and
ii)the relationship of the proposed development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposed development (subclause (m));
• the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•any submissions received on the application (subclause (y)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
Further to clause 67(2)(c), the Tribunal, pursuant to s 241(1)(a) of the PD Act is required to have due regard to any State planning policy that may affect the subject matter of an application for review. In addition to the R-Codes which is a State planning policy to be read as part of the Scheme, the parties agree that State Planning Policy 7.0 - Design of the Built Environment (SPP 7) is a policy that falls within the scope of s 241(1)(a) of the PD Act.
Issues
The parties identified the following issues that arise for determination:
1)Does the proposed development demonstrate compliance with the R-Codes Design Principle for cl 5.1.3 Lot boundary setback?
2)Does the proposed development demonstrate compliance with the R-Codes Design Principle for cl 5.2.2 Garage width?
3)Is the proposed development compatible with its setting?
4)Will the proposed development have an unacceptable impact on the amenity of the proposed future lot on the northern portion of No 39?
Whether the proposed development demonstrates compliance with cl 5.1.3 of the RCodes
Table 3 of the R-Codes provides for a deemed-to-comply minimum side setbacks. The parties agree that the proposed development proposes the following lot boundary setbacks which do not meet the deemedtocomply standards and are to be considered under the relevant design principles for cl 5.1.3 P1:
•On the upper floor, the deemed-to-comply setback from the southern lot boundary to the stairs to balcony wall is 2.2m, whereas 1.3m is proposed;
•On the upper floor, the entire southern elevation can be articulated as per Figure Series 4 of the R-Codes. After the articulation of the stairs to balcony and bed 3 to void wall, the remainder of the entire wall requires a 3.3m setback to the southern lot boundary to be deemed to comply, whereas 2.4m is proposed; and
•On the upper floor, the entire northern elevation can be articulated as per Figure Series 4 of the R-Codes. After the articulation of the dressing room to balcony and bed 2 wall, the remainder of the entire wall requires a 2.8m setback to the northern lot boundary to be deemed to comply, whereas 1.8m is proposed.[1]
[1] Respondent's Amended Statement of Issues Facts and Contentions (SIFC) dated 13 June 2022 para 31.
The design principle for cl 5.1.3 Lot boundary setback of the RCodes is:
5.1.3Lot boundary setback
P3.1 Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:
•reduce impacts of building bulk on adjoining properties;
•provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
•minimise the extent of overlooking and resultant loss of privacy on adjoining properties.[2]
[2] R-Codes cl 5.1.3 P3.1, page 19.
The respondent contends that the setbacks to the southern and northern lot boundaries do not achieve the design principles of cl 5.1.3 P3.1. This is because the setback in each case does not reduce the impact of building bulk on the respective adjoining properties but rather the combination of the height and length of the building with the reduced lot boundary setback 'results in the development appearing bulky and out of scale'.[3]
[3] Respondent's Amended SIFC dated 13 June 2022 para 33.
The respondent further says that the walls, both of which are more than 31 metres in length and equate to approximately 79% of the boundary length, do not reduce the impact of building bulk in any material way, that the degree of articulation is modest at best and that the proposed single house will be perceived from adjoining neighbours as bulky due to its height, length, form and proximity to the boundary.
The applicants contend that this is not the case. They say that building bulk is the impact of the three dimensional space occupied by the proposed development considering horizontal and vertical elements and as the proposed development is compliant with height, overshadowing and open space requirements. The applicants contends that the setbacks do not exacerbate building bulk, rather that varying setbacks and materials resulting from the articulation of the northern and southern elevations create interest and relief not likely to be found in a compliant elevation without articulation which may be perceived as having greater bulk.
Mr Ryan Munyard a town planning consultant and witness for the applicants contends that there are aspects of the ground floor that assist in reducing building bulk impacts to No 39 including:
i) Wall articulation is provided, and this occurs to the front garage portion. This reduces the dominance of the garage portion as viewed from No. 39.
ii) Extensive use of glazing (including floor-to-ceiling portions) is proposed. The glazing is distributed more-or-less evenly along the length of the ground floor, which minimises blank wall façades to No. 39.
iii) The use of varied materials and finishes, including proposed Colorbond cladding to the garage and contrasting render colours also reduces large blank building surfaces to No. 39.
iv) The steel-column arbour structure and associated covered porch enhance recognition of the dwelling entrance and provide an architectural feature to the southern side of the proposed dwelling.[4]
[4] Witness Statement of Mr Ryan Munyard dated and signed 21 June 2022 para 49.
The applicants also assert that the arbour to the front door was provided in lieu of having the front door facing the street for the purpose of reducing the impact on No 39 by not proposing a nil setback boundary wall to the southern boundary.
Mr Munyard says in his witness statement that the upper floor provides measures to reduce the impact of building bulk as follows:
i)Articulation is provided at three (3) distinct portions along the southern elevation, being the front balcony, adjoining the staircase and adjoining the hallway/corridor (i.e. abutting the office and bedroom 2). With respect to the latter, this articulated portion is located centrally within the elevation, where the building mass is at its greatest and effectively separates the overall elevation into two distinct 'halves'. This results in the southern elevation presenting as a series of smaller independent wall sections, rather than one continuous solid portion.
ii)There is a substantial amount of glazing provided along the upper floor and, like the ground floor, is more-or-less distributed equally amongst the various wall sections. “Full height” windows are also included.
iii)Different finishes are proposed, comprising rendered brickwork, face brick as well as composite timber balustrade 'hit-and-miss' battens to the front balcony. Based on my experience, the use of varied finishes/materials, particularly when used in conjunction with other measures such as glazing and wall articulation, reduces building bulk by removing the appearance of long, solid wall sections.
iv)The presence of the street-facing front balcony (the side of which is visible from No. 39) provides an architectural feature that adds a point of interest to the overall elevation so that it is not comprised solely of wall sections of the main building.[5]
[5] Witness Statement of Mr Ryan Munyard dated and signed 21 June 2022 para 50.
Mr Munyard also says that the concealed skillion roof design removes visible building volume normally associated with a roof structure. In evidence Mr Munyard confirmed that the extent of the setting back of portions of the proposed southern elevation to achieve articulation consisted of a further setback of 0.26 of a metre to 0.85 of a metre.
The setback to the northern boundary with No 37B, which is currently a vacant lot with a development application for a single house having been submitted, also has setbacks that require consideration under this design principle.[6] The modified plans dated 5 April 2022 for the subject land indicate that the northern wall is also articulated with varying setbacks for the ground floor with two boundary wall sections and the setback adjacent to the meals and family areas at 1.78 metres and for the upper floor in four sections of wall setback between 1.2 metres and 1.8 metres. The applicants contend that the articulation of this wall which they say is further articulated than the southern wall, meets the design principle of reducing impact of the bulk on the adjoining property.
[6] Development application for a two storey single house with double garage has been submitted for No 37B; the submitted development plans are provided in tab 4 (pages 25 to 31) of the Respondent's Supplementary s 24 Bundle.
Mr Simon John Bain, a town planning consultant who is currently employed part time by the City as a senior planning officer and witness for the respondent contends that the articulation does 'absolutely nothing' in terms of reducing the building bulk. He says that rather than reducing the impact of the proposed development to the properties to the north and south of the subject land, the combination of the height of the building and the lot boundary setback results in the proposed development appearing bulky and out of scale. Mr Bain says that the 'insubstantial setbacks result in a large building being built on the site' and that this is the reason it appears bulkier to the adjoining properties.[7]
[7] Witness Statement of Mr Simon John Bain dated and signed 20 June 2022 para 93.
Mr Bain says that the predominant pattern in the street is side setbacks ranging from 1.5-20 metres on each side to 5.0 metres on each side. He says that one property being No 39 has side setbacks of 3.5 metres and 9 metres. He says that it is for that reason the proposed development is inconsistent with the streetscape. Mr Bain contends that when viewed from the neighbouring property at No 37B, the articulation is 'insubstantial' and at 0.6 of a metre, it will not be perceived in a way that makes a material difference to the bulk and scale of the building.
Mr Munyard contends that the proposed dwelling of the proposed development allows for the provision of adequate direct sun and ventilation to the subject land and the adjoining properties because the proposed dwelling is orientated with its outdoor living area towards the north-west of the subject land to allow for direct sun and adequate ventilation, and it faces the majority of its habitable rooms on the upper floor and towards the northern boundary. Mr Munyard told the Tribunal that the proposed dwelling will overshadow approximately 279m2 of the approximately 1100m2 lot at No 39, significantly less than the maximum 50% deemed-to-comply provision of cl 5.4.2 C2.1 - Solar access to adjoining sites, allowing for other parts of the subject land to receive direct sunlight.
The submitter says that she will be significantly disadvantaged as the proposed development does not satisfy the statutory planning provisions and will contribute to:
… overshadowing and an acceptable loss of adequate direct sun to the primary outdoor and indoor living areas of the existing dwelling on the Adjoining Land and significant challenges for direct sunlight to be maintained to the Proposed Future Lot.[8]
[8] Submission made on behalf of Fiona Elizabeth Marie Argyle pursuant to s 242 of the PD Act dated 24 June 2022 para 17.1.
The parties agree that the proposed development meets the deemedtocomply provisions for both overshadowing and privacy.
While the submitter contends there is a loss of privacy as a result of the proposed dwelling and its proximity to the boundary, the parties do not dispute that the privacy and overshadowing components meet the deemed-to-comply requirements. The submitter contends also that there is a perceived loss of privacy and while that may be her perception as there is certainly likely to be a change in the environment for the submitter should the proposed development be approved and the dwelling constructed, the window that maybe but is not clarified in the submission as being the source of the concern is adjacent to a void and the only perceived overlooking in that instance appears to come from an internal walkway, not a habitable room, to the north of the void.
The applicants say that there is an expectation that the subdivision of land for development in accordance with the R60 coding creates a reasonable expectation that the subject land will be approved for a single house of the nature proposed. In this regard, the applicants rely on the observations of then Senior Member Parry in Boulter and City of Subiaco [2007] WASAT 71 at [64] (Boulter):
… the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single dwellings of the nature proposed in the development application. The proposed southern house is a reasonable response to the size and orientation of the site and the applicable local zoning and planning controls[.]
Mr Algeri, the applicants' representative, says that 'we are constrained by the pre-existing lot configuration whether the respondent likes it or not'. Mr Munyard contends that an applicant undertaking new development must fairly be given the opportunity to pursue such development under the relevant planning framework, without the essential requirements of the R60 density being diluted in any way.
Senior Member Parry (as he then was) in Boulter also relevantly acknowledges that the approval of subdivision at a State level by the WAPC and development control and assessment generally being undertaken by local governments, may result in some difficulty: at [60]. However, similar to this case, the subdivision has occurred and at [63] he observes that:
It is not open to the Tribunal, in these proceedings, to review the decision to grant the conditional subdivision approval. The subdivision approval subsists and is operative: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197. It must be assumed to be valid unless it is declared invalid by a court of competent jurisdiction: Antonas and Town of Vincent [2006] WASAT 303 at [55].
Senior Member Parry goes on at [65] to say in relation to development of the newly created lots:
… When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
I find that the lot configuration resulting from the subdivision of the parent lots into three side-by-side east-west lots creating a lot of the orientation and configuration of the subject land in this case, does predetermine to a great extent the form and scale of the proposed development on the subject land. Having regard to the subject land's location in its broader locality, it is reasonable to assume that a development application for a reasonably sized dwelling will be progressed which takes account of its size and orientation. This is certainly the case for the subject land. Other Tribunal decisions have also expressed this view: Walsh and Shire of Peppermint Grove [2009] WASAT 46 at [69]; affirmed on a s 244 review: Goyder and Walsh [2009] WASAT 108.
I therefore find that it is to be expected that a single house on a 337m2 lot within the R60 coded Transition Zone is likely to result in a form of development contemplated in the proposed development. The width of the lot at 8.52 metres with the deemed-to-comply setbacks as agreed by the parties would only enable the construction of a 2.4 metre wide dwelling. It is therefore to be expected as in this case, that the constraints of the configuration of the subject land with limited width necessitates consideration of the side setbacks under the design principle to achieve a functional dwelling.
I am persuaded by the applicants' argument that there is adequate articulation of the south and north elevations in terms of both variations of materials and setbacks. The parties did not dispute that there will be adequate direct sun and ventilation to the proposed dwelling and open space on the subject land and to the adjoining properties, or that the proposed development meets the deemed-to-comply provisions of the RCodes.
Given that the subdivision to a great extent predetermines the form of development for the subject land, I am satisfied that the side setbacks of the north and south walls meet the design principle in cl 5.1.3 P3.1 in the circumstances of this case. I am also persuaded that this form of development is a likely form of development for the locality should it continue to be redeveloped for single houses at the R60 coding.
Whether the proposed development demonstrates compliance with cl 5.2.2 of the RCodes
The parties agree that the proposed garage width at 6.28 metres does not meet the deemed-to-comply requirement of a maximum of 50% of the width of the frontage of the lot at the setback line. For an 8.52 metre wide lot, the maximum width (under the deemed-to-comply provisions) is 4.35 metres which may be increased to 60% to 5.22 metres wide, where an upper floor or balcony extends for more than half the width of the garage and its supporting structures and where the entrance to the dwelling is visible from the primary street. Because it does not meet the deemed-to-comply provisions, the garage width is therefore required to be considered under design principle 5.2.2 P2 which says:
Visual connectivity between the dwelling and the streetscape should be maintained and the effect of the garage door on the streetscape should be minimised whereby the streetscape is not dominated by garage doors.
The respondent says that the proposed double garage occupies 74% of the frontage in lieu of the 60% deemed-to-comply requirement, which may be interpreted as its acceptance of the visibility of the entry to the dwelling if not the door, from the street. However, the respondent then goes on to contend that the development does not achieve the design principles in 5.2.2 P2 because:
(a)the dwelling does not have a direct or adequate visual connection to the street due to the location of the front door at the side of the dwelling; and
(b)the garage door impacts on the streetscape because it is out of character with the established pattern of development in the street.[9]
[9] Respondent's Amended SIFC dated 13 June 2022, para 36.
The respondent also argues that the width of the garage door if approved will set a considerable precedent and that if similar width garages are permitted in the street on other properties on narrow lots, the garage doors will come to dominate the street.
Mr Bain told the Tribunal he has undertaken a streetscape analysis and says that if approved, the garage door would set an undesirable precedent as there are no similar examples of garages in the street. He says this is the first of its kind of development in the street and that if the garage is approved there are likely to be multiple opportunities for undistinguishable development in the street that could come to dominate the streetscape over time.
The applicants contend that the plans have been amended for the 5 April 2022 modified plans such that:
i)The original plans proposed a sectional Colorbond garage door and brickwork to the garage surrounds. An updated street elevation of the garage proposes Colorbond cladding to the garage door and its surrounds to minimise the effect of the garage door on the streetscape;
ii)An arbour along the southern elevation will lead pedestrians to the entry of the dwelling;
iii)Landscaping is proposed on both sides of the driveway;
iv) A reduced driveway width is proposed which tapers to a minimum of less than 4 metres;
v) A tree in the south-western corner of the front setback area is proposed which will limit views of the garage from any southern approach on Kinninmont Avenue; and
vi) An upper floor balcony above the garage cantilevers over the garage door line, providing articulation and reducing the visual dominance of the garage door.[10]
[10] Applicants' Amended SIFC dated 14 June 2022 para 30.
The applicants assert that every application should be considered on its merits and that it is speculative to assume that all R60 lots in this streetscape will be developed in a similar way.
Mr Munyard contends that in terms of meeting the design principles, the front facing balcony which is cantilevered 1.245 metres over the garage and set back 4.085-4.088 metres from the street, makes the dwelling feel closer to the street and provides for increased surveillance of the streetscape. He also says that there are two substantial full-sized windows to the master bedroom on the upper storey that face the street and enhance the connectivity between the dwelling and the street.
Mr Munyard accepts that the front door does not face the street. However he asserts that the steel column arbour structure and associated porch to the southern side of the dwelling provides acceptable recognition of the entry to the dwelling.
Mr Munyard opines that during his inspection of the locality he observed that the majority of lots within the streetscape have either a double carport or double garage, with the exception of some of the older dwellings that have a single or carport or did not have a car parking structure. He says that more contemporary dwellings and those with narrower frontages, had double garages located under the main roof of the dwellings.
I accept that this may be a new form of development for the streetscape. However, it is my view that this is also a likely form of development where the original lot is subdivided to provide street frontage for all lots, where there is no alternative vehicular access like a rear rightofway and where those lots are developed for single houses in the R60 coded transition zone for this area. This is also not dissimilar to the proposed lot at No 39A which if created will be even more restricted with its 7.14 metres wide frontage.
I am persuaded by Mr Munyard's arguments that the visual connection between the dwelling and the streetscape is achieved by the cantilevered balcony with permeable balustrading and full height windows to the upper floor. I find that the architectural and material treatment of the garage and supporting structures along with it being set back under the upper floor, minimises the impact of the garage in the streetscape such that the upper floor is the dominant feature in the streetscape and for these reasons, that the garage door does not dominate the streetscape. This is further assisted by the proposed landscaping and the reduction in the width of the crossover.
I am satisfied that the proposed development results in visual connection between the dwelling and the streetscape from the upper floor balcony; that the treatment of the garage door in terms of design and materials along with the cantilevered balcony minimises the impact of the garage, such that the garage is not the dominant feature of the proposed development in the streetscape and that the proposed development therefore meets the design principle in cl 5.2.2 P2 of the RCodes.
I note that the issue of adverse planning precedent is raised by Mr Bain in relation to the garage width. For precedent to be a relevant factor, both tests as set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40;(2005) LGERA 117 at [71]-[75] must be satisfied. In this case for the reasons discussed earlier, approval of the garage is not of itself unobjectionable. Therefore, the question of adverse planning precedent does not arise.
Whether the proposed development is compatible with its setting
For the purposes of considering this matter, the parties have agreed in oral evidence that the locality and streetscape for the purpose of this case is limited to the R60 density code on both sides of Kinninmont Avenue between Stirling Highway and Carrington Street.
Mr Bain contends that the R60 coded land generally but not precisely corresponds with the Second Transition Zone designated by the LP Strategy. He says that cl 5.9.7 of the LP Strategy provides strategies specifically for Nedlands North:
•Retain and enhance the character and streetscape of the existing residential areas outside Urban Growth Areas and Transition Zones.
•Within the Transition Zones adjoining Stirling Highway, ensure the height, scale and bulk of development smoothly integrates back to the established residential character of the area.
•Facilitate medium rise, medium intensity predominantly residential redevelopment within the First Transition Zone.
•Facilitate low rise, diverse residential built form within the Second Transition Zone[.]
Mr Bain informed the Tribunal that he has undertaken a streetscape analysis of the locality and says it currently consists of dwellings that are predominantly single storey with only a small number of two storey additions and two storey dwellings. He contends that the architectural style, position of the houses and the generous open streetscapes with dwellings setback 8.1 to 13.4 metres from the street results in a high amenity value. Mr Bain contends that 'the proposed development is clearly inconsistent with the character of the locality and will have a noticeable adverse impact on the current amenity and streetscape'.[11]
[11] Witness statement of Mr Simon John Bains dated 20 June 2022 para 67.
The respondent asserts that this section of Kinninmont Avenue is an area in transition because of the change in the density coding from R10 to R60 under LPS 3 and it is the City's submission that this transition is likely to be slow and probably incomplete as a result of the standard and nature of the existing dwellings in the street, and also because of the value attached to them due to their location and the amenity of the street.
The respondent contends that the principle of compatibility with the old and new development arises consistently within the planning framework including SPP 7 which provides that consideration of the local context is particularly important for development in established areas that are undergoing change. It says that development should successfully negotiate between the existing built form and the intended future character of the local area and where that desired future character is not articulated in the local planning framework development, it should respond to the existing character of the area. The respondent also contends that the LP Strategy for Nedlands North provides that redevelopment should smoothly integrate back into the established residential area, and that this must mean integration within the R60 density code 'because without an integration or suitable transition within the R60 code, there cannot be a smooth integration between R60 and R10; there will just be a jarring juxtaposition'.
The applicants assert that the development form under the R60 need not be transitional in a way that creates some form of bridging density or transitional form of development and that there is no policy based on which to rely to require this. They say that while the development proposed is at a density different to the R10 that has prevailed until now it is a two storey single house designed with regard to the size and configuration of the 337m2 lot. The applicants contend that 'the aims of the Scheme do not require the locality and existing forms of development to be 'preserved'; to do so would be to ignore or deny the current R60 density code'.[12]
[12] Applicants' Amended SIFC dated 13 June 2022 para 43.
The streetscape for this locality in Kinnimont Avenue is relatively intact however the planning framework envisages change in the 'appearance, use and density' of development in the locality and there is evidence of redevelopment having commenced pursuant to the R60 coding in this Second Transition Zone, at No 28 Kinnimont Avenue (No 28) with four dwellings approved and the approval of the subdivision of No 37 Kinnimont Avenue (No 37) to create the subject land along with No 37A and No 37B Kinninmont Avenue. These are the signs of change and the commencement of the transitioning of the locality to the desired future character. While there was some concern raised by a small number of residents of the locality in terms of the form of the development, the built form, configuration and appearance is consistent with the desired future character of the locality as expressed by the planning framework, and more particularly it is a likely form of development where subdivision to create lots for single houses is contemplated.
As articulated by the Tribunal in Joydem Pty Ptd and City of Nedlands [2022] WASAT 78 at [64]:
It is accepted that not all lots within the Transition Zones will be redeveloped but given the strategic direction, reinforced by the upcoding under the statutory planning framework, the character of the Transition Zones and locality will significantly change in terms of scale and built form[.]
I am not convinced by the respondent's interpretation that there is intent within the LP Strategy for there to be integration within the R60 coded Second Transition Zone and it is my view that the integration referred to is the integration that occurs through the stepping of residential densities from Stirling Highway RAC-1, to R160, R60 and then to the established R10 coded areas that are remaining R10.
There is more than one type of dwelling that may be constructed in the R60 coded area such as a single house, grouped dwelling or multiple dwellings. In a single house configuration, it is likely that the lots will be developed with street frontage but could be of battle-axe configuration. Where narrow frontage single house lots are created there is likely to be a prevalence of double garages at ground floor level.
In regard to Mr Bain's contention that the proposed development is big and bulky and that this may to some extent to be attributed to the roof form, as it is a skillion roof and a concealed roof form to the street instead of a traditional pitched roof, it is noted that the LPP-RD allows for a concealed roof and makes provision for it in the building height provisions and that a similar roof form is evident in the locality at No 29 Kinninmont Avenue.
The built form of the proposed development is within what can be reasonably expected in the locality. It is also likely given the lot size and value of the land that the single houses will be two storey construction, a reasonably sized dwelling for the locality, and that the dominance of the garage can be reduced through the design of the dwelling, with the R-Codes recognition of this in the relevant design principle.
I therefore find that the form of the proposed development is to a great extent predetermined by the lot configuration and that it is compatible with the existing and likely development of the R60 density coded Transition Zone.
Whether the proposed development will have an unacceptable impact on the amenity of the proposed future lot and development on the northern portion of No 39
Parry J in Sapphire Development Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 at [38] sets out the considerations in relation to amenity:
The term 'amenity' is defined in cl 1 of the deemed provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. Planning law in relation to the assessment of amenity impact is well settled. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116, Barker J held at [21] that '[t]he general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed'. In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Town Planning Appeal Tribunal observed at 304 that '[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. However, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker accepted at [20] a submission that this observation in Tempora Pty Ltd v Shire of Kalamunda as to the approach to the assessment of amenity impact was formulated in a case 'which did not raise the issue of future amenity' and held at [22] that it 'does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity'. Furthermore, in Sunbay Developments Pty Ltd and Shire of Kalamunda, Justice Barker held at [21] that 'the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents'. His Honour endorsed the Tribunal's recognition in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] that 'in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity,] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents [of the locality] … [who] are often well-placed to identify the particular qualities and characteristics which contribute to their residential amenity'. Finally, Justice Barker also determined in Sunbay Developments Pty Ltd and Shire of Kalamunda at [28] that it is open in a planning assessment to focus on, and indeed to ultimately refuse to grant development approval for a particular development in the exercise of planning discretion because of, the extent of the amenity impact 'on a part of the locality or on a single property'. His Honour reasoned and held as follows:
Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
As detailed above, the submitter has lodged an application for subdivision with the WAPC for approval of a 282m2 lot with a 7.14 metre frontage on the portion of land within the parent lot for No 39 immediately abutting the southern boundary of the subject land and a 730m2 lot accommodating the existing dwelling with a 1.5 metre setback to the common boundary. The respondent has recommended to the WAPC that the subdivision be approved subject to conditions. At the time of the final hearing in this matter the subdivision had not been approved by the WAPC.
The respondent contends that the proposed development of the subject land will cause substantial overshadowing of the proposed lot at No 39A and any subsequent dwelling, and that this overshadowing combined with the issues raised in relation to the setback to the southern boundary of No 37C will have a major effect on the amenity of the proposed lot at No 39A. The submitter also asserts that there will be significant challenges for direct sunlight to be maintained to No 39A.
Mr Slarke, counsel for the respondent, contends that the overshadowing of No 39A will be far greater than the overshadowing of No 37C by No 37B based on the details for No 37B.[13]
[13] Respondent's Supplementary s 24 Bundle of documents dated 13 June 2022 - Application for development approval of new dwelling on 37B Kinninmont Avenue Received 28 February 2022 tab 4 pages 25-31.
Mr Bain asserts that it is not certain whether the application will be approved or acted upon and that the weight to be given in relation to the proposed lot at No 39A should be reduced accordingly. However, he says the proposed development on the subject land would impact on the proposed lot at No 39A in terms of overshadowing in the event that it is approved, and the approval is acted upon.
The submitter contends that there will be a loss of existing amenity enjoyed by her as a result of the proposed development and that there will be a lack of amenity available to future owners of No 39A.
The applicants, on the other hand, contend that the overshadowing resulting from the proposed development at No 37C over No 39A, should it be approved, is acceptable having regard to the relevant design principles of cl 5.4.2 of the R-Codes. The applicants say that with the R60 density coding of the land and the east-west orientation of the lots, 'the overshadowing produced by the subject development is to be contemplated and is consistent with the amenity of the locality'.
Mr Algeri says that he agrees with Mr Bain that the weight to be given to the proposal for subdivision of No 39 should be 'reduced'.[14] Mr Algeri asserts that a proper assessment under the design principles for overshadowing cannot be undertaken in the absence of knowing the configuration of a future dwelling.
[14] Witness Statement of Mr Simon John Bain dated and signed 20 June 2022 para 105: 'At the time of writing, it is not certain the application will be approved or acted on. As there is an element of uncertainty and speculation involved, I consider that the weight to be given to the proposal for subdivision of on[sic] 39 Kinninmont Ave should be reduced accordingly'.
The R-Codes Explanatory Guidelines relevantly includes the following in relation to solar access for adjoining sites:
…
However, it is difficult to translate these aims into development provisions. This is not because the issues are subjective but because conditions vary greatly from one situation to another, making it difficult to establish universally valid rules. To give an obvious example, a narrow east-west oriented lot on the south side of a development site, especially where the terrain slopes towards the south, is highly vulnerable to being overshadowed, even by a relatively low building set back from the common boundary. [15]
…
It is clear that the sites most vulnerable to overshadowing are narrow east-west oriented sites, on the south side of a development site, especially if they are also lower or on a southfacing slope. In such cases, even a relatively low building may cast mid-winter shadows over a greater proportion of the site than allowed under deemed-to-comply provisions[.] [16]
[15] R-Codes Explanatory Guidelines page 53.
[16] R-Codes Explanatory Guidelines page 54.
I am persuaded by the applicants' arguments that as the orientation of the lots are clearly in an east-west direction and as the location of No 39A is to the south of the subject land, the overshadowing and loss of solar access for No 39A is largely to be expected as a result of any residential development on No 37C. I also find there is little weight to be given to the consideration of the impacts on No 39A, a lot that at the time of the hearing had not been approved by the WAPC, and if approved by the WAPC, may or may not be created and may or may not be developed.
The Tribunal has found previously that there is likely to be an unavoidable impact of overshadowing and loss of solar access for an east-west orientated lot which is south of a proposed development. Likewise, in this case, I find this is likely to be the case for No 39A should it be created and developed.
Conditions
In accordance with the Tribunal's usual practices the respondent has produced 'without prejudice' conditions dated 20 June 2022 and the applicants accept and do not raise any objection to the respondent's 'without prejudice' conditions filed with the Tribunal.
Conclusion
I find that the proposed development application for a single house at No 37C conforms to the requirements of the R-Codes and that the proposed development is acceptable in the exercise of planning discretion having regard to the objectives of the Residential zone under LPS 3 and the matters to be considered under cl 67(2) of the deemed provisions.
The proposed development is a reasonable response having regard to its size, the characteristics of the subject land and its planning context. While I accept that the proposed development will have some impacts on the existing streetscape, I am satisfied that the impacts are reasonable in the circumstances and having regard to the fact that this is now an area which, in planning terms, operates to buffer and transition between the emerging built form on Stirling Highway and the 'Established Residential Areas'. I find the proposed development is consistent with that objective and warrants approval.
The Tribunal therefore considers that the application for review should be allowed and development approval should be granted subject to conditions.
Orders
1.The application for review is allowed.
2.The decision of the respondent made on 3 November 2021 to refuse development approval for a single house on Lot 99 (No 37C) Kinninmont Avenue, Nedlands is set aside and a decision is substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and the City of Nedlands Local Planning Scheme No 3 subject to conditions in Attachment A.
Attachment A - Conditions of approval
1.The development shall at all times comply with the application and the approved plans, subject to any modifications required as a consequence of any condition(s) of this approval.
2.All stormwater from the development, which includes permeable and nonpermeable areas shall be contained onsite.
3.Prior to occupation, landscaping shall be installed and maintained in accordance with the approved plans, including the planting of one (1) tree with a minimum planting area of 2m x 2m. All landscaping shall be maintained for the lifetime of the development thereafter, to the satisfaction of the City.
4.Prior to occupation, the screening to the southern elevation of the balcony as annotated on the approved plans shall be provided in accordance with the Residential Design Codes (Volume 1) by ensuring that the screening structure is at least 75% obscure. The required screening shall be thereafter maintained to the satisfaction of the City of Nedlands.
5.Prior to occupation of the development the external finish of the parapet walls is to be the same standard as the rest of the development in:
(a)Face brick;
(b)Painted render;
(c)Painted brickwork; or
(d)Other clean material as specified on the approved plans
and maintained thereafter to the satisfaction of the City of Nedlands.
6.All building works to be carried out under this development approval are required to be contained within the boundaries of the subject lot.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
23 SEPTEMBER 2022
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