ROMANO and TOWN OF CAMBRIDGE - [2022] WASAT 44

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ROMANO and TOWN OF CAMBRIDGE [2022] WASAT 44
MEMBER:   MS R LAVERY, MEMBER
HEARD:   17 FEBRUARY 2022
DELIVERED          :   18 MAY 2022
FILE NO/S:   DR 198 of 2021
BETWEEN:   NATALIE ROMANO
Applicant
AND
TOWN OF CAMBRIDGE
Respondent

Catchwords:

Town planning - Development application - Building on boundary - Impact on character of streetscape - Compatibility with its setting - Orderly and proper planning - Impact on amenity of adjoining properties

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 3, cl 67(2), cl 67(2)(g), cl 67(2)(m), cl 67(2)(n)
Planning and Development Act 2005 (WA), s 252(1), s 257B
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 5.1.3, cl 5.2.3, Pt 7
Town of Cambridge Local Planning Scheme No 1, cl 7, cl 16, Pt 6, Div 1, cl 37, Sch A, cl 3A, cl 3A(2)

Result:

Application for review allowed
Decision of respondent set aside and a decision substituted

Category: B

Representation:

Counsel:

Applicant	:	In Person (nee Graskoski)
Respondent	:	Joseph Algeri - Altus Planning

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40;(2005) LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Natalie Romano (applicant) made application to the Town of Cambridge (respondent or Council) for development approval to construct alterations and additions to the existing dwelling for a covered alfresco area with boundary wall (proposed development) at No 5 (Lot 1218) Crieff Street, Floreat (subject land).
The Council at its meeting of 24 August 2021 resolved to refuse to grant approval for the proposed development on the subject land as shown on amended plans date stamped received 19 August 2021 for the following reasons:[1]
1.The proposal does not satisfy the objectives of Local Planning Policy 3.2 - Buildings on the Boundary, as the proposed alfresco boundary wall is not considered to be a typical feature of Floreat and is considered to be out of character with the area;
2.The proposal is not consistent with the desired future character of the Floreat Precinct, as described in Local Planning Policy 3.1 - Streetscape, as the alfresco boundary wall does not provide clear separation between buildings; and
3.Having due consideration of sub-clauses 67(b), (g), (m) and (n) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the proposal is not compatible with the surrounding development or the desired future character of its setting. This is not consistent with the orderly and proper planning of the locality or desired future character of the area.
[1] Application for Review and supporting documents dated 21 September 2021 (Exhibit 1).
The formal determination notice was issued by the respondent on 1 September 2021.
The applicant on 21 September 2021, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed with the applicant seeking an order that the respondent's decision be set aside and a decision substituted granting development approval to the proposed development on the subject land.
Although the parties engaged in mediation, the matter proceeded to final hearing for determination by the Tribunal. The Tribunal, the representatives of the parties and the respondent's expert had the benefit of a view of the subject land and adjacent streetscapes.

Subject land

The subject land is more particularly described as Lot 1218 being the whole of the land described on Certificate of Title Volume 1323 Folio 25, is 1133m² in area and is situated on the south-west corner of the intersection of Cromarty Road and Crieff Street, Floreat.[2]
[2] Respondent's s 24 Bundle of Documents dated 3 December 2021 (Exhibit 3), Tab 3.
Existing development on the subject land includes a one storey dwelling with a dual frontage to both Cromarty Road and Crieff Street. There is a vehicular access with double garages and entry doors to both street frontages, with a pedestrian gate to the entry door on Crieff Street. A limestone fence surrounds both street frontages.
The topography of the natural ground level slopes down approximately 2.5 metres from the south-eastern corner at Crieff Street to the northwestern corner at Cromarty Road.

The proposed development

Development approval was sought for alterations and additions to the existing dwelling which comprises a covered alfresco area with an alfresco boundary wall (boundary wall) built up to the southern boundary with retaining walls and fill to the south-western area of the subject land with maximum heights of 0.74 metres - 1.24 metres that have nil setbacks to the south and west boundaries.[3]
[3] Respondent's s 24 Bundle of Documents (Exhibit 3), Tab 3 'Proposed Floor Plan'.
The proposed alfresco area measures 52.86m² in area with the alfresco boundary wall measuring 7.79 metres in length and 3.22 metres in height with approximately 0.086 metre of the top portion of the boundary wall exceeding the height of the boundary fencing to the southern adjoining property at No 3 Crieff Street (adjoining property or No 3).
The original design and orientation of the existing dwelling on the subject land is such that the dwelling is set back from Cromarty Road as the primary street with a 7.0 metre setback and Crieff Street as the secondary street with a 4.5 metre setback.
The proposed boundary wall has a nil setback for its 7.79 metre length commencing approximately 15.6 metres from the Crieff Street road reserve along the 43.55 metre long southern boundary of the subject land. The boundary wall is located behind the rear of the double garage facing Crieff Street on the subject land.
The location of the proposed development is similar to that of the existing patio and verandah which are to be removed as part of the proposed development.

Planning framework

The subject land is zoned 'Urban' in the Metropolitan Region Scheme and is land within the confines of the Scheme Area as identified in the Scheme Map of the Town of Cambridge Local Planning Scheme No 1 (LPS 1 or Scheme), which comprises the Scheme Text, the deemed provisions as set out in Sch 2 - Deemed Provisions for the local planning schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions), the Scheme Map and the supplementary provisions set out in Sch A of the Scheme Text. The Scheme is to be read in conjunction with any local planning strategy for the Scheme Area.[4]
[4] Clause 7 of LPS 1.
Pursuant to s 257B(3) of the PD Act to the extent of any inconsistency between a deemed provision with another provision of LPS 1, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.
The Scheme Maps of LPS 1 designate the subject land as zoned 'Residential' with a density coding of R12.5.
Clause 16 of the Scheme specifies the objectives of the Residential zone. The pertinent objective in this case is bullet point two, which states:
Table 3 - Zone objectives
…
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas[.]
The term 'streetscape' is defined in PART 6 - TERMS REFERRED TO IN SCHEME (Pt 6) as follows:
streetscape
(a)means the total visual impression gained from any one location within a street including the natural and man-made elements; and
(b)is made up of the appearance of the relationship between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.
Clause 3A of SCHEDULE A - SUPPLEMENTAL PROVISIONS TO THE DEEMED PROVISIONS (Sch A) states that '[t]he Scheme Area is divided into the Precincts set out in the Precinct Local Planning Policies'. Clause 3A(2) of Sch A lists the Precincts within the Scheme Area and states that there is a Precinct Local Planning Policy for each Precinct. The Council has adopted Local Planning Policy 2.3 - Precinct P3: Floreat (LPP 2.3), which includes the subject land in the Floreat Precinct (P3).
The proposed development was advertised for a period of 14 days in accordance with the respondent's Local Planning Policy 1.2 – Public Notification of Planning Proposals and no submissions were received during the public consultation period.
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 to in determining this application are as follows:
•the aims and provisions of LPS 1 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning policy for the Scheme area (subclause (g));
•the compatibility of the development with its setting, including -
i)the compatibility of the development with the desired future character of its setting; and
ii)the relationship of the 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 development (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent has adopted the following local planning policies that are relevant to the determination of the proposed development:
•Local Planning Policy 3.1 - Streetscape (LPP 3.1); and
•Local Planning Policy 3.2 - Buildings on the Boundary (LPP 3.2).

Issue

The parties identified the following issue for determination in relation to this matter:
1)whether the proposed alfresco boundary wall built up to the southern boundary at the subject land should be granted development approval, having regard to:
a)the requirements of LPP 3.2;
b)the design principles at cl 5.1.3 of State Planning Policy 7.3 - Residential Design Codes Volume 1 (R-Codes);
c)sub-clauses 67(2)(g), (m) and (n) of the deemed provisions; and
d)whether an undesirable precedent will be set.
As expressed by the parties, the remainder of the proposed development is not in contention and essentially, the issue for determination in this matter is whether discretion should be exercised to permit the alfresco boundary wall to be built on the southern boundary with No 3.
As sub-issues a) and b) as identified by the parties are interrelated, the Tribunal will address these sub-issues together.

Whether the proposed alfresco boundary wall built up to the southern boundary at the subject land should be granted development approval, having regard to:

a) LPP 3.2

and

b) cl 5.1.3 of the R-Codes

LPP 3.2 has been adopted by the respondent pursuant to Pt 7 of the RCodes and is in part a local planning policy for the purpose of replacing the deemed-to-comply provisions set out in cl 5.1.3 C3.2 of the RCodes. LPP 3.2 provides that:
…
i.For properties coded R12.5 in City Beach and R12.5 and R15 in Floreat, there are no deemed to comply requirements for boundary walls (i.e. Boundary walls are not permitted 'as of right').
The parties agreed that as the subject land is located in Floreat and is coded R12.5, the proposed development does not satisfy the deemedtocomply requirement as set out in LPP 3.2 and therefore, the development is to be assessed against the respective design principles for 'Lot boundary setback' as set out at cl 5.1.3 P3.1 and P3.2 of the RCodes.
It is also noted that LPP 3.2 provides some guidance in addressing the design principles, particularly in relation to the fifth bullet point of cl 5.1.3 P3.2 and advocates that in considering whether the proposed boundary wall 'positively contributes to the prevailing of future development context and streetscape as outlined in the local planning framework' regard should be given to the objectives of LPP 3.2 and the desired future character of the area as detailed in LPP 3.1.
The respondent contends that the proposed development does not demonstrate compliance with the following design principles of cl 5.1.3 P3.1 and P3.2 of the R-Codes:
P3.1Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:
•reduce impacts of building bulk on adjoining properties[.]
P3.2Buildings built up to boundaries (other than the street boundary) where this:
…
•does not compromise the design principle contained in clause 5.1.3 P3.1;
•does not have any adverse impact on the amenity of the adjoining property;
…
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.

Building bulk and impact on amenity

The respondent contends that the proposed boundary wall will have an adverse impact on the adjoining property because it introduces additional built form which the respondent submits adds bulk on the boundary, limiting access for No 3 to open separation of built form as described as part of the desired future character for Floreat provided in LPP 3.1.
Mr Benjamin Laycock, a town planning consultant called on behalf of the respondent, submits that the proposed development does not demonstrate compliance with the first bullet point of cl 5.3.1 P3.1 because the boundary wall does not reduce the impact of building bulk on the adjoining property at No 3 but rather it introduces a building on the boundary that would be visible above the fence line and would diminish the existing separation of built form. Mr Laycock does not however consider that there will be an adverse amenity impact on No 3. He accepts there is little impact for No 3 as a result of the minimal portion of the proposed development and the boundary wall that would be visible above the fence, being a 0.086 metre high protrusion above the fence line for 7.79 metres along the fence line.
The applicant submits that the proposed boundary wall does not compromise the design principle of building bulk, because the building bulk is marginal with the 0.086 metre protrusion above the fence line being painted to match the fence and that in satisfying P3.2, the proposal does not need to reduce the impact of building bulk, but rather only needs to ensure that the design principle is not compromised. The applicant contends that the design principle does not require the proposed development to reduce the impact of building bulk as suggested by the respondent but rather submits that the objective of P3.1 and P3.2 of the R-Codes is to 'moderate the visual impact of building bulk on the neighbouring property'.[5] The applicant submits that the visibility of the structure in the landscape is of itself not a proper basis for refusal and that consideration of the reduced setback should have regard to the 'natural ground level, development and orientation of the adjoining property'.[6]
[5] Applicant's Statement of Issues, Facts and Contentions (SIFC) dated 24 December 2021 (Exhibit 4), at para 61.
[6] Applicant's SIFC dated 24 December 2021 (Exhibit 4), para 66.
Mr Tonkin, the owner and resident of the adjoining property, who provided a witness statement for the applicant, considers 'that the applicant's proposal to build up to the common boundary will not affect my amenity or enjoyment of my property'.[7]
[7] Witness Statement of Mr Reece Tonkin signed and dated 6 February 2022 (Exhibit 7), para 6.
Clause 5.1.3 of the R-Codes, requires that in order to demonstrate compliance with design principle P3.2, buildings built up to the boundaries, other than a street boundary, do not compromise the design principles in cl 5.3.1 design principle P3.1 and the only design principle of P3.1 in contention is the first bullet point in regard to the impact of bulk on adjoining properties. Design principle P3.2 also requires that a building built up to the boundary does not having any adverse impact on the amenity of the adjoining property. As conceded by Mr Laycock there is no amenity impact on No 3 as a result of the boundary wall which accords with the evidence of the owner of No 3.
In considering the relevant design principles and the evidence provided, the Tribunal is satisfied that the proposed development demonstrates compliance with the design principles of cl 5.1.3 P3.2 relating to amenity impact on the adjoining property and will not compromise the design principles of cl 5.3.1 P3.1 of the R-Codes in relation to building bulk for the following reasons.
Firstly, the proposed development does not compromise the design principle P3.1 as the limited extent of the protrusion of the alfresco boundary wall above the existing fence results in only a minor increase in building bulk to the adjoining property.
Secondly, the proposed development demonstrates compliance with P3.2 as the minor increase in building bulk will not have an adverse impact on amenity for the adjoining property due to its limited visibility as a result of the proposed location of the boundary wall and topography of the subject land.
Thirdly, it is my view that the 0.086 metre high portion of the boundary wall visible over the existing fence and painted to match the colour of the existing fence, will have a negligible impact in terms of building bulk to the only affected adjoining property, and as such does not compromise the design principles in cl 5.1.3 P3.1.

Streetscape

The respondent contends that the proposed development does not demonstrate compliance with the fifth bullet point of cl 5.2.3 P3.2 in terms of its contribution to the prevailing or future development context and streetscape as outlined in LPP 3.1, as it will not provide clear separation between buildings and lot boundaries and it will reduce the open nature and the desired gardenesque quality of the streetscape.
In order to determine the impact on streetscape the extent of the locality relevant to the proposed development must first be determined.
Mr Laycock contends that the locality is the area bounded by Cromarty Road to the north, Pearson Street to the east, Empire Avenue to the west and Dumfries Road to the south due to its subdivision pattern, although it could extend as far south as Grantham Street which is the next arterial road.[8] He submits that he has not considered the northern side of Cromarty Road within the locality as it is within the City of Stirling, with a higher density coding of R20 and R30 as compared to the locality he has described.
[8] Witness statement of Mr Benjamin Laycock signed and dated 7 February 2022, Attachment BL3.
Mr Laycock submits that within the locality he has described there are both single and two storey dwellings both original and contemporary in design situated on lots ranging from approximately 800m² to 1100m² and that the original dwellings are predominantly of single storey construction and more modest in scale than the generally larger, more contemporary dwellings. Mr Laycock also submits that the locality has a range of setbacks of approximately 7 to 12 metres to the dwellings with some carports and garages being closer to the street. He observes that the setback areas are characterised by substantial areas of soft landscaping, and a number have fences or dense vegetation separating them from the street.

Mr Laycock submits that he observed a number of structures within the locality that are built to side lot boundaries, principally being carports and garages attached to the older dwellings but could not confirm whether these were approved or under which planning framework they may have been approved.
The applicant does not provide evidence defining the locality for the purpose of consideration of streetscape, however submits that there are three existing dwellings that have sole driveway access to and front Crieff Street. The subject land has one of its two driveways and its pedestrian access to Crieff Street and that there are two dwellings at the intersection of Crieff Street and Dumfries Road that both have their driveway access to and front Dumfries Road.
For convenience's sake I will repeat the definition of 'Streetscape' as defined under LPS 1, Pt 6, Div 1, cl 37:
streetscape
(a)means the total visual impression gained from any one location within a street including the natural and man-made elements; and
(b)is made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.[9]
[9] LPS 1, Pt 6, Div 1, cl 37 (Exhibit 3, tab 6).
I find that for the purpose of considering the contribution of the proposed development to the streetscape as required by the fifth bullet point of cl 5.1.3 P3.2 of the R-Codes, that Mr Laycock has included in his locality areas where the proposed development is not visible and in my view the locality is confined to the areas where the development may form part of the streetscape being those lots to the east and west sides of Crieff Street between Cromarty Road and Dumfries Street because as observed at the view, the proposed development would not be visible from or provide any contribution to Cromarty Road or Dumfries Street and is only visible within the streetscape for Crieff Street.
The respondent has adopted LPP 3.1, which seeks to preserve and enhance established streetscapes and create and preserve neighbourhoods that are attractive, safe and offer high amenity for residents and the broader community. LPP 3.1 encompasses a range of matters including housing design and building setbacks amongst others, aimed at collectively contributing to the maintenance and enhancement of streetscape quality and particularly identifies the maintenance of the openness of the streetscape as including the separation between dwellings.
LPP 3.1 identifies the character of Floreat:
Garden Suburb-style streetscape qualities have largely remained a characteristic of development in Floreat - extensive setback of dwellings from the street and the extent of separation between dwellings were features of the original subdivision[.]
LPP 3.1 also identifies the desired future character of Floreat and of particular relevance to this proposed development is the first bullet point:
Development shall be constructed to maintain the traditional street setbacks and clear separation between buildings and lot boundaries, to preserve the original open nature and desired gardenesque quality that the precinct was designed for.
Mr Laycock says the locality is characterised by dwellings set back from the street between approximately 7 to 12 metres with some carports and garages being closer to the street. This was observed at the view with the dwellings on the eastern side of Crieff Street set well back from the street. The two two storey dwellings on the eastern side of Crieff Street have both been set back approximately 1 metre from their common side boundary and have masonry front fences with metal infill panels to the street.
However, the extent of openness on the western side of Crieff Street is impacted by reduced setbacks to the street. The carport to No 3 is predominantly located forward of the dwelling, within the front setback area well forward of the 7 to 12 metre setback described by Mr Laycock and generally in line with the garage on the subject land which accesses Crieff Street, which is more consistent with a secondary street setback like that which has been applied to the subject land. The two dwellings facing Dumfries Street have solid masonry walls to approximately 1.8 metres for their secondary street fences, further impacting on the openness that LPP 3.1 seeks to achieve.
I am of the view the existing streetscape of Crieff Street does not meet the desired future character for Floreat as the traditional street setbacks for the western side of the street have not been maintained, firstly by approving a secondary street setback to Crieff Street rather than a primary street setback for the subject land and secondly by allowing the carport to No 3 to be constructed in the front setback area at a similar setback to the garage for the subject land.
In relation to the proposed development, the respondent contends that having the alfresco boundary wall on the boundary to No 3 has an added impact of providing inadequate separation between lots and is therefore inconsistent with the Residential R12.5 development pattern for Floreat. The respondent submits that the pattern of development tends to provide relief or open space between dwellings and that 'alternate layouts do exist for sites that have been subject of more contemporary subdivision'.[10]
[10] Respondent's SIFC, dated 7 February 2022, para 80.
The respondent submits that the alfresco boundary wall does not contribute to the prevailing or future development context and streetscape as it does not provide separation from the lot boundary. Mr Laycock submits that his observations were of a low density residential character within a landscaped garden setting however noting several structures built to the boundary along Cromarty Road and Dumfries Road which were typically carports and garages with particular reference to No 28 Dumfries Road which he contends 'provides a sense of separation when viewed from the street due to the detached garage being situated at the rear of that property'.[11] Mr Laycock asserts that while he accepts that there are a number of examples within the locality that have structures built up to the boundary, he does not know whether they have been approved or under what planning framework they may have been approved. He submits that he has not observed any characteristics of the subject land that would distinguish it from other properties in the locality and in considering the objectives of LPP 3.2 and LPP 3.1 he 'would find it difficult to accept any nil setback as it diminishes the opportunity for a sense of openness and separation'.[12]
[11] Witness Statement of Mr Benjamin Laycock signed and dated 7 February 2022, para 70.
[12] Witness Statement of Mr Benjamin Laycock signed and dated 7 February 2022, para 75.
LPP 3.1 aims to achieve separation of buildings and therefore the openness established by the 'Garden Suburb-style' and to achieve this advocates that developments should not have walls on the boundaries. However, in this instance, it is my view that the openness on the eastern side of Crieff Street is not evident in the western side of Crieff Street as a result of the existing development and the alfresco boundary wall has no further impact on this level of openness of the streetscape in this locality therefore demonstrating compliance with the fifth bullet point of cl 5.1.3 P3.2 of the R-Codes for the following reasons.
Firstly, streetscape as defined by the Scheme requires consideration of the 'total visual impression gained from any one location within a street'.[13] There are two views of the alfresco boundary wall from within the streetscape:
1)There is a view perpendicular to the street boundary between the double garage on the subject land and the boundary fence with No 3. The alfresco boundary wall is located 15.6 metres from the boundary with the street, behind the double garage fronting Crieff Street for the subject land and at a level 1.263 metres lower than the level at the street boundary. The visibility of the alfresco boundary wall as indicated in Photomontages 2 and 3 provided by the applicant, and at the view, would be limited to a small portion of wall and roof visible above the existing 1.0 metre wide wall that is located between the garage and the boundary fence at the rear of the garage. Due to the distance of the proposed development from the street and its location predominantly behind the garage and fence, at a lower level than the street, there is no impact on the streetscape from this view.[14]
2)There is a view of the alfresco boundary wall at an obscure angle through the carport of No 3 between the top of the fence and the underside of the ceiling of the carport. This view is generally indicated by Image 3 of the site photographs provided by the respondent which is taken from the front of the carport rather than at the street boundary, where it is less visible. The very limited visibility of the development from this view results in the proposed development not having an impact on the streetscape.
[13] Respondent's s 24 Bundle of Documents dated 3 December 2021 (Exhibit 3), Tab 3, page 28.
[14] Applicant's s 24 Bundle of Documents dated 6 February 2022 (Exhibit 5) Photomontages 2 & 3.
Secondly, the location of the boundary wall, being set back from the Crieff Street boundary some 15.6 metres and behind the existing double garage; the level difference being that the alfresco is to have a finished floor level of 20.897 metres AHD, is 1.263 metres lower than the level at the street boundary of 22.16 metres AHD; and that the boundary wall occupies 7.79 metres or 17.9% of a 43.55 metre long boundary common boundary with No 3, with the remainder maintaining setbacks and separation between buildings and therefore will not have an impact on the streetscape.
Thirdly, the proposed alfresco boundary wall and roof of the alfresco is visible in the streetscape of Crieff Street only through a 1.0 metre setback to the existing double garage of the subject land from its common boundary with No 3 and through the double carport of the adjoining property. The view of the proposed alfresco from the street is only minimal as can be seen in the photomontages provided by the applicant[15] and particularly at photomontages 1-3 which show that the majority of the boundary wall (and the alfresco itself) are located behind the nib wall/masonry fence that is located in the 1.0 metres setback area and perpendicular to the boundary fence. Only a very small portion of the wall and a small section of the low-profile roof is visible from the street when looking at it straight on. Photomontage 4 shows the level of visibility directly to the alfresco with screening vegetation as offered by the applicant. It is noted that the screening vegetation would only screen the alfresco from the direct view and the oblique view of the alfresco through the adjoining property's carport, albeit a limited view, will remain.

Effective use of space

[15] Applicant's s 24 Bundle of Documents dated 6 February 2022 (Exhibit 5) Photomontages - Tabs 1-6 inclusive.

While the first bullet point of cl 5.1.3 P3.2 which seeks consideration of whether the boundary wall would make more effective use of space for enhanced privacy of the occupants or outdoor living areas was not specifically identified as an issue, it was raised in evidence and for completeness is given consideration.
In relation to whether the proposed alfresco boundary wall would meet this design principle, the respondent submits that 'Incorporating a 1.0m setback to the lot boundary would not detract from the usability of this proposed alfresco'[16] and Mr Laycock concedes that a boundary wall no doubt increases the useable area for the alfresco. He goes on to say that he does not consider the alfresco area will be an unusually small or impractical area without the boundary wall nor does he consider the boundary wall is necessary for enhanced privacy for the occupants of the subject land, acknowledging the level differences between the subject land and No 3 and the existence of a 2.1 metre high fence. There were no arguments put that the boundary wall does not make more effective use of space for enhanced privacy for the occupants or outdoor living areas.
[16] Respondent's Corrected SIFCs dated 7 February 2022, para 61.
Notwithstanding what Mr Laycock says, it is not what the Tribunal has to consider in addressing the first bullet point in that it makes more effective use of space for enhanced privacy for the occupants or outdoor living areas and it is agreed that the boundary wall makes effective use of the space and provides privacy for the outdoor living area. Mr Laycock's submission that the alfresco area would not be an unusually small or impractical area without the boundary wall may be correct but considering the amenity impacts, there is no difference whether it is on the boundary or not and there is no evidence of what the building bulk impact would be if it was set back from the boundary.
It is my view that the size of the rear yard is impacted by the 7.0 metres primary street setback having been previously applied to Cromarty Road, being the longer street boundary thus having a larger area forward of the dwelling than would have been the situation had the primary street setback of 7.0 metres been applied to Crieff Street and the 4.5 metre secondary street setback applied to Cromarty Road, and that the alfresco boundary wall makes more effective use of the available space for the enhanced privacy of the occupants of the subject land and its outdoor living areas.

c) Sub-clauses 67(2)(g), (m) and (n) of the deemed provisions

Clause 67(2) (g) - local planning policies and cl 67(2)(m) the compatibility of the development within its setting

In respect to the proposed development there are two relevant policies LPP 3.1 and LPP 3.2. Where the proposed development does not meet the deemed to comply provisions of LPP 3.2, the policy requires the development application to address the design principles P3.1 and P3.2 of cl 5.1.3 of the R-Codes, the objectives of the policy and the desired future character of the area as detailed in LPP 3.1. As discussed above for sub-issues (a) and (b) in relation to LPP 3.2, I find that the proposed development demonstrates compliance with the design principles in this case and no departure is required from this policy.
In regard to LPP 3.1 Mr Laycock submits that, there would be a window for the exercise of discretion in departing from the local policy framework for the proposed development where approval could be granted that would not set a precedent to encourage other applicants in similar circumstances or other circumstances to build up to the boundary if there were some other irregularities with the subject land that would distinguish it further from other properties within the locality.[17]
[17] Witness Statement of Mr Benjamin Laycock signed and dated 7 February 2022 at para 77.
The applicant argued that the individual characteristics of this application that warrant the exercise of discretion in this case are that the proposed development and indeed the boundary wall would be:
•sufficiently removed from the street so as to have little impact on the streetscape;
•located predominantly behind an existing garage;
•located with a finished floor level at a lower level than the street;
•retains separation of buildings from the boundary for the remainder of the boundary with No 3;
•makes effective use of the rear yard space limited by the imposition of a 7.0 metre primary street setback to Cromarty Road; and
•there were no amenity impacts on the adjoining owner;
all points which I have accepted in my consideration of the application for review.
As articulated in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.
His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to the] particular application[.]
In addition as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]:
… If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
As I have stated under the 'Streetscape' heading, I find that the streetscape of the defined locality is not consistent with the context of the existing or desired future character descriptions in LPP 3.1 for Floreat. The proposed development is however compatible within the context of its locality and will have no adverse impact on adjoining properties, the streetscape or the locality. It therefore warrants exercise of discretion and approval because of its compatibility within its context.

Clause 67(2)(n) - the amenity of the locality and the character of the locality

The respondent in evidence acknowledges that cl 67(2)(n) of the deemed provisions relates to the amenity of the locality and acknowledges that this is a more minor point as there will be limited visibility from the public realm and that there is no amenity impact on the locality as a result of the proposal, which I accept.
The respondent contends in relation to character that buildings built up to the boundary were not a typical feature of City Beach and Floreat and are considered out of character to the area. Mr Laycock however submits that there are a number of buildings built to the boundary in the area and provides an example of a nearby garage also behind the existing dwelling.
In relation to the character of the locality, as has been discussed under the heading 'Streetscape', the character of the locality as defined for this development is inconsistent with the character definitions for Floreat generally. I find that the proposed development is not inconsistent with the character of development in the locality.

d) whether an undesirable precedent will be set

The respondent contends that the approval of the proposed development will set an undesirable precedent as the proposed development is inconsistent with the local planning framework, and therefore objectionable given that there are no unusual or unique circumstances of the current application. The respondent argues that this could give rise to other similar applications and says that because the adjoining neighbour does not object and because it cannot really be seen, as the garden suburb principles are about separation of buildings. The respondent says therefore the proposal will set an undesirable precedent.
The applicant contends that the proposed development will not cause an undesirable precedent because there are characteristics that would distinguish the subject land from another property in the Floreat area including the siting, design and orientation of the existing dwelling; the topography of the subject land; the location of the proposed development; the limited visibility from the streetscape and the adjoining property; the limited additional bulk will not impact on amenity of the adjoining property; and no objections from neighbours.[18]
[18] Applicant's SIFCs dated 23 December 2021, at para 112.
For precedent to be a relevant factor in consideration of this matter, both tests as set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40;(2005) LGERA 117 at [71]-[75] must be satisfied, namely:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.

I find in this case for the reasons discussed earlier, that the approval of the proposed development is not of itself unobjectionable. I also find that I accept the applicant's contentions that there are characteristics of the subject land that mean there is more than a mere chance the proposed development may be distinguished from other applications. Therefore, the adverse planning precedent argument is not a relevant consideration in this case, as each subsequent case will be considered and determined on its own merits.

Conditions

In accordance with the Tribunal's usual practice and programming orders the respondent prepared and provided a set of draft 'without prejudice' conditions which it contends should be imposed if the Tribunal considers that approval of the proposed development subject to conditions is appropriate and the applicant provided no objection to those conditions.

Conclusion

The purpose of the review in accordance with s 27(2) of the State Administrative Tribunal Act 2004 (WA) is 'to produce the correct and preferable decision at the time of the decision upon the review'. The function of the Tribunal in regard to this matter is to consider the evidence before it and to form its own view as to whether the application demonstrates compliance with the design principles of cl 5.1.3 P3.1 and P3.2 of the R-Codes having consideration of LPP 3.1 and LPP 3.2 and the matters it is required to consider under cl 67(2) of the deemed provisions.
For all the reasons above, the Tribunal concludes that the correct and preferable decision in the circumstances of this case, is to set aside the respondent's decision and to substitute a decision to approve the proposed development subject to the imposition of appropriate conditions.
For the above reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.The application for review is upheld.
2. The decision of the respondent on 22 February 2021 to refuse to grant development approval under the Town of Cambridge Local Planning Scheme No 1 (LPS 1) for Alterations/Additions to Existing Single House on No 5 (Lot 1218) Crieff Street, Floreat is set aside, and a decision is substituted that development approval is granted under LPS 1 for Alterations/Additions to Existing Single House subject to the conditions set out below:
(a)The development shall at all times comply with the application and the approved plans, subject to any modifications required as a consequence of any conditions of this approval.
(b)Prior to practical completion of the development, the external surface of the boundary wall(s) shall be finished to a professional standard (provided access is granted by the adjoining landowner(s)), and thereafter be maintained, by the landowner(s) for the life of the development to the satisfaction of the Town.
(c)All structures (and associated footings) shall be contained within the lot boundaries of the subject site.
(d)All stormwater shall be contained and disposed of on-site for the life of the development to the satisfaction of the Town.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
18 MAY 2022