SAPPHIRE DEVELOPMENTS ALLIANCE PTY LTD and CITY OF NEDLANDS
[2020] WASAT 149
•1 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SAPPHIRE DEVELOPMENTS ALLIANCE PTY LTD and CITY OF NEDLANDS [2020] WASAT 149
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
HEARD: 9 AND 10 NOVEMBER 2020
DELIVERED : 1 DECEMBER 2020
FILE NO/S: DR 142 of 2020
BETWEEN: SAPPHIRE DEVELOPMENTS ALLIANCE PTY LTD
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Development application - Grouped dwellings - Varied and eclectic streetscape - Locality in transition following recent up-coding from R10 to R40 - Whether proposed development satisfies relevant deemed-to-comply provision of R-Codes Volume 1 in relation to setback of garages - Whether proposed development demonstrates compliance with design principles and satisfies objectives of R-Codes Volume 1 in relation to street setback, open space, setback of garages and outdoor living areas - Streetscape - Whether proposed development is compatible with its setting - Whether proposed development would have unacceptable impact on residential amenity of adjoining properties in terms of location of bin store, loss of privacy, overshadowing and bulk and scale
Legislation:
City of Nedlands Local Planning Scheme No. 3, cl 7(1)(a), cl 9(a), cl 9, cl 16(2), cl 17, cl 18(2), cl 25(1), cl 32.4(1), cl 32.4(3)
City of Nedlands Town Planning Scheme No. 2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 1, cl 67
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2), s 31(1), s 31(3)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 1.3.1, cl 1.4, cl 1.5, cl 2.1, cl 2.4, cl 2.5, cl 2.5.1, cl 2.5.4, cl 5.1, cl 5.1.2, cl 5.1.4, cl 5.2, cl 5.2.1, cl 5.3, cl 5.3.1, cl 5.4.2
Result:
Application for review allowed
Development approval granted for nine grouped dwellings at Nos. 130 and 132 (Lots 234 and 235) Waratah Avenue, Dalkeith subject to conditions
Summary of Tribunal's decision:
The applicant sought review by the Tribunal of the decision of the respondent to refuse to grant development approval for a grouped dwelling development comprising nine units at Nos. 130 and 132 Waratah Avenue, Dalkeith. The streetscape in the immediate locality of the site is relatively varied and eclectic and the immediate locality is undergoing transition in built form and character in consequence of the up-coding of the area from R10 to R40 and, on two corner properties, to R60.
The Tribunal determined that, insofar as the proposed development does not satisfy relevant deemed-to-comply requirements of the R-Codes Volume 1, it demonstrates compliance with the corresponding design principles and satisfies relevant objectives of the R-Codes Volume 1 in relation to street setback, open space, setback of garages (if the garage of Unit 8 is relocated by 1 metre to the west) and outdoor living areas. The Tribunal also determined that the proposed development is compatible with its setting and, if modified in accordance with conditions discussed in the Tribunal's reasons, would have an acceptable impact on the residential amenity of adjoining properties located on Leon Road to the south. The Tribunal also determined that the application is consistent with relevant aims of, and the objectives of the Residential Zone under, the local planning scheme.
The Tribunal determined that the correct and preferable decision at the time of the decision upon the review is to grant conditional development approval for the proposed development.
In order to eliminate what would have been significant and unacceptable amenity impacts in terms of noise and odour on the residential amenity of adjoining properties to the south, the Tribunal imposed a condition requiring the deletion of the bin store and compactor, which had been proposed to immediately abut No. 23B Leon Road, and was close to No. 23A and No. 25 Leon Road, and its replacement with additional landscaping, and the storage of bins within the garage or elsewhere within the strata lot of each dwelling.
In order to appropriately mitigate what would have been an unacceptable adverse impact on the residential amenity of the adjoining properties to the south in terms of bulk and scale, the Tribunal imposed conditions requiring:
- setting back the section of the south-facing wall of Unit 4 at first floor, which would be most apparent from No. 23A Leon Road (to the west of landscaping on that property), by a further 0.8 metre from the common boundary;
- shortening by 1 metre and setting back by a further 0.7 metre at the first floor the principal southern wall of Unit 5 from the common boundary with No. 25 Leon Road;
- indenting the ground floor south-facing wall of Unit 5 in its central portion to retain an existing approximately 4 metre high tree which will screen and filter part of the two storey southern wall of Unit 5 from No. 25 Leon Road from the outset (while the rest of the landscaping would need to grow to do so); and
- use of colours, finishes, textures and materials on the first floor south-facing walls of Units 4 and 5 to mitigate their bulk and scale and introduce visual interest to those walls when viewed from the adjoining properties on Leon Road.
The Tribunal also imposed a condition requiring the relocation of the garage of Unit 8 by 1 metre to the west to maintain clear sight lines along the communal driveway.
Category: B
Representation:
Counsel:
| Applicant | : | Ms D Mrdja (acting as agent) |
| Respondent | : | Ms A Butterworth (acting as agent) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223
Baker Investments Pty Ltd v City of Vincent [2017] WASC 263
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Dumbleton and Town of Bassendean [2005] WASAT 145
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135
Pigliardo and Town of Vincent [2007] WASAT 104; (2007) 52 SR (WA) 340
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
TABLE OF CONTENTS
Introduction
Site and locality
Proposed development
Planning framework
Issues for determination
Does the proposed development demonstrate compliance with the design principles in cl 5.1.2 Street setback and satisfy relevant objectives of the RCodes Volume 1?
Design principles in cl 5.1.2 P2.1
Design principles in cl 5.1.2 P2.2
Objectives in cl 5.1
Does the proposed development demonstrate compliance with the design principles in cl 5.1.4 Open space and satisfy relevant objectives of the R-Codes Volume 1?
Does the proposed development satisfy the relevant deemed-to-comply requirement and, if not, does the proposed development demonstrate compliance with the design principles in cl 5.2.1 Setback of garages and carports and satisfy relevant objectives of the R-Codes Volume 1?
Does the proposed development demonstrate compliance with the design principles in cl 5.3.1 Outdoor living areas and satisfy relevant objectives of the R-Codes Volume 1?
Is the proposed development compatible with its setting?
Does the proposed development have an unacceptable impact on the residential amenity of the adjoining properties to the south in terms of the location of the bin store, loss of privacy, overshadowing and bulk and scale?
Location of the bin store
Loss of privacy
Overshadowing
Bulk and scale
Conditions to address unacceptable amenity impact in terms of bulk and scale
Is the proposed development contrary to the aims of the Scheme and the objectives of the Residential Zone under the Scheme?
What is the correct and preferable decision?
Orders
Attachment A Conditions of approval
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Sapphire Developments Alliance Pty Ltd (applicant) seeks review by the Tribunal, under s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the City of Nedlands (City, Council or respondent) to refuse to grant development approval for a grouped dwelling development comprising nine units at Nos. 130 and 132 (Lots 234 and 235) Waratah Avenue, Dalkeith (site).
In these reasons, I will firstly describe the site and locality, the proposed development and the planning framework. I will then set out the seven principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, I have determined that the proposed development, if conditioned appropriately, and insofar as it does not satisfy relevant deemed-to-comply requirements, demonstrates compliance with corresponding design principles and satisfies relevant objectives of State Planning Policy 7.3 Residential Design Codes Volume 1 (RCodes Volume 1), is compatible with its setting, has an acceptable impact on the residential amenity of the adjoining properties to the south and is consistent with relevant aims of, and objectives of the Residential Zone under, the City of Nedlands Local Planning Scheme No. 3 (LPS 3 or Scheme), and therefore merits the grant of conditional development approval under the Metropolitan Region Scheme (MRS) and under LPS 3.
Site and locality
The site comprises an amalgamation of two original, regularly shaped lots, with a combined area of approximately 2,024m2 and a combined frontage of approximately 40.2 metres to Waratah Avenue. Each of the properties comprising the site contained a single storey original single house which has been demolished. The majority of the trees and other vegetation formerly on the site have been removed, although three trees close to the boundaries of the site, including an approximately 4 metre high tree adjacent to the southern boundary within the open space of proposed Unit 5, have been retained. There are also two existing street trees approximately 8 metres in height adjacent to the eastern and western ends of the frontage of the site. The site is relatively flat, falling by approximately 1 metre from east to west.
On 24 June 2020, the Western Australian Planning Commission (Commission) granted conditional approval for a nine lot surveystrata subdivision of the site, which is consistent with the unit configuration in the proposed development.
The site is located on the southern side of Waratah Avenue, within the street block bounded by Waratah Avenue to the north, Robert Street to the west, Leon Road to the south and Alexander Road to the east.
The Tribunal heard expert planning evidence from Mr Petar Mrdja, who was called by the applicant, and Mr Thomas Hockley, who was called by the respondent. The planning expert witnesses disagree as to the demarcation of the relevant immediate locality for the purposes of assessing the proposed development in the context of its streetscape setting. Mr Mrdja considers that the relevant immediate locality includes both sides of Waratah Avenue between Robert Street and Alexander Road and also both sides of Waratah Avenue in the street blocks to the west of Robert Street and to the east of Alexander Road. In contrast, Mr Hockley considers that the relevant immediate locality comprises both sides of Waratah Avenue between Robert Street and Alexander Road.
I prefer Mr Hockley's evidence in relation to the demarcation of the relevant immediate locality for the purposes of assessing whether the proposed development is compatible within its setting, because, with certain exceptions I will refer to shortly, the properties within this section of Waratah Avenue are generally zoned 'Residential' with a residential density coding of 'R40' under the Scheme, whereas the properties on Waratah Avenue to the west, while also zoned 'Residential', have a residential density coding of 'R10' under the Scheme, and the properties on Waratah Avenue to the east of Alexander Road are, on the southern side, zoned 'Residential' with a residential density coding of 'R60' and, on the northern side, zoned 'Mixed Use' ('R-AC3') under the Scheme and comprise the Dalkeith Village Shopping Centre. The different residential density codings to the west of Robert Street and to the east of Alexander Road contemplate different densities and forms of residential development, and hence different built character, than on the site. The Dalkeith Village Shopping Centre has an entirely different existing and likely future character under the Scheme than the site, and is also some distance from, and not within eyesight of, the location of the site.
However, I accept Mr Mrdja's evidence that the immediate locality of the site on Waratah Avenue between Robert Street and Alexander Road 'includes a range of intermittent zonings, land uses and building styles that inform the character of the area'.[1] I also accept the applicant's submission that the streetscape in the immediate locality of the site is relatively 'varied and eclectic'.[2]
[1] Witness statement of Petar Mrdja dated 3 November 2020 (Exhibit 11) [12].
[2] ts 72, 10 November 2020.
Directly across the road from the site at Nos. 129-133 Waratah Avenue (on the north-eastern corner of the intersection of Waratah Avenue and Robert Street), on land zoned 'Local Centre' under the Scheme, are seven single storey retail and commercial premises having, as Mr Mrdja said in his evidence, 'several notable common features that are typical of a shop front, including nil primary street setbacks, awnings that project over the verge, walls built up to both boundaries, recessed entry areas and large windows'.[3] Under cl 32.4(1) of the Scheme, on land zoned Local Centre, residential uses are not permitted on the ground floor facing the primary or secondary street, which is relevantly Waratah Avenue and Robert Street. Furthermore, under cl 32.4(3) of the Scheme, buildings in this zone are to have 'active frontages' to the primary and secondary street.[4] These properties are coded 'R80' under the Scheme for residential development (located above the ground floor). Also on the northern side of Waratah Avenue, three properties to the east of the retail and commercial premises, is a property zoned 'Private Community Purposes' under the Scheme, which comprises the Dalkeith Baptist Church, a single storey building.
[3] Exhibit 11 [12].
[4] Exhibit 3 page 197.
The other properties on Waratah Avenue between Robert Street and Alexander Road are all residential, but comprise, as Mr Mrdja said, a 'mix of older and newer modern houses within the street, with the new developments more likely to be two storey in nature'.[5] There are what appear to be original single storey single houses at No. 111, No. 113, No. 115, No. 117 and No. 121 on the northern side of Waratah Avenue and at No. 114, No. 118, No. 124 and No. 128 Waratah Avenue on the southern side. There is an older two storey single house at No. 119 on the northern side and a part two storey older single house at No. 122 on the southern side of Waratah Avenue, and substantial new two storey single houses at No. 125 and No. 127 on the northern side and at No. 126 on the southern side of Waratah Avenue. In addition, there is a single storey three unit aged persons' development with a common driveway at No. 112 and a single storey two unit senior persons' development at No. 120 Waratah Avenue, both on the southern side of the street, which were apparently approved as 'additional uses' under the City of Nedlands Town Planning Scheme No. 2.
[5] Exhibit 11 [14].
As stated in the Waratah Village Local Distinctiveness Study and Context Analysis (Waratah Village Study), prepared by the consulting firm Hassell for the City in July 2020, and as the town planning expert witnesses both agree:[6]
… The dominant streetscape character of Nedlands is as a leafy-green suburb with high-quality, low-rise, single residential homes. These homes are typically nestled within mature gardens which complement the high-quality tree-lined streets.
[6] Respondent[']s supplementary bundle dated 6 November 2020 (Exhibit 4) tab 2 page 36.
The 'dominant streetscape character' of the City's district as a 'leafy-green suburb with high-quality, low-rise, single residential homes' which are 'typically nestled within mature gardens' is apposite for about two-thirds of the properties on Waratah Avenue between Robert Street and Alexander Road.[7] However, it is not an accurate description of the streetscape presentation of the retail and commercial properties directly across the road, the church property diagonally across the road, or the aged and senior persons' unit developments at No. 112 and No. 120 Waratah Avenue on the same side of the road as is the site. The development at No. 112 Waratah Avenue, while comprising a single storey building, clearly presents as grouped dwellings, rather than as a single house, and both developments at No. 112 and No. 120 Waratah Avenue have a solid masonry wall at the street frontage. The two storey older single house at No. 122 and the single storey single house at No. 128 Waratah Avenue, which adjoins the site to the east, also both have a solid masonry wall at the street frontage with a paved forecourt behind (although No. 128 Waratah Avenue has large trees adjoining its boundaries in the frontage area).
[7] Excluding from this analysis the site, where the original single storey single houses have been demolished, and No. 116 Waratah Avenue, where the presumably original single storey singe house has been demolished to enable construction of a recently approved grouped dwelling development.
Furthermore, and significantly, the immediate locality of the site on Waratah Avenue between Robert Street and Alexander Road is undergoing transition in built form and character in consequence of the up-coding of this area (other than the retail and commercial and church properties) from R10 to R40 and, in the case of the properties at the north-western and south-western corners of the intersection of Waratah Avenue and Alexander Road, to R60, under LPS 3, which commenced on 16 April 2019. At the easternmost property fronting the southern side of Waratah Avenue in this immediate locality, namely No. 108 Waratah Avenue, (on land coded R60,) there is a recently constructed substantial and wide two storey grouped dwelling building facing Waratah Avenue at the former rear of a property which fronted Alexander Road.
Furthermore, on 29 April 2020, the City granted development approval (under delegated authority from the Council) for the construction of four two storey grouped dwellings at No. 116 Waratah Avenue. Pedestrian and vehicular access for all of the units is via a communal driveway along the eastern boundary of the property with limited opportunity for landscaping along the driveway. As discussed later in these reasons, the front unit of this development has a generally comparable (although less minimum) setback from Waratah Avenue to the easternmost front unit in the proposed development (Unit 1). As also discussed later in these reasons, the setbacks of the two other front units in the proposed development (Units 8 and 9) are significantly greater than the setback of the front unit in the approved development at No. 116 Waratah Avenue.
Proposed development
As indicated earlier, the proposed development comprises nine grouped dwellings on survey-strata lots. The built form of the proposed development is divided into two buildings, running north-south, which are approximately 7 to 8 metres apart. The eastern building comprises Units 1 to 4, with Unit 1 fronting Waratah Avenue, and the western building comprises Units 5 to 9, with Units 8 and 9 fronting Waratah Avenue. Unit 9 has its own driveway and crossover to Waratah Avenue and its front door faces this street. The front door of Unit 8 also faces Waratah Avenue with pedestrian access obtained directly from the street. However, the garage of Unit 8 and the garages of Units 1 to 7 face a communal driveway running north-south between the two buildings. The front door of Unit 1 also faces the communal driveway.
The proposed development presents in a landscaped setting with landscaping in the setback areas of the dwellings fronting Waratah Avenue (including within the fenced open space areas of Unit 1 and Unit 8) and in several locations adjoining the communal driveway, including five feature trees. The hard paving of the communal driveway is proposed to be broken up by 10 squares comprising permeable grass pavers. In addition, whereas the most recently amended plans of the proposed development show a bin store and compactor at the southern end of the communal driveway, the parties agree that, if the Tribunal approves the development, a condition of approval should be imposed requiring the deletion of the bin store and compactor and additional landscaping, which is to be presented in an amended landscaping plan, in that location. This condition would enable the deep planting of two feature trees at the end of the communal driveway.
Reproduced immediately below are the floor plans, elevations and streetscape perspective of the proposed development[8] and the landscaping concept plan for the proposed development:[9]
[8] Exhibit 7.
[9] Exhibit 17.
The development application was lodged with the City on 4 February 2020. On 22 April 2020, the applicant submitted amended plans to the City (April 2020 plans). The April 2020 plans were the subject of public advertising from 1 to 15 May 2020 and resulted in 12 submissions all objecting to the proposal. Further amendments to the plans (June 2020 plans) and further supporting documentation was provided by the applicant to the City on 9 and 10 June 2020.
On 3 July 2020, the applicant commenced these proceedings for review by the Tribunal of the 'deemed refusal' of the development application, which had not been determined by the Council within the 90 day statutory timeframe. On 24 July 2020, the Tribunal made an order, under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), inviting the respondent to reconsider its deemed refusal and make an actual determination in relation to the development application at its meeting on 25 August 2020. The proceedings were adjoined to a directions hearing on 4 September 2020 in order to await the Council's determination.
The City's planning assessing officer recommended to the City's Planning Committee that the proposed development (as shown in the June 2020 plans) should be approved subject to conditions. However, at its meeting on 11 August 2020, the Planning Committee recommended refusal of the development application, and, at its meeting on 25 August 2020, the Council resolved to refuse the development application, for the following reasons:[10]
1.Impact of amenity on the neighbours due to insufficient rear setback;
2.Overshadowing of the southern properties;
3.Bulk and scale of the two-storey boundary wall;
4.Health and amenity due to proximity of bins to rear boundary;
5.Insufficient street setback;
6.Lack of open space; and
7.Inadequate outdoor living areas[.]
[10] Respondent's section 24 bundle of documents (Exhibit 3) page 166.
As the Council, at its meeting on 25 August 2020, in effect, set aside its deemed refusal of the proposed development and substituted a new decision to refuse the development application, under s 31(3) of the SAT Act, these proceedings are 'taken to be for the review of the … substituted decision', that is a review of the refusal of the June 2020 plans. However, on 26 October 2020, the applicant made further amendments to the plans of the proposed development (October 2020 plans). The amendments to the proposed development made in the October 2020 plans involve increasing the setback of the eaves to Unit 1 to 2.1 metres from the Waratah Avenue boundary, modifications to the façades fronting the communal driveway, modifications to the street fencing infill fronting Waratah Avenue, showing obscure glazed windows on the eastern elevation of Unit 9 and modifying the roof form of Unit 9 from concealed to skillion, as well as showing small trees in the landscaped areas adjacent to the communal driveway. The parties' evidence and submissions at the final hearing on 9 and 10 November 2020 addressed the October 2020 plans. I am satisfied that, although the amendments in the October 2020 plans are beneficial, the proposed development shown in those plans remains in substance and essence the same as the development shown in the April 2020 and June 2020 plans. Consequently,[11] I grant leave to the applicant to amend the development application in terms of the October 2020 plans. The floor plans, elevations and streetscape perspective reproduced at [18] above are from the October 2020 plans.
[11] See Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 (Judge Chaney DP) [13]-[24].
Under s 17(1) of the SAT Act, these proceedings, which involve the review of the decision of the City to refuse to grant development approval for the proposed development, falls within the Tribunal's review jurisdiction. Under s 27(1) of the SAT Act, the review of a reviewable decision is to be by way of a 'hearing de novo' and 'is not confined to matters that were before the [original] decision-maker but may involve the consideration of new material whether or not it existed at the time the [original] decision was made'. Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Neither party bears any legal or practical onus of proof in these proceedings.[12]
Planning framework
[12] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331; (2018) 12 ARLR 135 [121]-[124] (Buss P and Murphy and Mitchell JJA).
The site is zoned 'Urban' under the MRS and 'Residential' with a residential density coding of 'R40' under LPS 3.
The aims of LPS 3, which are set out in cl 9, and the planning principles that 'represent best practice urban planning for established urban areas' under cl 2.1 of the City of Nedlands Local Planning Strategy (LP Strategy), which, under cl 7(2) of LPS 3, the 'Scheme is to be read in conjunction with', state, in part, as follows:[13]
(a)Protect and enhance local character and amenity;
(b)Respect the community vision for the development of the district; [and]
(c)Achieve quality residential built form outcomes for the growing population[.]
[13] Exhibit 3 page 177 and Exhibit 4 tab 3 page 6.
Under cl 16(2) of the Scheme, the objectives of the Residential Zone are as follows:[14]
•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 complimentary to residential development. [and]
•To ensue development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks.
[14] Exhibit 3 page 180.
Consistently with the aims of the Scheme, the planning principles stated in the LP Strategy and the objectives of the Residential Zone, cl 5.8 of the LP Strategy states as follows:[15]
Retain and enhance the character and streetscape of the City's existing residential areas whilst promoting best practice urban design principles in targeted infill areas. Maintaining and enhancing high quality streetscapes will be of the upmost importance to decision[]making, and developments will need to respond to the unique character of each precinct.
[15] Exhibit 4 tab 3 page 17 (original emphasis).
Similarly also, under cl 5.9.12 of the LP Strategy, the specific strategies for the Dalkeith Precinct, in which the site is located, include the following:[16]
Retain and enhance the character and streetscape of the existing residential areas, in order to protect the established character of this precinct.
[16] Exhibit 4 tab 3 page 25.
Under the Zoning Table in cl 17 of the Scheme, the use and development class 'Residential' is a 'P' use in the Residential Zone, meaning, under cl 18(2) of the Scheme, that 'the use is permitted if it complies with any relevant development standards and requirements of this Scheme'.[17]
[17] Exhibit 3 page 185.
Clause 25(1) of the Scheme 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 relevantly modify the R-Codes Volume 1 in its application to the site.
Clause 1.3.1 of the R-Codes Volume 1 sets out the following objectives for residential development:[18]
(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.
[18] Original emphasis.
Clause 1.4 of the R-Codes Volume 1 provides that it applies to, among other forms of residential development, 'all grouped dwellings',[19] and states that '[t]hroughout this document, words written in bold print have a corresponding definition listed in Appendix 1'.
[19] Original emphasis.
Clause 2.4 of the R-Codes Volume 1, which is entitled 'Judging merit of proposals', states as follows:[20]
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).
[20] Original emphasis.
Clause 2.5 of the R-Codes Volume 1, which is entitled 'Exercise of judgement', states, in part, as follows:[21]
[21] Original emphasis.
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 deemed-to-comply 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.
…
It is common ground between the parties that the proposed development satisfies all relevant deemed-to-comply requirements in the R-Codes Volume 1, other than under cl 5.1.2 Street setback, cl 5.1.4 Open space and cl 5.3.1 Outdoor living areas. The City also contends and the applicant disputes that the proposed development does not satisfy the relevant deemed-to-comply requirement in cl 5.2.1 Setback of garages and carports. Thus, it is common ground that the Tribunal 'is required to exercise judgement to determine the proposal',[22] 'having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1',[23] namely the objectives in cl 5.1 Context and the design principles in cl 5.1.2 Street setback and in cl 5.1.4 Open space, and the objectives in cl 5.3 Site planning and design and the design principles in cl 5.3.1 Outdoor living areas. In addition, the City contends that the proposed development requires '[j]udgement of merit' having regard to the objectives in cl 5.2 Streetscape and the design principles in cl 5.2.1 Setback of garages and carports in the R-Codes Volume 1, whereas the applicant contends that the proposed development satisfies the relevant deemed-to-comply requirement in cl 5.2.1 C1.3 of the R-Codes Volume 1 and, consequently, does not require '[j]udgement of merit' under cl 5.2.1.[24] I will set out the provisions of the R-Codes Volume 1 in question when discussing the relevant issue (issues 1 to 4) pertaining to the provision below.
[22] R-Codes Volume 1 cl 2.4.
[23] R-Codes Volume 1 cl 2.5.1 (original emphasis).
[24] The City contends that cl 5.2.1 C1.3 is not the relevant deemed-to-comply requirement, but rather the relevant deemed-to-comply requirement is cl 5.2.1 C1.4, which, the City submits, the proposed development does not satisfy. This is addressed under issue 3 below.
Although cl 2.5.4 of the R-Codes Volume 1 states that '[t]he decisionmaker 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',[25] it is well established and not disputed by either party that satisfaction of all relevant deemedtocomply requirements or demonstrating compliance with corresponding design principles and satisfaction of relevant objectives of the R-Codes Volume 1 does not mandate approval by the planning consent authority of a proposed development. The planning consent authority retains residual planning discretion to assess and determine the proposed development, including by refusal of the proposed development on its merits, under the applicable local planning scheme, including the deemed provisions in all local planning schemes under Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).[26] In Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223,[27] the Tribunal,[28] after referring at [123]-[127] to 'a consistent line of analogous Tribunal decisions that have rejected the argument that compliance with the R-Codes necessarily mandates the grant of development approval', commencing with Dumbleton and Town of Bassendean [2005] WASAT 145[29] at [13] and [20],[30] said at [129]:
… [Clause] 2.5.4 of the R-Codes [Volume 1] … must be construed so as not to erode the discretion of the relevant decision-maker to determine an application for planning approval or an amendment under, as the case may be, either cl 68 ('Determination of applications') or cl 77 ('Amending or cancelling a development approval') of the deemed provisions … .
[25] Original emphasis.
[26] Clause 7(1)(a) of LPS 3 specifically provides that the Scheme includes the deemed provisions.
[27] Appeal dismissed: Baker Investments Pty Ltd v City of Vincent [2017] WASC 263 (Le Miere J) [49][56].
[28] Mr P McNab SM and Dr B DeVilliers M.
[29] Judge Chaney DP and Mr DR Parry SM.
[30] See also Pigliardo and Town of Vincent [2007] WASAT 104; (2007) 52 SR (WA) 340 (Mr DR Parry SM and Ms R Moore S Sess M).
Clause 67 of the deemed provisions states, in part, as follows:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application —
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including 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;
(n)the amenity of the locality including the following —
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of —
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)the history of the site where the development is to be located;
…
(zb)any other planning consideration the local government considers appropriate.
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, President Justice Barker 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[31] 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[32] 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:[33]
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.
[31] Prof LA Stein Dep Chair, Ms V Allan M and Mr TJ Lambert Dep M.
[32] Mr DR Parry SM, Ms J Smithson Sess M and Ms R Moore Sess M.
[33] Sunbay Developments Pty Ltd and Shire of Kalamunda [28].
In its statement of issues, facts and contentions, the City referred to two local planning policies that it has adopted, namely the Residential Development Local Planning Policy and the Waste Management Local Planning Policy. However, neither party referred to any provision of these policies in the context of any of the issues for determination in these proceedings.
Issues for determination
In their respective statements of issues, facts and contentions,[34] the parties identified seven principal issues for determination in these proceedings, which can be stated as follows:
[34] Respondent's revised statement of issues, facts and contentions dated 28 October 2020 (Exhibit 1) and Applicant's statement of issues, facts and contentions dated 28 October 2020 (Exhibit 2).
(1)Whether the proposed development demonstrates compliance with the design principles in cl 5.1.2 Street setback and satisfies relevant objectives of the R-Codes Volume 1.
(2)Whether the proposed development demonstrates compliance with the design principles in cl 5.1.4 Open space and satisfies relevant objectives of the R-Codes Volume 1.
(3)(a) Whether the proposed development satisfies the relevant deemed-to-comply requirement in cl 5.2.1 Setback of garages and carports of the R-Codes Volume 1; and
(b)if not, whether the proposed development demonstrates compliance with the design principles in cl 5.2.1 Setback of garages and carports and satisfies relevant objectives of the RCodes Volume 1.
(4)Whether the proposed development demonstrates compliance with the design principles in cl 5.3.1 Outdoor living areas and satisfies relevant objectives of the RCodes Volume 1.
(5)Whether the proposed development is compatible with its setting.
(6)Whether the proposed development would have an unacceptable impact on the residential amenity of the adjoining properties to the south in terms of the location of the bin store, loss of privacy, overshadowing and bulk and scale.
(7)Whether approval of the proposed development is contrary to the aims of LPS 3 and the objectives of the Residential Zone under the Scheme.
I will now address each of these issues in turn.
Does the proposed development demonstrate compliance with the design principles in cl 5.1.2 Street setback and satisfy relevant objectives of the RCodes Volume 1?
Mr Hockley's detailed calculations[35] clearly demonstrate, and Mr Mrdja accepts, that each of Units 2, 3, 4, 5, 6, 7 and 8 do not satisfy the deemed-to-comply requirement in cl 5.1.2 Street setback C2.1 of the RCodes Volume 1 in relation to their setbacks from the communal driveway, which falls within the definition of 'communal street' ('A private carriageway providing joint access to two or more dwellings in a residential development'[36]) and hence within the definition of 'street' (which expressly includes a 'communal street'[37]), under Appendix 1 of the RCodes Volume 1. Mr Mrdja and Mr Hockley disagree as to whether the setback of Unit 1 to the communal driveway satisfies the deemedto-comply requirement. Mr Mrdja considers that although the front door of Unit 1 faces the communal driveway and the definition of 'primary street' in Appendix 1 of the R-Codes Volume 1 is '[u]nless otherwise designated by the local government, the sole or principal public road that provides access to the major entry (front door) to the dwelling or building',[38] the City has 'otherwise designated' for the purposes of the definition. This is because, in the report to the Planning Committee recommending approval, the City's planning assessing officer did not identify the setback of Unit 1 to the communal driveway as not satisfying the deemed-to-comply provision. Mr Mrdja therefore considers that the primary street for Unit 1 is Waratah Avenue and that consequently the communal driveway is the 'secondary street' for the purposes of determining minimum setback under Table 1 of the RCodes Volume 1 (for the purposes of the which the term 'secondary street' is expressly stated in the legend to include a communal street such as the communal driveway) and hence the minimum setback from the communal driveway is compliant with the 1 metre setback to a secondary street specified in Table 1 for land coded R40. However, the opinion of a planning officer of the City does not constitute 'designat[ion] by the local government' for the purposes of the definition of 'primary street' in Appendix 1. A 'designation' by a local government requires a statement in a planning instrument or policy adopted by, or at least a resolution of, the local government. As Mr Hockley said in his evidence, the setback of Unit 1 from the communal driveway does not satisfy the relevant deemed-to-comply requirement in cl 2.1 iv. (first bullet point) of the R-Codes Volume 1, which states that where 'a grouped dwelling has its main frontage to a secondary street … the street setback may be reduced to 2.5 [metres], or 1.5 [metres] to a porch, verandah, balcony or the equivalent (refer Figure 2b and 2d)'[39] and Figure 2d in the R-Codes Volume 1 clearly indicates, in plan as well as by words with an arrow pointing to the required setback, that where the 'front door (main frontage)' of a grouped dwelling which fronts a public road is to a 'communal street', rather than to the public road ('primary street'), the relevant deemedtocomply requirement is '2.5 [metres] communal street setback (clause 5.1.2 C.2.1.iv)'. Unit 1 does not satisfy the deemedtocomply requirement, because its setbacks from the communal driveway range between 1 metre and 2 metres.
[35] Witness statement of Thomas James Hockley dated 29 October 2020 (Exhibit 12) [26]-[27] and [30].
[36] Original emphasis.
[37] Original emphasis.
[38] Emphasis in bold original and emphasis in italics added.
[39] Original emphasis.
However, for the following reasons, I am satisfied that the proposed development demonstrates compliance with the design principles in cl 5.1.2 and satisfies the objectives in cl 5.1 of the R-Codes Volume 1 in relation to the setbacks of Units 1, 2, 3, 4, 5, 6, 7 and 8 from the communal driveway. The design principles in cl 5.1.2 Street setback of the R-Codes Volume 1 state as follows:[40]
[40] Original emphasis.
Development demonstrates compliance with the following design principles (P)
…
P2.1Buildings set back from street boundaries an appropriate distance to ensure they:
•contribute to, and are consistent with, an established streetscape;
•provide adequate privacy and open space for dwellings;
•accommodate site planning requirements such as parking, landscape and utilities; and
•allow safety clearances for easements for essential service corridors.
P2.2Buildings mass and form that:
•uses design features to affect the size and scale of the building;
•uses appropriate minor projections that do not detract from the character of the streetscape;
•minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
The objectives stated in cl 5.1 Context of the R-Codes Volume 1 are as follows:[41]
[41] Original emphasis.
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
(b)To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.
(c)To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.
(d)To ensure that open space (private and communal) is provided on site and:
•landscaped to establish streetscapes;
•provide a balanced setting and relationship to buildings; and
•provide privacy, direct sun and recreational opportunities.
(e)To ensure that development and design 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 a transition, development achieves the desired future character of the area identified in local planning framework.
Although Mr Hockley recognises that 'the existing streetscape is varied and comprises a mixture of development forms and land uses',[42] he considers that 'the three commercial properties [comprising seven premises] to the north of the [r]eview [s]ite represents an anomaly to the streetscape pattern of the existing surrounding residential development'[43] and that the 'existing single and grouped dwelling development in the locality is characterised by generous street setbacks with established landscaping and canopy plantings within front and rear setback areas'[44] and indeed that the three new two storey single houses constructed at No. 125, No. 126 and No. 127 Waratah Avenue have 'been undertaken in a way that has maintained the space and openness of the residential streetscape'.[45] Although the two aged and senior persons' developments at No. 112 and No. 120 Waratah Avenue, the part two storey single house at No. 122 and the single storey single house adjoining the site to the east at No. 128 Waratah Avenue all present with solid masonry walls at the street frontage, I generally accept Mr Hockley's characterisation that the existing single house development in the locality is characterised by 'generous street setbacks with established landscaping and canopy plantings within front and rear setback areas'. I also accept Mr Hockley's evidence that although the three new single houses are very substantial two storey structures, they have typical setbacks for single houses in the street and hence have 'maintained the space and openness of the residential streetscape'. However, I do not accept Mr Hockley's evidence that the streetscape contribution of the commercial properties opposite the site can be effectively dismissed as 'an anomaly to the streetscape pattern of the existing surrounding residential development'. Rather, the commercial properties, and the church, which are located close to the site, form part of the immediate streetscape in which the proposed development would sit. As Mr Mrdja said in his evidence, '[t]he established streetscape is diverse due to the variety of zonings, existing land uses and built form outcomes'.[46] Furthermore, as Mr Mrdja also said, the area is 'currently undergoing transition which will only add to the variety of housing and development already seen in the locality' and the proposed development 'will contribute to the transition of the area and improve the built form quality of the street'.[47]
[42] Exhibit 12 [59].
[43] Exhibit 12 [62].
[44] Exhibit 12 [60].
[45] Exhibit 12 [64].
[46] Exhibit 11 [42].
[47] Exhibit 11 [42].
Mr Hockley gave the following evidence in relation to this issue:[48]
The variations to the deemed[-]to[-]comply requirements for setbacks to the communal street have potential to erode the open streetscape and leafy character which currently exists in the locality. This includes an impact on the existing Waratah Avenue streetscape due to the dominance of the built form arising from the internalised street setback variations, but also an impact on the future streetscape outcome within the development. The extent of variations demonstrate that there has been no attempt to mitigate the impact on building mass on the internal streetscape interface between dwellings and will substantially reduce opportunity for communal open space and landscaping treatments along the common street, as demonstrated in Annexure TJH5.
[48] Exhibit 12 [65] (original emphasis).
Mr Hockley's reasoning set out immediately above, which assesses the 'variations to the deemed[-]to[-]comply requirements for setbacks to the communal street', is impermissible under the R-Codes Volume 1. As indicated earlier, cl 2.5.1 of the R-Codes Volume 1 states that '[t]he decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s)'.[49] By focussing in his assessment on the 'variations to the deemed[-]to[-]comply requirements for setbacks to the communal street', which he depicted in Annexure TJH5 to his witness statement, Mr Hockley, in effect, applies the corresponding deemed-to-comply provision to the assessment of the proposed development that addresses the design principles, contrary to cl 2.5.1 of the R-Codes Volume 1.
[49] Original emphasis in bold and added emphasis in italics.
In his oral evidence, Mr Hockley expressed the opinion that the setbacks of the proposed buildings to the communal driveway will have an adverse impact on the streetscape of Waratah Avenue, essentially because there is insufficient space adjoining the communal driveway for deep landscaping to soften the built form when the development is viewed within the Waratah Avenue streetscape. For the reasons which follow, I do not accept Mr Hockley's evidence in this respect and prefer the evidence of Mr Mrdja in which he provided a detailed assessment of the proposed development addressing each provision within the design principles in cl 5.1.2 P2.1 and P2.2 of the R-Codes Volume 1.
Design principles in cl 5.1.2 P2.1
As Mr Mrdja said in his evidence, the proposed buildings are '[set back] at appropriate distances to the street, which in this instance refers to the internal common driveway',[50] to ensure they 'contribute to, and are consistent with, an established streetscape', in terms of the design principles in the first bullet point of cl 5.1.2 P2.1 of the R-Codes Volume 1, because:
•the 'proposed street setbacks are not inconsistent with the setbacks of other buildings on Waratah Road that form part of the established streetscape',[51] in particular the commercial properties which are directly across the road from the site and form part of the immediate streetscape, and '[t]he established streetscape is diverse due to the variety of zonings, existing land uses and built form outcomes';[52]
•the area 'is currently undergoing transition which will only add to the variety of housing and development already seen in the locality' and the proposed development 'will contribute to the transition of the area and improve the built form quality of the street';[53]
•'[t]he central communal street provides separation between the two building blocks as viewed from Waratah Avenue'; and
•'[d]ue to the depth of the site and use of materials, colours and projections on the elevations of buildings facing the internal common driveway, any potential impact from the reduced building setbacks is mitigated when viewing the development from the street'.[54]
[50] Exhibit 11 [38].
[51] Exhibit 11 [39].
[52] Exhibit 11 [42].
[53] Exhibit 11 [42].
[54] Exhibit 11 [41].
In terms of the 'transition', which is currently underway in the immediate locality of the site, the setbacks of the dwellings from the communal driveway in the proposed development is similar to the setbacks of the four dwellings from the communal driveway in the approved development at No. 116 Waratah Avenue. As discussed later in these reasons, the setback of Unit 1 in the proposed development from Waratah Avenue is generally comparable (although greater in terms of the minimum setback) to the setback of the dwelling fronting Waratah Avenue in the approved development at No. 116 Waratah Avenue and the setbacks of Units 8 and 9 in the proposed development from Waratah Avenue are significantly greater than the setback of the front dwelling in the approved development.
Furthermore, the setbacks of the buildings from the communal driveway will have only a limited visual impact in terms of the streetscape of Waratah Avenue, because that aspect will generally be blocked from view by the built form of Units 1, 8 and 9, which themselves will sit in a landscaped setting. The setbacks of the buildings from the communal driveway will generally only be seen close to the driveway on the southern side of Waratah Avenue and from directly across the road from the driveway on the northern side of Waratah Avenue. From those viewing positions, the communal driveway has a positive streetscape impact, because it separates the built form into two distinct buildings, punctuated by landscaping, including several feature trees at locations along the driveway and, in consequence of the agreed draft 'without prejudice' condition requiring the deletion of the bin store and compactor and its replacement with additional landscaping, it enables deep landscaping to be seen at the end of the communal driveway, although at some distance from Waratah Avenue. Further, as Mr Mrdja said, any potential impact from the building setbacks to the communal driveway, when viewing the development from Waratah Avenue, is reduced by the 'depth of the site and use of materials, colours and projections on the elevations of buildings facing the internal common driveway'.[55]
[55] Exhibit 11 [41].
As Mr Mrdja said in evidence, the proposed buildings are set back an appropriate distance to ensure that they 'provide adequate privacy and open space for dwellings',[56] in terms of the design principles in the second bullet point of cl 5.1.2 P2.1 of the R-Codes Volume 1, precisely because the 'communal street setbacks allow for a greater proportion of the open space to the rear of dwellings which should be commended', as a 'greater proportion of open space is able to be utilised to provide more appropriate landscaping opportunities for larger private outdoor living spaces' adjoining the external boundaries of the site.[57] As Mr Mrdja also said, given that the outdoor living areas of the proposed dwellings are 'located at the rear of the dwelling[,] this space is likely to be occupied by residents more frequently (than the front of the dwelling), also resulting in far more effective use of open space to enhance the amenity of occupants'.[58]
[56] Original emphasis.
[57] Exhibit 11 [44].
[58] Exhibit 11 [45].
As Mr Mrdja also said in his evidence, the proposed buildings are set back from the communal driveway by an appropriate distance to ensure that they 'accommodate site planning requirements such as parking, landscape and utilities' and 'allow safety clearances for easements for essential service corridors',[59] in terms of the design principles in the third and fourth bullet points of cl 5.1.2 P2.1 of the R-Codes Volume 1, given that the proposed development satisfies the deemedtocomply requirements for parking, landscaping and utilities and has been reviewed by the City's engineering officers during the assessment process and found to be compliant in terms of waste management, access, manoeuvring and clearances. There are no easements on the site.
Design principles in cl 5.1.2 P2.2
[59] Original emphasis.
Furthermore, as Mr Mrdja said in his evidence, the buildings' mass and form in the proposed development presenting to the communal driveway (and also to Waratah Avenue) demonstrates compliance with the design principles in the first three bullet points of cl 5.1.2 P2.2 of the R-Codes Volume 1, because the proposed development:
•uses 'design features', such as colours and materials, window sizes, wall projections, rendered finishes, frame structures, breeze blocks and cladding, 'to affect' and mitigate 'the size [and bulk] and scale of the building[s]', in terms of the first bullet point;
•uses 'appropriate minor projections' and architectural features 'that do not detract from the character of the streetscape', in terms of the second bullet point, but rather 'greatly enhance the appearance of the dwelling[s] within the streetscape, providing interest and breaking up the individual frontages of the dwellings';[60] and
•'minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like',[61] in terms of the third bullet point, by consolidating vehicle access for eight of the nine dwellings in the development and allowing for the proportion of the façade at ground level used for services and vehicle entry to be minimised.
[60] Exhibit 11 [50].
[61] Original emphasis.
As Mr Mrdja observed, the elevations of the proposed development include 'a high degree of articulation and visual interest' not only to Waratah Avenue, but also to the communal driveway, which provides attractive buildings both within the Waratah Avenue streetscape and internally within the development and 'assists to manage building mass'.[62] As Mr Mrdja also said, the 'finishes and features proposed by the development contribute to the overall high quality and appearance of the building' within the Waratah Avenue streetscape and internally in and adjoining the communal driveway.[63]
[62] Exhibit 11 [49].
[63] Exhibit 11 [49].
Furthermore, the buildings' mass and form within the proposed development 'positively contributes to the prevailing [and] future development context and streetscape as outlined in the local planning framework',[64] in terms of the design principles in the final bullet point of cl 5.1.2 P2.2 of the R-Codes Volume 1. The local planning framework includes the recent upcoding of the site and immediate locality from R10 to R40 and, at the north-western and south-western corners of the intersection of Waratah Avenue and Alexander Road, to R60, which is already resulting in the area being in transition to a higher density of grouped dwelling development in place of traditional single house development. Mr Hockley considers that the recent construction of the substantial two storey single houses on three properties close to the site demonstrates that 'the future residential character of the locality will not necessarily be defined by residential development at an R40 density'.[65] However, there is no evidence before the Tribunal as to whether these three houses were approved before or after the commencement of LPS 3 on 16 April 2019. Furthermore, and in any case, there are already two approved (one constructed) grouped dwelling developments on the southern side of Waratah Avenue in the immediate locality of the site. Given that other areas of Dalkeith remain coded R10, it is certainly likely that, over time, original single storey single houses in the section of Waratah Avenue between Robert Street and Alexander Road will be replaced with high quality grouped dwelling developments with comparable street setback and building mass and form to the proposed development on the site. However, I accept Mr Mrdja's evidence and find that, given the relatively varied and eclectic existing streetscape in the immediate locality of the site, the proposed 'building setbacks are appropriate now' and also certainly 'in the future as the area continues to transition'.[66]
Objectives in cl 5.1
[64] Original emphasis.
[65] Exhibit 12 [66].
[66] Exhibit 11 [42].
Neither of the town planning expert witnesses expressly addressed the objectives in cl 5.1 Context of the R-Codes Volume 1, which apply in relation to provisions including cl 5.1.2 Street setback (and cl 5.1.4 Open space). However, I am satisfied, on the evidence, that the proposed development satisfies these objectives. In terms of ensuring that residential development 'meets community expectations in regard to appearance, use and density' (objective (a)), community expectations in regard to these matters are necessarily informed by the applicable planning framework, including, in particular, the recent up-coding of the site and the immediate locality. Although the planning framework requires new medium density development, such as the proposal, to respect existing character and amenity, including streetscape, it follows inevitably from the up-coding of the site and locality that the appearance, use and density of development in the immediate locality of the site, and in other parts of Dalkeith which have been the subject of up-coding, will change.
In terms of ensuring that 'in the case of precincts undergoing a transition, [designs] will respond to the desired future character as stated in the local planning framework'[67] (objective (b)), subject to the carrying out of modifications to the siting and design of portions of the southern walls of Units 4 and 5, in order to mitigate the impact of bulk and scale on adjoining properties (coded 'R20') on Leon Road to the south, which I will address in relation to issue 5 below, I am satisfied that the design of the proposed development, located as it is in a precinct undergoing transition, responds appropriately to desired future character as contemplated in the local planning framework in terms of height, bulk and scale, as well as in terms of setbacks to Waratah Avenue and the communal driveway. As to setbacks to Waratah Avenue in terms of desired future character as contemplated in the local planning framework, the approved development at No. 116 Waratah Avenue has a setback of 2 metres for a 5.3 metre wide section, increasing to 3.142 metres for a 1.76 metre wide section, and reducing to 2.5 metres for a 3.4 metre wide section, at both ground and first floors. The setback of Unit 1 in the proposed development, although generally comparable to these setbacks, has a greater minimum setback by 600 millimetres at ground floor and by 300 millimetres at first floor. The other two dwellings in the proposed development which front Waratah Avenue, namely Units 8 and 9, have significantly greater setbacks than the approved front unit at No. 116 Waratah Avenue. Unit 8 in the proposed development has a minimum setback of 6.75 metres, increasing to 7.65 metres and to 9 metres at ground floor, and 6.84 metres, increasing to 8.2 metres at first floor. Unit 9 in the proposed development has a general setback of 4.3 metres at ground floor, with the front door set back 8.5 metres, and setbacks of 3.508 metres, 4.3 metres, 7.2 metres and 8.5 metres at first floor.
[67] Original emphasis.
In terms of objectives (c) and (d), I am satisfied that the proposed development ensures adequate provision of direct sun and ventilation for the proposed buildings and ensures that open space (both private and communal) is provided on site and is landscaped to the established streetscape on Waratah Avenue, provides a balanced setting and relationship to the buildings, and provides privacy, direct sun and recreational opportunities. Each of the proposed dwellings has adequate, functional private open space which is directly accessible from, and will operate as an extension of, internal living areas. Other than in the case of Unit 4, where the private open space is oriented to the south-east, and Unit 9, where the private open space is oriented to the west, each of the dwellings in the proposed development has its private open space oriented to the north so as to obtain direct sun in winter and throughout the year. Furthermore, although Unit 4 is located in the south-eastern corner of the site, it has a west facing first floor lounge room and Unit 9 is designed such that its ground floor dining room faces north and it has a first floor lounge room facing Waratah Avenue to the north. Further, each of the proposed dwellings has open space which provides privacy and recreational opportunities. As discussed in relation to issue 4 below, although the open space of Unit 1 is partly located in the setback area to the building, there is adequate space between the front fence and the paved area for meaningful landscaping to provide privacy to the outdoor area and the unit itself, as shown on the landscaping concept plan reproduced earlier in these reasons. As the landscape concept plan also shows, the proposed open space (both private and communal) provides a balanced setting and relationship to the proposed buildings when those buildings are viewed within the Waratah Avenue streetscape, including directly opposite the communal driveway, within the driveway and from adjoining properties.
As discussed in relation to issue 6 below, with modifications required by conditions, the proposed development would ameliorate the impacts of building bulk on the adjoining properties to the south in an acceptable manner and its design carefully ameliorates privacy impacts on the adjoining properties. As also discussed in relation to issue 6 below, although the overshadowing impact of the proposed development on the adjoining properties to the south would be significant in winter, the development satisfies the deemed-to-comply requirement in cl 5.4.2 C2.1 Solar access for adjoining sites of the R-Codes Volume 1 and the extent of overshadowing is an unfortunate, but largely inevitable, consequence of reasonable development consistent with the R40 coding of the site and the fact that the affected properties lie to its south.
For the reasons given in the discussion in relation to the design principles in cl 5.1.2 P2.1 and P2.2 above and issue 5 below, the proposed development also satisfies objective (e) that 'in precincts undergoing a transition, development achieves the desired future character of the area identified in [the] local planning framework', although, particularly given the relatively varied and eclectic existing streetscape, it also satisfies the objective of 'ensur[ing] that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings'.[68]
[68] Original emphasis.
I conclude that the proposed development demonstrates compliance with the design principles in cl 5.1.2 Street setback and satisfies relevant objectives of the R-Codes Volume 1.
Does the proposed development demonstrate compliance with the design principles in cl 5.1.4 Open space and satisfy relevant objectives of the R-Codes Volume 1?
Mr Mrdja and Mr Hockley agree that Units 1, 2, 3, 6, 7 and 8 do not satisfy the deemed-to-comply requirement in cl 5.1.4 Open space C4 of the R-Codes Volume 1, which relevantly requires 45% of the area of a dwelling to be open space. However, they disagree as to whether the open space that is provided in these six units is compliant with the design principles in cl 5.1.4 P4 of the R-Codes Volume 1, which state as follows:[69]
[69] Original emphasis.
Development demonstrates compliance with the following design principles (P)
…
Development incorporates suitable open space for its context to:
•reflect the existing and/or desired streetscape character or as outlined under the local planning framework;
•provide access to natural sunlight for the dwelling;
•reduce building bulk on the site, consistent with the expectations of the applicable density code and/or as outlined in the local planning framework;
•provide an attractive setting for the buildings, landscape, vegetation and streetscape;
•provide opportunities for residents to use space external to the dwelling for outdoor pursuits and access within/around the site; and
•provide space for external fixtures and essential facilities.
Mr Hockley considers that 'the proposal … does not satisfy the design principles of [cl] 5.1.4 Open space and relevant objectives of the RCodes',[70] because the proposed development:[71]
…
a)[p]rovides opportunities for the planting of new trees within the private and common open spaces within the [r]eview [s]ite, however it has not been demonstrated in the material provided by the [a]pplicant how the landscaping provided for within the open space areas will achieve canopy plantings to reflect the existing streetscape and character and provide a balanced setting and relationship to buildings;
b)[f]ails to achieve an open space allocation which meets the average 45% open space provision across the site and varies the open space allocation for individual units by up to 10.4m2, therefore increasing impacts on building bulk on the site;
c)[i]ntroduces impractical areas of open space around a number of dwellings, particular Units 2, 3, 4 and 9 which are unlikely to provide opportunities for residents to utilise for outdoor pursuits; and
d)[d]oes not provide for adequate areas for landscaping and vegetation along the common street due to the limited provision of open space and setbacks between dwellings and the accessway and therefore fails to achieve a landscaped streetscape outcome to reflect the existing character of the area.
[70] Exhibit 12 [70].
[71] Exhibit 12 [69].
Mr Hockley's reasoning at (b) in the evidence set out immediately above, which is to the effect that the open space does not comply with the design principles in cl 5.1.4 P4, in part because of the extent of departure from the deemed-to-comply requirement in cl 5.1.4 C4, is impermissible, because, as indicated earlier, cl 2.5.1 of the R-Codes Volume 1 states that '[t]he decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s)'.[72]
[72] Emphasis in bold original and emphasis in italics added.
In relation to Mr Hockley's reasoning at (c) in his evidence set out at [64] above, although some of the open space of Units 2, 3, 4 and 9 would only serve to provide a landscaped setting for these units, visual amenity from within the dwellings and mitigation of bulk and scale as well as visual amenity when viewed above the fence line from adjoining properties, this does not have the consequence that the relevant design principles are not complied with. Not all open space needs to be useable 'for outdoor pursuits' to be valuable. Providing a landscaped setting for a building, visual amenity from within a dwelling and mitigating bulk and scale and providing visual amenity from adjoining properties is part of the purpose of landscaping and open space generally. Moreover, each of the dwellings referred to by Mr Hockley, and all of the dwellings within the proposed development generally, have adequately dimensioned private open space areas contiguous with, and functionally related to, internal living areas. Each of the proposed dwellings is provided with adequate and functional private open space, which can be attractively landscaped, providing benefit to the occupants of the dwelling and, above the fence line, to the occupants of adjoining properties.
In relation to (a) and (d) in Mr Hockley's evidence set out at [64] above, the landscaping concept plan shows that the proposed buildings will sit within a landscaped setting that is appropriate and sufficient for two storey built form. Moreover, as discussed in relation to issue 1, to the extent that the communal driveway would be seen within the Waratah Avenue streetscape, the driveway is appropriately punctuated by landscaping, including several feature trees, along the driveway and, in consequence of the agreed draft 'without prejudice' condition requiring deletion of the bin store and compactor and its replacement with additional landscaping, the deep landscaping of two trees will be seen at the end of the driveway, although at some distance from Waratah Avenue.
As in relation to issue 1, Mr Mrdja provided a detailed assessment of the open space in relation to the dwellings which do not satisfy the relevant deemed-to-comply requirement addressing each provision within the design principles in cl 5.1.4 P4 of the R-Codes Volume 1. I accept Mr Mrdja's evidence in this regard. As Mr Mrdja said, the proposed development 'incorporates suitable open space for its context'[73] to 'reflect the existing [and] desired streetscape character as outlined under the local planning framework'[74] (cl 5.1.4 P4 first bullet point), 'reduce[s] building bulk on the site, consistent with the expectations of the applicable density code'[75] (cl 5.1.4 P4 third bullet point), and 'provide[s] an attractive setting for the buildings, landscape, vegetation and streetscape'[76] (cl 5.1.4 P4 fourth bullet point), because:
•the 'central separation between the dwellings' creates 'a sense of openness and allows for landscaping to be included within these areas';[77]
•'consolidating open space at the front and rear of the dwellings leads to far more effective use of this open space to improve development outcomes';[78]
•'the development has been able to incorporate tall screening shrubs and medium sized trees to allow for an attractive setting for the residents of the dwelling as well [as] for neighbouring dwellings';[79] and
•two existing street trees will be retained and a third street tree will be added on the verge in front of Unit 8.
[73] Original emphasis.
[74] Original emphasis.
[75] Original emphasis.
[76] Original emphasis.
[77] Exhibit 11 [59].
[78] Exhibit 11 [62].
[79] Exhibit 11 [64].
Furthermore, as discussed in relation to issue 5 below, during the course of their concurrent evidence, Mr Hockley proposed and Mr Mrdja endorsed conditions to ensure the survival of an approximately 4 metre high tree adjoining the southern boundary of the site, which is in an important location to mitigate the bulk and scale of the first floor southern wall of Unit 5 when viewed from the internal north facing living area and the adjoining north facing rear courtyard of No. 25 Leon Road. An existing tree has also been retained within the open space of Unit 3 (approximately 5 metres in height) and Unit 7 (approximately 4 metres in height).
In terms of landscaping shown on the landscaping concept plan between the south-facing walls of Units 4 and 5 and the southern boundary of the site, although expert evidence in relation to the capacity of the nominated Pyrus 'Capital' (ornamental pear) and Magnolia teddy bear trees to grow in such a location was not presented to the Tribunal, as the Tribunal and the parties observed on the view at the adjoining properties at 23A and 23B Leon Road, trees identified by the planning expert witnesses as cottonwood trees located to the south of large boundary walls have grown successfully to approximately 4 or 5 metres in height, demonstrating that landscaping of sufficient scale for two storey development can be accommodated adjoining the southern boundary of the site. The parties agree that if the development application is approved by the Tribunal, it should be subject to conditions requiring that 'an amended Landscaping Plan [be] approved to the satisfaction of the City' and '[l]andscaping shall be installed and maintained in accordance with the approved Landscaping Plan dated 9 June 2020, or any modifications approved thereto, for the lifetime of the development thereafter, to the satisfaction of the City'.[80]
[80] See conditions 2(b) and 8 in Attachment A to these reasons.
As Mr Mrdja also said in evidence, the proposed development incorporates suitable open space for its context to 'provide access to natural sunlight for [each of the proposed dwellings]' (cl 5.1.4 P4 second bullet point), by providing 'recessed upper floor areas to allow natural sunlight into habitable rooms and outdoor living areas',[81] and 'provide[s] opportunities for residents to use space external to [each] dwelling for outdoor pursuits and access within [and] around the site'[82] (cl 5.1.4 P4 fifth bullet point) by 'all dwellings exceeding the deemedto-comply requirements for outdoor living spaces [in terms of area and dimensions], demonstrating there is significant space for outdoor pursuits within the site'.[83] Furthermore, as I said earlier, not all open space needs to be useable for outdoor pursuits to be valuable.
[81] Exhibit 11 [60].
[82] Original emphasis.
[83] Exhibit 11 [67].
Finally, the proposed development incorporates suitable open space for its context to 'provide space for external features and essential facilities'[84] (cl 5.1.4 P4 final bullet point). As Mr Mrdja said in his evidence, '[t]he extent of open space provided is more than adequate to accommodate external fixtures such as solar collectors, clothes drying areas, letterboxes and the like'[85] and '[a]ll required essential facilitates have been provided on site, confirming suitable open space has been provided'.[86]
[84] Original emphasis.
[85] Exhibit 11 [68].
[86] Exhibit 11 [69].
Overshadowing
[137] Exhibit 10 [30].
Each of the three locality witnesses expressed concern about the overshadowing caused by Units 4 and 5 on their rear garden or courtyard and, in the case of No. 23A and No. 25 Leon Road, also into their rear internal living areas, particularly in winter. Unlike Mr and Mrs Anghie's property and Mr and Mrs Preetham's property, Mr and Mrs Jakovich's house is designed such that the north facing rear rooms are bedrooms, rather than a living or family room. Nevertheless, Mr Jakovich said that '[m]y backyard is very important to my wife and I', because it is 'a place where my grandchildren play most days' and 'a place where my wife and I enjoy gardening'.[138]
[138] Exhibit 9 page 5.
The proposed development satisfies the deemed-to-comply requirement in cl 5.4.2 C2.1 Solar access for adjoining sites of the RCodes Volume 1, which requires that the shadow cast at midday on 21 June onto an adjoining property does not exceed 25% of the site area (on adjoining properties coded R25 and lower). Nevertheless, the evidence shows that, because of the orientation of the adjoining properties to the south, including north-facing internal living areas and contiguous external living areas at No. 23A and No. 25 Leon Road, the proposed development would have a significant adverse impact on those two properties in particular by reason of overshadowing in winter.
Mr Hockley drew by hand the location of the rear garden or courtyard of the three locality witnesses' properties on the overshadowing plan in the plans of the proposed development showing overshadowing of adjoining properties at midday on 21 June. In addition, the letter of objection dated 15 May 2020 from Mr Anghie to the City, which he reproduced as Attachment 1 to his witness statement, contains computer-generated shadow diagrams showing current overshadowing and overshadowing in consequence of the proposed development. Although the provenance of these computer-generated shadow diagrams is not clear, the applicant did not object to the admission of this evidence and it appears to be largely consistent with Mr Hockley's evidence based on the overshadowing plan in the plans of the proposed development.
The evidence shows that, presently at midday in midwinter, the large masonry boundary wall overshadows a little over half of the rear garden of Mr and Mrs Anghie's property, whereas the proposed development (Unit 4) would additionally overshadow most of the rest of the garden, other than a square area in the south-eastern portion, and would also cast shadow into the western half of the living room of Mr and Mrs Anghie's property. Because the living room is two steps higher than the garden, Mr Hockley was not able to determine the depth of shadow cast into the living room. In addition, the computer-generated shadow diagrams produced by Mr Anghie show that the overshadowing would be worse at 2.00 pm on 21 June than at midday, because, whereas at present at that time about two-thirds of the garden and a narrow strip within the living room would be in shadow in consequence of the northern and western boundary walls and the house itself, the shadow cast by the proposed development (Unit 5) would extend across the whole of the garden and the width of the living room.
The evidence also shows that the proposed development (Unit 5) would overshadow the whole of the rear courtyard of Mr and Mrs Preetham's property at midday in midwinter, other than a narrow strip along the eastern edge, and also cast shadow into their family room across its width. Because the family room of Mr and Mrs Preetham's house is at the same level as the rear courtyard, Mr Hockley was able to determine the depth of shadow cast on the floor in that room as approximately 2.5 to 3 metres. Mr Mrdja agreed with this estimate.
The overshadowing of the rear of Mr and Mrs Jakovich's property at midday in midwinter shown on the overshadowing plan is not as significant as for their neighbours to the east and west, because more than half of their rear boundary would abut the communal driveway between the buildings in the proposed development. However, it is likely that, during winter mornings, their rear garden would be overshadowed by Unit 4 and that, during winter afternoons, their rear garden would be overshadowed by Unit 5 in the proposed development.
Mr Hockley expressed the opinion that, given the extent of overshadowing, including into the rear internal living areas, the proposed development would have an unacceptable impact on the residential amenity of Mr and Mrs Anghie's property and Mr and Mrs Preetham's property, notwithstanding the satisfaction of the deemed-to-comply requirement concerning solar access for adjoining sites in the R-Codes Volume 1. In contrast, Mr Mrdja expressed the opinion that, although it is 'unfortunate that the shadow does fall in the outdoor living areas of the adjoining properties',[139] 'it's unavoidable unless we sort of remove the entire second storey for each of [U]nit[s] 4 … and 5 …',[140] given the layout and orientation of the adjoining properties to the south. He also expressed the opinion that the overshadowing impact is acceptable in terms of the residential amenity of the adjoining properties, essentially because the proposed development satisfies the deemed-to-comply requirements of the RCodes Volume 1 in relation to solar access for adjoining sites, the two storey walls of Units 4 and 5, which are set back approximately 1.7 metres and approximately 1.8 metres (for the principal section), respectively, exceed the relevant deemed-to-comply setback requirement of approximately 1.2 metres, and the affected properties have other outdoor living areas, beyond the north-facing garden or courtyard, which would not be overshadowed by the development in midwinter. In particular, both Mr and Mrs Anghie's and Mr and Mrs Preetham's properties have a courtyard on the eastern side of the house.
[139] ts 127, 10 November 2020.
[140] ts 128, 10 November 2020.
Although it is clear that the extent of overshadowing on the adjoining properties to the south would have a significant adverse impact on the residential amenity of those properties, I prefer Mr Mrdja's evidence that the impact is acceptable over Mr Hockley's evidence that the impact is not acceptable, for the following two reasons. First, the development satisfies the deemed-to-comply requirement in cl 5.4.2 C2.1 Solar access for adjoining sites, which prescribes the maximum percentage of site area of adjoining properties that can be overshadowed at midday on 21 June by reference to the residential density coding of the adjoining site.[141] Significantly, although the overshadowing is across the coding boundary between the R40 and R20 coded areas at the southern boundary of the site, the deemed-to-comply requirement in cl 5.4.2 C2.1 of the R-Codes Volume 1 is conscious of and premised upon the coding of the affected adjoining property. Secondly, the extent of overshadowing in this case is an unfortunate, but largely inevitable, consequence of reasonable development consistent with the R40 coding of the site and the fact that the affected properties lie to its south. Consequently, while the proposed development would certainly have a significant adverse impact on the adjoining properties to the south (particularly No. 23A and No. 25 Leon Road) in terms of overshadowing, the impact is acceptable in the circumstances of the case. Nevertheless, as discussed later in these reasons, the extent of the overshadowing can be reduced, to a degree, without compromising reasonable development of the site consistent with its coding and, indeed, without significantly altering Units 4 and 5.
Bulk and scale
[141] The maximum percentage of site area of adjoining properties that can be overshadowed under the deemed-to-comply requirement is 25% of site area on adjoining properties coded R25 and lower, 35% of site area on adjoining properties coded R30 to R40 and 50% of site area on adjoining properties coded higher than R40.
Each of the locality witnesses expressed concern about the impact of the bulk and scale of the proposed development on the amenity of their properties. The southern elevation of Unit 4 comprises an approximately 8 metre long and approximately 7 metre high wall set back approximately 1.7 metres from the southern boundary of the site. The southern elevation of Unit 5 comprises an approximately 10.8 metre wide and approximately 7 metre high wall set back approximately 1.8 metres from the southern boundary of the site and, to its west, a 4 metre wide approximately 7 metre high wall set back 2.454 metres from the southern boundary. In contrast to the eastern and western elevations of the proposed development presenting to adjoining properties, the southern elevation of Unit 4 and most of the southern elevation of Unit 5 is in a common alignment with no recessing. In contrast to the Waratah Avenue and communal driveway elevations of the proposed development, the southern elevations of Units 4 and 5 do not utilise any colours, finishes, textures or materials to soften its bulk and scale and add visual interest.
Mr Anghie and Mr Jakovich each expressed a concern that the southern walls of the proposed development would make them 'feel entombed in concrete, and will absolutely destroy the amenity that we currently enjoy with a sense of space, sky views, tree canopy and good cross[]ventilation'.[142] Ms Preetham also said that 'having such a large brick wall (both in height and length) and that is only 1.8 [metres] away from us is a death knell for our amenity and is going to make us feel as if we are entombed in concrete' and 'would absolutely destroy the amenity that we currently enjoy which is a sense of space, sky, views, tree canopy and good cross[-]ventilation'.[143]
[142] Exhibit 8 page 7 and Exhibit 9 page 7.
[143] Exhibit 10 [23].
The town planning expert witnesses agree that if the cottonwood trees planted along the eastern part of the northern boundary of Mr and Mrs Angie's property are retained, that vegetation would effectively screen the eastern half of the approximately 8 metre long second storey wall of Unit 4 from their garden and living room, but they would see its western half (approximately 4 metres in length) to the west of the landscaping. The expert witnesses agree that, contrary to Mr Jakovich's expectation, the southern wall of Unit 4 is unlikely to be seen from the rear garden of No. 23B Leon Road if the landscaping along the eastern part of the northern boundary of that property is maintained. They also agree that there might be an oblique view of a part of the southern elevation of Unit 5 from Mr and Mrs Jackovich's property, although it would be screened or filtered through the landscaping now proposed on the landscaping concept plan at the end of the communal driveway in the proposed development. The expert witnesses agree that from the family room and rear courtyard at No. 25 Leon Road, one would see the majority of the approximately 10.8 metre wide second storey wall. They also agree that, although part of the view of that wall would be screened or filtered by the existing tree along the southern boundary of the site that is proposed to be retained, it may be difficult to retain that tree with the current configuration of Unit 5, because, although the midpoint of the trunk is approximately 1.1 metres from the southern boundary of the site, a major branch of the tree is approximately 1.8 metres from the southern boundary and would have to be removed to accommodate the currently proposed footprint of Unit 5. This may in turn affect the health and longevity of the tree.
Mr Hockley expressed the opinion that, having regard to the coding interface between the R40 and R20 coded areas at the southern boundary of the site and the aim of the Scheme stated in cl 9(a) to '[p]rotect and enhance local character and amenity',[144] the proposed development would have an unacceptable impact on the residential amenity of Mr and Mrs Anghie's property at No. 23A Leon Road and on the residential amenity of Mr and Mrs Preetham's property at No. 25 Leon Road (but not Mr and Mrs Jakovich's property at No. 23B Leon Road) in consequence of the bulk and scale of the southern elevations of Units 4 and 5, given their proximity to the common boundary and limited articulation.
[144] Emphasis added.
In contrast, Mr Mrdja expressed the opinion that the proposed development would not have an unacceptable impact on the residential amenity of No. 23A and No. 25 Leon Road by reason of bulk and scale, because the southern walls of the development could have been located closer (with a setback of approximately 1.2 metres) to the properties to the south, under the deemed-to-comply provisions of the R-Codes Volume 1, a corridor of landscaping is proposed within the setbacks of Units 4 and 5 to the southern boundary, and each of the affected properties to the south has an alternative outdoor living area at the side of the house.
I prefer Mr Hockley's evidence over Mr Mrdja's evidence on this aspect, because the southern elevations of Units 4 and 5 are located at the coding boundary between the R40 and R20 coded areas and the currently proposed plans do not make any, or any sufficient, effort to mitigate bulk and scale by recessing any part of the principal second storey elevations (which, as will be seen shortly, can occur without compromising reasonable development of the site consistently with its R40 coding and, indeed, without significantly altering Units 4 and 5) and to use colours, finishes, textures and materials, which are used elsewhere within the proposed development, to soften the bulk and scale of the elevations presenting to the south. Particularly given the coding interface at the southern boundary of the site, the adjoining residents to the south have a reasonable amenity expectation that greater sensitivity will be exercised in the siting, design and presentation of the elevations of the proposed development in that part of the site. Such sensitivity does not need to compromise reasonable development of the site consistent with its coding.
I conclude that the development proposed in the October 2020 plans would have an unacceptable adverse impact on the residential amenity of the adjoining properties to the south in terms of bulk and scale.
Conditions to address unacceptable amenity impact in terms of bulk and scale
During the concurrent expert evidence, I asked Mr Hockley whether, if I accept his evidence (as I have in relation to visual impact of bulk and scale) that the proposed development would have an unacceptable impact on the residential amenity of the adjoining properties to the south, and noting that this evidence relates to a relatively small part of a large development, conditions of approval could be imposed which would satisfactorily address the amenity impacts. I adjourned the hearing to enable Mr Hockley to consider this question.
When the hearing resumed, Mr Hockley indicated that if certain conditions of approval were imposed, the bulk and scale and overshadowing impacts of the proposed development on the adjoining properties to the south would change, in his opinion, from unacceptable to acceptable.[145] The conditions suggested by Mr Hockley which would have this effect are as follows:
[145] ts 143 and 154, 10 November 2020.
(1)The design of Unit 4 is to be amended as follows to the satisfaction of the City:
(a)at the first floor the setback of the south-facing wall of Bedroom 1 (other than the ensuite) from the southern boundary is to be increased to 2.5 metres; and
(b)colours, finishes, textures and materials similar to those shown on the internal driveway elevations are to be used on the first floor south-facing wall to soften the bulk and scale when viewed from adjoining properties to the south.
(2)The design of Unit 5 is to be amended as follows to the satisfaction of the City:
(a)at ground floor and first floor the setback of the entrance and lift to the eastern lot boundary of Lot 5 is to be increased to 2.5 metres;
(b)the ground floor south-facing wall is to be indented in its central portion to retain the existing tree;
(c)at first floor the setback of the south-facing wall from the southern boundary is to be increased to a minimum of 2.5 metres; and
(d)colours, finishes, textures and materials similar to those shown on the internal driveway elevations are to be used on the first floor south-facing wall to soften the bulk and scale when viewed from adjoining properties to the south.
(3)An arborist's report is to be submitted by the applicant to the City confirming that with the amendment in paragraph (b) of the preceding condition the existing tree is likely to survive the carrying out of the development.
(4)A schedule of external colours, finishes, textures and materials is to be submitted to and approved by the City prior to the commencement of construction.
Mr Mrdja agrees with these conditions and the applicant accepts their imposition.
I accept Mr Hockley's evidence that, if the four conditions set out above were imposed, the development would have an acceptable impact on the residential amenity of the adjoining properties to the south in terms of bulk and scale. The conditions would effectively reduce the apparent bulk and scale of the proposal by:
•setting back the section of the south-facing wall of Unit 4, which would be most apparent from Mr and Mrs Anghie's property (to the west (left) of their landscaping), by a further 0.8 metre from the common boundary;
•shortening by 1 metre and setting back by a further 0.7 metre at the first floor the principal southern wall of Unit 5 from the common boundary with Mr and Mrs Preetham's property;
•ensuring that the existing tree proximate to Mr and Mrs Preetham's property survives the development and will therefore screen and filter part of the two storey southern wall of Unit 5 from the outset (while the rest of the landscaping would need to grow to do so); and
•introducing colours, finishes, textures and materials on the first floor south-facing walls of Units 4 and 5 to mitigate their bulk and scale and introduce visual interest to those walls when viewed from adjoining properties.
I am satisfied, on the evidence, that, with these changes, the proposed development is acceptable in terms of its impact on the residential amenity of the adjoining properties to the south.
I found earlier that although the development would have a significant adverse impact on the adjoining properties to the south (particularly No. 23A and No. 25 Leon Road) in terms of overshadowing, the impact is acceptable in the circumstances of the case. Nevertheless, the conditions suggested by Mr Hockley would, to a degree, reduce the extent of overshadowing of the adjoining properties (noting that the development does not have a pitched roof), by increasing the setback of part of the second storey wall of Unit 4 by 0.8 metre and by shortening the southern façade of Unit 5 by 1 metre and increasing the setback of the principal part of the second storey wall of Unit 5 by 0.7 metre.
Is the proposed development contrary to the aims of the Scheme and the objectives of the Residential Zone under the Scheme?
In his witness statement, Mr Hockley expressed the opinion that the proposed development 'has the potential to adversely affect the amenity of neighbours due to the bulk and scale of the development', resulting in 'a detrimental impact on the local character and amenity of the locality and compromis[ing] the residential built form outcomes and for these reasons is not considered to meet the aims of [the Scheme]'.[146] Mr Hockley also gave evidence that the proposed development 'is not considered to meet the objectives of the Residential [Z]one under [the Scheme,] given that the proposal is incompatible with the desired streetscape in terms of bulk, scale, street alignment and setbacks'.[147]
[146] Exhibit 12 [99].
[147] Exhibit 12 [100].
As indicated earlier, if conditioned in the manner referred to above, Mr Hockley considers that the proposed development would have an acceptable impact on the amenity of the adjoining residential properties to the south and I have accepted his evidence in this regard. Furthermore, for the reasons given in relation to issue 5 above, I have found that the proposed development is compatible with its setting in terms of the streetscape of Waratah Avenue assessed both in the context of the current relatively varied and eclectic streetscape and the likely future streetscape in which original single storey single houses will be replaced over time with two storey grouped dwelling developments consistent with the up-coding of the immediate locality of the site. As Mr Mrdja said in his evidence:[148]
The bulk and scale of the development is appropriate to its setting and the development is sympathetic with the existing streetscape. The area is currently in transition as planned under [the Scheme] and this development will contribute to this evolution.
[148] Exhibit 11 [99].
Consequently, I am satisfied, on the evidence, that the proposed development is consistent with aim (a) of the Scheme to '[p]rotect and enhance local character and amenity'.
I am also satisfied, on the evidence, that the proposed development is consistent with aim (b) of the Scheme to '[r]espect the community vision for the development of the district' and the objective of the Residential Zone '[t]o ensure development maintains compatibility with the desired streetscape in terms of bulk, scale, height, street alignment and setbacks'. The 'community vision for the development of the district' and 'the desired streetscape' is necessarily informed, as a matter of orderly and proper planning, by the up-coding of the site and immediate locality which reasonably contemplates replacement of original single houses with high quality grouped dwelling developments of the nature proposed in these proceedings.
Finally, for the reasons given earlier, I am satisfied, on the evidence, that the proposed development is consistent with aim (c) of the Scheme to '[a]chieve quality residential built form outcomes for the growing population' and the objective of the Residential Zone to 'facilitate and encourage high quality design, built form and streetscapes throughout residential areas'.
I conclude that the proposed development is consistent with relevant aims of the Scheme and the objectives of the Residential Zone.
What is the correct and preferable decision?
I have determined that, insofar as the proposed development does not satisfy relevant deemed-to-comply requirements of the R-Codes Volume 1, it demonstrates compliance with the corresponding design principles and satisfies relevant objectives of the R-Codes Volume 1 in relation to street setback, open space, setback of garages (if the garage of Unit 8 is relocated by 1 metre to the west) and outdoor living areas. I have also determined that the proposed development is compatible with its setting and, if modified in accordance with the conditions discussed earlier, would have an acceptable impact on the residential amenity of the adjoining properties to the south. I have also determined that the application is consistent with relevant aims of the Scheme and the objectives of the Residential Zone.
It follows that the correct and preferable decision at the time of the decision upon the review is to grant conditional development approval for the proposed development. As indicated earlier, in accordance with the Tribunal's usual practice in planning review proceedings, the City provided a set of draft 'without prejudice' conditions which it contends should be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate and the applicant provided a response. The applicant accepted all of the conditions proposed by the City, but proposed a revision in place of conditions 2 and 3 in the City's draft conditions concerning the deletion of the bin store and compactor and additional landscaping. As indicated earlier, the City accepted the applicant's revision of these conditions. The conditions suggested by the parties are appropriate to regulate the carrying out of the proposed development. In addition, as discussed earlier, the conditions suggested by Mr Hockley to appropriately mitigate the bulk and scale of Units 4 and 5 should also be imposed. Finally, the condition referred to earlier requiring the garage of Unit 8 to be relocated by 1 metre to the west should be imposed to comply with the design principles in cl 5.2.1 Setback of garages and carports (and satisfy the deemed-to-comply requirement).
Orders
For these reasons, I make the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 25 August 2020 to refuse development approval for a nine unit grouped dwelling development at Nos. 130 and 132 (Lots 234 and 235) Waratah Avenue, Dalkeith 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 the conditions in Attachment A.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
1 DECEMBER 2020
Attachment A Conditions of approval
(1)This approval is for a 'Residential (Grouped Dwelling)' land use as defined under the City of Nedlands Local Planning Scheme No. 3 and the subject land may not be used for any other use without prior approval of the City of Nedlands (City).
(2)A revised plan for the development shall be submitted to the City prior to the commencement of construction which:
(a)deletes the bin store and the compactor from the plan;
(b)replaces the bin store area with additional landscaping, which is to be presented in an amended Landscaping Plan and approved to the satisfaction of the City; and
(c)requires all bins to be stored within the garages of each of the individual dwellings, or in a suitable area within the strata lot of each dwelling, and to be collected from the verge on the appropriate collection day.
(3)The design of Unit 4 is to be amended as follows to the satisfaction of the City:
(a)at the first floor the setback of the south-facing wall of Bedroom 1 (other than the ensuite) from the southern boundary is to be increased to 2.5 metres; and
(b)colours, finishes, textures and materials similar to those shown on the internal driveway elevations are to be used on the first floor south-facing wall to soften the bulk and scale when viewed from adjoining properties to the south.
(4)The design of Unit 5 is to be amended as follows to the satisfaction of the City:
(a)at ground floor and first floor the setback of the entrance and lift to the eastern lot boundary of Lot 5 is to be increased to 2.5 metres;
(b)the ground floor south-facing wall is to be indented in its central portion to retain the existing tree;
(c)at first floor the setback of the south-facing wall from the southern boundary is to be increased to a minimum of 2.5 metres; and
(d)colours, finishes, textures and materials similar to those shown on the internal driveway elevations are to be used on the first floor south-facing wall to soften the bulk and scale when viewed from adjoining properties to the south.
(5)An arborist's report is to be submitted by the applicant to the City confirming that with the amendment in paragraph (b) of the preceding condition the existing tree is likely to survive the carrying out of the development.
(6)A schedule of external colours, finishes, textures and materials is to be submitted to and approved by the City prior to the commencement of construction.
(7)The design of Unit 8 is to be amended to the satisfaction of the City so as to relocate the garage (including its walls) 1 metre to the west with consequent changes to the layout and design of the kitchen, laundry, toilet and storage off the garage.
(8)The existing tagged vegetation on site shall be retained where possible and the area that was shown as a communal bin store area on the plans subject of the application for review shall be landscaped to the satisfaction of the City. Landscaping shall be installed and maintained in accordance with the approved Landscaping Plan dated 9 June 2020, or any modifications approved thereto, for the lifetime of the development thereafter, to the satisfaction of the City.
(9)The Acoustic Report prepared by Sealhurst (Revision 3) dated 8 July 2020 forms part of this development approval and shall be complied with at all times to the satisfaction of the City, including that the condenser units be located as shown on the figure below 3.2.3 of the report. Recommendations contained within the acoustic report to achieve compliance with the Environmental Protection (Noise) Regulations 1997 are to be carried out and maintained for the lifetime of the development to the satisfaction of the City.
(10)All stormwater generated from the development shall be contained on site.
(11)All footings and structures shall be constructed wholly inside the site boundaries of the property's Certificate of Title.
(12)Prior to occupation of the development all fencing/visual privacy screens and obscure glass panels to major openings and unenclosed active habitable areas as annotated on the approved plans shall be screened in accordance with the Residential Design Codes by either:
(a)fixed obscured or translucent glass to a height of 1.6 metres above finished floor level; or
(b)timber screens, external blinds, window hoods and shutters to a height of 1.6m above finished floor level that are at least 75% obscure; or
(c)a minimum sill height of 1.6 metres as determined from the internal floor level; or
(d)an alternative method of screening approved by the City.
The required screening shall be thereafter maintained to the satisfaction of the City.
(13)Prior to occupation of the development, the finish of the parapet walls (on any proposed survey strata boundary) is to be finished externally to the same standard as the rest of the development or in:
(a)face brick;
(b)painted render;
(c)panted brickwork; or
(d)other clean material as specified on the approved plans,
and maintained thereafter to the satisfaction of the City.
(14)Prior to occupation of the development, the proposed car parking and vehicle access areas shall be sealed, drained, paved and line-marked in accordance with the approved plans and are to comply with the requirements of AS2890.1 to the satisfaction of the City.
(15)Prior to occupation of the development, all external fixtures, including, but not limited to, TV and radio antennae, satellite dishes, plumbing ventes and pipes, solar panels, air conditioners, hot water systems and utilities, shall be integrated into the design of the building and not be visible from the primary street or secondary street to the satisfaction of the City.
(16)Prior to the commencement of construction, a Construction Management Plan shall be submitted to the satisfaction of the City. The approved Construction Management Plan shall be observed at all times throughout the construction process to the satisfaction of the City.
(17)Prior to the occupation of the development, a lighting plan is to be submitted and approved by the City and maintained for the duration of the development to the satisfaction of the City.
(18)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.
(19)This decision constitutes planning approval only and is valid for a period of four years from the date of approval. If the subject development is not substantially commenced within the four-year period, the approval shall lapse and be of no further effect.
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