SAUNDERS and SHIRE OF HARVEY - [2011] WASAT 104

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SAUNDERS and SHIRE OF HARVEY [2011] WASAT 104

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 JULY 2011

FILE NO/S: DR 18 of 2011

BETWEEN: JOHN SAUNDERS
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Town planning - Development application - Survey strata lot - Strata bylaws - Management statement - Approval of strata company - Two storey dwelling - Original grouped dwelling development approval - Objection - Complies with Residential Design Codes of Western Australia (2008) - General appearance of buildings - Harmony with existing buildings - Lack of design guidelines - Height policy, building form, materials, colours, streetscape, solar access - Whether the proposed dwelling is required to be consistent with the 2005 planning approval and if so, whether the 2005 approval required the need for a single storey dwelling Whether the proposed dwelling is significantly different from the planned intent for the site with particular regard to planning requirements dealing with the general appearance of dwellings

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008)
Shire of Harvey District Planning Scheme No 1, cl 4.5.3, cl 9.8, cl 11.6.1, cl 11.6.2
Strata Titles Act 1985 (WA), s 7, s 7A, s 7B

Result:

Application for review allowed
Development approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr G Barbour
Respondent: Mr S Potter (Representative)

Solicitors:

Applicant: Thompson McRobert Edgeloe Group (Consultants)
Respondent: Shire of Harvey

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

Boulter and City of Subiaco [2007] WASAT 71
Crystal Lake Pty Ltd and City of Subiaco [2006] WASAT 15
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Harold & Gladys Verryt and Ann Williams [2005] WASAT 101

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a two storey dwelling on Survey Strata Lot 1 (Lot 202) Heavenly Court, Australind, on Strata Plan 51192. Lot 1 is on the corner of Heavenly Court and Paris Road and was one of 14 survey strata lots approved by the Western Australian Planning Commission in 2005 resulting from the subdivision of a parent lot which was at that time described as Lot 5 Paris Road.
As part of a parallel application, the Shire of Harvey, on 14 June 2005, approved an application for 14 strata titled grouped dwellings on the parent lot.
The issues before the Tribunal were:
1.whether the proposed dwelling was required to be consistent with the Shire of Harvey's 2005 planning approval and, if so, whether the 2005 approval required the need for a single storey dwelling; and
2.whether the proposed dwelling would be significantly different from the planned intent for the site with particular regard to planning requirements dealing with the general appearance of dwellings.
The Tribunal found that the proposed dwelling was not required to be consistent with the original 2005 planning approval. Even if the Tribunal was wrong on the matter of consistency with the original approval, the Tribunal found that the original approval did not limit the height of dwellings to a single storey. The Tribunal also examined whether any of the various requirements associated with the Strata Titles Act 1985 (WA) placed design or height restrictions on the proposed dwelling. The Tribunal determined that no relevant restrictions arose out of the Strata Titles Act 1985 (WA).
On the second issue, the Tribunal found that the planning framework did not provide any guidelines as to design intentions for the applicant's site. It followed that the planning framework did not place any relevant design restrictions on the design appearance of the proposed dwelling. On all other planning matters, the Tribunal found that the proposal was consistent with the planning intent for the site. The question remained whether the general appearance was out of harmony with existing buildings and/or the landscape character of the area.
When the term 'area' was considered in the broader context, the Tribunal agreed with the applicant's argument that Australind was an area in transition with a wide variety of styles and evidence of some two storey additions and some new two storey dwellings. When the term 'area' was considered in a narrower context, the Tribunal found that although the proposal was different from the most immediate existing buildings, it was not out of harmony because the proposal contained elements which respected existing building appearances and the proposal retained a modest scale in harmony with existing dwellings despite being a two storey proposal.
The Tribunal determined that it was reasonable and appropriate to exercise discretion and approve the proposed development.
The application for review was allowed and planning consent was granted subject to conditions.

Introduction

These proceedings involve an application brought by Mr John Saunders (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Harvey (Shire or Council) made on 14 December 2010 to refuse development approval for a two storey dwelling on Survey Strata Lot 1 (Lot 202) Heavenly Court, Australind (site or Lot 1). Lot 1 is on the corner of Heavenly Court and Paris Road.
The applicant's site is one of 14 strata lots approved by the Western Australian Planning Commission (WAPC) in 2005.
At a Council meeting on 14 June 2005, the Shire approved a development application for 14 strata titled grouped dwellings on the parent lot which was then described as (Lot 5) Paris Road.
The Shire endorsed a copy of the strata bylaws in November 2006. These endorsed bylaws recognised a WAPC condition that required development on individual lots to comply with the group dwelling approval issued by the Shire.
It is common ground between the parties and included in the agreed statement of facts that the relevant 'Strata bylaws did not require strata owners to develop in accordance with the original development approval … '.
Since the approval in 2005, six building licences have been issued and five dwellings have been constructed on individual strata lots within (Lot 202) Heavenly Court.
It is agreed by both parties that the approved building licences are generally in accordance with the approved planning consent of 20 June 2005; notably, all are single storey.
The applicant submitted a proposal for a two storey dwelling in September 2010. It is agreed by the parties that the original design was 'modified to address concerns of Shire staff relating to the appearance of the building'.
At its meeting in November, the Council agreed to advertise the proposal. One submission was received an objection from an adjoining survey strata lot owner and the Council resolved to refuse the application at its meeting in December 2010.

Site and locality

It appears that the parent Lot 202 (parent lot) was itself the result of a subdivision where a large parcel of land containing a two storey 'Spanish style' dwelling was subdivided to contain one lot with the dwelling and another lot (the parent lot) of vacant land. The parent lot had a rectangular shape with frontage of 50.29 metres to Paris Road and a frontage of 99 metres to Heavenly Court.
The parent lot has been subdivided to create 14 survey strata lots varying in size from 300 square metres to 355 square metres. Access to all lots is from Heavenly Court either by direct frontage or via internal driveways.
The applicant's lot (No 1) has an area of 302 square metres and is the front corner lot with a frontage of just over 25 metres facing Paris Road and a frontage of 12 metres to Heavenly Court.
Paris Road is at the bottom of a small valley with houses on the other side of Paris Road terraced up the hill. On the Heavenly Court side of Paris Road (south side), the hill is smaller but still slopes up away from Paris Road. A drawing for the original earthworks plan for the subdivision shows a road level at Heavenly Court's intersection with Paris Road of approximately 5 metres. The applicant's site is shown with a pad level of 6 metres and each lot, as they progress up Heavenly Court, has the pad level increased by, usually, 1 metre. The floor level of the 'Spanish style' dwelling at the top of the hill is shown as 12.90 metres or 6.9 metres above the finished ground level of the applicant's lot.
On the opposite side of Heavenly Court there is a dwelling complex of, what was described at the site viewing as single storey aged persons dwellings. It is not possible from the written evidence to confirm that they are aged persons dwellings, but from the viewing they are clearly single storey dwellings on relatively small lots.
It is not possible to describe uniform dwelling characteristics of the immediate locality except to note that they are generally modest dwellings with a wide variety of styles. There is some evidence of two storey dwellings or two storey additions in the locality.
The Tribunal had the benefit of a viewing of the site and immediate locality in the company of the parties.

Planning framework

The site is zoned 'residential' and has a residential density coding of 'R15/30/50' under Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme). The use proposed in the development application is permitted under the Scheme.
Clause 4.5.3 of DPS 1 requires applications for dwellings to comply with the Residential Design Codes of Western Australia (2008) (Codes). It is common ground between the parties and included in the agreed statement of facts 'that the proposed dwelling is understood to comply with all applicable elements of the [Codes]'.
Clause 9.8 of the Scheme, 'General Appearance of Buildings' provides that:
Council will not permit the erection of a building which by virtue of colour or type of materials, architectural style, height or bulk, ornamental or general appearance has an exterior design which is out of harmony with existing buildings or the landscape of character of the area.
Clause 11.6.2 enables Council to adopt precinct planning policies. It is common ground between the parties and included in the agreed statement of facts that 'the Shire of Harvey does not have any residential design guidelines or policy(s) [sic] for this location or the broader Australind area'.
Clause 11.6.1 enables Council to adopt planning policies. There is only one relevant policy which is the Shire of Harvey Policy 19.17 Building Height (Height Policy). It is common ground between the parties that the proposal complies with the Height Policy.

Proposed development

The proposed development is a two storey dwelling with a contemporary appearance. It is proposed to have a 5 degree roof pitch with external wall materials consisting of fibre cement matrix cladding together with colorbond metal sheeting (refer to Attachment A for a perspective of the proposed dwelling).

Council's decision

The Council advertised the development application and received one submission from an adjoining vacant strata lot owner who objected to the proposal.
The development application was the subject of a report by Council's planners to the council meeting on 14 December 2010, in which the staff acknowledged that the design appearance had been supported in the report to council's November meeting. The staff provided two options to the December meeting; one for approval and one for refusal without making a recommendation.
The Council refused the application for the following two reasons:
1.The proposed dwelling is inconsistent with the original planning consent dated 20th June 2005, requiring the need for single storey dwellings.
2.The proposed dwelling is significantly different from the planned intent for the site and approval would be inconsistent with clause 9.8 of the Scheme which states:
'9.8GENERAL APPEARANCE OF BUILDINGS
Council will not permit the erection of a building which by virtue of colour or type of materials, architectural style, height or bulk, ornamental or general appearance has an exterior design which is out of harmony with existing buildings or the landscape of character of the area[.']

The issues

In their written submissions, the parties did not propose or agree any specific issues. Nevertheless the issues are implied by the structure of the submissions where both parties have based their submissions on the Council's two grounds of refusal.
The first ground of refusal leads to questions associated with the relevance of the original planning approval in 2005. The second ground of refusal partially appears to repeat the first ground by reference to inconsistency with the planned intent for the site. However, the Tribunal considers this question to refer to the broader planning framework rather than being limited to the original approval. Hence the following two issues arise for determination in this review:
1.Whether the proposed dwelling is required to be consistent with the Shire's 2005 planning approval and if so, whether the 2005 approval required the need for a single storey dwelling; and
2.Whether the proposed dwelling is significantly different from the planned intent for the site with particular regard to planning requirements dealing with the general appearance of dwellings.
The Tribunal will address each issue in turn.

Whether the proposed dwelling is required to be consistent with the 2005 planning approval and, if so, whether the 2005 approval required the need for a single storey dwelling

Applicant's case

The applicant argued that the original approval has limited, if any, relevance and that it is not part of the planning framework for assessment of the current application.
By reference to the 2005 approval, the applicant observed that there are no conditions that specifically or by implication, prevent future applications for two storey buildings on any of the survey strata lots.
Before proceeding to the applicant's arguments relating to the strata bylaws, the Tribunal notes that the relevance of the strata bylaws arises not from a planning condition of the Shire but from condition 14 of the WAPC's approval of the survey-strata lots.
Condition 14 required:
A Management Statement being prepared for Local Government's consideration and written confirmation in accordance with section 5C of the Strata Titles Act 1985 (as amended) to include the following additions to the bylaws contained in schedules 1, 2 and 2a of that Act:
•Development or redevelopment on the survey strata lots is to comply with the grouped dwelling approval issued by the local government;
•Amendment to or repeal of the above provision cannot be [effected] without the permission of the WAPC (Local Government).
The applicant observed that:
The Shire has endorsed a copy of the Strata ByLaws which does not obligate the subsequent strata owners to develop in accordance with the previously approved development plan. The Strata ByLaws simply requires that owners shall not construct on a lot any building which does not comply with the terms of any development approval issued by the Shire of Harvey. (Applicant's emphasis)
It is relevant for the Tribunal to confirm at this point that the issue is 'consistency' with the original approval not 'compliance' with the original approval. The parties observed in the agreed statement of facts that:
The Strata ByLaws did not require the strata owners to develop in accordance with the original development approval but does require via clause 16 that:
ARCHITECTURAL AND LANDSCAPING GUIDELINES
(1)The proprietor of a lot shall not construct, erect or install, or permit to be constructed or erected or installed on a lot
(a)any building or building addition, without a building license [sic] issued by the Shire of Harvey;
(b)any building or building addition without the approval of the strata company if required, obtained in accordance with sections 7A and 7B of the Strata Titles Act 1985; [and]
(c)any building or landscaping which does not comply with the terms of any development approval issued by the Shire of Harvey including any provisions in such development approval as to design requirements.
The applicant argued there are no requirements or directions on the architectural style, material, colour or height within the architectural and landscape guidelines of the strata bylaws.
He further argued that 'the Town Planning Scheme does not have the ability to require a particular style of buildings within a Strata Development'. In Harold & Gladys Verryt and Ann Williams [2005] WASAT 101 at [55] the Tribunal referenced the following:
As was held in Strata Plan No 464 v Oborn NSW Strata Titles Cases 197990:
It is for the body corporate, acting within its powers, to decide whether there will be uniformity in the external appearance of the building, either total or in particular respects.
The applicant finished his arguments by noting that the proposal is consistent with the entire applicable planning framework including DPS 1 and the Codes.

Respondent's case

A central argument for the respondent is that the 2005 planning consent required all lots to be developed in accordance with the approved plan and because the approval did not include an expiry date, the approval remains current. On that basis the respondent argues that the 2005 approval is part of the relevant planning framework and requires due consideration in the determination of the application.
The respondent acknowledges that the Shire does not have any relevant residential development policies or design guidelines. The respondent then argued that because of the lack of relevant policies it was appropriate to use the 2005 planning approval as a guide to 'achieving proper and orderly planning for this site'.
The respondent then argued that the position argued above 'is supported by Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54] in that the planning framework (planning consent dated 20 June 2005) remains current and there has been no substantial departure from the built form approved thus far and therefore considers consistency should be maintained'.
To avoid distraction, it is appropriate at this point for the Tribunal to observe that the above case has limited, if any, relevance to the current review. For reasons which will be explained later the Tribunal does not accept that the 2005 approval is part of the planning framework. In 2005, there were no relevant policies (apart from the Height Policy adopted in 2004 and reviewed in 2008). The situation remains the same in 2011. The parties agree the planning framework has not changed. However, unlike the case cited above which involved an extension of operating hours for a concrete batching plant which had received previous approvals, the application which is the subject of this review is substantially different from the original application. The 2005 proposal required merit assessment for a single storey dwelling. The current review requires merit assessment for a totally different design involving a two storey dwelling.
The respondent then argued that condition 14 of the WAPC's approval had significant weight. The respondent stated:
It is acknowledged that the subsequent Strata ByLaws do not expressly limit development to be in accordance with the Planning Consent dated 20th June 2005. However, the Respondent considers that the body corporate has made a conscious decision to adhere to the planned intent for the estate as evidenced by building licences issued for six (6) of the strata lots which are all generally in accordance with the approved plans.

The respondent noted that an objecting adjoining landowner, a member of the body corporate and the neighbour most affected by the proposal, has objected to the proposed departure from the planning framework.
The respondent concluded that 'the proposed development represents a significant departure from the approved design and therefore refusal ensures the development is not compromised and the expectations of the adjoining landowners have been maintained'.

Findings

The Tribunal considers that the respondent has made some assumptions that are not supported by the evidence. One example is the respondent's assumption that the body corporate has made a conscious decision to adhere to the planned intent for the estate. There is no evidence that the body corporate has ever met to discuss the planning intent for the estate. There is evidence that six individuals have obtained building licences for dwellings that are consistent with the original approval. However, it cannot be assumed this was a conscious decision to comply with an unspecified planned intent. The decisions may have been based on convenience, budget or individual preferences for single storey dwellings.
Similarly, the respondent cannot assume that its refusal meets the expectations of adjoining landowners. Only one landowner responded (and objected). The other landowners were silent.
In terms of the strata bylaws, the Tribunal does not find there are any significant restrictions on the design of dwellings or any requirement to comply with the original approval. The bylaws merely require that the potential buildings must comply with any development approval issued by the Shire. The term 'any' logically and correctly recognises that an individual lot may have more than one development approval over time.
Bylaw 1(b) requires that individual lot owners cannot build any building or building addition on a lot without the approval of the strata company, if required, and obtained in accordance with s 7A and s 7B of the Strata Titles Act 1985 (WA) (ST Act). The critical words are 'if required'.
It is important to note that there are significantly different restrictions on an individual's rights to develop when comparing a lot in a strata scheme with a lot in a survey strata scheme.
Section 7 of the ST Act provides that the proprietor of a lot in a group of three or more lots shall not cause or permit any structure to be erected or alterations or extensions to a structure without the written approval of the strata company, and without dissent. Section 7 which applies to strata schemes does not apply to a lot in a survey strata scheme.
In terms of erection of structures there are few restrictions on the owner of a survey strata lot. Section 7A only requires approval of the strata company '… if the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot …'.
In this particular application there are no concerns with plot ratio and/or open space. Therefore, approval of the strata company is not required.
When the strata company was created and the bylaws were adopted there was an opportunity for the strata company to establish specific or general design guidelines. The bylaws are silent on all aspects of design. There is no reference to form, height, colour, textures, materials or style. The bylaws do not contain any reference to any need to comply with the principles or intent of the original approval.
The parties provided a copy of the survey strata plan and the associated management statement. The documents do not provide any indication of intent for development of the lots. There are some details relating to the location and nature of air conditioning units and a requirement that all fencing 'shall be cream coloured metal panels and posts'. However, there is no reference relating to design guidelines or height of buildings.
Similarly, the conditions of the 2005 planning approval do not contain any reference to design guidelines, style or height.
The 2005 planning approval represented a snapshot in time. Furthermore, it was one of a vast range of possible development approvals for the site. While it appears that the 2005 approval remains current, the approval is not a limitation on individual lot owners but rather an opportunity to avoid the need to make a further planning application if the individual lot owners proceed generally along the lines of the 2005 approval.
It would be inconsistent with orderly and proper planning to prevent an individual lot owner from making a new planning application that varied significantly from the original approval. Similarly, in the absence of design guidelines or other restrictive conditions, it would be inconsistent with orderly and proper planning to prevent an applicant from submitting an application for a second storey addition to an existing dwelling on an individual lot within the survey strata scheme.
It is unreasonable to assume a planned intent for the future development in this survey strata scheme. The lack of conditions, design guidelines, height restrictions and/or relevant strata bylaws all indicate that there was no planned intent for consistent style or height in this survey strata scheme. Even if there was such intent, it was not protected by any of the mechanisms that were readily available in 2005: conditions of approval, design guidelines, height restrictions and/or relevant strata bylaws.
Therefore, the Tribunal finds that the proposed dwelling is not required to be consistent with the 2005 planning approval and that the 2005 approval did not require the need for a single storey dwelling.

Whether the proposed dwelling is significantly different from the planned intent for the site with particular regard to planning requirements dealing with the general appearance of dwellings

Applicant's case

The applicant's argument is that there is no planned intent for the site and that there are no scheme or policy provisions that indicate any intended design standards relating to appearance of the proposed building.
The applicant then argued that:
In the absence of specific design controls to interpret built form, the Residential Design Codes of Western Australia (via Clause 4.5 of the [D]PS) provide direction on streetscape, height, bulk and amenity for residential development. In addition[,] Council'[]s Policy 19.17 provides the required controls for Building Height.
The proposed design complies with all required criteria of the Residential Design Codes of Western Australia and Council's Policy 19.17 Building Height.
There is no specific performance criteria to assess whether the proposed building is out of harmony with existing buildings or the landscape character of the area, neither is there any guidance on the extent of the 'area' that applies when assessing the existing character.
Finally, the applicant argued that the locality is starting to undergo a transition and that the character of the area is undefined and constantly changing. The applicant's submission included photographs to support the argument on a varied character for the locality.

Respondent's case

The respondent's decision ties the 'lack of harmony' to the planned intent for the area. The Tribunal has already found that the planning framework does not provide a planned intent for the site (or locality) in terms of the design or appearance of the proposed building.
Nevertheless, even after dismissing reference to the planned intent for the site, the core of the respondent's argument remains: the proposed design will be out of harmony with existing buildings in the area. The respondent relies on cl 9.8 of the Scheme which sets out requirements for the 'general appearance of buildings'.
The Respondent maintains that application of Clause 9.8 has not been inappropriate nor has it sought to achieve uniformity throughout the estate. Its application is based on achieving proper and orderly planning and it is considered the proposal submitted will not achieve 'harmony' in materials, scale or general appearance to the approved singlestorey, pitched roof masonry residential units.
The Respondent[,] in making its determination[,] placed greater weight on the approved character of the strata lots (WAPC approval 87605) than freehold lots within the broader context of the locality as those lots are not subject to the same planning framework as the subject site, being the planning consent dated 20 June 2005.
The Tribunal has already found that the respondent has incorrectly placed substantial weight on the 2005 planning approval. Nevertheless, the Tribunal agrees that the respondent has reasonably placed greater weight on the appearance of buildings already built on the other survey strata lots.
The respondent argued that:
All of the approved dwellings and those subsequently constructed are single storey, masonry (or similar) construction and pitched roof, thereby defining the character of the estate.
…
There is no architectural similarity, in regard to appearance, materials, roof pitch, external colours or scale between the proposed dwelling [and existing dwellings].

Findings

Although the Tribunal has determined that the lack of design guidelines and policy make it difficult to define a planned intent for this site, there is still a question of reasonable expectations. The respondent made reference to Boulter and City of Subiaco [2007] WASAT 71 (Boulter) arguing by reference to [64] and [65] that there is a reasonable expectation that all strata owners will develop single storey masonry dwellings with pitched roofs.
At [64] of Boulter, the Tribunal observed that:
... the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single dwellings of the nature proposed in the development application. ...
Also, at [65], the Tribunal stated that:
... When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
In this particular case, for reasons discussed above, it is difficult to agree on 'expectations created by the approval of the subdivision'. Unlike the Boulter matter where the lots were 6 metres wide with an area approximately 232 square metres with restrictive vehicular access 'with the practical result that the rear of each allotment will comprise a garage stretching from one side boundary to the other', these lots are relatively larger (at least 30% larger) and are twice as wide.
The subdivision which created the applicant's survey strata lot results in some obvious planning limitations: car parking will be from the front; solar access may be difficult to protect for northfacing windows on some lots; the 1 metre difference in lot levels may create privacy issues; and the dwellings are likely to be modest to medium rather than large dwellings. Despite these limitations, there remains a very wide range of reasonable planning outcomes. In this review, it is difficult to make a case that 'the subdivision approval that created the applicant's lot predetermined to a considerable degree the 'likely form of development'.
For example, in terms of basic building form, there is no reasonable argument that the likely outcome would be either single storey or two storeys. When comparing the applicant's proposal for a modest two storey development with the six approved single storey dwellings, there is an argument that the most rational planning outcome is a two storey building form. A two storey building form provides greater amounts of open space, better solar access and a less garage dominant streetscape. On the other hand, a single storey building form has resulted in minimal private outside living areas with some squeezed up against a 1 metre high retaining wall on the south side of the dwelling with limited solar access. It would be unfortunate if the subdivision approval had predetermined to a considerable degree such a poor planning outcome resulting from building form. The applicant's proposal has demonstrated the existence of an alternate building form that provides better planning outcomes and at the same time complying with all requirements of the Codes.
It is agreed by the parties that the proposal complies with all applicable planning policies and all provisions of the Codes. However, this does not automatically lead to a finding that the proposal should be approved. The principle is clearly expressed in Crystal Lake Pty Ltd and City of Subiaco [2006] WASAT 15, (at [59]) where the Tribunal stated:
The Tribunal, therefore, recognised that, depending on the terms of the applicable town planning scheme, a responsible authority may retain residual discretion to refuse a residential development which conforms to the Codes, although conformity to a relevant Codes provision is likely to be a significant consideration in the exercise of planning discretion.
With the possible exception of cl 9.8 of DPS 1, the proposal complies with the provisions of DPS 1. Clause 9.8 describes general requirements concerning the appearance of buildings. As has already been established, there are no polices or design guidelines that deal with the appearance of buildings. The Codes provide some guidance on streetscape height and bulk. It is agreed by the parties and accepted by the Tribunal that the proposal complies with those relevant aspects of the Codes. It is also accepted by the Tribunal that the proposal does not have an adverse impact on the amenity of neighbours in terms of factors such as privacy and solar access.
Although the building is two storeys, the Tribunal finds that the height or bulk of the building is not out of harmony with existing buildings in the area, even if the term 'area' is limited to the group of lots created by the subdivision. The proposed building is at the bottom of the estate with a floor level 1 metre below the next lot up the hill (Lot 13); 2 metres below Lot 12; and 3 metres below Lot 11. The boundary of Lot 11 is only 34 metres away from the applicant's lot.
In this particular context, although more weight may be given to the other survey strata lots, the term 'area' should reasonably include the environment which is visible when standing in the street outside the applicant's lot. The applicant's lot is near the bottom of a valley which rises reasonably steeply on the other side of Paris Road. The Tribunal finds that a two storey dwelling is not out of harmony with existing buildings or the landscape character of the area.
The only objection received by the Shire was on the basis of a two storey dwelling proposal rather than a single storey dwelling proposal. There were no objections to the proposed colour and materials. The Tribunal does not find any reason to consider that the proposed materials and colours will be out of harmony with existing buildings. Although most buildings appear to be masonry, there is variation in colour and some are rendered. The roof materials, generally colorbond, vary in colour. The two story dwelling at the top of Heavenly Court is rendered white with an orange tiled roof. When standing in Heavenly Court, the overall view, including buildings on the other side of Paris Road, displays a wide variety of colours and materials.
The building form and appearance of the proposal is not the same as the cottage style dwellings with hipped roofs in the estate. However, almost directly opposite the review site in Paris Road there is a dwelling with a similar form. The building form and appearance does not have to be the same as existing buildings but it is required to harmonise. The Tribunal finds that the proposal is well designed and the use of colorbond elements on the walls will harmonise with the roofs of nearby dwellings.
There are merit arguments that the proposal may be the best designed building in the estate in terms of a well balanced external appearance.
It is not the first two storey building in Heavenly Court. There is a two storey 'Spanishstyle' dwelling at the top of Heavenly Court.
The proposal will provide a better streetscape to Paris Road, with a well designed two story building visible above the fence, rather than a cottage roof. The proposal provides a better streetscape outcome to Heavenly Court than some of the other buildings in the estate, with a significantly reduced car parking impact, by not providing a double width roller door to the street.
When the broader context of area is considered, the Tribunal accepts the applicant's argument that Australind is an area in transition with a wide variety of styles and evidence of two storey additions and new two storey dwellings.
The Tribunal finds that although the proposal is different from the most immediate existing buildings it is not out of harmony because the well designed proposal contains elements which respect existing building appearances and the proposal retains a modest scale in harmony with existing dwellings despite being a two storey dwelling.
Therefore the Tribunal finds that the proposed dwelling is not significantly different from the planned intent for the site with particular regard to planning requirements dealing with the general appearance of dwellings.

Conclusion

The Tribunal found that the proposed dwelling was not required to be consistent with the original 2005 planning approval. Even if the Tribunal was wrong on the matter of consistency with the original approval, the Tribunal found that the original approval did not limit the height of dwellings to a single storey. The Tribunal also examined whether any of the various requirements associated with the ST Act placed design or height restrictions on the proposed dwelling. The Tribunal determined that no relevant restrictions arose out of the ST Act.
On the second issue, the Tribunal found that the planning framework did not provide any guidelines as to design intentions for the applicant's site. It followed that the planning framework did not place any relevant design restrictions on the design appearance of the proposed dwelling. On all other planning matters, the Tribunal found that the proposal was consistent with the planning intent for the site. The question remained whether the general appearance was out of harmony with existing buildings and or the landscape character of the area.
When the term 'area' was considered in the broader context, the Tribunal accepted the applicant's argument that Australind was an area in transition with a wide variety of styles and evidence of two storey additions and new two storey dwellings. When the term 'area' was considered in a narrower context, the Tribunal found that although the proposal was different from the most immediate existing buildings it was not out of harmony because the proposal contained elements which respected existing building appearances and the proposal retained a modest scale in harmony with existing dwellings despite being a two storey proposal.
The Tribunal determined that it was reasonable and appropriate to exercise discretion and approve the proposed development.
The report to Council provided an option for approval subject to conditions. The applicant has not objected to the conditions and the Tribunal, after considering all the submissions from the parties, does not find any reason to vary the conditions.
It follows that the application for review should be allowed and planning consent be granted subject to conditions.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 14 December 2010 to refuse development approval for a two storey dwelling at Survey Strata Lot 1 of Lot 202 Heavenly Court, Australind is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The development must be carried out in accordance with the revised drawings submitted to the Shire of Harvey on 27 October 2010 except as varied by the conditions below.
2)The development must be commenced within two years from the date of this decision. If the development is not commenced within this period, then the approval will immediately lapse, and further development approval must be obtained.
3)A landscaping plan is to be submitted and approved by Council prior to the issue of a building licence which details but is not limited to the following:
(a)Screen fencing along the Paris Road frontage of the lot;
(b)Open style fencing along the Heavenly Court frontage; and
(c)Significant planting of local species within the Paris Road reserve.
(4)A building licence being obtained prior to the commencement of any site works.
I certify that this and the preceding [99] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER

Attachment A