Spaseski and ANOR and Town Of Vincent

[2007] WASAT 126

SPASESKI & ANOR and TOWN OF VINCENT [2007] WASAT 126

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 126
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:20/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR J JORDAN (MEMBER)	Delivered:	24/05/07
No of pages:	19	Judgment Part:	1 of 1
Result:	The application for review is dismissed The Town of Vincent's refusal of the development application is affirmed
Category:	B
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Parties:	BORIS SPASESKI ZANA SPASESKI TOWN OF VINCENT
Catchwords:	Town Planning – Development – Two storey house – Undercroft garage – Driveway gradient – Headroom clearance of access to garage – Height of walls – Reduced setbacks – Walls on boundary – Overshadowing – Bulk and scale – Orderly and proper planning – Preservation of amenities of the locality – Previous approval – Extent of modifications – Threshold of acceptability
Legislation:	Planning and Development Act 2005 (WA), s 252(1) Town of Vincent Town Planning Scheme No 1, cl 19, cl 20, cl 47 Residential Design Codes of Western Australia (2002), cl 3.3.1 A1, cl 3.3.2 A2, cl 3.3.2 A2(ii), cl 3.3.2 A2(iii), cl 3.3.2 P2, cl 3.7.1, cl 3.7.1 A1, cl 3.7.1 A1.1, cl 3.7.1 P1, cl 3.9.1, cl 3.9.1 A1, cl 3.9.1 P1, Table 3 State Administration Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2), s 87(4)
Case References:	Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Gianna Developments PL v Kingston CC [2001] VCAT 1889 Willicombe and City of Gosnells [2006] WASAT 13
Orders	1. The application for review is dismissed.,2. The decision of the Town of Vincent to refuse the application for the proposed new house at Lot 499 (No 4) Hunter Street, North Perth, is reaffirmed.,3. The application for costs is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SPASESKI & ANOR and TOWN OF VINCENT [2007] WASAT 126 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 MAY 2007 FILE NO/S : DR 20 of 2007 BETWEEN : BORIS SPASESKI

ZANA SPASESKI
Applicants

AND

TOWN OF VINCENT
Respondent

Catchwords:

Town Planning – Development – Two storey house – Undercroft garage – Driveway gradient – Headroom clearance of access to garage – Height of walls – Reduced setbacks – Walls on boundary – Overshadowing – Bulk and scale – Orderly and proper planning – Preservation of amenities of the locality – Previous approval – Extent of modifications – Threshold of acceptability

Legislation:

Planning and Development Act 2005 (WA), s 252(1)

Town of Vincent Town Planning Scheme No 1, cl 19, cl 20, cl 47

(Page 2)

Residential Design Codes of Western Australia (2002), cl 3.3.1 A1, cl 3.3.2 A2, cl 3.3.2 A2(ii), cl 3.3.2 A2(iii), cl 3.3.2 P2, cl 3.7.1, cl 3.7.1 A1, cl 3.7.1 A1.1, cl 3.7.1 P1, cl 3.9.1, cl 3.9.1 A1, cl 3.9.1 P1, Table 3
State Administration Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2), s 87(4)

Result:

The application for review is dismissed

The Town of Vincent's refusal of the development application is affirmed

Category: B

Representation:

Counsel:

Applicants : Mr K Adam (Acting as Agent)
Respondent : Mr R Rasiah (Acting as Agent)

Solicitors:

Applicants : KA Adam & Associates (Architects and Town Planners)
Respondent : Town of Vincent

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

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Gianna Developments PL v Kingston CC [2001] VCAT 1889
Willicombe and City of Gosnells [2006] WASAT 13


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This matter involved an application for review of the refusal by the Town of Vincent of a development application for a new two storey house with an undercroft garage at No 4 Hunter Street, North Perth.

2 The Town considered that non-compliance with height and setback requirements would result in development of a bulk and scale that was inconsistent with orderly and proper planning and the preservation of the amenity of the area.

3 The applicants said the proposed house would be essentially the same as a house previously approved by the Town except that it would be higher to provide additional clearance for the undercroft garage.

4 The Tribunal determined the relaxation of development standards required crossed the threshold of acceptability.

5 The application for review of the respondent's refusal was dismissed.

Introduction

6 These proceedings involve an application brought by Mr Boris Spaseski and Mrs Zana Spaseski (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal of the Town of Vincent (respondent) to grant planning approval for the development of their proposed two storey single house at Lot 499 (No 4) Hunter Street, North Perth (subject land).

Subject land

7 The subject land has an area of 209 square metres and was created by the excision of the backyard from the lot on the south east corner of Mabel Street and Hunter Street. The shape is rectangular but with unusual dimensions. The frontage is 17.2 metres wide to Hunter Street but the depth is just 12.18 metres.

8 The subject land is approximately level across its width, with reduced levels at opposite ends of the front boundary shown as 10.52 and 10.51. It rises towards the rear with levels at opposite ends of the rear boundary shown as 11.33 and 11.4.

(Page 4)

Background

9 In January 2006, the respondent approved a two storey single house with loft on the subject land subject to conditions, including compliance with height requirements of the Residential Design Codes of Western Australia (2002) (Codes) and the deletion of the loft.

10 On 5 May 2006, the applicants lodged a fresh application for planning approval for a two storey single house with an undercroft garage on the subject land (the May 2006 house).

11 The respondent approved the May 2006 house at its meeting of 25 July 2006. The conditions of approval included the following:

"(iv) prior to the issue of a Building License revised plans shall be submitted and approved demonstrating:

(a) the average height of the northern boundary wall being a maximum average height of 3.0 metres;

…

(c) the driveway gradient complying with Australian Standards 2890.1.

The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies."

12 The applicants submitted a further application on 20 November 2006. This application was for a two storey single house similar in essential characteristics to the May 2006 house, with the exception of height. It is the respondent's refusal of this application that has given rise to the application for review now before the Tribunal.

Planning framework

13 The subject land is zoned Residential R30/R40 in the Town of VincentTown Planning Scheme No 1 (TPS 1). Clause 19 of TPS 1 requires compliance with the Codes. None of the variations to the Codes listed in cl 20 of TPS 1 are relevant to this review.

14 Clause 47 of TPS 1 enables the respondent to adopt planning policies. The subject land is covered by the respondent's Knutsford Locality Plan18 Policy No 3.3.18 (Knutsford locality policy). The

(Page 5)

Knutsford locality policy has sections on setbacks and height. The relevant clauses are referred to in the discussion below on the issues.

15 The respondent's Planning Policy 3.5.16: Non-Variation of Specific Development Standards and Requirements (Policy 3.5.16) is also relevant. It has the following objective:

"To define the development standards and requirements of the Town of Vincent Town Planning Scheme No 1 and associated Policies and Residential Design Codes [of Western Australia (2002)], which the Town of Vincent will not vary, in order to achieve a reasonable level of amenity, whilst providing for the consistency in the application of such standards and requirements and minimising delay in processing, preparing assessing and determining development applications."

16 Policy Statement 1 of Policy 3.5.16 states in part:

"The Town of Vincent will not vary the following development standards and requirements of Town of Vincent Town Planning Scheme No 1 and associated policies and the [Codes]:

i) Residential Development in Residential Zoned Areas

Residential Design Codes

…

d) Maximum building height for the corresponding maximum permitted number of storeys (Category) for any new dwelling on a generally flat/level site, as stated in clause 3.7.1 Building Height A1.1 of the Residential Design Codes, or in any applicable design guidelines/elements/policies. In most Residential Localities, the maximum permitted building height is two (2) storeys (Category B of Table 3 of clause 3.7.1 Building Height A1.1)."

17 Category B of Table 3, cl 3.7.1 Building Height A1.1, is found in Element 7 Building Height Requirements of the Codes under the heading "Acceptable Development". This states that to be considered as acceptable development the maximum height for the top of an external wall for the type of house proposed is 6.0 metres.

(Page 6)

18 Under Performance Criteria at cl 3.7.1 P1 of Element 7 it states that new development should meet "these criteria":

"Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:

• adequate direct sun to buildings and appurtenant open spaces;

• adequate daylight to major openings to habitable rooms; and

• access to views of significance."

19 Element 3 of the Codes is headed Boundary Setback Requirements and has the objective, to "ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties".

20 Clause 3.3.1 A1 states that if setbacks of a building are in accordance with Tables 1 and 2 of the Codes the development is deemed to meet the performance criteria. It is common ground that the proposed development generally does not meet the acceptable development standards for buildings set back from the boundary.

21 Clause 3.3.2 A2, under acceptable development, sets standards for walls on boundaries, including at cl 3.3.2 A2(iii):

"In areas coded R30 and higher, walls not higher than 3.5 [metres] with an average of 3 [metres] for 2/3 the length of the balance of the boundary behind the front setback, to one side boundary … "

22 Clause 3.3.2 P2, under Performance Criteria includes for walls on boundaries the requirement to "not have any adverse impact on the amenity of the adjoining property".

23 Element 9 of the Codes is concerned with designing for climate. Clause 3.9.1 sets out solar access requirements for adjoining sites. Acceptable Development Standard cl 3.9.1 A1 requires that on the 21 June at midday, the shadow cast on an adjoining property zoned R30 to R40 is not to exceed 35% of the site area.

(Page 7)

24 Proposals complying with the acceptable development standards of Element 9 are deemed to meet the performance criteria, notwithstanding that, in the case of solar access, cl 3.9.1 Performance Criteria P1 requires account to be taken of potential overshadowing of neighbouring outdoor living areas, major openings to habitable rooms or balconies or verandahs.

Proposed development

25 The proposed development comprises a two storey single house with an undercroft two car garage at the southern side of the front elevation and generous family accommodation. The ground floor comprises kitchen, laundry, dining, family room, a theatre and a lavatory. The upper floor comprises a sitting room and three bedrooms each with an ensuite and a walk-in wardrobe.

26 The undercroft garage is mostly below ground level. The front setback to the garage is not clear. The south elevation scales with a front setback of 5.4 metres from the front boundary to the foot of the down ramp and a horizontal floor depth, including walls, of 6.78 metres extending to the rear boundary. However, the basement floor plan shows a depth which scales at either 6.0 metres or 7.2 metres.

27 The line of the ground floor balcony above the ramp down to the garage indicates a front setback of 3.23 metres to the outside curve of the balcony. This setback is significant because it impacts on the critical issue of the clearance from the ramp to the underside of the extreme outside edge of the ground floor balcony.

28 The applicants submit that the May 2006 house plans provided only a 1.6 metre height clearance to the balcony with a ramp gradient of 1:4. The plans for the proposed development revised the approved May 2006 plans by raising the ground floor level by 400 millimetres in order to provide, it was submitted, the necessary 2.0 metre minimum headroom between the down ramp and the balcony to gain vehicular access to the undercroft garage. Marked up plans showed the down ramp gradient would remain at 1:4.

29 The undercroft garage is shown with a finished level of 9.11. This level is 1.39 metres below the front boundary level in the middle of the subject land. The ground floor is shown with a finished level of 11.68 which is 1.18 metres above the front boundary level.

30 The front setback of the ground floor is mostly 3.5 metres with a small section at 3.0 metres and the entry porch at 1.8 metres. There is a

(Page 8)

nil setback on the rear boundary for a section of wall 10.15 metres long (59% of the boundary length) and about 3.3 metres high. In addition there is a nil setback on the side (north) boundary for a section of wall 4.43 metres long (36% of the total length of the boundary without allowing for front setback) averaging about 3.5 metres high.

The refusal

31 On 19 December 2006, the respondent refused the application for the following reasons:

"(i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;

(ii) the non-compliance with the building height requirements of the Town's Policy relating to the Knutsford Locality, which states a height limit of two storey development;

(iii) the non-compliance with the building height requirements for two storey development under the [Codes]; and

(iv) the building height requirements to be varied is as specified in the Town's Policy relating to Non-Variation of Specific Development Standards and Requirements."

32 On 16 January 2007, the applicants lodged their application for review of the respondent's refusal. The Tribunal issued orders on the 31 January 2007 that following the exchange and filing of relevant documents and submissions, the matter was to be determined on the documents pursuant to s 60(2) of the State Administrative Act 2004 (WA) (SAT Act). The documents filed included a joint statement by Mr Ken Adam, a planning consultant representing the applicants and Mr Rasaratnam Rasiah, a planning officer for the respondent, as expert planning witnesses.

Issues

33 The parties agreed on three issues to be determined:

"(i) whether the excess wall heights have an unacceptable impact on the amenity of the locality;

(ii) whether the excess wall heights result in an unacceptable level of overshadowing of the adjoining property; and

(Page 9)

(iii) whether the excess wall heights result in unacceptable building bulk."

34 The respondent identified a fourth issue which can be summarised as:

• whether it is detrimental to orderly and proper planning to allow two walls of the development to be built up to a boundary contrary to acceptable development provisions for average height and length.

35 The applicants objected to the inclusion of this issue on the basis that the respondent had previously approved "an almost identical application" with two boundary walls, except 0.4 metres lower and did not include that issue in the reasons for its refusal.

36 The Tribunal finds it is appropriate to include this fourth issue and to consider the impact of the boundary walls because they are of a different height from previously. The walls, as part of a higher development, will have a different impact on the locality. In this review, the Tribunal is to consider the application in its totality. That is, elements of design, individually and together, relevant to an assessment of the impact the proposed development will have. This includes the proposed higher walls on the boundaries.

37 The issues have been addressed in turn.

Whether the excess wall heights have an unacceptable impact on the amenity of the locality

38 The applicants pointed out the only difference from the approved May 2006 house was that the height of the building had been increased by 400 millimetres.

39 The experts jointly marked up plans and agreed that raising the height of the building resulted in the following heights in excess of the 6.0 metre wall height standard of cl 3.7.1 Acceptable Development A1 of the Codes:

• Front, west, elevation: wall heights 6.3 metres –
6.6 metres

excess 300 millimetres –
600 millimetres;

(Page 10)

• Rear, east, elevation: wall heights 6.02 metres –
6.05 metres

excess 20 millimetres –
50 millimetres;

• North, side, elevation: wall heights 6.05 metres –
6.3 metres

excess 50 millimetres –
300 millimetres; and
• South, side, elevation: wall heights 6.02 metres –
6.6 metres

excess 20 millimetres –
600 millimetres.

40 Mr Adam argued that the proposed building height increase above the acceptable development standards of the Codes was insignificant in terms of either public or private amenity. He stated:

"The increased height at the street facade – less than 400 [millimetres] along the facade – would not be discernable to any except perhaps a determined professionally qualified observer. In my opinion the excess wall height would have a negligible impact on the streetscape and no impact at all on the wider locality."

41 It was Mr Adam's opinion that, although the height breached the acceptable development standards, the breach was minor and the development met the relevant part of at cl 3.7.1 Performance Criteria P1 of the Codes, which required:

"Building height consistent with the desired height of buildings in the locality … "

42 The applicants said other houses as high as, or higher than proposed on similar small sites had been approved by the respondent. Evidence was provided of a two storey house with loft and walls exceeding 6.0 metres in Carrington Street, North Perth. They submitted that this indicated the respondent was sensitive to the special circumstances influencing the design of houses on small lots and asked for similar sensitive consideration.

(Page 11)

43 The applicants argued that:

" ... if the level cannot be raised by the amount requested the development cannot proceed in its present form. Any alternative development would require the garage to be built at ground floor level which would both have a greater impact on streetscape and significantly reduce amenity of the dwellings by reducing its floor area, or open space or both."

44 The respondent's objection was to the height and scale of the building in the context of the locality.

45 Councillor Dudley Maier and neighbours who owned the lot to the south made submissions in support of the respondent, objecting to the height of the proposed house. They did not consider the impact would be negligible. Both submissions referred to but did not provide evidence of neighbour objections to the height of the house approved in December 2005 and the May 2006 house. In this regard, the applicants provided written advice that owners of two houses diagonally opposite and the owner adjoining to the north had no objection to the proposal.

46 The respondent's desired height for the locality is referred to in two planning policies. The first, the Knutsford locality policy, under the heading "Special Policies" states:

"i) Height

A general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally setback a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk."

47 The number of storeys was not an issue. The undercroft garage is not a storey as defined in TPS 1 because 50% or more of its volume is below natural ground level.

48 The Knutsford locality policy sets the limit at two storeys without defining a specific height. However, the height is set in the context of the second storey being set back 6.0 metres from the street and the proposal does not meet this.

49 The Knutsford locality policy also states:

(Page 12)

"Notwithstanding the above, all developments are also required to comply with all Policies contained in this Policy Manual."

50 The second policy, Policy 3.5.16, states that the respondent will not vary from the 6.0 metre height limit for category B developments in Table 3 of the acceptable development standard of cl 3.7.1 A1.

51 Mr Adam correctly argued that only an expert would be able to discern the actual height increase above the standard. However, the issue is not whether a neighbour or an observer could correctly identify that a wall is, say, 6.3 metres high rather than 6.0 metres. The issue is whether an observer perceives the building as being too high. If a building complies with the standard or is consistent with the established height of buildings in the locality, it might be acceptable. If the building exceeds the 6.0 metre maximum height set out in the policy established under TPS 1 and exceeds the height considered acceptable in this locality, then it is a question of whether or not to grant the height concession.

52 The respondent, correctly, recognised in the Knutsford locality policy that the impact of height on amenity is not merely a matter of measuring walls. The impact results from the context of the height of walls: how far they are set back from the front boundary, the space that exists around the building and the associated impact of bulk and scale.

53 The Tribunal accepts that discretion exists to vary the preferred 6.0 metre height limit set out in the policy. The question is whether the proposed height can be supported given the background but having regard to the overall effect of the proposed development.

54 The locality is described as predominantly single storey with two storey houses, including one on a similar sized lot diagonally opposite. The one precedent identified, in Carrington Street, is approximately a kilometre away.

55 The approved May 2006 house was only 400 millimetres lower than the current proposal. The Tribunal has noted, however, that condition (iv) of the approval required revised plans being approved which demonstrated a driveway gradient of AS 2890.1 and the average height of the northern boundary wall being a maximum of 3.0 metres. The conditions also stated that the "revised plans shall not result in any greater variation to the requirements of the [Codes] and the Town's Policies".

56 This proposal exceeds the preferred height limit of 6.0 metres. The excess varies from 20 millimetres to 600 millimetres. These are generally

(Page 13)

not major breaches. However, the breaches are set back less than 6.0 metres from the front boundary; extend across most of the width of the subject land and are in the context of a building with single storey parapet walls higher than the desired maximum on two boundaries of a small site.

57 The requirements of condition (iv) are considered by the Tribunal to indicate that the May 2006 house was at the threshold of acceptability. The Tribunal has formed the view that the increase in wall heights now proposed places the proposed development beyond this threshold and will therefore have an unacceptable impact on the amenity of the locality.

Whether the excess wall heights result in an unacceptable level of overshadowing of the adjoining site

58 The evidence included a solar diagram which indicated the area of shadow at midday in midwinter from the proposed house would be would be about 73.26 square metres, or 14.68%, of the lot to the south. The lot to the south is a corner lot with the house at the southern street boundary beyond where the shadow would fall. The experts agreed this complies with the acceptable development standard at cl 3.9.1 A1 of the Codes, being less than the prescribed 35%, and therefore complies with the performance criteria at cl 3.9.1 P1.

59 Mr Adam pointed out that because of where the shadow would fall the proposed house would also comply with the overshadowing requirements of the building height performance criteria of cl 3.7.1 of the Codes.

60 In their submission the neighbours to the south objected to the applicants' proposed house, saying it would deny the majority of the solar potential to the second house they planned for the lot they intended, in the future, to excise from the northern part of their lot.

61 Mr Rasiah said the proposed development may impose future design constraints on any future lot to the south.

62 Both experts acknowledged the subdivision potential of the neighbouring lot. The minimum permissible lot size is 200 square metres, for which the maximum permissible shadow would be 70 square metres. If the future lot were 210 square metres, 73.5 square metres of shadow would be permissible, whereas the shadow cast by the applicants' proposed house would be about 73.26 square metres.

(Page 14)

63 Although the proposed development would comply with acceptable development standards for overshadowing, the Tribunal finds it is reasonable to consider the impact on a potential adjoining future lot. However, in the absence of any subdivision proposal or house design, assessment has been speculative. The Tribunal notes that the shadow on any future lot to the south exceeding 210 square metres would comply with requirements of Element 9 of the Codes and so, in the circumstances, considers that, if the applicants' proposed house were acceptable on other issues, overshadowing would not be a ground for refusal.

Whether the excess wall heights result in unacceptable building bulk

64 As stated by Mr Adam, bulk is not a matter specifically defined and regulated in the Codes. In Mr Adam's submission, bulk is a perception involving:

" ... a combination of factors that are dealt with by the Codes – the height, length and setback of a wall in any particular case. Compliance with the Acceptable Development provisions governing these attributes would result, in my opinion, in acceptable bulk."

65 The Tribunal would clarify, however, that it considers bulk involves consideration, not just of a particular wall, but consideration of a three dimensional combination of the external walls and surfaces and their impact in the context of a locality.

66 Under the Knutsford locality policy, the perception of bulk involves the consideration of the space around buildings with the desired future character expressed at par 3:

"Buildings are to be setback from all boundaries in generously landscaped gardens … "

67 The proposal has a northern side wall and a rear, eastern wall with nil setbacks. The blank side wall would be set back 3.5 metres from the front boundary and be visible from the street. The proposed house would not comply with the express intent of being set back from all boundaries in this locality.

68 Attachment 2 to the planning experts' joint statement was a planning officer's report to the respondent which included a table summarising the required and proposed setbacks. Although concessions would be required

(Page 15)

on the setback to most walls, the notes to the table indicated support from the reporting officer on the basis of the approval of the May 2006 house.

69 The Tribunal considers there is now a significant difference from the house previously approved, in that reduced setbacks are now combined with increased height.

70 The Tribunal finds the cumulative effect of combining increased height with setback concessions is that the threshold between acceptable and unacceptable bulk is crossed.

Whether it is detrimental to orderly and proper planning to allow two walls of the development to be built up to a boundary contrary to acceptable development provisions for average height and length

71 Element 3 of the Codes under Acceptable Development provides at cl 3.3.2 A2(iii) that walls be built up to a boundary behind the front setback line within the following limits:

"In areas coded R30 and higher, walls not higher than 3.5 [metres] with an average of 3 [metres] for 2/3 the length of the balance of the boundary behind the front setback, to one side boundary; ... "

72 The proposed house would have walls built up to two boundaries. On the eastern boundary would be a wall at a nil setback 10.15 metre long, less than the maximum permitted length. The experts agree that this wall would be approximately 3.3 metres high.

73 On the northern side elevation, would be a second wall with a nil setback 4.4 metre long and set back 3.5 metres from the front boundary. The experts' marked up plans show average height at 3.55 metres. This wall fails three of the acceptable development standards:

• the wall exceeds the maximum average height of 3.0 metres;

• it is a wall with a nil setback on a second boundary; and

• part of the wall is not set back behind the front setback line.

74 The respondent previously demonstrated flexibility in interpretation of the planning framework by approving two walls on boundaries as part of the May 2006 house, but subject to a condition that they average no more than 3.0 metres in height.

(Page 16)

75 The Tribunal is conscious that consistency in decision-making is important so that the decision-making process is not brought into disrepute by appearing to be arbitrary. There are now two differences from previously however. First, both boundary walls would exceed the acceptable standard of 3.0 metres average height previously approved because of the 400 millimetre increase in floor level height. Second, bulk and scale is an issue and the height increase of the development is an element of this. This aspect of the development is not considered to be a virtual duplication of that previously approved. Walls of the height proposed on the boundaries are an issue to be addressed.

76 The Tribunal does not accept that the proposed development satisfies the performance criteria of "no adverse impact on the amenity of the adjoining property", because there would be an over height wall on the boundary where there is currently no wall or there would have been a 3.0 metre high wall under the May 2006 house. The Tribunal accepts Mr Adam's argument that a case can be made that the proposed development complies with the other bullet points of the performance criteria of cl 3.3.2 P2 as it should make effective use of space and enhance the amenity of the development.

77 If it were only the walls being located on the boundaries, there might be a case that the orderly and proper planning of the locality might not be offended against, particularly as the walls are a single storey part of a two storey building. In this regard, however, the Tribunal notes that there would be over height walls on the boundaries. This is particularly significant when this aspect of the design is one which, together with other elements together helps determine the bulk and scale and, it is considered, the bulk and scale of the development is increased over that previously allowed.

Conclusion

78 Councillor Maier said he believed access to the garage could be obtained using the approved levels of the May 2006 house if the width of the balcony above the garage was reduced by half. Mr Adam responded by saying that Councillor Maier was not an expert and his calculations were incorrect: the balcony width would need to be decreased between 85% and 100%. The Tribunal has considered the matter on the basis that the applicants are seeking approval of the house applied for, not the May 2006 house with a reduced balcony.

79 The applicants asserted a house with a garage at ground level would have a worse impact on amenity than the proposed development. The

(Page 17)

respondent did not respond to this claim. The Tribunal notes the respondent approved an undercroft garage where the building complied with height limits and has also approved ground level garages on most other recent developments in the locality. This submission is not considered sufficient to overcome concerns about increased height.

80 The Tribunal notes that the driveway ramp gradient has not been amended and the submissions make no reference to the condition of approval of the May 2006 house that required that the plans be amended to demonstrate the driveway gradient complied with AS 2890.1. It is not clear that the driveway complies with this standard, or if it were to do so, say to prevent "bottoming out" of vehicles, further adjustment to the design would be required. Ultimately, this has not been a question the Tribunal has found necessary to pursue further because of the conclusion reached on the increased height.

81 The Tribunal notes that the issue of height does not arise from extravagant ceiling heights, as the ceiling heights are reasonable with 2.572 metres for the ground floor and 2.44 metres for the upper floor and the garage. There may be potential to reduce the ceiling level of the garage but this potential may be limited by clearance requirements for garage doors.

82 It was submitted that the increased height was a result of necessity rather than a change of preference, as the approved plans did not provide sufficient headroom for access to the undercroft garage. The revised plans increased height by the minimum necessary to obtain access to the garage.

83 How this is to be achieved, however, requires there to be concessions granted on particular development standards. If considered in isolation particular concessions might be acceptable, but the development has properly been considered as a whole. That is, how the concessions sought on particular aspects of the development over and above that previously approved relate to each other and how the proposed house relates to the lot on which it is sited, to neighbouring developments and to the locality in which it is situated. That is, the cumulative effect of the concessions that would be required were the proposed house to proceed.

84 Member Mr P McNab of the Tribunal referred to this issue in Willicombe and City of Gosnells [2006] WASAT 13 at [30], citing from the Victorian Civil and Administrative Tribunal, Gianna Developments PL v Kingston CC [2001] VCAT 1889 at [28]:

(Page 18)

"To conclude that an application [sic] had overdeveloped a site, there usually needs to be evidence of sacrifices in any or all of the following touchstones; density, site coverage, setbacks, opens space, car parking, vehicular access, sunlight, or privacy. If there are casualties with some or all of these, a conclusion can be reached that the developer has 'squeezed' the site too much." [Original emphasis.]

85 To this list of "touchstones" the Tribunal would add height. In this instance the Tribunal has concluded the cumulative effect of the concessions required to achieve the desired design would result in a development of a bulk and scale that crosses the threshold between an acceptable and unacceptable impact on the amenity of the locality and cannot be supported. The Tribunal has therefore decided to dismiss the application.

Costs

86 The applicants' submission concluded with a request the Tribunal award costs against the respondent. After arguing that the respondent's reasons for refusal were "insubstantial in the extreme and lacking in credibility", Mr Adam submitted:

"The Respondent Council never gave proper consideration to the merits of the application;

The Applicant has been put to unreasonable delay and expense in being forced to pursue the avenue of application to the SAT in order to obtain a fair consideration of their application."

87 The Tribunal notes that this was the refusal of an application that was substantially the same as an earlier application it had approved. It is also considered, however, that the conditions of the earlier approval indicated that the proposal was approaching, or at the threshold of acceptability.

88 The respondent had to determine whether an extra 400 millimetres of height would cross that threshold. The respondent determined that the marginal increase in height shifted the application from acceptable to unacceptable. The Tribunal finds there is no evidence that the respondent has failed to consider the merits of the application.

89 As set out above, the Tribunal has come to the same conclusion. Even had the applicants' position been supported, the Tribunal finds no reason to conclude that the respondent had failed to act other than in

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accordance with its scheme and policies after giving proper consideration to the merits of the application.

90 Section 87(1) of the SAT Act requires that parties bear their own costs in a proceeding of the Tribunal. There is discretion under s 87(2) for the Tribunal to order the payment by a party of all or any of the costs of another party. The discretion under s 87(2) is a broad one. Section 87(4) lays down some matters to which the Tribunal is required to have regard when exercising its discretion as to costs in the review jurisdiction. Those matters have no application to this case. Section 87(4) does not, however, limit the circumstances in which a costs order might be made: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53.

91 In this case, it is concluded the respondent took the usual steps in determining the application before it. The Tribunal does not consider that there is sufficient reason to depart from the ordinary position of the parties bearing their own costs.

Orders

92 The Tribunal makes the following orders:

1. The application for review is dismissed.

2. The decision of the Town of Vincent to refuse the application for the proposed new house at Lot 499 (No 4) Hunter Street, North Perth, is affirmed.

3. The application for costs is dismissed.

I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR J JORDAN, MEMBER