SPENCE and CITY OF SUBIACO - [2014] WASAT 171

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SPENCE and CITY OF SUBIACO [2014] WASAT 171

MEMBER: MS R MOORE (MEMBER)

HEARD: 25 SEPTEMBER 2014

DELIVERED : 19 DECEMBER 2014

FILE NO/S: DR 3 of 2014

BETWEEN: ALEXANDER WILLIAM SPENCE
SARA SPENCE
Applicants
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Alterations and additions to early 20th century single storey house - Two storey addition City of Subiaco Town Planning Scheme No 4 limits residential development to single storey Discretion under Scheme to allow two storey where 'no undue adverse impact on adjoining residential sites or the general amenity of the locality' Whether proposed overall height and wall height would have an undue adverse impact on adjoining site in terms of restriction of sunlight and bulk and scale Part of upper floor area located within the rear third of lot - Policy adopted to guide discretion prescribes maximum upper floor area of 15% of site area Whether part of upper floor is loft development Whether proposal satisfies design principles of State Planning Policy 3.1 Residential Design Codes of Western Australia (2013) for solar access to adjoining sites Whether proposal satisfies design principles of Residential Design Codes for lot boundary setbacks

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 7, cl 27(3), cl 27(4), cl 38, cl 41, cl 41(2), cl 42, cl 42(1), cl 42(1)(b), cl 42A(1), cl 78
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31(1)
State Planning Policy 3.1 - Residential Design Codes of Western Australia (2013)

Result:

Application for review dismissed
Decision of respondent affirmed

Summary of Tribunal's decision:

This matter involved an application for review of the City of Subiaco's refusal of a development application for alterations and additions to an early 20th century original single storey house in Browne Street, Subiaco.
The City was concerned that the proposal included a second storey which, because of its size and location, would have undue adverse impacts on the adjoining residential property to the south. These impacts included the restriction of sunlight, increase in overshadowing, and excessive bulk and scale in relation to three north facing kitchen windows and the rear outdoor living area of the neighbouring property.
The applicants argued that the proposed development was an appropriate design response to the constraints imposed by the orientation and configuration of the site and abutting lots, combined with the manner in which the neighbouring property had been developed.
The Tribunal found that the proposal would have an undue adverse impact on the neighbouring property to the south by overshadowing the rear outdoor living area and that the discretion available under the City of Subiaco Town Planning Scheme No 4 to allow two storey development should not be granted in this case.
The application for review was dismissed and the decision of the City to refuse development was affirmed.

Category: B

Representation:

Counsel:

Applicants: Mr M Hardy
Respondent: Mr A Roberts

Solicitors:

Applicants: Hardy Bowen
Respondent: McLeods

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

Cassidy and City of Subiaco [2011] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for review brought by Mr Alexander Spence and Mrs Sara Spence (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), in relation to the decision of the City of Subiaco (City or respondent) made on 14 March 2104 to refuse development approval for 'partial demolition of existing dwelling and construction of alterations and two storey additions to rear of dwelling' at No 4 (Lot 36) Browne Street, Subiaco (site).

The development

The proposed development is the demolition of the rear portion of an existing dwelling and the construction of alterations and additions to the early 20^th century original single storey house.
The front portion of the existing house, including the verandah, is to be retained. The portion of the existing dwelling to be demolished includes a bathroom, living/dining area, kitchen, laundry and studio. The ground floor additions include a new living/dining area, kitchen, laundry and covered alfresco area with basement below and opening onto a swimming pool. The upper floor additions consist of a main bedroom with ensuite at the front of the house, a sitting room in the centre of the site, and a bathroom and two bedrooms to the rear of the site, above the alfresco area.

Subject site

The subject site is located within the West Subiaco Precinct and is rectangular in shape, with a 13.74 metre frontage to Browne Street, a 13.74 metre rear boundary, 40.33 metre side boundaries and a total area of 554m².
The site is situated between Redfern Street and Hamersley Road. The northern side boundary of the site abuts the rear boundary of three properties which have their street address on Hamersley Road. The rear eastern boundary of the site abuts the rear boundary of two properties which have their street address on Hensman Road. The southern side boundary of the site abuts the side boundary of No 6 (Lot 37) Browne Street.
The Tribunal had the benefit of a view of the site in the company of the parties on the day of the hearing.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential, with a density coding of R20, under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme).
Clause 27(3) of TPS 4 provides the authority for the Council to refuse or approve a development application, and cl 27(4) of TPS 4 sets out the matters to which the Council is to have regard when determining an application as follows:
(a)the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policies;
(c)a statement of planning policy of the Western Australian Planning Commission;
(d)any planning study approved by the Council;
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure;
(i)the conservation of places and areas of cultural heritage significance as referred to in clauses 58 and 59.
Clause 38 of TPS 4 states that '[u]nless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Residential Design Codes'.
Clause 41 of TPS 4 identifies the aims and objectives of the Residential zone and cl 41(2) sets out additional matters to which the Council is to have regard when considering a development application in a Residential zone:
…
(c)the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
…
(e)the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;
(f)to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping[.]
Clause 42 of TPS 4 provides for special application of the State Planning Policy 3.1 - Residential Design Codes of Western Australia (2013) (Codes), and cl 42(1) of TPS 4 relevantly provides the following:
(1)Residential Zone: R Code Density R15 and R20
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
Therefore, while cl 42(1) of TPS 4 unusually provides that Residential zoned land that is coded R15 or R20, such as the review site, is to have a maximum of one storey, cl 42(1)(b) of TPS 4 confers a discretion on the City to permit two storey development where there is no undue adverse impact on adjoining residential sites or the general amenity of the locality.
Clause 42A(1) of TPS 4 provides for the determination of development applications where the wall or overall height does not comply with the maximum heights referred to in cl 42 of the Scheme. It states that the Council may approve the application where:
…
(a)the Council is satisfied that:
(i)the noncompliance will have no undue adverse effect on any adjoining residential land or the amenity of the locality; or
(ii)the wall or overall height which is noncompliant is compatible with the wall and overall heights of surrounding developments that are designed for residential purposes and are considered by the Council to enhance the streetscape;
(b)the wall/overall height which is non-compliant:
(i)meets the Acceptable Development standards of the Residential Design Codes in relation to setbacks; or
(ii)is necessitated by a sloping site and would be unlikely to occur if the site had been level; or
(iii)is the result of a irregular roof design and is unlikely to have occurred if the proposed development had a conventionally shaped roof.

Streetscape Policy

Clause 78 of TPS 4 allows the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme. The planning policy of most relevance to this review is the City of Subiaco Policy 2.1 Streetscape Policy (Streetscape Policy).
The City's Streetscape Policy has the following four objectives:
1)To ensure that new development is consistent with the character and in particular the scale of existing residential development;
2)To ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances;
3)To encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and
4)To protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy.
Clause 2 of the Streetscape Policy defines the term 'character', as used in the policy, as follows:
[T]he qualitative interplay of built form, vegetation and topographic characteristics in both the private and public domains that make one place different from another. Character is generally limited to height, front setbacks, side setbacks and bulk and does not relate to colours and finishes.
Furthermore, in relation to character, clause 3 of the Streetscape Policy states:
[T]he concept of 'character' is identified as an intrinsic component of the definition of amenity contained within the Scheme.
The Scheme definition clearly compels the City to consider the implications of proposed development upon the character of a given area.
… the Scheme is unusual in that it limits the as-of-right height of new development to effectively single storey within the low density Residential zones. The primary objective of this height limit is the protection and enhancement of the existing character of residential areas.
Clause 6.2 of the Streetscape Policy provides development standards for houses of increased height as follows:
The Scheme imposes height limits on development in the R15 and R20 Zones but provides the Council the ability to approve development of increased height where it is satisfied that 'there will be no adverse impact on adjoining residential sites or the general amenity of the locality'. The requirements of the Scheme may only be satisfied subject to meeting the standards contained within part 6 of this policy.
Clause 6.3 of the Streetscape Policy states the following in relation to houses of increased height in R15 and R20 coded areas:
In order to fulfil the requirements of this policy the City will require a building of increased height to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%). This includes a requirement for any two storey development to be located in the middle third of the lot.
It is acknowledged that there are circumstances where the site may not permit two storey development to be located in the middle third of the lot (i.e. lots of reduced length). The primary concern of the City is to maintain an attractive streetscape. As such, the City may permit two storey development located outside the middle third of the lot where more than 50% of properties within a 50m radius exhibit similar development.
It is preferred that second level development should be contained within the roof space where there is no two storey development in the surrounding development. The City is unlikely to support a second storey element where the proposal is considered to impact on the amenity of adjoining properties. This is depicted generally in the diagram below.
[Note 3 to the diagram states that:] Where a second storey or building of increased height is desired the City generally encourages the storey to be wholly or partly incorporated into the roof space in the form of a loft.

Residential Design Codes

In accordance with s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of a review application. The Codes are of relevance to this application, particularly in relation to solar access for adjoining sites and lot boundary setbacks.

City's decision

The City received a development application on 16 August 2013 for 'renovations and additions to existing single residential dwellings, including partial demolition of addon building portion and outbuildings' on the subject site. Surrounding landowners and occupiers were notified of the proposed development and the City received two submissions which expressed concern regarding the proposal. A neighbour to the north raised the issue of privacy of an adjacent swimming pool. The neighbour to the south (Lot 37) raised issues relating to loss of direct sunlight as a result of a proposed parapet wall, the location of two storey additions in close proximity to the southern boundary of the site, and the adverse impact of building bulk on their lot.
The applicants submitted revised plans for the proposal dated 20 September and 29 October 2013. The development application was considered and refused by the City's Development Services Committee (under delegated authority from Council) at its meeting held on 3 December 2013.
On 6 January 2014, the applicants made an application for review of this decision. The matter proceeded to mediation and, in accordance with s 31(1) of the State Administrative Tribunal Act 2004 (WA), the City reconsidered and varied its original decision at its Council meeting held on 27 May 2014 as follows:
That in accordance with the provisions of the Town Planning Scheme No 4 and the Metropolitan Region Scheme, the application submitted by A & S Spence on 16 August 2013 for partial demolition of the rear of the existing dwelling and construction of a two storey addition at No 4 (Lot 36 on Plan 350) Browne Street, Subiaco as shown on plans date stamped 20 September 2013 (A1, A2, A3, A4, A8, VP 1 and VP 2), 29 October 2013 (A5, A6) and 11 November 2013 (SD1), be REFUSED for the following reasons:
1.The proposed height of the additions would not satisfy Clause 42(1)(a), (b) and 42A of Town Planning Scheme No 4 due to the undue adverse impact caused to the adjacent property to the south with respect to loss of direct sunlight and building bulk.
2.The proposal would not satisfy Element 5.4.2 of the Residential Design Codes as the additions would unduly overshadow the only private outdoor living area available to the adjoining property to the south and major openings of the dwelling.
3.The proposal would not satisfy Parts 6.3 and 6.4(2) of Planning Policy 2.1 'Streetscape' as the area of increased height would be located in the rear and middle third of the site, in lieu of only the middle third and represent a footprint of 26.2% of site area, in lieu of 15% of site area. The extent and location of the area of increased height would impact unduly on the adjacent property with respect to overshadowing and building bulk.
4.The proposal would not satisfy Element 5.1.3 Lot Boundary Setbacks as the additions would impose an undue adverse impact to the adjacent property to the south of the site with respect to adequate access to sunlight and building bulk.

Issues

The following issues were identified by the respondent as arising for determination by the Tribunal:
1.Whether the overall height and wall height of the proposed development adjacent to the common boundary with Lot 37 Browne Street, Subiaco would have an undue adverse impact on Lot 37 in terms of:
(a)the restriction of sunlight; and
(b) bulk and scale.
2.Whether the overall height and wall height of the proposed development is inconsistent with the requirements of Parts 6.3 and 6.4 of the respondent's Streetscape Policy.
3.Whether the proposed development conforms with the design principles of Element 5.4.2 (solar access for adjoining sites) of the Residential Design Codes.
4.Whether the proposed development conforms with the design principles of Element 5.1.3 (lot boundary setback) of the Residential Design Codes.
The applicants agreed that these issues arose for determination, but also identified that the Streetscape Policy 'should be considered in totality having regard to its purpose, content and effect both generally and with respect to the proposed development'.
Mr Michael Hardy, from Hardy Bowen, represented the applicants in these proceedings, and Mr Andrew Roberts, from McLeods, represented the respondent.
Mr John Kirkness, a graduate architect with planning and heritage experience, gave evidence on behalf of the applicants, and Ms Marlaine Lavery, a town planner employed by the City, gave evidence on behalf of the respondent. Although the expert witnesses have differing professional qualifications, the parties agreed that their professional expertise was comparable in regard to the identified issues.
In addition to their individual witness statements, Mr Kirkness and Ms Lavery prepared a joint statement in which they identified the matters on which they agreed and those on which they did not agree, and gave their reasons for disagreeing. They also gave concurrent evidence at the hearing.
The witness statement of Mr Garrett Cullity, the owner and occupier of Lot 37, was taken into evidence. Mr Cullity's written statement identified his concerns regarding the proposed development at Lot 36, in particular: the loss of direct sunlight entering his kitchen windows; the loss of direct sun warming his north wall during winter months; and the overshadowing of his rear garden which would diminish his and his wife's enjoyment of their only outdoor living area.

As the identified issues are interrelated, the Tribunal will address Issues 1 and 2 together, in the context of cl 42(1) of TPS 4 and the Streetscape Policy. Then Issue 3 and Issue 4 will be addressed separately, as they deal with separate Elements of the Codes.

Clause 42(1) of TPS 4 and the Streetscape Policy

Mr Roberts made submissions in regard to cl 42(1) of TPS 4 and the Streetscape Policy, and included references to a number of previous Tribunal decisions where both cl 42(1) of TPS 4 and the Streetscape Policy have been addressed. Mr Hardy did not disagree with Mr Roberts' submissions in relation to the planning framework but stated that 'the devil was in the detail' and that this was a distinct and unique site because of its orientation and arrangement of adjoining lots.
Mr Hardy stated that the emphasis of the Streetscape Policy is on the preservation of streetscape character and that houses of 'increased height' should appear as predominantly single storey when viewed from the primary street while also requiring any two storey element to be located within the middle third of the lot. He submitted that previous Tribunal decisions state that the middle third policy is designed to do two things: provide traditional streetscapes which preserve the traditional view of Subiaco; and encourage uniformity of second storey development so that backyards are unaffected and two storey extensions sit generally in the same location.
The experts agreed that the proposed development is sympathetic to the heritage values and streetscape character of the existing dwelling, and is consistent with those aspects of the Streetscape Policy.
As stated earlier, the overall height and wall heights of residential development in the Scheme area are limited by cl 42 of TPS 4 which provides for the special application of the Codes in respect of height. In Residential zoned areas with a density coding of R20 (as in this case), buildings 'shall not exceed 6.5 metres overall height and 3.6 metres wall height'. This, in effect, limits dwellings to single storey.
Clause 42(1)(b) of TPS 4 allows for a variation of this single storey height limitation 'where the Council is satisfied that there is no undue impact on adjoining residential sites or the general amenity of the locality'. In such a case, the maximum height permitted is 9 metres overall and 6 metres wall height, which is, in effect, two storeys.
The experts agree that cl 42(1)(b) of TPS 4 provides for the discretionary consideration of increased building heights subject to the provisions of Part 6 of the Streetscape Policy.
Clause 6.4 of the Streetscape Policy provides design standards for houses of 'increased height' in regard to maximum height, upper floor area and overshadowing of adjoining properties. The design standard for maximum height is up to 6 metres for wall heights and up to 9 metres for overall height; this reflects the provisions of cl 42(1)(b) of TPS 4.
The design standard for the upper floor area of houses of increased height requires the maximum upper floor area to not exceed 15% of the site area and states the following:
… Loft Development or development contained wholly within the roof space (i.e. wall height and ridge height not exceeding 3.6 metres and 6.5 metres respectively) will not be included within the calculation of the maximum floor area of the footprint. Dormer windows may be supported subject to the requirements of the Residential Design Codes and are considered as architectural features for the purposes of this policy.
In regard to the design standards concerning overshadowing of adjoining properties, Mr Roberts contended that under the current Codes, the City did not have the ability to vary the Codes' provisions in regard to overshadowing of adjoining properties and therefore these policy provisions were irrelevant. Mr Hardy did not object to this proposition.
The experts were in disagreement regarding the extent of the upper floor area to be considered of 'increased height' under clause 6.4 of the Streetscape Policy. Mr Kirkness calculated the upper floor area of the proposal as 83m² (15% of the site area) and was of the view that this complied with the design standard in the Streetscape Policy, whereas, Ms Lavery was of the view that the upper floor area was greater than the maximum 15% allowed under the Streetscape Policy and was, in fact, 26.2% of the site area. The difference in the calculated areas arises because Mr Kirkness considers the main bedroom and ensuite to be loft development and therefore not to be included in the calculation of upper floor area. Ms Lavery on the other hand does not consider these areas to be loft development because their related wall heights are over 3.6 metres (up to 5.5 metres), the roof appears as a separate built form, and the area is not wholly enclosed within the roof space.
Mr Kirkness' opinion regarding the calculation of the upper floor area is summarised in his letter to the City dated 18 September 2013, as follows:
… the western upper portion containing the master bedroom suite has been conceived and executed as a true loft form, springing directly from the existing pitched roof form and sidewalls, however being 'sculpted' inwards from each side to reduce building bulk and better retain / reveal the original building form, in accordance with good heritage practice. The resultant inset wall heights are inherently increased as a result, while the maximum roof height is wholly determined by the existing roof form. In this specific site context, the prescriptive maximum wall and roof heights arbitrarily prescribed at [clause] 6.4.2 of [the Streetscape Policy] as defining a 'loft' for Policy purposes (and particularly for defining areas to be excluded from the calculation of upper floor areas included in the allowable 15% of site [area]) are essentially incongruous with the subject building and a desire to otherwise limit building bulk.
It may be further argued that the extruded roof form comprising this part of the development and wholly springing from the extant rear plane of the main roof is essentially a dormer element, albeit a large one, and therefore equally able to be excluded from the area calculation in accordance with [clause] 6.4.2 of the Policy.
In this context, where the western upper portion is so clearly a true loft springing directly from the form and scale of the existing building, exclusion of this relevant portion from the 15% upper area calculation is reasonably and logically sought. This clear logic is reflected in the fact that the proposed loft element has no adverse impact whatever on neighbouring premises in either bulk and scale or visual privacy terms.
Conversely, if this logic is not accepted, the proposed roof may be carried on down to sidewalls aligned with those to the existing dwelling, thereby achieving wall heights consistent with the Policy's 'loft['] definition, albeit with greater and unnecessary building bulk. Similarly, the gable 'peak' of the loft roof can be removed and a flat mansard-type element applied at the mandatory 6.5m height. While less attractive both internally and externally, the loft would still work functionally, with nominal compliance with the definition of 'loft' contained in the Policy achieved, however for no benefit whatever in real terms and some otherwise detrimental impacts in architectural, heritage and amenity terms.
…
In this case, the Tribunal prefers the evidence of Ms Lavery in regard to the built form element containing the main bedroom. While it appears that the ensuite is contained within the roof space and could be considered to be a loft development for the purposes of calculating the upper floor area of 'increased height', the section of roof over the main bedroom has been modified in such a way that even though it maintains the same pitch as the original dwelling, it appears as a separate building element. This is evident from the southern elevation, but is particularly evident from the northern elevation which shows a large amount of glazing to the upper floor. This separate built form element may not be readily visible when viewed from directly in front of the dwelling but may be visible when viewed from an angle, as well as from the properties to the north and south of the subject site.
The Tribunal has also had regard to the Oxford Dictionary of Architecture (1999) and John Henry Parker's A Concise Glossary of Architectural Terms (9^th ed), which contain the following definitions for 'loft':
loft. 1. Formerly, any upper floor, but now the volume contained by the pitched roof of a building and the supports for the ceiling of the topmost floor bounded by the walls. Essentially a *garret, but used for storage, without any finishes. 2. Elevated platform, staging, or *gallery within a larger room or hall, such as an excubitorium or watchingloft (e.g. the example in St Alban's Abbey, Hertfordshire), *Roodloft, or organ-loft in a church
Loft, a room in the roof of a building; a gallery or small chamber, raised within a larger apartment, or in a church, as a music-loft, a singing-loft, a rood-loft, etc.
The Tribunal finds that the area of the main bedroom (excluding the ensuite) should be included in the calculation of the upper floor area of 'increased height'. As there is some confusion regarding the exact calculations of the floor areas provided by the parties, the Tribunal is of the view that an extra 30m² should be included in the upper floor calculation for the purposes of assessment against the Streetscape Policy, which means that the total upper floor area of the proposal is 113m² which is approximately 20% of the site area (neither 15% nor 26.2%).
This means that the proposed development does not fully comply with Part 6 of the Streetscape Policy which limits the upper floor area of 'increased height' to a maximum of 15% of the site area and requires this upper floor area to be located within the middle third of the subject site. The Tribunal notes that approximately 63m² of the upper floor area is located within the rear third of the subject site. This floor area includes a bathroom, landing and two bedrooms which form the skewed rear built form element of the proposed development.
This non-compliance is not determinative of the matter because, as Mr Hardy submitted, the Streetscape Policy is a planning policy not a Scheme provision and as such should not be inflexibly applied. There are numerous Tribunal decisions which have discussed the application of planning policies in planning assessments. Judge Parry, then Senior Member Parry, summarised the principles in Cassidy and City of Subiaco [2011] WASAT 63 at [41] as follows:
1)planning policy has to be considered as a fundamental element in or a focal point of the decision-making process;
2)the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case; and
3)there must generally be a cogent reason to depart from a sound planning policy that has been regularly applied.
In this case, Mr Hardy argued that the proposal is an appropriate response to the constraints imposed by the orientation and configuration of the subject site and abutting lots, combined with the manner in which Lot 37 has been developed.
The experts agreed in their joint statement that the configuration of the lots surrounding the subject site 'is relatively unique within the municipality' but neither Mr Kirkness nor Ms Lavery had carried out their own investigations into the number of similar lot configurations in the locality. During the hearing, Mr Kirkness explained that he relied upon Mr Spence in coming to this conclusion and added that often there is a rightofway separating lots with different orientation which would provide a greater buffer.
The Tribunal is of the view that there is insufficient evidence to indicate that this lot configuration is unique in the locality, or that the lot constraints as described by Mr Kirkness are so severe and limiting that the most appropriate design solution is the proposed development. The Tribunal acknowledges that the location of the site close to the corner of Hamersley Road means that its side boundary abuts the rear boundary of three properties (in lieu of one) and that there is no separation by a right-of-way, as can occur in some similar situations. However, the proposed development, which opens the centre of the site to the north, is not necessarily the most appropriate design solution, given this lot configuration. For example, it could be argued that a more appropriate design response for the protection of the visual privacy of the rear open spaces of the lots facing Hamersley Road would be a two storey built form located within the middle third of the lot with openings to the east and west. There are design constraints, as is common when extending existing dwellings in established older suburbs, but they are not so great or unusual that adverse impacts on adjoining properties should be considered unavoidable.
While the proposal does not fully comply with the Streetscape Policy in terms of maximum upper floor area and location of the upper floor within the middle third, the experts agreed that it will appear as a predominantly single storey house when viewed from the primary street. Where they disagreed was in terms of the impact of the height and location/arrangement of the proposed additions on the southern neighbour at Lot 37, in particular the impact of overshadowing on the rear outdoor living area and the three ground floor north facing kitchen windows, as well as the bulk and scale of the additions as viewed from the kitchen windows and rear outdoor living area.
The Streetscape Policy guides or informs the exercise of discretion under cl 42(1)(b) of TPS 4 as to whether there is 'no undue adverse impact on adjoining residential sites or the general amenity of the locality'. Elements 5.4.2 and 5.1.3 of the Codes address solar access for adjoining sites and lot boundary setbacks respectively. These are both relevant in the consideration of whether there are any undue adverse impacts on adjoining residential sites, specifically in this case, whether there are any undue adverse impacts on Lot 37.

Element 5.4.2 (Solar access for adjoining sites) of the Codes

It was common ground that the proposed development does not satisfy the deemed-to-comply requirements of Element 5.4.2 (Solar access for adjoining sites) of the Codes, as it will overshadow 35% or 194.5m² of the site area of the adjoining property to the south of the subject site (Lot 37) at 12 noon on 21 June. It is therefore appropriate to assess the proposal against the design principles of Element 5.4.2 of the Codes which are as follows:
P2.1 Effective solar access for the proposed development and protection of the solar access.
P2.2 Development designed to protect solar access for neighbouring properties taking into account the potential to overshadow existing:
•outdoor living areas;
•north facing major openings to habitable rooms, within 15 degrees of north in each direction; or
•roof mounted solar collectors.
Ms Lavery was concerned that the proposal exceeded the maximum overshadowing of 25% (138.5m²) allowed under the deemed-to-comply requirements of Element 5.4.2, which is a difference of 10% or 56m². It was her opinion that the proposed development did not satisfy the design principles of Element 5.4.2, because it was not designed to protect solar access to Lot 37 as it will overshadow the rear outdoor living area and the north facing windows to the kitchen.
Mr Kirkness was of the opinion that the proposal complies with the design principles of Element 5.4.2, as the development has been designed with a skewed setback arrangement, a small footprint, comparatively low sidewalls and pitched roofs in order to limit the overshadowing of the rear open space of Lot 37. The majority of the overshadowing is over the existing dwelling on Lot 37, and a two storey development located within the middle third of the subject site and within 6 metres of the southern boundary would overshadow the kitchen windows to Lot 37, and a single storey development within 2 metres of the southern boundary would also overshadow the kitchen windows of Lot 37.
It was Mr Kirkness' view that overshadowing of Lot 37 would be an issue even with an alternative compliant single storey (plus loft) development built in the rear third of the subject site, given the orientation of the lots.
In regard to the three existing north facing kitchen windows on Lot 37, the Tribunal accepts the evidence of Mr Kirkness and finds that the proposal satisfies the design principles of Element 5.4.2. The Tribunal is of the view that the location of these windows approximately 800 millimetres from the side boundary within the middle third of the lot means that they have the potential to be affected by most approvable design solutions for the subject site, whether single storey or two storey. The Tribunal notes that the applicants have attempted to ameliorate some of the impacts of the proposed development by stepping back the built form from the boundary in the vicinity of these windows.
In regard to the overshadowing of the rear outdoor living area of Lot 37, the Tribunal prefers the evidence of Ms Lavery, and finds that the proposed development, particularly the rear two storey element, does not satisfy the design principles of Element 5.4.2. Mr Kirkness is correct when he states that the majority of the overshadowing caused by the proposed development is over the existing building on Lot 37, but it is the increase in overshadowing over the rear outdoor living area that is of concern to the Tribunal. This overshadowing is a direct result of the increased height of the two storey built element in the rear third of the subject site. While skewing this built form element may have reduced its impact on Lot 37, if it had been located within the middle third of the subject site, its impact would have been reduced to a much greater degree.
The Tribunal therefore finds that the proposed development has not been designed to protect solar access for neighbouring properties taking into account the potential to overshadow existing outdoor living areas, and therefore does not satisfy the design principles of Element 5.4.2 (Solar access for adjoining sites) of the Codes.

Element 5.1.3 (Lot boundary setback) of the Codes

It was the respondent's contention that parts of the proposed walls to the southern elevation of the development do not satisfy the deemedtocomply requirements for lot boundary setbacks and the development must therefore be assessed in relation to the design principles of Element 5.1.3 of the Codes.
The expert witnesses gave evidence regarding this issue during the hearing and agreed that it was difficult to establish the correct deemedtocomply setback distance for the southern walls, given the unusual design of the rear skewed built form element. Ms Lavery was of the opinion that a 1.9 metre setback to the upper floor was required and Mr Kirkness was of the opinion that the setback should be 1.2 metres in order to satisfy the deemedtocomply requirements of the Codes.
As a setback of 1.2 metres has been provided to the upper level sitting room and bathroom, Mr Kirkness was of the view that this satisfied the deemedtocomply requirements of Element 5.1.3 of the Codes.
There are also two projecting corners of the staircase and landing that are set back 1.6 metres and 2.0 metres respectively from the southern side boundary. Ms Lavery was of the view that the calculation of the overall wall length should include these, making the wall length for the purposes of setback calculations approximately 13.6 metres, which then gives a deemedtocomply setback of 1.9 metres.

The Explanatory Guidelines of the Codes states that the distance required to set back a wall from a boundary is a function of the height and length of the wall and whether there are major openings in the wall. In this case, it is the skewed nature of the building design that creates the difficulties in calculating the deemedtocomply setback requirements. Taken as an isolated element, the upper level sitting room and bathroom would be appropriately set back at 1.2 metres, but in this case there is a connecting landing and staircase providing access to two further bedrooms within the skewed built form.
The objectives, set out on page 21 of the Explanatory Guidelines of the Codes, regarding boundary setbacks other than street setbacks are as follows:
•to ensure adequate daylight, direct sun and ventilation for buildings and the open space associated with them;
•to moderate the visual impact of building bulk on a neighbouring property;
•to ensure access to daylight and direct sun for adjoining properties; and
•to assist with the protection of privacy between adjoining properties.
Given the difficulty in calculating a deemedtocomply side boundary setback because of the design of the building and the potential for the design of the building to impact on the objectives set out above, the Tribunal is of the view that it is appropriate in this case to assess the proposed development against the design principles for lot boundary setbacks: Element 5.1.3 of the Codes.
The design principles of Element 5.1.3 of the Codes provide the following:
P3.1Buildings set back from lot boundaries so as to:
•reduce impacts of building bulk on adjoining properties;
•provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and
•minimise the extent of overlooking and resultant loss of privacy on adjoining properties.
As stated above, it was Mr Kirkness' opinion that the proposal satisfied the deemedtocomply requirements of Element 5.1.3 of the Codes. Mr Kirkness explained that the 'particular building arrangement (embracing setbacks) and a constrained scale of development generally reduce the impact of the proposed development on all neighbours, including the adjoining southern neighbour at Lot 37 [and] the skewed arrangement to the rear portion of the proposed development effects greater visual openness to all surrounding premises'. He was also of the view that a greater setback to the middle portion of the upper level would 'not substantially alter the difficulty of providing yearround direct natural light to the ground level kitchen windows of the southern neighbouring dwelling given their proximity to the common boundary'.
It was Ms Lavery's opinion that the proposal did not satisfy the design principles of Element 5.1.3 of the Codes as the proposed setbacks do not reduce the impacts of building bulk on Lot 37. It was her view that the 'wall would have an overpowering visual impact when viewed from the kitchen and rear garden of Lot 37 … [and that] the proposed development would not provide adequate access to direct sun to the kitchen and rear garden of Lot 37'.
In assessing the proposed development against the design principles for lot boundary setbacks (Element 5.1.3 of the Codes), the Tribunal is of the view that it is the two storey rear skewed built form element that has the potential to impact on the adjoining property to the south. The section of wall that is set back 1.2 metres from the common boundary will have little impact on Lot 37 in terms of building bulk or the provision of adequate direct sun and ventilation to the building on the adjoining property. This is because, as discussed earlier, the Tribunal is of the view that the location of the ground floor northfacing kitchen windows approximately 800 millimetres from the side boundary within the middle third of the lot results in them potentially being affected by most approvable design solutions for the subject site, whether single storey or two storey. In this case, a setback of 1.9 metres of the upper level wall to the common boundary, in lieu of the 1.2 metres provided, would have a minimal impact in terms of building bulk or the provision of direct sun or ventilation to Lot 37.
Overlooking, loss of privacy and the provision of adequate ventilation have not been identified as current concerns by either party. The wall configuration could have been modified slightly so as to make the wall length calculation simpler in order to satisfy the deemedtocomply requirements but the proposal would have had similar impacts on the neighbouring property. Once again, the area of concern for the Tribunal relates primarily to the two storey skewed built form element located in the rear third of the subject site.

Conclusion

The Tribunal has found that the proposed development does not fully comply with Part 6 of the Streetscape Policy which limits the upper floor area of 'increased height' to a maximum of 15% of the site area and requires this upper floor area to be located within the middle third of the subject site. The Tribunal calculated that the upper floor area is approximately 113m² which equates to 20% of the total area of the subject site, and that 63m² of this upper floor area is located within the rear third of the subject site. This is not determinative of the matter as the Streetscape Policy is a guide in the exercise of discretion under cl 42(1)(b) of TPS 4 in the consideration of whether there are any undue adverse impacts on adjoining residential sites or the general amenity of the locality.
The Tribunal has considered the proposal in terms of the design principles of the Codes relating to both solar access for adjoining sites and lot boundary setbacks and found that it has not been designed to protect solar access for neighbouring properties, taking into account the potential to overshadow outdoor living areas. The increase in overshadowing over the rear outdoor living area of Lot 37 is a direct result of the increased height of the two storey built element located within the rear third of the subject site. The Tribunal acknowledged that while there are design constraints associated with providing additional accommodation on this site they are not so great or unusual that adverse impacts on adjoining properties should be considered unavoidable.
In this case, the Tribunal considers that the proposal will have an undue adverse impact by overshadowing the rear outdoor living area of Lot 37. It follows that in the circumstances of this case, the discretion to allow two storey development under cl 42(1)(b) of TPS 4 should not be exercised. The application for review should therefore be dismissed and the decision of the respondent to refuse development approval should be affirmed.

Orders

For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 27 May 2014 to refuse development approval for partial demolition of the rear of the existing dwelling and construction of a two storey addition at No 4 (Lot 36) Browne Street, Subiaco is affirmed.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER