TAMBURRI and CITY OF VINCENT
[2014] WASAT 70
•11 JUNE 2014
TAMBURRI and CITY OF VINCENT [2014] WASAT 70
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 70 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:353/2013 | 13 MARCH 2014 | |
| Coram: | MS R MOORE (MEMBER) | 11/06/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Development approval granted | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL TAMBURRI CITY OF VINCENT |
Catchwords: | Town planning Refusal of two storey grouped dwelling City of Vincent Residential Design Elements Policy Street setbacks for buildings and garages Location of outdoor living area Visual privacy Whether adverse impact on streetscape and individual character of locality |
Legislation: | City of Vincent Town Planning Scheme No 1, cl 6, cl 6.3, cl 18, cl 19, cl 38, cl 38(5), cl 47 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Act 2004 (WA), s 31 State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 |
Case References: | Nil |
Orders | On the application heard on 13 March 2014 before Member Rebecca Moore, it is on 11 June 2014 ordered that:,1. The application for review is allowed.,2. The decision of the respondent made on 17 December 2013 to refuse development approval for a two storey dwelling at No 57 Kalgoorlie Street, Mount Hawthorn is set aside and a decision is substituted that development approval is granted subject to the following conditions:,(i) The development is to be in accordance with drawings A101, A201, A202, A203, A301 and A302 (with undated revisions but considered by the City on 17 December 2013).,(ii) The development is to comply with all Building, Health, Engineering and Parks Services conditions and requirements to the satisfaction of the City's Chief Executive Officer. |
Summary | This matter involved an application for review of the refusal of a development application for a two storey grouped dwelling at No 57 Kalgoorlie Street, Mount Hawthorn.,The respondent contended that the street setbacks of the ground floor, balcony and garage did not satisfy the provisions of the City of Vincent's Residential Design Elements Policy; that the proposal did not satisfy the provisions of the State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 in relation to street setbacks, setbacks of garages and carports, outdoor living areas, and visual privacy; and finally, that the proposal would adversely affect the streetscape and character of the locality.,The Tribunal found that the proposed street setbacks satisfied the provisions of both the City of Vincent's Residential Design Elements Policy and the Residential Design Codes, as they allowed for good sightlines to the main entry of the dwelling as well as to the 1930s Californian Bungalow to the north; allowed for the provision of landscaping; allowed for northern solar access to the property to the south; protected the existing verge trees by reusing the existing crossover; and facilitated the efficient use of the site by using part of the front setback area for outdoor living. In addition, the upper floor balcony, the location of the outdoor living area, and the provision of large windows to the street elevation, made a positive contribution to the streetscape in terms of surveillance and activity.,The Tribunal also found that the proposal satisfied the design principles of the Residential Design Codes in relation to the location of the outdoor living area and visual privacy. And finally, the Tribunal found that approval of the proposal would not adversely affect the streetscape and character of the immediate locality. The Tribunal therefore allowed the application for review and granted development approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TAMBURRI and CITY OF VINCENT [2014] WASAT 70 MEMBER : MS R MOORE (MEMBER) HEARD : 13 MARCH 2014 DELIVERED : 11 JUNE 2014 FILE NO/S : DR 353 of 2013 BETWEEN : MICHAEL TAMBURRI
- Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning Refusal of two storey grouped dwelling - City of Vincent Residential Design Elements Policy - Street setbacks for buildings and garages - Location of outdoor living area - Visual privacy - Whether adverse impact on streetscape and individual character of locality
Legislation:
City of Vincent Town Planning Scheme No 1, cl 6, cl 6.3, cl 18, cl 19, cl 38, cl 38(5), cl 47
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Act 2004 (WA), s 31
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013
Result:
Application for review allowed
Development approval granted
Summary of Tribunal's decision:
This matter involved an application for review of the refusal of a development application for a two storey grouped dwelling at No 57 Kalgoorlie Street, Mount Hawthorn.
The respondent contended that the street setbacks of the ground floor, balcony and garage did not satisfy the provisions of the City of Vincent's Residential Design Elements Policy; that the proposal did not satisfy the provisions of the State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 in relation to street setbacks, setbacks of garages and carports, outdoor living areas, and visual privacy; and finally, that the proposal would adversely affect the streetscape and character of the locality.
The Tribunal found that the proposed street setbacks satisfied the provisions of both the City of Vincent's Residential Design Elements Policy and the Residential Design Codes, as they allowed for good sightlines to the main entry of the dwelling as well as to the 1930s Californian Bungalow to the north; allowed for the provision of landscaping; allowed for northern solar access to the property to the south; protected the existing verge trees by reusing the existing crossover; and facilitated the efficient use of the site by using part of the front setback area for outdoor living. In addition, the upper floor balcony, the location of the outdoor living area, and the provision of large windows to the street elevation, made a positive contribution to the streetscape in terms of surveillance and activity.
The Tribunal also found that the proposal satisfied the design principles of the Residential Design Codes in relation to the location of the outdoor living area and visual privacy. And finally, the Tribunal found that approval of the proposal would not adversely affect the streetscape and character of the immediate locality. The Tribunal therefore allowed the application for review and granted development approval.
Category: B
Representation:
Counsel:
Applicant : Mr B Doyle (Acting as Agent)
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicant : Planning Solutions (Aust) Pty Ltd
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Introduction
1 These proceedings involve an application brought by Mr Michael Tamburri (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Vincent (City or respondent) made on 27 August 2013 to refuse to grant development approval for two grouped dwellings at Nos 55 and 57 Kalgoorlie Street, Mount Hawthorn (Lots 58, 60, 305 and 306).
2 On 15 October 2012, the City approved a development application for the demolition of two existing dwellings at Nos 55 and 57 Kalgoorlie Street, and the construction of two grouped dwellings on two of the four proposed survey strata lots (Units 2 and 4).
3 On 8 May 2013, the applicant lodged a development application for two grouped dwellings on the remaining two proposed survey strata lots (Units 1 and 3). The City considered this development application at its meeting on 27 August 2013 and resolved to refuse planning approval for Units 1 and 3.
4 On 24 September 2013, the applicant made an application to the Tribunal for a review of this decision. The Tribunal referred the matter to mediation and in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the City reconsidered its original decision at its meeting on 17 December 2013 and resolved to refuse a modified proposal for the following reasons:
1. Proposed Unit 1 does not comply with the following objectives and general provisions of the City of Vincent Town Planning Scheme No. 1:
1.1 To protect and enhance the health, safety and physical welfare of the City's inhabitants and the social, physical and cultural environment;
1.2 To ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which -
1.2.1 Recognises the individual character and need of localities within the Scheme zone area; and
1.3 The design, scale and relationship to existing buildings and surrounding[s], with respect to Kalgoorlie Street;
2. Non-compliance with the Acceptable Development and Performance Criteria provisions of the City's Policy No 3.2.1 relating to Residential Design Elements, with regard to the following Clauses:
2.1 SADC 5 and SPC 5 'Street Setback' relating to the ground floor and balcony setback to Kalgoorlie Street;
2.2 SADC 8 and SPC 8 'Setback of Garages and Carports' relating to the setbacks of the garages; and
3. Non-compliance with the Deemed-to-comply and Design Principles of the Residential Design Codes of Western Australia 2013, with regards to the following Clauses:
3.1 Clause 5.3.1 'Outdoor Living Areas' relating to the location of the outdoor living area;
3.2 Clause 5.4.1 'Visual Privacy' relating to the extent of overlooking into the adjoining properties; and
4. The construction of proposed Unit 1, fronting Kalgoorlie Street, would create an undesirable precedent for the development of surrounding lots, which is not in the interests of orderly and proper planning for the locality.
5 The applicant submitted revised plans to the City on 27 November 2013, and these are the plans that were considered by the City on 17 December 2013 and are now the plans the subject of this review. The matter proceeded to a final hearing on 13 March 2014.
Site and locality
6 The site is one of four survey strata lots which have been created by amalgamating two lots (Nos 55 and 57 Kalgoorlie Street) into a larger lot located on the corner of Kalgoorlie and Ashby Streets, with a total area of 1,452 m2. This amalgamated lot has since been subdivided into four survey strata lots with new titles issued in December 2013. The application the subject of this review relates to Lots 1 and 4 (containing Units 1 and 4). The City's refusal relates only to Unit 1 on Lot 1 on Survey Strata Plan 66554 with street address No 57 Kalgoorlie Street (site, subject site or Lot 1).
7 Lot 1 is approximately 390 m2 in area, is rectangular in shape, and has a 21.35 metre long northern side boundary and an 18.27 metre frontage to Kalgoorlie Street. There is an existing crossover from Kalgoorlie Street which is to be retained, and two street trees and a power pole located on the verge. The site is currently vacant.
8 The neighbouring property to the north (No 59 Kalgoorlie Street) is a 1930s Californian Bungalow single storey dwelling with a 6.2 metre (approx) setback to the front porch and a 1 metre setback from the southern side boundary. The dwelling to the south of the subject site (Unit 2 on Lot 2 of Survey Strata Plan 66554, No 55 Kalgoorlie Street) is currently under construction. It is similar in size and design to the proposed dwelling on Lot 1. It has a 4 metre setback to Kalgoorlie Street and a double crossover from Kalgoorlie Street accessing an integrated double garage which is set back approximately 5 metres from Kalgoorlie Street.
9 The Tribunal had the benefit of a view of the site in the company of the parties on the morning of the hearing. The view included both sides of Kalgoorlie Street between Berryman Street to the north and Ashby Street to the south.
Proposed development
10 The original development application was for two two storey dwellings. The respondent resolved to approve one of these and refuse the other. The modified proposal, now the subject of this review, is for a two storey dwelling on the subject site.
11 The modified proposal provides for three bedrooms and a living area opening onto a balcony on the upper floor. The ground floor contains a master bedroom with ensuite, a study, an open plan kitchen/dining/living/games area leading to an outdoor living area, and an integrated double garage accessed by a single width crossover from Kalgoorlie Street. The garage doors face the northern side boundary rather than Kalgoorlie Street, and there is a single garage door on the south side opening from the garage to the outdoor living area. There is also a basement with a cellar below the ground floor.
Planning framework
12 The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential with a residential density coding of R30 under the City of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme).
13 Clause 6 of TPS 1 contains the objectives and intentions of the Scheme. The relevant general objectives are at cl 6(3) and include the following:
(a) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
(b) to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment;
(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which -
(i) recognises the individual character and needs of localities within the Scheme zone area; and
(ii) can respond readily to change[.]
15 Clause 38 of TPS 1 contains the general provisions for the determination of applications for planning approval. Clause 38(5) provides that the City is to have regard to the following:
(a) the provisions of this Scheme and of any other written law applying within the Schedule area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
(c) the Scheme Map;
(d) any Statement of Planning Policy of the Western Australian Planning Commission;
…
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
…
16 Clause 47 of TPS 1 allows the City to make planning policies. The City's local planning policy Residential Design Elements Policy No 3.2.1 (now Policy No 7.2.1) (Residential Design Policy) is relevant to the consideration of this matter.
17 The primary aims of the City's Residential Design Policy relevantly include the following:
• encourage residential development that harmonises with the existing streetscape and complements the character of the locality;
• promote housing design of the highest possible quality;
…
• Encourage a diversity in housing styles, while facilitating new residential development that complements the character of the street[.]
The issues
18 The respondent identified the following issues for determination in this matter:
1) Whether the street setback of the ground floor, balcony and garage satisfies the provisions of the City's Residential Design Policy.
2) Whether the proposed development satisfies the provisions of the Codes in relation to:
a) street setbacks (5.1.2);
b) setback of garages and carports (5.2.1);
c) outdoor living areas (5.3.1); and
d) visual privacy (5.4.1).
3) Whether approval of the proposal would adversely affect the streetscape and individual character of the immediate locality.
19 Ms Amanda Butterworth, a town planner, gave evidence on behalf of the respondent, and Mr Ross Underwood, also a town planner, gave evidence on behalf of the applicant.
20 The planning experts addressed the requirements for the street setback of the building and the garage under the Residential Design Policy and the Codes as one issue. The experts then looked at the provisions in the Codes for outdoor living areas and visual privacy. The Tribunal prefers this approach, as the Residential Design Policy is intended to be read in conjunction with the Codes. The Residential Design Policy addresses the elements of streetscape, building design, boundary walls and building height, and provides alternative requirements to the Codes to suit the local planning context within the City.
21 The issues have been addressed by the experts and the Tribunal as follows:
1) Whether the proposal satisfies the provisions of the Residential Design Policy and the Codes in relation to street setbacks.
2) Whether the proposal satisfies the provisions of the Codes in relation to outdoor living areas.
3) Whether the proposal satisfies the provisions of the Codes in relation to visual privacy.
4) Whether approval of the proposal would adversely affect the streetscape and individual character of the immediate locality.
Issue 1: Whether the proposed street setbacks satisfy the provisions of the Residential Design Policy and the Codes
22 The planning experts, Ms Butterworth and Mr Underwood, usefully prepared a joint statement, and agreed the following points:
• The predominant streetscape pattern is defined as the average setback of the five adjoining properties on each side of the development on the same side of the street, excluding properties south of Ashby Street.
• The calculated street setback is 6.3 metres - for the purpose of the deemed-to-comply requirement SADC 5 of the Residential Design Policy.
• The Codes do not define the locality applicable for defining the established streetscape. The experts agree that the properties with frontage to both sides of Kalgoorlie Street between Ashby and Berryman Streets, with limited application south of Ashby Street, could be considered as the locality for the purposes of assessment of the established streetscape.
• There are a number of dwellings with carports and garage structures including carports in the street setback area in the locality. Two of these (Nos 62 and 69 Kalgoorlie Street) have doors installed along the street frontage. These were approved prior to the adoption of the Residential Design Policy. There are no garages within the street setback area.
• Buildings in the locality are predominantly single storey, with some double storey.
• The locality is typified by houses constructed on lots which are approximately 40 metres deep.
• The street setback and the setback of the garage do not comply with the deemed-to-comply requirements of SADC 5 and SADC 8 of the Residential Design Policy. These elements therefore need assessment against the design solutions in SPC 5 and SPC 8 of the Policy, and design principles 5.1.2 and 5.2.1 of the Codes.
23 Design solution SPC 5 Street Setbacks of the Residential Design Policy states:
(i) Development is to be appropriately located on site to:
• Maintain streetscape character;
• Ensure the amenity of neighbouring properties is maintained;
• Allow for the provision of landscaping and space for additional tree plantings to grow to maturity;
• Facilitate solar access for the development site and adjoining properties;
• Protect significant vegetation; and
• Facilitate efficient use of the site.
(ii) Variations to the Deemed-to-Comply Criteria relating to upper floor setbacks may be considered where it is demonstrated that the lesser upper floor setbacks incorporate appropriate articulation, including but not limited to; varying finishes and staggering of the upper floor walls to moderate the impact of the building on the existing or emerging streetscape and the lesser setback is integral to the contemporary design of the development.
24 SADC 5 Street Setbacks of the Residential Design Policy states:
Streetscape Character '… refers to the aesthetic relationship that exists between built form, vegetation and topographic characteristics in both the private and public domains that distinguish one place from another. Streetscape character generally refers to the consistency of architectural style, building height, front/side setbacks, scale and bulk'.
25 Design solution SPC 8 Setback of Garages and Carports of the Residential Design Policy states:
(i) Garages and carports are not to visually dominate the site or the streetscape.
26 Design principle 5.1.2 relating to street setback in the Codes states:
P2.1 Buildings set back from street boundaries an appropriate distance to ensure they:
• contribute to, and are consistent with, an established streetscape;
• provide adequate privacy and open space for dwellings;
• accommodate site planning requirements such as parking, landscape and utilities; and
• allow safety clearances for easements for essential service corridors.
P2.2 Buildings mass and form that:
• uses design features to affect the size and scale of the building;
• uses appropriate minor projections that do not detract from the character of the streetscape;
• minimises the proportion of the façade at ground level taken up by building services, vehicle entries and parking supply, blank walls, servicing infrastructure access and meters and the like; and
• positively contributes to the prevailing development context and streetscape.
P1 The setting back of carports and garages to maintain clear sight lines along the street and not to detract from the streetscape or appearance of dwellings; or obstruct views of dwellings from the street and vice versa.
28 Ms Butterworth was of the view that the proposal does not maintain the streetscape character, as the proposed setback of 4.5 metres is less than the predominant streetscape setback; the wall of the garage is incongruous with the predominant streetscape; and the upper level balcony setback of 5.5 metres is less than the predominant streetscape setback in the immediate locality.
29 Mr Underwood was of the view that the proposed building maintains the character of the street, which includes a two storey building with a double garage set back 4 metres from the street at No 55 Kalgoorlie Street (immediately to the south) and a single storey building with a double garage set back 4.5 metres from the street at No 67 Kalgoorlie Street.
30 The experts referred to the definition of 'amenity' in TPS 1 which 'means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity'.
31 It was Ms Butterworth's opinion that the proposal did not ensure the amenity of the neighbouring properties because street setback is an important element of the character of the area, whereas Mr Underwood is of the opinion that as the proposal maintains the character of the street, it also maintains the amenity of the neighbouring properties. He noted that the garage wall is set back 0.5 metres further than the neighbouring property at No 55 Kalgoorlie Street and has a side setback from the northern boundary of No 59 Kalgoorlie Street of 5.88 metres, which provides for generous sightlines from the street to No 59 Kalgoorlie Street.
32 Ms Butterworth was of the opinion that the garage did not comply with design solution SPC 8 of the Residential Design Policy, as it would visually dominate the site and the streetscape, particularly as there was a double garage door to the north and a single garage door to the south.
33 It was Mr Underwood's opinion that the garage would not visually dominate the site or the streetscape because of the following factors:
• The garage door is oriented to the north, and not to Kalgoorlie Street, reducing the visual impact of a garage door to the streetscape.
• The garage façade includes two windows to the eastern façade facing Kalgoorlie Street, resulting in that portion of building not being perceived as a garage when viewed from the street. These windows provide interest to the ground floor elevation and a perceived opportunity for passive surveillance of the street.
• A balcony is proposed across the full width of the garage, providing visual relief and further opportunity for passive surveillance of the street.
• The outdoor living area in the south-east corner of the review site allows the setback between the garage and the street to be used for informal recreational activities by the occupants of the dwelling.
• The garage of the neighbouring dwelling to the south is set back 5.26 metres from Kalgoorlie Street (0.76 metres further than the proposed garage). The difference will not alter the streetscape by any noticeable degree.
34 In regard to the Codes, Ms Butterworth was of the view that the proposal does not satisfy design principle 5.1.2 P2.1, as the reduced street setback is not consistent with, and will not positively contribute to, the established streetscape. Mr Underwood was of the view that the proposal positively contributes to and is consistent with the established and changing streetscape of the locality.
35 Ms Butterworth was also of the view that the proposal does not satisfy design principle 5.1.2 P2.2, as it does not positively contribute to the prevailing development context and streetscape, nor does it minimise the proportion of the façade at ground level taken up by the garage structure. Mr Underwood was of the view that the proposal articulates the street through the use of windows to the garage, and the balcony above the garage for its full width.
36 Finally, with regard to design principle 5.2.1 P1, the experts agreed that the proposal maintains clear sightlines along the street, but Ms Butterworth believed that the proposal would detract from the streetscape and appearance of dwellings, and would obstruct views of the dwellings from the street and vice versa.
37 In this case, the Tribunal prefers the evidence of Mr Underwood and finds that the proposed street setbacks of the dwelling do satisfy the provisions of both the City's Residential Design Policy and the Codes.
38 The dwelling is located on a lot of approximately 390 m2 with an 18.27 metre frontage. The garage is integrated into the built form of the dwelling with a large balcony above. It is orientated with its entrance accessed from the north, rather than directly off the street from the east. The wall fronting the street is 6.39 metres in width, set back 5.88 metres from the northern side boundary and 6 metres from the southern side boundary, and contains two windows.
39 The generous northern side setbacks allow for good sightlines to the main entry of the dwelling and to the 1930s Californian Bungalow to the north. The wall to the garage occupies approximately 35% of the width of the property.
40 While the Tribunal acknowledges that the wall to the garage is forward of the neighbouring dwelling to the north, which is approximately 6.2 metres to the porch and 7 metres to the main house, it is set back 0.5 metres behind the 4 metre setback of the neighbouring dwelling to the south. It should be noted that there are difficulties maintaining front setbacks when, as in this case, lots are reduced to approximately half the area and depth of the majority of the original lots in the street. The Tribunal is of the view that, in this case, the proposed setbacks are appropriate and that the proposed dwelling will sit comfortably in this setting, as it is to be constructed in a similar style with similar materials and similar setbacks to the dwelling to the south and the two dwellings to the rear.
41 The proposal needs to be assessed as a three dimensional whole which includes the large balcony above, the ground floor living area opening onto outdoor living in the front setback area, the recessed entry, and the large windows to the ground floor bedroom. The two storey bulk of the building has been positioned centrally on the lot, reducing potential impacts on neighbouring properties.
42 In the view of the Tribunal, the proposal maintains the streetscape character, particularly when considering the 4 metre setback to the property to the south, the retention of the existing street trees, and the generous side setback to the property to the north.
43 The proposed setbacks:
• allow for the provision of landscaping, including trees;
• allow for northern solar access to the property to the south;
• protect the existing verge trees by reusing the existing crossover; and
• facilitate the efficient use of the site by using part of the front setback area for outdoor living.
44 The orientation of the garage entry to the northern side reduces its impact on the streetscape. It does not, in the opinion of the Tribunal, obstruct the views of dwellings from the street or vice versa. In fact, the increased side setbacks improve the view both to and from the neighbouring dwellings on either side of the subject site.
45 The positioning of the upper floor balcony and the ground floor outdoor living space, both facing Kalgoorlie Street, makes a positive contribution to the streetscape in terms of surveillance and activity, similar to the front porches associated with the original 1930s dwellings in the street and the verandahs on the Federation dwellings, and the balconies on the newer dwellings constructed more recently in the street.
Issue 2: Whether the proposal satisfies the provisions of the Codes in relation to outdoor living areas
46 The planning experts agreed that the proposed outdoor living area is to be assessed against design principle 5.3.1 relating to outdoor living areas of the Codes, which states:
P1.1 Outdoor living areas which provide spaces:
• capable of use in conjunction with a habitable room of the dwelling;
• open to winter sun and ventilation; and
• optimise use of the northern aspect of the site.
P1.2 Balconies or equivalent outdoor living areas capable of use in conjunction with a habitable room of each dwelling, and if possible, open to winter sun.
47 In their joint statement, the planning experts agreed that the proposed outdoor living area is directly accessible from a habitable room of the dwelling and is open to ventilation, and that 48% of the outdoor living area will be in shade at noon on 21 June.
48 Ms Butterworth considered that the outdoor living area does not optimise the northern aspect of the site because it is located to the south of the garage. Mr Underwood was of the view that the design of the outdoor living area satisfies the design principles, as it optimises its location within the front setback area to provide northern exposure to the sun and ventilation to the living space. He added that the alternative would be to locate the outdoor living area in the north-west corner of the site, but in this location it would be overlooked by two windows in the adjacent property to the north and would be overshadowed in the event this property was redeveloped with a second storey.
49 The experts agreed that the upper floor balcony is capable of being used as an outdoor living area but it is not open to the northern winter sun.
50 The Tribunal is satisfied that the proposed ground floor outdoor living area satisfies design principle 5.3.1 of the Codes: it is accessible from the open plan kitchen/dining/living/games room; it has an area of approximately 42 m2, of which half will be in shade at midday on 21 June; and it makes efficient use of the front setback by linking with an area of approximately 30 m2 of grass in front of the garage wall. While it would be desirable to have the outdoor living space located on the northern side of the site, the Tribunal is aware of the constraints of the site, which include a reduced site area and the necessity to provide vehicular access while maintaining the existing power pole and verge trees. In this case, there is no shortage of outdoor living space, as the provision of the upper floor balcony provides the occupants with a choice of areas to use for outdoor entertaining.
Issue 3: Whether the proposal satisfies the provisions of the Codes in relation to visual privacy
51 Part 5.4.1 of the Codes relates to visual privacy, and the deemed-to-comply provisions require major openings and unenclosed outdoor active habitable spaces which have a floor level greater than 0.5 metres above natural ground level and overlook any part of any other residential property behind its street setback line to be set back 4.5 metres and 7.5 metres respectively, or to be provided with permanent screening.
52 In this case, the planning experts did not agree on whether the deemed-to-comply requirements of Part 5.4.1 of the Codes should apply to residential properties within a parent lot. Ms Butterworth argued that Part 5.4.1 C1.1 refers to 'residential property' and that an adjacent survey strata dwelling can reasonably be described as a residential property. It was Mr Underwood's position that the setbacks referred to in Part 5.4.1 C1.1 are to be measured to the lot boundary, and the lot boundary, as defined by the Codes, excludes the internal boundaries of a survey strata plan.
53 The Tribunal agrees with Mr Underwood that the lot boundary referred to in Part 5.4.1 C1.1 of the Codes is the boundary of the parent lot, as the definition in Appendix 1 of the Codes states that the lot boundary is 'the boundary between a lot and any other parcel of land, excluding a street boundary', and a lot for grouped dwellings is the parent lot. The Tribunal would therefore say that the window to bedroom 3 and the opening to the balcony, both on the south side of the dwelling, satisfy the deemed-to-comply provisions of Part 5.4.1 of the Codes in relation to visual privacy, given their distance from the southern boundary of the parent lot. That said, the Tribunal considers that there is minimal direct overlooking of the active habitable spaces and outdoor living areas of the adjacent grouped dwellings, and, therefore, these openings would also satisfy the visual privacy design principles in Part 5.4.1 of the Codes.
54 In relation to the window in bedroom 4 on the northern elevation of the dwelling, the experts agree that it will achieve the design principles in Parts 5.4.1 P1.1 and 5.4.1 P1.2 of the Codes if it is an obscure-glazed top-hinged awning style window, as it will minimise direct overlooking of the adjacent dwelling. The drawings provided to the Tribunal are annotated 'opaque glass awning window (no overlooking)' and show a top-hinged awning window.
55 The Tribunal therefore finds that the proposal satisfies the Codes in relation to visual privacy.
Issue 4: Whether approval of the proposal would adversely affect the streetscape and individual character of the immediate locality
56 The respondent contended that the proposal would adversely affect the streetscape and character of Kalgoorlie Street with respect to garage location, garage orientation, street setbacks, and the location of the outdoor living area, which it says form the key elements of the established streetscape pattern and individual character. Ms Butterworth was of the opinion that varying the provisions of the City's Residential Design Policy in relation to garage and building setbacks would have an adverse impact on the established streetscape which she says is characterised by a high proportion of single and double carports and garages located behind the building setback line. She was also concerned about the orientation of the garage parallel to the street, and was of the view that the cumulative impacts of the building setback, garage setback, garage orientation and garage design would result in unreasonable bulk and scale. It was Ms Butterworth's opinion that the proposal does not meet the aims of the Residential Design Policy as it neither harmonises with the existing streetscape nor complements the individual character of the locality.
57 Mr Underwood was of the opinion that the proposed setback is equal to or greater than two of the six surrounding developments and is necessary to facilitate the efficient use of the site. It was also his view that the predominant setback pattern includes carports and garages in the street setback area, some with doors up to the street alignment. He noted that the City had approved a building setback of 4 metres to the dwelling at No 55 Kalgoorlie Street, immediately adjacent to the subject site and part of the parent lot, on 15 October 2012. The former Residential Design Policy applied at this time, but it included the same deemed-to-comply and design solutions as the current Residential Design Policy.
58 The Tribunal considered the impact of the proposal on the streetscape character in the consideration of Issue 1 above. The Tribunal found that, given the constraints of a lot that is almost half the area and depth of most of the lots in the street, the proposal both maintained and, in some instances, made a positive contribution in terms of surveillance and activity to the streetscape character by:
• providing generous side setbacks to neighbouring properties;
• providing a slightly greater street setback than the neighbouring property to the south;
• being constructed in a similar style and from similar materials to the property to the south;
• positioning the two storey building bulk in the centre of the site;
• providing an upper floor balcony open to the street; and
• providing windows to the street from bedrooms and living areas.
59 As seen on the site view and illustrated on the aerial photograph provided to the Tribunal, the front setbacks in Kalgoorlie Street (between Ashby and Berryman Streets) vary between approximately 4 metres and up to 10 metres. A number of the dwellings in the street are single storey 1930s Californian Bungalows, particularly on the west side of the street, while others were constructed more recently. Some dwellings are two storey, and some have carports and garages located within the front setback area. The Tribunal is therefore of the view that approval of the proposal would not adversely affect the streetscape and individual character of the immediate locality.
Conclusion
60 In conclusion, the Tribunal has determined that the proposed development satisfies the provisions of the City's Residential Design Policy and the Codes in relation to street setbacks, and satisfies the provisions of the Codes in relation to outdoor living areas and visual privacy. The Tribunal has also determined that the proposed development would not adversely affect the streetscape and individual character of the immediate locality. It follows that the application for review should be allowed and development approval for the proposed two storey grouped dwelling granted.
Orders
61 For these reasons the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 17 December 2013 to refuse development approval for a two storey dwelling at No 57 Kalgoorlie Street, Mount Hawthorn is set aside and a decision is substituted that development approval is granted subject to the following conditions:
i. The development is to be in accordance with drawings A101, A201, A202, A203, A301 and A302 (with undated revisions but considered by the City on 17 December 2013).
ii. The development is to comply with all Building, Health, Engineering and Parks Services conditions and requirements to the satisfaction of the City's Chief Executive Officer.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER
0
0
5