TREVENEN and TOWN OF CLAREMONT - [2010] WASAT 119

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TREVENEN and TOWN OF CLAREMONT [2010] WASAT 119

MEMBER: MR J JORDAN (MEMBER)

HEARD: 30 APRIL 2010 - FINAL SUBMISSIONS 13 MAY 2010

DELIVERED : 12 AUGUST 2010

FILE NO/S: DR 459 of 2009

BETWEEN: LEXIE PAULA TREVENEN
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - Building at rear of existing house at south-west corner of lot - Building comprising basement, ground floor double garage and first floor room with sleeping and living accommodation, en suite facilities, cooking area and outdoor deck - Conditional approval - Condition requiring increase in setback from southern boundary - Extent of overshadowing of neighbouring courtyard and adjacent living area - Height of proposed structure - Extent of existing overshadowing - Residential Design Codes requirements for solar access - Whether amenity considerations under town planning scheme applicable - Acceptable development requirements - Performance criteria

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (Variation 1) (2008), cl 1.3.1(e), cl 1.3.3, cl 2.5.4, cl 6.3, cl 6.3.1, cl 6.3.1 A1, cl 6.3.1 P1, cl 6.7, cl 6.7.1 A.1.1, cl 6.9, cl 6.9.1, cl 6.9.1 A1, cl 6.9.1 P1, cl 7.1.1, cl 7.1.1 P1, Table 3
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31, s 87, s 87(1), s 87(4), s 87(4)(b)
Town of Claremont Town Planning Scheme No 3, cl 26, cl 26(3), cl 27, cl 43, cl 76, cl 77, cl 83(2)(e), cl 86, cl 86(2), cl 86(2)(e)

Result:

Application for review allowed.
Development approved at proposed setback of 1.2 metres from southern boundary subject to conditions.

Category: B

Representation:

Counsel:

Applicant: Mr K Adam (Representative)
Respondent: Mr J Algeri (Representative)

Solicitors:

Applicant: KA Adam & Associates (Architects and Town Planners)
Respondent: Algeri Planning & Appeals

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

Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Morea Architects and the Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a decision by the Town of Claremont to require the upper floor of a proposed additional building at the rear of an existing house at Stirling Road, Swanbourne to be set back a minimum of 3.1 metres from the southern boundary of the lot in lieu of the proposed 1.2 metres. The proposed building comprised a basement, a ground floor double garage opening onto a rear right of way, and a first floor room with living and sleeping areas. An outside deck would extend between the new building and the rear of the single storey house at the front of the lot.
The Town of Claremont was concerned that the proposed building would have an unacceptable impact on the adjoining lot to the south because of overshadowing. On the adjoining lot to the south adjacent to the common boundary with the development site were a courtyard area and a ground floor room used as a living room and for dining.
The Tribunal found that the proposed development satisfied the relevant general objective for residential development and the acceptable development standards, and therefore the performance criteria, for solar access under the Residential Design Codes of Western Australia (Variation 1) (2008).
The Tribunal also assessed the proposed development according to cl 86(2)(e) of the Town of Claremont Town Planning Scheme No 3, which requires consideration of the impact of the development on the amenities of the locality, which includes the impact on the amenity of the adjoining lot to the south.
The Tribunal found that the impact on the amenity of the adjoining lot to the south would be proportional and consistent with adequate consideration of the amenity of the neighbours, having regard to the reasonable expectation of the applicant for development on a narrow lot consistent with development standards and the remaining solar access there would be to the adjoining lot to the south at midday in midwinter. The Tribunal allowed the application and approved the development at the proposed setback of 1.2 metres from the southern boundary.

Introduction

These proceedings involved an application by Ms Lexie Trevenen (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Town of Claremont (respondent or Council), on reconsideration, not to approve a development at the rear of the house at No 23 (Lot 12) Stirling Road, Swanbourne (site) located at a setback of 1.2 metres from the southern boundary, but to approve the development subject to it being set back 3.1 metres from the southern boundary.
The application for review had initially been filed against the Council's decision to refuse the development at a setback of 1.1 metres from the southern boundary.

Site and locality

The site has an area of 465 square metres, a frontage of 12.67 metres to Stirling Road at the eastern end, and a boundary of 12.47 metres with a right of way at the western end. The southern boundary is 38.48 metres and the northern boundary is 36.21 metres. An existing single storey brick and galvanised iron single house extends from near the front of the site to within 13 metres of the rear boundary at a setback of about 900 millimetres from the southern boundary.
Near to the rear of the house and both set back about 0.5 metre from the southern boundary are a fibrocement and iron laundry and a separate brick lavatory. At the rear of the house is a paved area at RL 15.7. A grassed area adjacent to the northwest corner of the site is at the same level. In the southwest corner of the site is a retained grass area at about RL 16.4. The paved right of way at the rear is at about RL 16.3 RL 16.5.
Adjoining the site to the south is No 21 Stirling Road, Swanbourne (No 21) on the corner of Claremont Crescent. On No 21 is a modern two storey brick house built after the Western Australian Planning Commission resumed land for road reserve in Claremont Crescent and the previous house had to be demolished. The house on No 21 extends from the front, Stirling Road, setback to within about 5.5 metres of the rear boundary at the right of way.
Adjacent to the house on the site, the house on No 21 is set back 1 metre from the common boundary. Adjacent to the laundry, lavatory and rear yard of the site, a 2.1 metre high limestone block wall has been built along the common boundary but wholly within No 21. The house on No 21 is set back about 4.3 metres from this boundary wall. The ground floor of the house on No 21 at this setback is a room occupied by a living area and a dining area. At first floor level above is a bedroom with a north facing balcony. The space between the house on No 21 and the site boundary is a brick paved courtyard. The western, rear, boundary of No 21 is retained at about 0.5 metre below the level of the adjacent right of way. Between the house and the retaining wall is a grassed area, garden beds, air conditioner and a drying area.
On the lot to the north of the site and on other lots in Stirling Street and to the west of the right of way are single houses.

Planning framework

The site is zoned Residential with a density coding of R20 under Town of Claremont Town Planning Scheme No 3 (TPS 3). Surrounding lots have the same zoning and density coding.
Clause 26(3) of TPS 3 states:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes.
Clause 86 of TPS 3 is concerned with determination of applications. Clause 86(2)(e) of TPS 3 refers to orderly and proper planning and preservation of the amenities of the locality, and is addressed in the discussion of the issues below.
Central to the assessment of this matter are particular provisions of the Residential Codes of Western Australia (Variation 1) (2008) (Codes) relating to general objectives, the approval process and design elements. The provisions of the Codes relevant to this matter are also addressed below in the discussion of the issues.

Proposed development

The proposed development before the Tribunal is that set out on the plans by Ken Adam Architect titled 'SK1 Rev 4 April 2010' (Annexure A) and 'SK2 Rev 4 April 2010' (Annexure B) date stamped 6 May 2010 by the Tribunal. An earlier revision of these plans was the subject of discussion at the hearing of the matter. The two revisions referred to above were filed after the hearing to include, on single sketches, certain relative floor levels and wall heights that were identified on other plans and sketches during the course of the hearing.
Proposed is a three level building. It will include a basement of 5.4 metres by 4.6 metres, with a floor level at RL 13.62. On the ground floor would be a double garage set back 2 metres from the right of way, with a parapet wall on the southern boundary. The floor level of the garage would be RL 16.02, with the parapet wall to a height of RL 18.36. At first floor level, with access from an external staircase on the northern wall of the garage, would be a room labelled 'studio' on the plan. This room has a floor level of RL 18.5. The room is set back 1 metre from the right of way and extends about 8.5 metres into the site to sit above the roof of the lavatory. The first floor room would be 5.1 metres wide.
The proposed upper level room would be set back 1.2 metres from the southern boundary. The setback from the northern boundary of the site to the staircase would be 5.3 metres. The first floor room opens onto a deck extending to the house roof at a setback of about 2.6 metres from the southern boundary, with a 1.65 metre high screen along the southern edge.
The first floor room plan shows an open area accommodating a bed, a living area and a kitchen sink. In a corner of the room would be a partition for a bathroom and a lavatory.
Relevant to the consideration of this matter is that SK2 Rev 4 shows that the development, at the alignment of the southern wall of the first floor room and comprising the southern wall together with the roof and roof timbers sitting on the plate, would reach a height of RL 20.45. The ridge height is shown at RL 22.4 and the roof pitch is shown as 30 degrees.
The parties differed on how the proposed development should be characterised. Mr David Caddy, a planner called by the respondent to give evidence, was of the view that the proposed development was 'ancillary accommodation' as defined at Appendix 1 of the Codes. The definition reads:
Selfcontained living accommodation on the same lot as a single house that may be attached or detached from the single house occupied by members of the same family as the occupiers of the main dwelling.
Mr Caddy said the development was ancillary accommodation because of the type of accommodation provided, the location on the lot and the applicant's stated intention to use it to accommodate members of the family.
Mr Joe Algeri, a town planner who appeared for and was a witness for the respondent, considered the proposed development 'had potential to be' ancillary accommodation.
Mr Ken Adam, a town planner and architect who appeared for and was a witness for the applicant, said the proposed development was not ancillary accommodation. This was because the development would share a laundry with the existing house, and there was no requirement that an extension to a house be under the same roof as the main building. Completion of the development would result in there being on the site a three bedroom two bathroom house with one and a half kitchens, which he considered modest by local standards. Mr Adam said that the original application to the Council in May 2009 was for extensions to the existing house.
The respondent's planning officers, in their report to the Council, characterised the development as ancillary accommodation, having regard to the definition for 'ancillary accommodation' in the Codes. The neighbours at No 21, in submissions on the development in August 2009, referred to the development as ancillary accommodation. Mr Adam, in response, maintained that the development was not ancillary accommodation but additions to the house. The application sketch had the annotation 'studio' on the first floor accommodation in the proposed development. This 'use' has no definition, which may have led to some confusion in the characterisation of the development.
The Tribunal has accepted the submission that the proposed development is an extension of the existing single residence on the site. It is apparent that, with little variation to the living arrangements, the development might become completely self-contained. However, the application was for an extension to the existing dwelling. The Tribunal notes that, for example, Mrs Barbara McKenzie, an owner of No 21 who appeared as a witness for the respondent, in Annexure B to her witness statement, described No 21 as a house built to accommodate three generations. The comments on how the development would be used in the witness statement of the applicant and that of her partner, Mr Martin Bowman, together with the terms of the application for development approval, suggest that the intention is to use the proposed development to accommodate two generations of the applicant's family in a single house. The Tribunal has therefore determined that the proposed development is more properly characterised as additions to the existing single house on the site.
Relevant to the consideration of how the development is characterised is that, at cl 7.1.1 of the Codes, are performance criteria and acceptable development standards relative to ancillary accommodation. The criteria at cl 7.1.1 P1 of the Codes include accommodating the needs of larger extended families without compromising the amenity of adjoining properties. If the development is not ancillary accommodation, addressing the standards of cl 7.1.1 of the Codes is not required. In the event, this does not mean there will be any less scrutiny of the effect of the proposed development on the adjoining properties, particularly No 21. The Tribunal considers that, in this instance, the assessment of the impact of the development will be essentially the same, whether or not the development is characterised as ancillary accommodation. Environmental and amenity impacts are required to be addressed under the Codes and cl 86(2)(e) of TPS 3.

The proposed development and the effect on No 21 Stirling Road

Central to the deliberations on this matter is the extent to which the proposed development affects solar access to the courtyard and adjacent room of No 21, the lot adjoining the site to the south, and the impact on the amenity of No 21 arising from resultant overshadowing.
The brick paved courtyard area of No 21 is, for the purposes of this assessment, that area bounded on the north by the 2.1 metre high limestone block wall constructed on No 21 adjacent to the common boundary with the site, to the east by a wall of the house, which contains French doors, and on the south by another wall of the house. The wall of the house on the southern edge of the courtyard is 8.5 metres long and includes four sets of French doors, each about 1.2 metres wide. Mr and Mrs McKenzie use the area adjacent to the two western sets of French doors as a living area and it is furnished with lounge chairs. The area of the room adjacent to the two eastern sets of French doors is used as a dining area and a thoroughfare. The brick paving in the courtyard extends a further 5.5 metres to the rear fence of No 21 adjacent to the rear yard of the house, which Mr and Mrs McKenzie described as a 'service' area.
The parties disagreed on the depth of the courtyard. From the exchange between the witnesses and the sketches, the Tribunal considers that the distance from the face of the boundary wall to the face of the wall of the house is about 4.35 metres, and to the French doors is about 4.55 metres. The courtyard is at about RL 16.06 and the floor of the house at No 21 is about RL 16.14.
At present, the boundary wall casts a shadow at noon on 21 June that extends to within about 1 metre of the base of the wall of the house on No 21 for the full width of the courtyard. Mr and Mrs McKenzie provided photographs that showed that a person seated at the eastern or western side of a small table would be in sun, if the sun were shining. The photographs also showed the sun on the outside of the house wall across the southern side of the courtyard and extending through the French doors into the room beyond by what appears to be about 3 metres.
The drawing SK2 Rev 4 shows the ridge of the roof of the proposed development is 9.5 metres long on the northern elevation and 9 metres long on the southern elevation. A roof 9 metres long on the proposed development would sit adjacent to 4.25 metres or the western half of the 8.5 metre long courtyard on No 21. This would be adjacent to the two sets of French doors to the living area of the room beyond. The privacy screen on the timber deck of the proposed development would not affect overshadowing of the remainder of the courtyard on 21 June because, at the proposed setback of at least 2.6 metres, the overshadowing of No 21 from the boundary wall would be greater.
The proposed development would have a ridge height at RL 22.4. The roof level above the southern wall of the first floor at a setback of 1.2 metres is shown on SK2 Rev 4 as RL 20.45. The gutter/eaves at this level would be at a setback of about 1.1 metres. The roof pitch of the proposed development is 30 degrees. The Codes stipulate that the vertical sun angle at noon on 21 June is 34 degrees. It was common ground that the shadow cast by the proposed development over No 21 would be set by the position of the gutter/eaves at the southern edge of the roof of the proposed development. Mr Caddy, in Exhibit 7, and Mr Adam, in his SK5 attached to the planning experts' joint conferral statement, both measured sun angles from this point.
Mr Adam said the shadow cast by the proposed development at noon on 21 June would extend onto the wall of the house about 450 millimetres up from the paving of the courtyard and extend about 300 millimetres into the adjacent room through the French doors. Mr Caddy maintained that the shadow would extend 750 millimetres beyond the doors into the living room.
The difference between the two shadow estimates appears to the Tribunal to be, from scaling the sketches, that Mr Adam, on SK5, has the level of the gutter/eaves lower than RL 20.45, whereas, on Mr Caddy's Exhibit 7, RL 20.45 appears to be at plate height, with the gutter/eaves higher than this level. The Tribunal has noted the drawings are at relatively small scale and have been prepared for the purpose of a planning approval and not to the standard required for building purposes. The Tribunal has determined that, having regard to the written height of RL 20.45, the shadow from the new development would most likely extend between 300 millimetres and 700 millimetres, but no further than this, beyond the two western pairs of French doors into the living area of No 21 at noon on 21 June.
The proposed development would cast no shadow at 12 noon on 21 June over the current area of the courtyard in front of the eastern two pairs of French doors, where there is currently sun approximately 1 metre deep and 4.5 metres wide, or into the dining area.

The impact of the overshadowing on the amenity of No 21 is addressed in the discussion on the issues below.

The Council decision

On 6 April 2010, the Council, as ordered by the Tribunal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), reconsidered the development application amended to include a 1.2 metre setback between the southern boundary and the first floor. The Council did not approve the development as proposed, but granted approval subject to conditions, including condition 1.12, which reads:
The proposal being modified so that the upper floor studio is set back a minimum of 3.1 metres in lieu of the proposed 1.2 metres.
The approval also included condition 1.11, which reads:
The occupant of the ancillary accommodation shall be a member of the family of the occupiers of the main dwelling.
The applicant pursued the review of the matter before the Tribunal seeking approval of the development at the amended setback of 1.2 metres.

The issues

From the statement of issues produced by the Council and the comments of the applicant, the Tribunal has identified the issues as:
1) Whether the proposed development satisfies objective 1.3.1(e) of the 'General objectives' of the Codes.
2)Whether the proposed development is consistent with the acceptable development provisions of cl 6.9.1 A1 of the Codes.
3)If the answer to issue 2 is 'no', whether the proposed development is consistent with the performance criteria of cl 6.9.1 P1 of the Codes.
4)Whether the proposed development is consistent with the 'orderly and proper planning of the locality and the preservation of the amenities of the locality' as required under cl 86(2)(e) of TPS 3.

Discussion

Issue 1: Whether the proposed development satisfies objective 1.3.1(e) of the 'General objectives' of the Codes

'Objectives for Residential Development' under 'General objectives' of the Codes include, at cl 1.3.1(e):
To protect the amenity of adjoining residential properties.
Clause 1.3.3 'Application of objectives' of the Codes states:
In assessing and determining applications for residential development, the council shall have regard to these general objectives, and any specific objectives set out in the RCodes.
Specific objectives relevant to the proposed development are found in the Codes at Pt 6 Design Elements. Element 6.3 'Boundary setback requirements' has as an 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.
Element 6.7 'Building height requirements' has an objective:
To ensure that the height of buildings is consistent with the desired scale in a given locality.
Element 6.8 'Privacy requirements' has as an objective:
To site and design buildings to meet projected user requirements for visual privacy to minimise the impact of development on the visual privacy of adjoining residents in their dwellings and private open space.
For each of the design elements, the Codes state under 'Performance criteria' that:
New development should meet these criteria.
Under 'Acceptable Development' for each design element, the Codes state that:
The acceptable development provisions illustrate one way of meeting the associated performance criteria.
There was no dispute between the parties that, subject to conditions, the proposed development would satisfy the design elements in the Codes for boundary setbacks, height and privacy.
The Tribunal is of the view that, because the development would satisfy these design elements, then the general objective at cl 1.3.1(e) of the Codes, as it is impacted upon by these design elements, is satisfied.
Design element 6.9 'Design for climate requirements' has the objective:
To optimise comfortable living and facilitate sustainable development.
More particularly, cl 6.9.1 of the Codes is concerned with 'Solar access for adjoining sites'. It is the particular construction of the Codes that cl 6.9.1 overlaps with the consideration under cl 6.3 of the Codes, which is concerned with minimum setbacks to address concerns about direct sun and overshadowing.
Clause 6.9.1 of the Codes was identified by the parties as a separate issue in the proceedings and is addressed below. For the purposes of issue 1, the comment can be made that the Tribunal has concluded that the development is consistent with the acceptable development provisions of cl 6.9.1 A1 of the Codes.
The view of the Tribunal, therefore, is that, in respect of the application of the Codes as one of the relevant planning instruments for development control in this matter, in satisfying the specific objectives of the design elements, the proposed development satisfies the general objective at cl 1.3.1(e) of the Codes.

Issue 2: Whether the proposed development is consistent with the acceptable development provisions of cl 6.9.1 A1 of the Codes

Clause 6.9 'Design for climate requirements' of the Codes under the heading 'Performance criteria' states that 'new development should meet these criteria'. The criteria are then listed at cl 6.9.1 P1 of the Codes. Under the heading 'Acceptable development', the Codes state:
The acceptable development provisions illustrate one way of meeting the associated performance criteria.
The acceptable development standards for solar access for adjoining sites at cl 6.9.1 A1 of the Codes state:
Notwithstanding the boundary setbacks in design element 6.3, development in climatic zones 4, 5 and 6 of the state shall be so designed that its shadow only cast at midday 21 June onto any other adjoining property does not exceed the following limits:
•on adjoining properties coded R25 and lower 25% of the site area;
…
The Tribunal understands that cl 6.9.1 of the Codes was originally singled out as a separate issue, because the experts engaged by each of the parties mistakenly used a sun angle of 33 degrees when assessing overshadowing of No 21 by the house on the site and the proposed development. This led to Mr Caddy and Mr Algeri deciding the percentage of overshadowing of No 21 was just in excess of 25%, and it was necessary to assess the development proposal against the performance criteria at cl 6.9.1 P1 of the Codes. Both considered the development would not satisfy the performance criteria, particularly because of the impact of the overshadowing of the courtyard of No 21.
In their joint statement prepared for the hearing, Mr Caddy, Mr Algeri and Mr Adam each acknowledged that the Codes provide that 34 degrees was the angle of measurement for the sun at 12 noon on 21 June. The evidence of Mr Caddy at the hearing was that, from his sketch set out at Exhibit 7, the overshadowing of No 21 after the proposed development was completed would be 24.6%. Mr Adam's evidence was that the overshadowing of No 21 by buildings on the site would be 23.6%.
Mr Algeri considered that some tolerance in the measurements was appropriate, but considered that, because the percentage was close to 25%, the applicant's plans were difficult to interpret, and the impact of the overshadowing on No 21 was so severe, it would be reasonable to assess the proposed development against the performance criteria of cl 6.9.1 P1 of the Codes.
Mr Adam and Mr Stokes, a planner also called by the applicant to give evidence, disagreed with Mr Algeri. They referred to the statement at cl 6.9.1 of the Codes, which states that meeting the acceptable development provisions is one way of meeting the associated performance criteria, and they also referred to cl 2.5.4 of the Codes, which states:
A Council shall not refuse to grant approval to an application in respect of any matter where the application complies with the relevant acceptable development provision and the relevant provisions of the council's planning scheme or a local planning policy.
Mr Stokes said, and Mr Adam agreed that, as provided for in the Codes, there was no discretion to refuse the development, because it complied with the relevant acceptable development provisions.
The Tribunal has accepted the experts' evidence that the extent of overshadowing of No 21 from buildings on the site would be less than 25% at 12 noon on 21 June. The Tribunal found inconsistencies between sketch SK5, plan SK2 Rev 4 and Exhibit 7. The height of the southern wall appeared to be drawn too low in the first and too high in the latter two. This altered the potential overshadowing of No 21 by the proposed development. The Tribunal did find, however, that instead of relying on the actual drawings, if the wall heights and floor levels written on SK2 Rev 4 were used, the extent of overshadowing onto No 21 from the proposed building would be between that of Mr Caddy's measurement and Mr Adam's measurement.
The Codes explicitly state that, if the overshadowing is less than 25%, then the performance criteria is satisfied. As Mr Stokes pointed out, the purpose of the Codes is that, where development complies with the acceptable development standards, it is deemed to comply with the performance criteria, and this is intended to provide a speedy path for approval. The Tribunal would add, however, that the approval would be issued if the Codes were the only relevant planning instrument. Otherwise, the development would also have to be assessed against the 'relevant provisions of the Council's planning scheme or a local planning policy'.
The Tribunal does not consider it would be appropriate to start setting aside the provisions of the Codes as the threshold set out in the acceptable development standards is approached. Not knowing the point at which the subjective assessment of performance criteria should take precedence over the certainty of the acceptable development standards undermines the intent of the Codes.
The Tribunal has therefore concluded that the development is consistent with the acceptable development criteria of cl 6.9.1 A1 of the Codes. This leads to consideration of issue 3.

Issue 3: If the answer to issue 2 is 'no', whether the proposed development is consistent with the performance criteria of cl 6.9.1 P1 of the Codes

As the answer to issue 2 is 'yes' and the Tribunal has formed the view that, in these circumstances, the Codes provide that compliance with the acceptable development standards means the development is deemed to comply with the performance criteria, then it is not necessary to address the performance criteria at cl 6.9.1 P1 of the Codes.

Issue 4: Whether the proposed development is consistent with the 'orderly and proper planning of the locality and the preservation of the amenities of the locality' as required under cl 86(2)(e) of TPS 3

Under the heading 'Determination of Application', cl 86(2)(e) of TPS 3 states:
(2)The Council having regard to:
…
(e)the orderly and proper planning of the locality and the preservation of the amenities of the locality;
…
may refuse to approve any application for planning approval. Where Council grants its approval, it may do so subject to such conditions as it may deem fit.
Dealing first with orderly and proper planning, this requires that, in considering the merit of the proposal, proper consideration be given to sound town planning principles, town planning scheme provisions and relevant policies, including local planning policies and, for residential development, the Codes. The interests of orderly and proper planning are also served by consistency in decision-making because of the degree of certainty this brings to the application of planning controls. This is particularly so where, over time, there has been no material change in the relevant planning instruments.
The applicant argued that refusal of the proposed setback would not be consistent with orderly and proper planning because such a decision would be inconsistent with the development standards of the planning controls and with other approvals granted by the respondent in similar circumstances.
The applicant referred to six examples of the Council approving development with overshadowing of a neighbouring property in excess of 25%, including overshadowing of outdoor living areas and living rooms. The applicant said these are valid precedents and the Council's refusal of the proposed development because of overshadowing of No 21 was inconsistent with those decisions and therefore with orderly and proper planning.
Consistency in decisionmaking is of concern to the Tribunal. The Tribunal has noted the examples cited by the applicant and that there are aspects comparable to the matter under consideration. The Tribunal does not accept, however, that if a proposed development would result in overshadowing, it simply must be approved because approvals have been issued in at least the other cases cited.
The planning controls on overshadowing in place must be applied to the proposed development. The respondent's submission on this point is that an objective assessment under the performance criteria of the Codes must be made in each instance. The Tribunal is of the view that it was open to the Council, and to the experienced professionals called by it at the hearing, to form a conclusion different from that of the applicant, notwithstanding the similarities between the proposed development and other developments approved by the Council.
The Tribunal has found, as discussed below, that there is a case in support of the proposed development and that an approval would be consistent with orderly and proper planning. This conclusion was reached following consideration of the development in light of the planning controls, not simply because of the cited decisions made by the Council in the other matters.
In respect of impact on the amenities of the locality, the submissions on behalf of the applicant asserted that there was no discretion available to refuse the development, having regard to the preservation of the amenities of the locality under cl 86(2)(e) of TPS 3. Mr Stokes said this was made explicit in the Codes at cl 2.5.4, which states that:
A council shall not refuse to grant approval to an application in respect of any matter where the application complies with the relevant acceptable development provision and the relevant provisions of the council's planning scheme or a local planning policy.
Mr Stokes said the proposed development complied with the relevant acceptable development provisions of the Codes, and particularly cl 6.9.1 A1, which is concerned with overshadowing. In his submission, cl 86(2)(e) of TPS 3 was not a 'relevant provision' of the local planning scheme for the purposes of this development. This was because, on the matter of overshadowing, the question of amenity is governed by the Codes, not by a general amenity provision of TPS 3.
Both Mr Stokes and Mr Adam referred to Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 (Tangelo) at [45], which was followed in Dumbleton & Anor and Town of Bassendean[2005] WASAT 145 (Dumbleton), which states at [90]:
On the proper construction of TPS 3 the conformity of a residential development with all applicable provisions of the RCodes does not mandate approval. The respondent, and the Tribunal on review, retains residual discretion under the terms of the Scheme, taking into consideration the specified matters set out in cl 5.3.1. However, the fact that a development conforms to a relevant provision of the RCodes is likely to be significant in relation to a related required matter for consideration under a town planning scheme.
Mr Stokes noted that the Tribunal had concluded that conformity with the provisions of the Codes is a significant factor but not determinative. He pointed out, however, that, in Tangelo, the senior member prefaced his comments by stating 'in most planning assessments'. Mr Stokes interpreted this as implying that there would be some situations where conformity with the provisions of the Codes is not only significant, but determinative.
Mr Stokes said the question of overshadowing was the fundamental issue in the present matter and this was covered by the Codes. Dumbleton and Tangelo, were concerned with a much wider range of considerations than simply a matter of overshadowing and therefore were not comparable precedents.
Mr Stokes said that he did not contend that cl 86(2) of TPS 3 was meaningless, which was Mr Algeri's contention if the applicant's submission was accepted, but that it was not relevant in this case. He agreed that the Council can and should consider other aspects of town planning schemes, but insisted that cl 2.5.4 of the Codes was unequivocal in its meaning when it talks about the 'relevant acceptable provisions' of the Codes and the 'relevant provisions of a town planning scheme'. He did not see how the Council could reasonably use general amenity provisions of a town planning scheme that do not make any reference to either residential development or overshadowing to override the very specific amenity provisions at cl 6.9.1 of the Codes.
Mr Stokes was of the opinion that if it was concluded that there is discretion to refuse development under cl 86(2)(e) of TPS 3 when there is only one specific issue in dispute and the development complies with relevant acceptable development provisions of the Codes, as in this case, the fundamental basis and the operability of the Codes would be lost.
Mr Adam emphasised that the consideration in Dumbleton at [90] is in relation to a 'related required matter'. In the applicant's proposal, the Tribunal was not dealing with a related matter or something related to overshadowing, but was dealing directly with overshadowing, a matter that is covered by the Codes. Mr Adam pointed out that Dumbleton and Tangelo did not refer to cl 2.3.4(4) of the 2002 version of the Codes (the equivalent of cl 2.5.4 of the current Codes). This, he said, was because, in the Dumbleton decision, there was a wide range of issues and so cl 2.3.4(4) of the then Codes did not enter into it. There was compliance with the acceptable development provisions, but there were other amenity considerations that came to bear, so the Tribunal did not need to refer to cl 2.3.4(4). Mr Adam said there would be a direct contradiction between a decision to refuse the development under cl 86(2)(e) of TPS 3 on the basis of overshadowing when the Codes, at cl 2.5.4, expressly prohibited the respondent, and the Tribunal on review, from refusing the matter where overshadowing complied with acceptable development standards of the Codes.
Mr Algeri's submission was that there is discretion to deal with this application under cl 86(2)(e) of TPS 3. He said that Dumbleton allows for, and specifically envisages, cases where conformance with the relevant provision of the Codes is not determinative of the matter, and the applicant's proposal is such a case. There is discretion available to the Tribunal to refuse the application, notwithstanding how it may ordinarily be assessed under the Codes. In this matter, the overshadowing from the proposed development would be of the neighbours' only outdoor living area and the crucial sitting area inside the French doors, and he considered it essential the development be assessed as provided for under cl 86(2)(e) of TPS 3.
The Tribunal is required to assess the proposed development in light of the requirements of TPS 3. The Codes are not expressly incorporated into TPS 3. The standards of the Codes are addressed by reference in TPS 3. Consistent with the position of the Tribunal in Dumbleton and notwithstanding the wording of cl 2.5.4 of the Codes, even if there were compliance with acceptable development standards of the Codes, there remains a residual discretion within TPS 3 to decide whether the proposed development should be approved.
This residual discretion lies in cl 86 of TPS 3, which lists the matters to be considered in assessing a development application, including, at cl 86(2)(e), consideration of the amenities of the locality. The Tribunal does not agree that consideration can only arise when there is a relationship, and not direct comparison, between matters to be considered under the Codes and under TPS 3. The provisions of the Codes are to be given considerable weight, but the provisions of TPS 3 must still be applied.

The Tribunal considers that, while it might occur, it would be unusual or extreme circumstances where, when dealing directly with the same aspect of a development, a conclusion reached with an assessment under the Codes would be different from one reached under the town planning scheme.
Clause 86(2)(e) of TPS 3 requires consideration of the development proposal and preservation of the amenities of the locality. The Tribunal does not consider that this should only be a comparison between the proposed development and the wider locality, as suggested by the applicant, but also the impact of the proposed development on the various elements that make up the locality, and this includes No 21.
Mr Algeri submitted that the tests for assessing the amenity impacts of the development on No 21 should be the same as those found at cl 6.9.1 P1 of the Codes that is, take into account the potential of the development to overshadow outdoor living areas and major openings to habitable rooms.
The overshadowing of No 21 that would occur as a result of the development as described above. In addition to an objective assessment of the impact of the development on amenity, the opinions of residents assist in the assessment of the impact on amenity: Canning Mews Pty Ltd v City of South Perth[2005] WASAT 272; (2005) 41 SR (WA) 79 at [48]. Mr and Mrs McKenzie, in their statements to the Tribunal, said they were not concerned whether the overshadowing of No 21 was 24% or 26%, or even more. They oppose the proposed development because of the effect they believe the overshadowing from the proposed development would have on the amenity of their courtyard and living room.
Mrs McKenzie said they expected there might be a two storey addition at the rear of the heritage house on the site at some future time and planned their living areas accordingly in 1998. They did not expect the addition to be located as proposed. Mr and Mrs McKenzie said they considered it unfair that the proposed development be at the minimum setback from the southern boundary to enable the applicant to take advantage of northern aspect in her yard when their winter northern solar access would be blocked, particularly in the afternoon. The living room was said to be the room where they spend most of their waking hours.
It is clear that the proposed development will increase overshadowing of the courtyard at noon on June 21. However, the Tribunal considers it is not an unreasonable expectation of the applicant that she be able to site the development closer to her southern boundary than to her northern boundary on a lot that is just over 12.4 metres wide.
It is significant that the setback from the southern boundary satisfies the acceptable development standards for setbacks at cl 6.3.1 A1 of the Codes. The Tribunal also notes that, at noon on the winter solstice, there will still be available in the courtyard a strip of sunlight 4.4 metres wide and 1 metre deep, although not in the location preferred by Mr and Mrs McKenzie. The chairs in the sitting room will also still be in sun at this time, and the sun available to the dining area will be unchanged, although this is not the area most used by the neighbours. The shadow will, however, commence to move across the floor from the doorways of the two western sets of French doors as the patch of sunlight shifts through the room with the movement of the sun throughout the afternoon.
In circumstances where the proposed development is a 'P', or 'permitted', use under TPS 3 and the development standards for building are satisfied, the Tribunal has formed the view that the impact of the overshadowing on the lot to the south is proportional and consistent with an adequate consideration of the impact on the amenity of the locality as required by cl 86(2)(e) of TPS 3.
Mr and Mrs McKenzie also raised concern about the impact on the amenity from the bulk of the building and the intrusion into their privacy. In respect of bulk, this would arise from the proposed building replacing a current view of trees beyond and sky from the two western sets of French doors. The Tribunal considers that the impact of the proposed setback and the impact from the 3 metre setback required by the Council would be marginal.
On privacy, the windows facing the south can be made fixed obscure glass. The neighbours requested 1.7 metre high screening to the deck, but the Tribunal is satisfied the 1.65 metre high screen proposed, which is consistent with the requirements of the Codes, would satisfactorily prevent overlooking of No 21 from the site and the overlooking of the proposed deck from the first floor balcony of No 21.
The Tribunal has concluded that, in respect of issue 4, there is a case for finding that the proposed development is consistent with the orderly and proper planning of the locality and the impact of the development on the amenity of the locality, as required under cl 86(2)(e) of TPS 3.

Conclusion

The first issue was whether the proposed development satisfies objective 1.3.1(e) of the 'general objectives' of the Codes, which is to 'protect the amenity of the adjoining residential properties'. The Codes also required that the specific objectives of the Codes be satisfied. The Tribunal found that the proposed development would satisfy the objectives of the Codes in respect of setbacks, height, privacy and solar access for adjoining sites. It was concluded that, because the specific objectives of the Codes were satisfied, then it followed that the general objective at cl 1.3.1(e) was satisfied.
Issue 2 was whether the proposed development was consistent with the acceptable development provisions of cl 6.9.1 A1 of the Codes. It was common ground between the planning experts that the existing house on the site and the proposed development would overshadow less than 25% of the surface of the lot to the south. The proposed development was therefore consistent with the acceptable development provisions of cl 6.9.1 A1 of the Codes.
Issue 3 was that, if the answer to issue 2 was 'no', then would the proposed development be consistent with the performance criteria of cl 6.9.1 P1 of the Codes. The answer to issue 2 was 'yes' and so consistent with the Codes the development was deemed to be consistent with the performance criteria of cl 6.9.1 P1.
Issue 4 was whether the proposed development was consistent with the 'orderly and proper planning of the locality and the preservation of the amenities of the locality' as required under cl 86(2)(e) of TPS 3. The Tribunal found that the proposed development would be both consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality.
The Tribunal has decided to uphold the application for review and grant planning approval for the proposed development set back 1.2 metres from the southern boundary, subject to appropriate conditions.

Conditions

The respondent provided a schedule of conditions it would want imposed should the Tribunal be minded to allow the development as proposed by the applicant in place of the variation to the development approved by the Council.
The applicant agreed that the condition requiring obscure glazed windows be amended to require that the windows not open below 1.65 metres so that the purpose of restricting vision was not obviated.
The parties agreed that a condition referring to fill was not required, as there would be no filling on the site.
The applicant objected to a proposed condition restricting occupation to the 'ancillary accommodation' to family members, on the basis that the proposed development was not ancillary accommodation. The Tribunal has formed the view that the development applied for is not ancillary accommodation and, even if it were ancillary accommodation, under the Codes, it must, in any event, be occupied only by members of the same family as the occupiers of the main dwelling. The Tribunal considered the suggested condition unnecessary.
A further suggested condition referred to the ground floor wall height not exceeding RL 18.25. This condition required clarification to refer to the height of the ground floor parapet wall on the southern boundary of the site and to the wall not exceeding 200 millimetres above the limestone wall built on No 21 adjacent to the boundary, so as to not impact on overshadowing.
The Tribunal considered additional conditions were necessary to ensure that confusion did not arise because of the differences found for particular aspects of the development in various elevations and plans on SK4 Rev 4 and SK5 Rev 4. The conditions would require the length of the ridge to be 9 metres; the window in the first floor east wall to be north of the 1.65 metre high screen on the deck and the deck screen to be not less than 2.6 metres from the southern boundary; and, at the alignment of the southern wall at first floor level, the building, which includes the southern wall and the roof resting on the wall at that alignment, is to be no higher than RL 20.45.

Costs

Section 87 of the SAT Act provides:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
…
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to
…
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
The applicant made a submission that there is adequate cause under s87(4)(b) of the SAT Act for the Tribunal to make an order for costs against the respondent. This, it was argued, was because the respondent failed to make a decision on the planning merits of the original application and again failed to genuinely attempt to make a decision on the planning merits of the development when reconsidering the amended application.
The applicant set out reasons for objecting to the Council officer's method of conducting the initial investigation of the planning application. These included what was described as her lack of discussion with the applicant, her apparent adoption of a position on the importance of relevant provisions of the Codes and TPS 3, which was different from that of the applicant's consultant, and her comments on the bearing various provisions of TPS 3 should have on the decision to be made. The applicant said the officer, and ultimately the Council itself advised by the officer, showed prejudice against the applicant.
The Tribunal has noted the content of the officer's report presented to Council in November 2009. The officer, as she is required to do, made a recommendation to the Council and this recommendation was for refusal. The report to the Council did, however, include the comments of the applicant on the submission received from the neighbour, discuss the officer's interpretation of provisions of the Codes and TPS 3, and suggest conditions of approval if the Council was minded to accept the applicant's submission. The Tribunal considers the Council was reasonably informed on the development application and it was reasonably open to the Council to make the decision it did. The applicant had the right to apply to the Tribunal to review the decision, and that right was exercised.
The applicant complains that at the subsequent directions hearings the objecting neighbours attended. Directions hearings are open to the public, and objecting neighbours and any other person are allowed to attend. The respondent's planning officer was also noticed having conversations with the neighbours. From the Tribunal's understanding, the directions hearings were for the Tribunal to issue orders for the steps next to be taken in the consideration of the matter, and these have no bearing on the respondent's consideration of the matter on its merits.
The matter proceeded to mediation. At mediation on 8 January 2010, the Tribunal ordered the respondent to reconsider the matter on or before 16 February 2010 pursuant to s 31 of the SAT Act. On 11 February 2010, the respondent requested an extension of time. The Council requested a second extension of time in early March 2010. This appears to have been caused by the Council's consultant planner not being available and his report on the matter not being found. The Council engaged a replacement consultant planner. The applicant says the respondent's actions led to delay and costs thrown away. The delay created by the Council's change of consultant planners is acknowledged by the Council. This may have resulted in preparation by the applicant's consultants, which would have occurred in any event, having to be refreshed.
The applicant claims costs arising from engaging a second planner to provide advice. This second planner was engaged prior to any reconsideration by the Council. The applicant chose to attend the subsequent directions hearings with two planners. The applicant claims as costs thrown away the briefing of the second planner. It is not clear to the Tribunal why the applicant required a second planner at this stage of the proceedings, and is of the view that the applicant's decision to engage a second planner is not relevant to whether the respondent would consider the application on its merits.
The matter was listed for a final hearing at directions in March 2010. The additional planner previously engaged would have known at that time whether he would have been available, and, in fact, he was not available for the 30 April 2010 final hearing. The applicant then engaged a different planner as an additional expert for the hearing and the applicant properly does not claim his costs in the proceedings.
The Council, on 6 April 2010, reconsidered the proposal with amendments included to provide compliance with certain acceptable development standards of the Codes. The applicant complains that the handling by the Council of oral submissions made at the meeting disadvantaged the applicant relative to the neighbours. This, it is claimed, was symptomatic of the continued treatment of the applicant by the Council and its officers.
The applicant has, quite properly, not asked the Tribunal to investigate, as would occur with judicial review, the conduct or motives of the respondent. The purpose of a hearing at the Tribunal is, of course, pursuant to s 27(2) of the SAT Act, to produce the correct and preferable decision at the time of the decision upon the review, not to review an administrator's actions in order to determine their validity: Morea Architects and the Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 at [50]. The applicant has submitted, however, that Council's behaviour was prejudicial to the applicant and demonstrates that the Council's ultimate decision was not based on the merits of the proposal.
The Tribunal notes that, at its meeting on 6 April 2010, the Council had before it a comprehensive report on the amended proposal, the planning controls, options as to decisions available and the potential consequences of certain of those options. The Council made a decision and provided planning reasons for that decision. If there had been no arguable planning reasons for the Council's decision, that would be a concern to the Tribunal. In the event, what was in the mind of the individual councillors is not known. What is apparent is that the decision made by the Council was open to it on the professional advice it received, and there were planning reasons provided for the decision.
The SAT Act provides, at s 87(1), that parties bear their own costs in a proceeding of the Tribunal. The normal position in the Tribunal is that each party bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53.
In State Administrative Tribunal (WA) Law, Practice and Procedure (M Hardy, (Ed), 2008) at [2 2669], the learned authors write:
The approach taken by the Tribunal to the award of costs in its review jurisdiction is that there must be some exceptional reason for ordering that one party must pay the costs of another. Usually, an exceptional reason will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect so that the other party has been put to unnecessary expense. If there is no such unreasonable conduct, costs will not generally be awarded: Firestar Enterprises Pty Ltd and Town of Vincent [2007] WASAT 100 at [15]; Godenzi and City of Joondalup [2007] WASAT 189 at [24].
It became apparent to the Tribunal, from the documents filed and at the hearing, that the applicant and her representative had strained relationships with the neighbours from the house adjoining to the south and with officers of the Council and councillors. This has caused anxiety and inconvenience.
Section 87(4) of the SAT Act sets out, but does not limit, factors to be considered by the Tribunal where a party applies for costs in relation to a proceeding. If the order is sought against a party which is the decisionmaker, a relevant question is whether the decisionmaker genuinely attempted to make a decision on its merits.
The Tribunal has found, from the submissions of the parties and the documents provided in the respondent's and applicant's bundles of documents as well as included as attachments to witness statements, that the respondent had an understanding of the proposed development and had references to the relevant planning instruments. The Tribunal has concluded that it was open to the Council to make the decision issued on a reasonable interpretation of the planning merits of the application.
The Tribunal has dismissed the application for costs.

Orders

1.The application for review is allowed.
2.The decision of the respondent dated 6 April 2010 is revoked and planning approval is granted for the proposed additions of basement, garage, bedroom and living room and outdoor deck at the rear of the house at No 23 Stirling Road, Swanbourne, subject to the following conditions:
1)The external materials and colour finish on the dwelling shall be to a standard such that the design complies with the requirements of cl 76 and cl 77 of the Town of Claremont Town Planning Scheme No 3, to the satisfaction of the Chief Executive Officer.
2)If required, the proposed roof of the addition is to be treated with a nonreflective coating in order to comply with the provisions of the Town of Claremont DS06 Policy 'reflective roofs', to the satisfaction of the Chief Executive Officer.
3)Obscure glazing to openings on the southern elevation to be a minimum of 1.65 metres above first floor level and windows are not to open below this level.
4)Internal vehicle access and paths to be designed in such a manner as to prevent stormwater entering the property.
5)No wall, fence or landscaping greater than 0.75 metre in height, measured from natural ground level at the rear boundary, shall be constructed within the 2 metre setback from the right of way in order to maintain visual sightlines for the proposed development.
6)All stormwater being retained on the site.
7)Engineerdesigned masonry walls being provided wherever soil levels are altered at or adjacent to a site boundary.
8)The ridge height of the development shall not exceed RL 22.4 and the height of the southern wall of the ground floor adjacent to the southern boundary shall not exceed RL 18.25 or be greater than 200 millimetres above the adjacent limestone wall.
9)In all other aspects, the development shall occur in accordance with the drawings SK1 Rev 4 and SK2 Rev 4 date stamped 6 May 2010 as amended by these conditions.
10)All plant and machinery (such as any air conditioners and pool pumps) being suitably soundproofed to comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) so as not to cause an adverse impact on the amenity of the adjoining residential properties.

11)The length of the ridge of the building is to be no longer than 9 metres.
12)At the alignment of the first floor southern wall of the development, the building, including the southern wall and the roof resting immediately above it, is not to exceed RL 20.45.
13)The window in the east wall of the first floor is to be situated north of the 1.65 metre high screen on the southern edge of the deck and the screen is to be set back not less than 2.6 metres from the southern boundary.
14)This planning approval is valid for two years from the date of this decision unless the proposed works have been substantially commenced.

3.There be no order as to costs.

I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER

Annexure A

Annexure B