Vespoli and City Of Stirling

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: VESPOLI and CITY OF STIRLING [2013] WASAT 161

MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 10 SEPTEMBER 2013

DELIVERED : 27 SEPTEMBER 2013

FILE NO/S: DR 140 of 2013
DR 141 of 2013

BETWEEN: GINO VESPOLI
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Proposed development of three storey office building Amendments to Detailed Area Plan (DAP) submitted by applicant Refusal of application for development approval Weight to be given to amended DAP Weight to be given to amended Guidelines recently adopted by respondent Height limits Policy responsive to pending development application Development unlikely to be significantly visible from residential properties Unlikely direct overlooking or privacy impacts Relevant locality Compatibility with setting Height of existing buildings Architectural features Setback of upper storey Flexible application of policy

Legislation:

City of Stirling Local Planning Scheme No. 3, cl 1.6, cl 2.4, cl 4.2.1, cl 5.5, cl 5.5.2, cl 6, cl 9.4, cl 10.2, cl 10.3.1, cl 16A

Result:

In the matter of the review of amendments made to Detailed Area Plan for Main Street Plaza 4.1.2 Building Height, the application for review is allowed, and the clause currently reading 'Buildings shall be 2 storeys and be no greater than 8 metres in height' shall be deleted and replaced with 'Buildings shall generally be 2 storeys'
In the matter of the review of the refusal of the development application, the application for review is allowed, the decision of the respondent set aside and conditional approval granted

Summary of Tribunal's decision:

An application was made to the City of Stirling seeking planning approval for the development of a three storey office building with basement parking at 188 Main Street (Lot 333), Osborne Park.
Having been refused, an application for review was subsequently frustrated by a requirement in the local planning scheme for an approved Detailed Area Plan prior to the approval of any development.
A Detailed Area Plan duly submitted by the applicant was approved by the respondent, but subject to modifications unacceptable to the applicant. The Council had additionally, in the interim, amended its Main Street Plaza Guidelines to bring them into line with the amendments made to the Detailed Area Plan. The resubmitted development application was refused.
In this context, the Tribunal was required to address two matters; first, a review of the amendments made by the Council to the Detailed Area Plan submitted by the applicant, and secondly, a review of the refusal of the development application.
In the first matter, the Tribunal found that, in the circumstances of this case, little weight should be given to the height provisions of either the amended Detailed Area Plan or the amended Main Street Plaza Guidelines in dealing with the applications the subject of this review.
In the second matter, the Tribunal found the proposed structure would not be incompatible with its setting or have adverse impacts on adjoining land as a result of height, bulk, scale or appearance.
For these reasons, both reviews are allowed; in consequence, a clause on Building Height in the Detailed Area Plan was amended, and conditional approval was granted to the development application.

Category: B

Representation:

Counsel:

Applicant: Mr M Hardy
Respondent: Mr D McLeod

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors

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

Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

As the background to this review is a relevant consideration in regard to the issues before the Tribunal in these matters, it is set out in some detail below.
The initial application for a three storey office development with basement car parking was submitted to the respondent on 18 October 2010. This application was advertised and 10 submissions were received, nine of which objected to the proposed development. The application was refused by the Council of the respondent (Council) at its Ordinary Meeting of 18 October 2010 for the following reasons:
a)the proposed three storey building height is not consistent with the surrounding built form;
b)the proposed three storey development is not in accordance with the building height provisions of the Local Planning Policy 5.3 'Main Street Plaza Design Guidelines' (Guidelines); and
c)the proposed three storey building will have an adverse impact on the amenity of the residential lot fronting the right of way.
An application for review of this decision was lodged with the Tribunal. As an outcome of mediation, revised plans were submitted to the respondent on 13 December 2011. The revised plans were advertised resulting in a number of submissions objecting to the development. In addition, a petition signed by three petitioners was received opposing the development.
At its Ordinary Meeting of 20 March 2012, the Council refused the application for the following reasons:
a)the proposed three storey building height is not consistent with the surrounding built form;
b)the proposed three storey development is not in accordance with the building height provisions of the Guidelines; and
c)the proposed three storey building will have an adverse impact on the amenity of the residential lot fronting the right of way.
At a substantive hearing on 12 June 2012, the Tribunal raised the requirement under cl 6.7 of City of Stirling Local Planning Scheme No 3 (LPS 3) for both a Detailed Area Plan (DAP) and Development Contribution Plan (DCP) to be adopted prior to the approval of any development within the Main Street Plaza Special Control Area (Special Control Area). It subsequently transpired that, while a DCP was in place and a contribution had been made for the subject site, a DAP had not been adopted for the Special Control Area.
In the light of this requirement, the applicant withdrew its application for review to facilitate the preparation of a DAP. Following protracted exchanges between the parties, the applicant prepared both a DAP and an application for planning approval which were submitted on 13 January 2013.
The DAP was considered by the Council on 21 May 2013 where it approved the DAP subject to the following modifications:
…
a.The setbacks section to be removed and replaced with:-
i.The minimum Front Street Setback shall be 3.0m. Balconies and architectural features above ground level may project into the 3.0m setback;
ii.The minimum rear setback shall be 2.0m (No 'wing' walls to project into this setback); and
iii.Where adjoining sites are zoned residential, side/rear setbacks shall be calculated as per the Residential Design Codes of Western Australia;
b.The building height section be removed and replaced with:-
i.Buildings shall be two (2) storeys and be no greater than 8m in height; …
At the Ordinary Meeting of the Council on 19 February 2013, the Council resolved to advertise amendments to the Guidelines.
The advertised draft included at clause 4.1.2 'Building Height' the following:
•Buildings shall be 2 storeys and be no greater than 10m in height
…
Following advertising, the revised policy was adopted by the Council on 18 June 2013. Relevantly, in the current context following advertising, the draft clause 4.1.2 'Building Height' was further amended to read as follows:
•Buildings shall be maximum of two (2) storeys and be no greater than 8.0m in height
…
The application for the three storey office development submitted on 13 January 2013 was advertised and nine submissions were received objecting to the proposed development. In addition, a petition and 32 individual letters of objection previously submitted were resubmitted. The application was formally considered by the Council on 20 August 2013. While Council officers had recommended approval, the Council refused the application for the following reasons:
a)the proposed development of three storeys is inconsistent with the current amenity and existing built form within the Main Street Plaza Precinct (Plaza Precinct) which provides buildings that are predominantly two storeys or less; and
b)the proposed development is inconsistent with the desired height of buildings and likely future amenity in the Plaza Precinct, having regard to:
i)the Guidelines, which require buildings to be a maximum of two storeys and be no greater than 8 metres in height; and
ii)the DAP, which requires that buildings shall be two storeys and be no greater than 8 metres in height.

Site and locality

The site the subject of this review is No 188 (Lot 333) Main Street, Osborne Park (property).
The property is rectangular, orientated east/west, with an area of 608 square metres. It is located on the eastern side of Main Street within the Plaza Precinct between Federal Street to the north and Lawley Street to the south. The current improvements comprise an unoccupied single storey residential building set towards the front of the property which abuts the Main Street road reserve. Between the boundary of the property and the Main Street road alignment is a shared parking area serving the Plaza Precinct which extends from Federal Street in the north to Cape Street in the south.
The rear of the property abuts Garner Lane along its eastern boundary.
The sites to both the north and south of the property are occupied by two storey commercial buildings. To the east of the property on the eastern side of Garner Lane is a residential area. Immediately across the lane is a residential property at No 264 Garner Lane, which atypically faces and takes its access from the lane. This dwelling is set back approximately 6 metres from the lane.
The Plaza Precinct located on the eastern side of Main Street forms part of a broader commercial precinct, which includes the development on the western side of the property between Federal Street and Cape Street. The shared parking arrangement on the eastern side of the street is duplicated on the western side.
The majority of buildings in the locality are relatively new two storey commercial buildings, although there are a number of single storey developments and vacant sites. There are two three storey developments, one on each side of Main Street.
The property is zoned Business under the provisions of LPS 3 and is located within the Main Street Special Control Area under the scheme.

Planning framework

The aims of LPS 3 are set out in cl 1.6 and include the following:
…
a) To provide for a range of housing choice in neighbourhoods with a strong community identity and high levels of amenity;
b) To provide for convenient attractive and viable commercial centres, which service the needs of the community and are accessible to pedestrians, cyclists and public transport users as well as motorists;
c) To assist employment and economic growth by facilitating the timely provision of suitable land for retail, commercial, industrial, entertainment and tourist developments, as well as providing opportunities for home based employment;
…
The objectives of the Business zone are set out in cl 4.2.1 of LPS 3:
a)To provide for a limited range of small-scale commercial development which is compatible with residential development.
b)To provide for a range of housing types compatible with a mixed use environment.
Clause 5.5 provides powers to vary standards or requirements prescribed under LPS 3.
In considering an application for planning approval under cl 5.5 of LPS 3, where, in the opinion of the Council, the variation is likely to affect any owners or occupiers in the general locality or adjoining the site which is the subject of consideration for the variation, the Council is required by cl 5.5.2 to
…
a) consult the affected parties by following one or more of the provisions for advertising uses under Clause 9.4; and
b) have regard to any expressed views prior to making its determination to grant the variation.

The provisions in relation to the Special Control Area are set out in cl 6.7 of LPS 3:
6.7.1 Objective
To permit development of office and/or residential uses contingent upon the provision of an integrated car parking and landscaping facility.
6.7.2 Special Control Area
The Main Street Plaza Special Control Area is the land delineated as such on the Scheme Maps.
6.7.3 Development
No development, except for maintenance of existing buildings, shall be approved by the Council until a Detailed Area Plan and a Development Contribution Plan for the Special Control Area has been adopted by the Council in accordance with Parts 6A & 6B of the Scheme and payment of a development contribution in accordance with the adopted Development Contribution Plan.
All development shall conform with the Detailed Area Plan and a Development Contribution Plan adopted by the Council for the Special Control Area.
Clause 6A.16 of LPS 3 makes provision from the preparation of a DAP by an owner.
Clause 6A.16.5 of LPS 3 sets out the procedures for the respondent in dealing with such a DAP as follows:
The Council is to consider all submissions received and:
a) Approve the detailed area plan with or without conditions; or
b) Refuse to approve the detailed area plan and, where the proposed detailed area plan was submitted by an owner, give reasons for this to the owner.
Clause 6A.17 of LPS 3 provides the right of appeal for an owner who has submitted a DAP in regard to any discretionary decision made by the Council under cl 6A.16.
Finally, cl 10.2 of LPS 3 sets out matters to be considered in dealing with a planning application and includes the following:
a)the aims and provisions of the Scheme and the objectives of the relevant zone and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.3.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;
…
i)the compatibility of a use or development with its setting;
j)any social issues that have an effect on the amenity of the locality;
…
n)the preservation of the amenity of the locality;
o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
y) any relevant submissions received on the application;
…
za) any other planning consideration the Council considers relevant.
The DAP for the Plaza Precinct adopted on 21 May 2013 includes the following requirement for the height of buildings in the area:
…
i.Buildings shall be two (2) storeys and be no greater than 8.0m in height.
…
The amendments to the Guidelines adopted by the respondent on 18 June 2013 included a revision to clause 4.1.2 'Building Height' to read as follows:
•Buildings shall be maximum of two (2) storeys and be no greater than 8.0m in height
…

Proposed development

The proposed development of the subject land involves the demolition of the existing residential building and the construction of a three storey office building with a basement car parking area.
The front setback to Main Street is 3 metres on both the ground and first floors, the rear setback is approximately 6.5 metres from the rear boundary on the ground floor, and approximately 2 metres on the first floor. The second storey is set back approximately 6 metres from the front boundary and between 5 metres and 6 metres from the rear boundary. The proposed building has nil setbacks to both the northern and southern boundaries. Five car bays are provided on the ground floor and 11 bays provided in the basement carpark, all accessed from Garner Lane.

The issues

The respondent set out its issues as follows:
1.1Whether the proposed three storey building would be consistent with the objectives of the Business zone.
1.2Whether the proposed development would be consistent with the built form of development in the Special Control Area.
1.3Whether the proposed three storey building would have an adverse impact on the amenity of the locality and, in particular, the residences fronting Garner Lane.
1.4Whether the proposed three storey building should be regarded as conforming with the adopted DAP.
1.5Whether the proposed three storey building would be consistent with LPP 5.3 as approved by Council.
1.6The weight to be given to the Guidelines in the context of the case.
1.7The weight to be given to the adopted DAP in the context of the case.
The applicant, while agreeing with issues 1.1 1.6, challenged the respondent's issue 1.7 and sought to substitute the following:
a)Whether the locality of the proposed development is constrained to the area of the Special Control Area;
b)Whether the DAP, as adopted by the Council and referred to at paragraph 2.23 of the respondent's statement, represents an appropriate planning outcome.
c)The weight to be given to the DAP adopted by the Council in the context of this case.
Essentially, the matter in dispute between the parties in this review was the question of whether, in the circumstance of this case, it was appropriate for the Council, or the Tribunal on review, to exercise discretion to approve the proposed second floor, or the third storey, to the proposed building.
In this regard, two questions arise:
•What weight should be accorded to the amendments made by the respondent to the Detailed Development Plan (DDP) on 21 May 2013 and the Guidelines on 18 June 2013 in assessing the applications the subject of these reviews?
•Is the context of a determination on the initial question an assessment of the merits of the current proposal in the context of the relevant planning provisions?
The Tribunal shall deal with each of these questions in turn.

Weight to be accorded to the amendments made by the respondent to the DCP and the Guidelines

The respondent argued that in amending the Guidelines, the Council followed the procedural requirements of the scheme and was seeking to 'clear up' the planning provisions in order to make its intentions clear. It also submitted that this local planning policy must be given status unless the Guidelines can be clearly demonstrated to be flawed and inconsistent with acceptable planning principles.
The respondent did accept that if the Tribunal concluded the two storey limit in the Guidelines was flawed, it would be open to conclude the DAP, in regard to the two storey height limit, was also flawed.
The applicant argued that planning provisions must be properly formulated and for a proper purpose, and the Council amendments to the DAP and Guidelines did not meet this test. It was also submitted that the Tribunal should disregard any steps taken by the respondent which sought to entrench the view taken by the respondent on the Guidelines during the currency of the application for review, and defeat the proposal of the applicant.
Clause 16A of LPS 3 makes provision for the preparation of a DAP by an owner and cl 6A.17 provides the right of appeal for an owner who has submitted a DAP in regard to any discretionary decision made by the Council under cl 6A.16. In the matters before it, the initial question to be determined by the Tribunal involves the review of the amendments made by the respondent to the DAP and, more particularly, the discretionary decision to amend the DAP by removing the existing building height section and replacing it with the requirement that 'buildings shall be two (2) storeys and be no greater than 8 metres in height.'

It is to be noted that following the lodging of the appeal with the Tribunal, the respondent also chose to amend the Guidelines to include a provision that 'Buildings shall be maximum of two (2) storeys and be no greater than 8 metres in height'.
The Tribunal registers its concern in terms of the timing of the amendment to the Guidelines and the content of both amendments for the following reasons.
Prior to a determination by the Tribunal on the question of the review before it on amendments to the DAP, the Council sought to entrench this decision with an amendment to the Guidelines. This action, if given determinative weight, effectively extinguishes the applicant's right of appeal established by cl 6A.17 of LPS 3. It also effectively constrains the discretion of the Tribunal in dealing with either the review of amendments to the DAP or the review of the refusal of the development application on the merits of the respective cases.
Furthermore, given the chronology of events and the lack of evidence of any other current development pressures in the Plaza Precinct, it is difficult not to conclude that the amendments were in response to the development application submitted concurrently with the DAP. The Tribunal in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [35] set out its views on such matters:
… However, in having regard to a policy, the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application. … .
On this matter the Tribunal, based on the evidence provided, does not accept the submission of the respondent that this case can in any substantial way be differentiated from the above decision.
More broadly, the Tribunal holds the view that the amendments are flawed in terms of the test of orderly and proper planning for four reasons.
While the current boundaries of the Special Control Area under LPS 3 may make sense in terms of the provisions of a related DCP, they are questionable in terms of an appropriate planning boundary.
The planning experts agreed that in establishing a relevant locality, it was appropriate to consider development on the western side of Main Street. In this context, it is questionable to apply different planning provisions to different sides of a single street within an integrated commercial area comprising similar development patterns and intensity on both sides of the street in terms of the distribution of uses, access arrangements and built form.
Furthermore, evidence was provided that all of the existing buildings in the Plaza Precinct exceeded 8 metres in height on some portion of their structure. This did not include architectural features which, in a number of cases, were higher than 10 metres. In this context, restricting new buildings on the limited number of sites available for redevelopment to 8 metres, particularly in the context of less restrictive provisions on the west side of the street, is questionable.
In addition, evidence provided by the expert planners in the hearing provided no support for the reasons advanced by the respondent for the amendments which related to issues of overlooking, impacts on amenity of residential developments in the locality, and parking.
Finally, evidence provided suggested that the requirements of the planning provisions in regard to height had not been consistently applied by the respondent in dealing with development applications in the Plaza Precinct. The three storey development at 194 Main Street was, for example, approved under a prescribed height limit of two storeys and 6 metres on the basis of a 'landmark' corner building and the provision of car parking.
In this context, little weight should be given to the height provisions of either the amended DAP or the amended Guidelines in dealing with the applications the subject of this review.

The merits of the current proposal in the context of the relevant planning provisions

The planning experts in this matter, Mr Allerding and Ms Bransby, in a joint statement agreed the following matters.
In regard to the objectives of the Business zone, the provision of 'a limited range of small-scale commercial development compatible with residential development', it was partially agreed the objective was met and, the objective to provide residential development was not applicable.
It was agreed the proposed development would not give rise to overshadowing issues and that the third level would not be visible from the front yard of the residence at No 246 Garner Lane until a setback of approximately 4 metres when a small portion of the upper level would be visible. In addition, the planning experts concluded that the third level was unlikely to be significantly visible from Garner Lane, if at all. They did agree that the third level would be visible further east towards Waterloo Road and from Waterloo Road, depending on where it was viewed from and whether screened by existing building. The expert planning witness for the respondent, Mr Allerding, accepted there will unlikely be any direct impacts associated with the proposed development in terms of overlooking or direct privacy impacts.
The expert planning witnesses also agreed that in respect of the setbacks and the other development standards, the proposed development was suitable.
In the context of this evidence, the substantive remaining question is firstly whether the impact of the proposed third storey would acceptably meet the tests established by cl 5.5 of LPS 3:
a)consult the affected parties; and
b)have regard to any expressed views prior to the Council making its determination to grant the variation,
and secondly, whether the impact of the proposed third storey would adequately address the matters to be considered under the relevant clauses of cl 10.2 of LPS 3:
…
b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.3.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;
…
i)the compatibility of a use or development with its setting;
…
n)the preservation of the amenity of the locality;
o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
y)any relevant submissions received on the application;
…
In regard to the provisions of cl 5.5 of LPS 3, the proposed development was advertised on more than one occasion. The objections received were noted in the background to the application. In broad terms, these objections related to concerns over parking, equity concerns from existing building owners in terms of a potential benefit not available to them at the time of development, and, more relevantly in terms of these reviews, the concerns of local residents over three storey development. The latter concerns were forcefully expressed by Mr Belussi, a resident witness for the respondent.
The concerns of Mr Belussi relate to the close proximity of the development across a narrow lane causing claustrophobia, and sunlight from the west being blocked by the third storey. While these concerns are understandable, the evidence of the expert planners did not substantiate these concerns. On a broader level, such potential impacts are likely to constitute a more substantive potential issue on the western side of Main Street where eastern rather than western sun is blocked, less restrictive height provisions are applicable and such impacts are marginally exacerbated by the slope of the land in the locality from east to west.
In dealing with the relevant outstanding matters to be considered under cl 10.2 of LPS 3 the determination on the weight to be given to the amendments to both the DAP and the Guidelines set out above means that, in regard to height, 'generally two storeys' is the relevant policy parameter to be applied. In this context, the following matters are relevant:
•the requirements of orderly and proper planning;
•the compatibility of a use or development with its setting; and
•the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal.
These matters are best addressed together. The maximum building height of the proposed building of 10.9 10.3 metres is lower than the architectural features of a number of buildings in the Plaza Precinct. The overall height is clearly higher than the majority of the existing buildings. In addition the footprint of the third storey, approximately 385 square metres, is far more substantive than architectural features typical in the locality. However, the impact of the third floor is mediated both by the setback to the front and rear boundaries and the lack of architectural features to the front façade, which will reduce the presence of the building in the streetscape relative to adjoining developments.
In this context, it would be difficult to substantiate an argument that in the context of the existing development in the Plaza Precinct, the proposed structure would be incompatible with its setting or have adverse impacts on adjoining land as a result of height, bulk, scale or appearance. Such a conclusion would be strengthened if the broader locality of the commercial precinct was considered.
Finally, in regard to the general principle of the application of policy, the Tribunal does not accept the argument of the respondent of the need for special circumstances to consider an exercise of discretion. The original Guidelines provision of 'generally two storey' clearly suggests the intention of the policy, as drafted, entertained the possibility of a variation in the limited number of sites available for redevelopment. Furthermore, having established this potential, the policy does not establish parameters for the exercise of discretion which limit its application to 'special circumstances'. In regard to the concern expressed by the respondent in regard to the potential implications of the precedent established by any approval, the Tribunal would emphasise that any subsequent application will face the tests established by the relevant scheme and policy provisions and, in circumstances where the third storey was not set back from both the front and rear boundaries or where any amalgamation provided for a much larger third floor footprint, the Tribunal would be likely to be far more circumspect in considering an exercise of discretion.
Thus, for the reasons set out above, the Tribunal does not accept the amendments made by the respondent to the DAP and grants planning consent to the proposed development subject to conditions agreed between the parties.

Conclusion

The applications under review involved the application for an office building in Main Street. The subject site fell within the Main Street Plaza Precinct.
The substantive issue was the question of height. The proposed building included a third storey, albeit set back from the street and laneway frontages.
The proposal generated concern among local residents in the locality and, to a lesser degree, existing property owners in the Plaza Precinct. The concerns of residents included the potential impacts in terms of bulk, scale, reduced western sunlight and privacy. While these concerns are clearly understandable, and the Tribunal heard in some detail from a resident objector, these concerns were not borne out by the evidence of the expert planners.
In the context of a determination that little weight should be given to the amendments to either the DAP or the Guidelines, and given the fact that the proposed building was neither incompatible with its setting nor had adverse impacts on adjoining land as a result of height, bulk, scale or appearance, the Tribunal allowed both reviews.

Orders

1.In the matter of the review of amendments made to Detailed Area Plan (DAP) for Main Street Plaza 4.1.2 Building Height, the application for review is allowed and the clause currently reading 'Buildings shall be two (2) storeys and be no greater than 8 metres in height' shall be deleted and shall be replaced with 'Buildings shall generally be two storeys'.
2.That pursuant to cl 10.3.1 of the City of Stirling Local Planning Scheme No 3, the application for the development of a three storey office development at No 188 (Lot 333) Main Street, Osborne Park (as indicated on plans prepared by Vespoli Constructions and dated 2 December 2011) be APPROVED subject to the following conditions:
a)a dedicated bin storage area is to be provided on site, with a minimum dimension of 3.5 metres and a minimum area of 10 square metres, in accordance with the respondent's Bin Storage Policy and is to be shown on plans prior to the release of the building permit;
b)a minimum of three bicycle parking bays are to be provided on site, in accordance with the respondent's Bicycle Parking Policy and is to be shown on plans prior to the release of the building permit;
c)one special purpose bay is to be allocated on site in accordance with the respondent's Parking Policy and is to be shown on plans prior to the release of the building permit;
d)vehicular parking, manoeuvring and circulation areas indicated on the approved plan being sealed and paved to the satisfaction of the respondent and the parking spaces being marked out and maintained in good repair;
e)any existing crossovers not included as part of the proposed development on the approved plan are to be removed. New kerbing and verge to be reinstated to the satisfaction of the Manager, Engineering Operations;
f)all off street parking to be available on site during business hours for all customers and staff to the satisfaction of the respondent;
g)no goods or materials being stored either temporarily or permanently in the parking or landscape areas or within access driveways. All goods and materials are to be stored within the buildings or storage yards where provided;
h)all land indicated as landscaped areas on the approved plan being developed on practical completion of the building to the satisfaction of the respondent. All landscaped areas are to be maintained in good condition thereafter;
i)stormwater from all paved areas to be collected and contained on site;
j)adequate lighting being provided to communal pathways and parking areas to the satisfaction of the respondent;
k)a Site Management Plan to be submitted to the satisfaction of the Manager, prior to the issue of a building permit. The Site Management Plan to address dust, noise, waste management, storage of materials, traffic and site safety/security; and
l)no walls fences or letterboxes above 0.75 metres in height to be constructed within 1.5 metres of where:
i)walls or fences adjoin vehicular access points to the site; or
ii)a driveway meets a public street; or
iii)two streets intersect,

unless the further approval of Council is obtained.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER

[2013] WASAT 161

27 SEPTEMBER 2013

Key Legal Topics

Areas of Law

Planning & Development Law

Legal Concepts

Development Approval

Policy Interpretation

Height Limits

Compatibility

Architectural Features

Setback

Flexible Policy Application