ZHANG and TOWN OF CAMBRIDGE

Case •

[2024] WASAT 1

•

15 JANUARY 2024

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005

CITATION:   ZHANG and TOWN OF CAMBRIDGE [2024] WASAT 1

MEMBER:   MR R POVEY, MEMBER

HEARD:   23 AND 24 NOVEMBER 2023

DELIVERED          :   15 JANUARY 2024

FILE NO/S:   DR 12 of 2023

BETWEEN:   BOFENG ZHANG

Applicant

AND

TOWN OF CAMBRIDGE

Respondent


Catchwords:

Town planning - Development application - Grouped dwellings - Amenity - Residential character - Whether proposed development satisfies design principles in relation to open space - Whether proposed development satisfies design principles in relation to solar access for adjoining sites - Compatibility in its context

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 64 (1), cl 67(2), cl 67(2)(y)
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 18, s 24, s 27, s 27(1), s 27(2), s 29(3), s 31(1), s 32(1), s 32(2)(a), s 32(2)(b)
State Administrative Tribunal Rules 2004 (WA), r 10
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 2.4, cl 2.5, cl 5.1, cl 5.1.3 C3.2, cl 5.1.3 P3.1, cl 5.1.3 P3.2, cl 5.1.4 P4, cl 5.3.1, cl 5.4.2 C2.1, cl 5.4.2 P2, cl 5.4.2 P2.1, cl 5.4.2 P2.2

Result:

Application for review allowed
Development approval granted subject to conditions

Category:    B

Representation:

Counsel:

Applicant : Ms D Mrdja (acting as Agent)
Respondent : Mr J Algeri (acting as Agent)

Solicitors:

Applicant : Urbanista Town Planning (as Agents)
Respondent : Altus Planning (as Agents)

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

Boulter and City of Subiaco [2007] WASAT 71

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272

Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94

Purser and City of Nedlands [2022] WASAT 87

Sweetland and Town of Cambridge [2005] WASAT 278

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. This decision deals with an application for review made under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the decision by the Town of Cambridge (respondent or Town) to refuse to grant development approval for two, two-storey, grouped dwellings (proposed development) at No 20 (Lot 35) Connolly Street, Wembley (subject site).  Bofeng Zhang (applicant) seeks development approval for the proposed development.

  2. In these reasons I will first describe the Tribunal's review jurisdiction and briefly the final hearing (hearing) and evidence and identify the planning framework.  Then I will describe the subject site, the locality and the proposed development and summarise the procedural history.  Finally, I will set out and then consider and determine the four issues that arise in this proceeding.

  3. For the reasons given below, I have determined that 'the correct and preferrable decision at the of the decision upon the review' under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion is to approve the development, subject to conditions.

The Tribunal's review jurisdiction

  1. The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27] – [30] and, for completeness, is set out below:[1]

    27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[2]

    28The Tribunal is to review the Shire's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[3]

    29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5]

    30The Tribunal is not limited to the material before the Shire as the original decision-maker but may consider new material.[6]  The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[7] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.

    [1] M Barton, M Povey and SSM Curry.

    [2] SAT Act, s 18.

    [3] SAT Act, s 27.

    [4] SAT Act, s 32(2)(a).

    [5] SAT Act, s 32(1).

    [6] SAT Act, s 27(1).

    [7] SAT Act, s 32(2)(b).

The hearing and evidence

  1. Each party filed and gave the other a Statement of Issues, Facts and Contentions (SIFC). The respondent filed a bundle of documents under s 24 of the SAT Act and the applicant filed a bundle of documents with the Tribunal. Further documents were also filed during the hearing.

  2. The hearing was conducted on 23 and 24 November 2023.  At the hearing, I heard evidence from two town planning experts, Mr Thomas Hockley, a qualified town planner and senior associate with Allerding and Associates Town Planning Consultants called on behalf of the respondent, and Mr Steven DePiazzi, a qualified town planner and principal planner with Urbanista Town Planning called on behalf of the applicant.  Mr Hockley and Mr DePiazzi filed individual witness statements which they adopted as their evidence-in-chief and were cross-examined.

  3. Witness statements were also filed from two neighbours to the south of the subject site, being Mr Simon Vidovich,[8] an owner and occupier of No 18A Connolly Street, Wembley (No 18A) and Mr Mark Wesley,[9] an owner of No 18B Connolly Street, Wembley (No 18B).  Their witness statements were accepted into evidence, and they were not required to attend the hearing.

    [8] Exhibit 4.

    [9] Exhibit 5.

  4. At the commencement of the hearing, together with the representatives of the parties and the two planning experts, I attended a view of the subject site and immediate surrounds, including the streetscape of Connolly Street between Cambridge Street (the cross street south of the subject site) and Ruislip Street (the cross street north of the subject site).  The view also included the dwelling at No 18A (including relevant parts of the interior and exterior) and the dwelling at No 18B (viewed from the ground floor exterior courtyard) and of Dearle Lane, which is at the rear (eastern boundary) of the subject site.

The planning framework

  1. The relevant planning framework which I have considered in determining this application includes:

    (a)Metropolitan Region Scheme (MRS);

    (b)Town of Cambridge Local Planning Scheme No 1 (LPS 1) which incorporates the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), Sch 2 (Deemed Provisions);

    (c)State Planning Policy 7.3 – Residential Design Codes Volume 1 (R-Codes);

    (d)Town of Cambridge Local Planning Policy 2.5 – Precinct P5: West Leederville (LPP 2.5); and

    (e)Town of Cambridge Local Planning Policy 3.1 – Streetscape (LPP 3.1).

The subject site and locality

Subject site

  1. The subject site is located on the east side of Connolly Street, approximately 200 metres north of the St John of God Subiaco medical precinct and opposite the intersection with Barrett Street (to the west).  It is more particularly known as Lot 35 on Plan 3232, being the whole of the land contained in Certificate of Title Volume 1370 Folio 336 and is approximately 675m2 in area.

  2. The subject site is rectangular in shape, with a frontage of 15.83 metres to Connolly Street and Dearle Lane (which provides secondary street access) and a side boundary length of 42.75 metres.  It has a cross fall of approximately 2.2 metres from the north-western corner (on Connolly Street) to the south-eastern corner (on Dearle Lane).

  3. The subject site is zoned 'Urban' under the MRS and 'Residential' with an R30 density coding under LPS 1.  It currently contains a single storey, single dwelling which is to be demolished to facilitate the proposed development.

Locality

  1. The extent of the locality is generally agreed by the planning experts.  It extends from Cambridge Street in the south and encompasses properties on the east and west sides of Connolly Street (to Dearle Lane to the east).  Except for the commercial developments located on the western and eastern corner of Cambridge Street and Connolly Street, development in the locality is residential and consists of a mix of original single storey dwellings and newer two-storey houses (some with an undercroft, giving a three-storey appearance from the street).

  2. Immediately to the north of the subject site (at No 22A and No 22B (No 22B) Connolly Street), is a two-lot side by side subdivision, which contains two dwellings in a similar configuration to the proposed development.

  3. Immediately to the south are No 18A and No 18B, lots which are subdivided in a battle-axe configuration.  No 18A fronts Connolly Street and contains an original single storey dwelling which has been renovated.  No 18B, the rear lot, contains a contemporary two-storey dwelling and has vehicle access from Connolly Street (via the battle‑axe leg) and Dearle Lane.  The battle-axe leg driveway is on the southern side (away from the subject site).

  4. The planning experts do not agree the northern extent of the locality.  Mr Hockley's evidence is the locality extends one lot north beyond Woolwich Street, being No 33 (lot 13), Connolly Street (No 33), because he says this property is the extent of development visible from the subject site, and therefore forms part of the streetscape.[10]  'Streetscape' is defined in cl 37 of LPS 1 and:

    (a)means the total visual impression gained from any one location within a street including the natural and man-made elements; and

    (b)is made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.

    [10] ts 55-56, 23 November 2023.

  5. Mr DePiazzi says the locality extends north to Ruislip Street primarily because the north side of Ruislip Street is the point of change from the R30 to a R20 density coding.  Further, his oral evidence is that from the subject site it is possible to view beyond No 33, to other taller dwellings beyond.[11]

    [11] Witness Statement of Steven DePiazzi, para 13, Exhibit 10.

  6. When considering the locality, the respondent does not press streetscape as a concern in this proceeding,[12] so nothing really turns on the northern extent of the locality.  This notwithstanding, in my view, it is appropriate to consider the locality being the properties both sides of the length of Connolly Street from Cambridge Street to Ruislip Street, for two reasons.  First, I agree with Mr DePiazzi (from my observation at the view), it is possible to see north further than No 33 and second, the southern side of Ruislip Street, being the boundary of the R30 coded lots, provides a more complete indication of the variety of residential development (and redevelopment) anticipated under the planning framework in Connolly Street.

    [12] ts 16, 23 November 2023.

  7. I will return to consider the character of the locality at Issue 3.[13]

    [13] Commencing at [81].

The proposed development

  1. The proposed development involves the development of two, two­storey grouped dwellings.  It is intended the subject site will be subdivided into a two lot, side by side development.[14]  The parties have identified the northern proposed lot as lot 1 (lot 1) and the southern proposed lot as lot 2 (lot 2) and for convenience I will also refer to them this way in these reasons, even though the lots are yet to be created.  Once subdivided, lot 1 and lot 2 will have site areas of 337.5m2 each.

    [14] Respondent's SIFC, para 5, Exhibit 2.

  2. The two dwellings are similar, but not identical, in their plans and elevations.[15]  Mr Hockley's witness statement provides a detailed description of the proposed development which I summarise, and I find, contain the following elements:[16]

    (a)Grouped dwelling on lot 1 (north side) – is two-storeys with a boundary wall (located centrally abutting lot 2) and a 30-degree pitched metal roof.  On the ground floor there is an entry foyer, guest suite with walk in robe and ensuite), study, powder room, cellar, living, dining and kitchen (opening onto an alfresco area), scullery, laundry, mudroom and two car garage (accessed from Dearle Lane).  On the first floor is three bedrooms (including the master suite with ensuite and dressing), a living area, two bathrooms, a powder room and a multipurpose room (located above the garage).  An external terrace is provided, accessible from the master suite and the multipurpose room, and from the ground floor via external stairs.  The total floor area (including the alfresco and terrace) is 524.3m2.

    (b)Grouped dwelling on lot 2 (south side) – is two-storeys with a boundary wall (located centrally abutting lot 1) and a 30-degree pitched metal roof.  The ground floor provides the same rooms as the dwelling proposed on lot 1, with the exception that the alfresco area is uncovered (having raked beams over).  The first floor rooms are similar to the dwelling proposed on lot 1, although configuration of the master suite provides a greater setback to the side (southern) boundary, at 3.7metres.  Also, the room above the garage on lot 2 is identified as a games room (but is identical in configuration to lot 1).  An external terrace is provided, accessible from the master suite and the games room and from the ground floor via external stairs.  The total floor area (including the alfresco and terrace) is 512.5m2.

    [15] Respondent's s 24 Bundle of Documents, pages 67 – 78, Exhibit 3.

    [16] Witness Statement of Thomas Hockley, para 17, Exhibit 6.

Procedural history

  1. The following events have occurred with this application for review.

  2. On 27 May 2022 the applicant applied for development approval for two grouped dwellings at the subject site (original application). The original application was advertised by the Town for a period of 14 days in accordance with cl 64(1) of the Deemed Provisions. A total of four submissions were received, all objecting.[17]

    [17] Respondent's SIFC, para 12, Exhibit 2.

  3. On 25 October 2022, the Town's Council, contrary to an officer recommendation for conditional approval, refused to grant development approval for the original application.  On 25 January 2023 the applicant lodged an Application for Review with the Tribunal.[18]

    [18] On 17 February 2023, the Tribunal extended the time for commencement of these proceedings, pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA).

  4. Following mediation which resulted in revised plans,[19] the respondent was invited by the Tribunal, pursuant to s 31(1) of the SAT Act, to reconsider its decision.

    [19] Now the proposed development, the subject of this review.

  5. In July 2023, the proposed development was advertised by the Town which resulted in three submissions, all objecting, and which raised the following concerns:[20]

    [20] Respondent's SIFC, para 16, Exhibit 2.  Any submissions received on the application are a matter to be given due regard in accordance with cl 67(2)(y) of the Deemed Provisions.

    …

    a)Reduced lot boundary setbacks to the northern and southern adjoining properties.

    b)Overshadowing to the two southern lots remains excessive.

    c)Open space of both proposed grouped dwellings is deficient and will be out of keeping with the R30 zone and immediate locality.

    d)Impact on views of significant vegetation and views of significance, including the Perth CBD skyline.

    e)Bulk and scale impacts on the streetscape due to the proposed street setback and maximum building heights.

    f)The removal of significant trees, which are seen as a net loss in terms of tree canopy within the immediate locality.

    [g]The entire [proposed development] should be made to comply with all 'deemed-to-comply' provisions of the R-Codes.

  6. On 22 August 2023, the Town's Council, again contrary to an officer recommendation for conditional approval, refused to grant development approval for three reasons:[21]

    …

    1.The proposal does not satisfy the design principles of Clause 5.1.4 – Open Space of State Planning Policy 7.3 – Residential Design Codes Volume 1, as the site coverage does not reduce building bulk on the site, consistent with the expectations of the applicable R30 density code and as outlined in the local planning framework;

    2.The proposal does not satisfy the design principles of Clause 5.4.2 – Solar Access to Adjoining Sites of State Planning Policy 7.3 – Residential Design Codes Volume 1, as the area of overshadowing cast over the outdoor living areas and north facing major openings to habitable rooms to the adjoining southern neighbours is deemed excessive for the R30 precinct; and

    3.Approval of the proposal will set a precedent for development of an unacceptable bulk and scale, which is not respectful of the established character and amenity of the locality.

    [21] Respondent's SIFC, para 17, Exhibit 2.

  7. On 14 September 2023, the Tribunal granted the applicant leave to provide a landscape plan and this forms part of the proposed development.[22]

    [22] Landscape plans are at Respondent's s 24 Bundle of Documents, pages 120-121, Exhibit 3.

Issues for determination

  1. The parties identify three issues for determination.[23]  At the commencement of the hearing, I raised with the parties an additional issue (Issue 4), and the issues for determination in this proceeding are:

    1.Whether site cover is excessive resulting in insufficient open space and the unacceptable bulk of the proposed development?

    2.Whether the overshadowing of southern neighbours is acceptable?

    3.Whether the proposed development is compatible with its setting?

    4.Whether the boundary walls built up to the southern boundary of the proposed development are acceptable?

    [23] The parties identify these as sub-issues to the ultimate question, whether the proposed development should be approved. This question is addressed commencing at [107].

  2. Before turning to consider the issue for determination, I will firstly outline the aspects of the proposed development which do not meet the deemed-to-comply requirements of the R-Codes (and relevant local planning policy) and detail the requirements for the exercise of judgment under the design principles of the R-Codes.

Application of the R-Codes and relevant Local Planning Policies

  1. Considering the assessment of the proposed development against the provisions of the R-Codes, the evidence of Mr Hockley, which I accept,[24] is the proposed development satisfies all relevant deemed­to­comply requirements of the R-Codes, other than the following clauses which require consideration under the design principles:

    (a)cl 5.1.3 – Lot boundary setback – C3.1, for the 1.2 metre northern setback on lot 1, where a 1.5 metre setback is required.  I will discuss this further at [37];

    (b)cl 5.1.3 – Lot boundary setback – C3.2, for the boundary walls on lot 2, as they exceed 3.5 metres high;[25]

    (c)cl 5.1.4 – Open space – C4 (45% of total site – 39.7% provided);[26] and

    (d)cl 5.4.2 – Solar access for adjoining sites – C2.1, requires no more than 35% of an adjoining site to be overshadowed, with overshadowing of No18A calculated to be 46% at midday on 21 June.[27]

    [24] Witness Statement of Thomas Hockley, para 23 (Table 1), Exhibit 6.

    [25] This is considered at Issue 4, commencing at [100].

    [26] Mr DePiazzi's evidence is open space is calculated by the respondent to be 40.2%, (Witness Statement of Steven DePiazzi, para 36, Exhibit 10). Nothing turns on this difference. This aspect is considered at Issue 1, commencing at [40].

    [27] This is considered at Issue 2, commencing at [65].

  1. I consider the relevant design principles of the R-Codes under the issues for determination.  However, when considering a proposal under the design principles, cl 2.4 of the R-Codes addresses the judgment of merit of proposals and states:

    Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes Volume 1 and addresses design principle(s), the decision‑maker is required to exercise judgement to determine the proposal.

    Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).

  2. In exercising judgment, the Tribunal has previously observed in Sweetland and Town of Cambridge [2005] WASAT 278 (Sweetland) at [36]:[28]

    … Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions.  However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes.

    [28] Also cited in Boulter and City of Subiaco [2007] WASAT 71 (Boulter) at [30]. Reference to 'performance criteria' in Sweetland should be read as referencing 'design principles' in the current R-Codes.

  3. Clause 2.5 of the R-Codes addresses the exercise of judgment and states:

    2.5.1

    Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1.

    The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed­to­comply provision(s).

    2.5.2

    In making a determination on the suitability of a proposal, the decision‑maker shall exercise its judgement, having regard to the following:

    (a)any relevant purpose, objectives and provisions of the scheme;

    (b)any relevant objectives and provisions of the R-Codes Volume 1;

    (c)a provision of a local planning policy adopted by the decision‑maker consistent with and pursuant to the R-Codes Volume 1; and

    (d)orderly and proper planning.

    …

    2.5.4

    The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the R-Codes Volume 1and the relevant provisions of the scheme and any relevant local planning policy.[.]

  4. In this case, the relevant objectives of the R-Codes, to which I have regard, are set out at cl 5.1 Context,[29] which states:

    [29] For consideration of design principles at cl 5.1.4, see Issue 1 commencing at [40] and of cl 5.1.3 P3.1, see [37], and of P3.2 see Issue 4, commencing at [100].

    (a)To ensure residential development meets community expectations regarding appearance, use and density.

    (b)To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.

    (c)To ensure adequate provision of direct sunlight and ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.

    (d)To ensure open space (private and communal) is provided on site that:

    •is landscaped to enhance streetscapes;

    •complements nearby buildings; and

    •provides privacy, direct sunlight and recreational opportunities.

    (e)To ensure that design and development is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing transition, development achieves the desired future character identified in local planning framework.

  5. Additionally, the objectives at cl 5.4 building design, to which I have regard, are relevant[30] and state:

    (a)To design buildings and landscape to minimise adverse impact on the privacy of adjoining dwellings and private open space.

    (b)To optimise comfortable living, access to sunlight and solar energy to facilitate sustainable housing development with particular regard for place and local conditions.

    (c)To maintain the amenity of streetscapes and views along the street by ensuring that associated outbuildings and other fixtures attached to buildings do not detract from the streetscape and are not visually intrusive to neighbouring properties or adjoining public spaces.

    [30] For consideration of design principles at cl 5.4.2 see Issue 2, commencing at [65].

  6. The respondent identifies (and the applicant accepts) the deemed-to-comply setback of the R-Codes is not achieved for the first-floor master suite for the northern dwelling (lot 1).[31]  However, the respondent is satisfied this setback demonstrates compliance with the relevant design principle of the R-Codes.[32]  I am satisfied, and I find, this is so.

    [31] Respondent's SIFC, para 29, Exhibit 2.

    [32] Respondent's SIFC, para 44, Exhibit 2.

  7. Turning to LPP 3.1, which addresses streetscape, this requires open style street walls and fences, but can be solid up to 0.75 metres high.  The dwelling on lot 2 has a solid portion of street wall proposed at 0.85 metres.  However, the respondent accepts,[33] the front fencing meets the relevant design principles of LPP 3.1 and I am satisfied, and I find, the front fence acceptable.

    [33] ts 25, 23 November 2023 and Respondent's SIFC, para 44, Exhibit 2.

  8. I will now consider each issue for determination in turn.

  1. Whether site cover is excessive resulting in insufficient open space and the unacceptable bulk of the proposed development?

  1. Site cover is not a development standard identified in the relevant statutory planning framework per se.  However, open space is a relevant consideration under the R-Codes, which I will turn to shortly.  As to building bulk, the applicant submits, and I accept, in this case this involves consideration of building height and setbacks.  It is uncontroversial the proposed development meets the building height requirements[34] and almost all setback requirements.[35]  The respondent does not raise streetscape concerns, including as to building bulk.[36]

    [34] For wall and roof height, Respondent's s 24 Bundle of Documents, page 30 and ts 29, 23 November 2023.

    [35] The respondent accepts the 300 millimetres setback variation to the northern dwelling (lot 1) meets the relevant design principles of the R-Codes, see [37]. The two boundary walls are considered at Issue 4, commencing at [100].

    [36] ts 16, 23 November 2023.

  2. Returning to open space, it is uncontroversial the proposed development does not achieve the deemed-to-comply requirement of the R-Codes[37] and the applicant seeks consideration against the relevant design principle at cl 5.1.4 P4 which states:[38]

    Development incorporates suitable open space for its context to:

    •reflect the existing and/or desired streetscape character or as outlined under the local planning framework;

    •provide access to natural sunlight for the dwelling;

    •reduce building bulk on the site, consistent with the expectations of the applicable density code and/or as outlined in the local planning framework;

    •provide an attractive setting for the buildings, landscape, vegetation and streetscape;

    •provide opportunities for residents to use space external to the dwelling for outdoor pursuits and access within/around the site; and

    •provide space for external fixtures and essential facilities.

    [37] See earlier at [31].

    [38] R-Codes, page 21, Exhibit 3.

  3. The respondent contends that while the proposed development may arguably satisfy many of the above aspects, read collectively the net result is that outdoor space is limited.  Specifically, the respondent says built form is maximised at the expense of outdoor amenities.  As a result, the respondent says the space for outdoor pursuits is limited, and this is further pronounced for the alfresco and outdoor area for the dwelling on lot 2 which will be in winter shade from its own built form.[39]

    [39] Respondent's SIFC, paras 47 – 48, Exhibit 2.

  4. The applicant submits the design principles at cl 5.1.4 P4 are met because the dwelling on lot 1 has its outdoor living area on the north allowing adequate access to light in winter and for lot 2, the alfresco area is uncovered providing access to natural light. Further, the applicant says the proposed development provides an outdoor living space greater than the minimum dimensions stipulated under cl 5.3.1 of the R-Codes.[40]

    [40] Applicant's SIFC, para 46, Exhibit 8.

  5. Considering the evidence of the planning experts against each aspect of the design principle at cl 5.1.4 P4,[41] Mr Hockley accepts the first and last (sixth) dot points are met.[42]  I accept this evidence.

    [41] Identified earlier at [41].

    [42] Witness Statement of Thomas Hockley at paras 27 – 28 and para 47, Exhibit 6.

  6. As to the second dot point (access to natural sunlight), Mr Hockley says that due to the narrow side-by-side (proposed) subdivision arrangement and reduction in open space below the deemed-to-comply requirement, the proposed development is likely to have limited access to natural light to the ground floor on both lot 1 and lot 2, particularly during the winter months.[43]  However, Mr Hockley observes (from his review of aerial photography) for the dwelling on lot 1 that 'during the winter months, the shadow cast from the adjoining dwelling to the immediate north of lot 1 is also likely to impact the access to northern sunlight …'.[44]

    [43] Witness Statement of Thomas Hockley, para 29, Exhibit 6.

    [44] Witness Statement of Thomas Hockley, para 30, Exhibit 6.

  7. Mr DePiazzi says the dwellings 'will have differing levels of access to direct sunlight' and the 'northern proposed dwelling will receive considerable direct sunlight access to the open space provided along its northern lot boundary, creating openings for sun penetration'.[45]  However, he accepts direct sunlight access will be more limited for the southern dwelling (on lot 2), but he says '[s]outhern facing windows and outdoor areas will still receive high levels of day light, more than capable of fully illuminating rooms and outdoor spaces, without the heat and glare caused by direct sunlight' and that a reasonable level of direct sunlight will be achieved using skylights.  Mr DePiazzi also identifies the outdoor area (of this dwelling) does not contain permeable roof cover, which he argues allows sunlight to penetrate the dwelling rather than be filtered by an alfresco roof.[46]

    [45] Witness Statement of Steven DePiazzi, para 58, Exhibit 10.

    [46] Witness Statement of Steven DePiazzi, paras 59 – 60 and 62, Exhibit 10.

  8. Under cross-examination, Mr Hockley accepts the skylights on the upper floor of the dwelling on lot 2 (which are oriented northwards) will provide direct sunlight to the upper floor living area.  However, he asserts the skylights above the ground floor living area will be shaded by the upper level of this dwelling.

  9. I prefer the evidence of Mr DePiazzi on this aspect because, in my view, he more carefully considers the relevant parts of the design response, rather than focus on non-compliance with deemed-to-comply standards which, as highlighted at [33], is not relevant in the exercise of judgment.  Considering the location of the windows and large glazed doors, the use of skylights and the open nature of the alfresco area on lot 2, the proposed development, in my view, provides sufficient access to natural sunlight.

  10. As to the third dot point (reduce building bulk on the site …), Mr Hockley's evidence is that the two boundary walls to the southern dwelling do not satisfy the deemed-to-comply requirements of cl 5.1.3 of the R-Codes and, as mentioned, are aligned with the deck area (or light court) abutting the dining room of No 18A and the other to its outdoor living area which provides primary outdoor amenity areas and access to northern light for the internal areas of this dwelling.[47]  He also asserts the total built form for both dwellings have potential to create an unreasonable level of bulk, caused by the boundary walls and the limited lot boundary setbacks and that the continuous nature of the development does not provide adequate relief of bulk to neighbouring properties.[48]

    [47] This aspect is considered at Issue 4, commencing at [100].

    [48] Witness Statement of Thomas Hockley, paras 35 - 36, Exhibit 6.

  11. Mr DePiazzi opines that locating as much built form on the internal common boundary (i.e. centrally on the subject site) improves land use efficiency and enables greater building separation to external boundaries.[49]  The Tribunal previously observed in Boulter[50] this design approach ('for a house on the southern lot to be built to the northern boundary so as to minimise its impact on the property to the south') 'is reasonable and sensible' and I accept this is a benefit of the built form of the proposed development, particularly in the circumstances of an east-west oriented lot, such as the present case.

    [49] Witness Statement of Steven DePiazzi, para 65, Exhibit 10.

    [50] At [57].

  12. Further, the local planning framework (in LPP 3.1) when describing the relevant precinct (West Leederville) highlights this form of redevelopment as common, even accepted, as part of the local character:[51]

    … Large parts of West Leederville are being subdivided on a lot by lot basis.  These subdivisions are typically created by dividing lots down the middle, to create narrow lots with small frontages.  Higher densities and significant redevelopment of older housing stock in the area has resulted in dwellings that are set back much closer to the street[.]

    [51] Respondent's s 24 Bundle of Documents, page 196, Exhibit 3.

  13. The key concern with building bulk in this case is the presentation of the proposed development to its southern boundary.  Following mediation, the applicant made design changes to the upper level of the proposed dwelling on lot 2, with the setbacks for the master suite (on the upper level) increased from 1.2 metres to 3.7 metres.  Mr Hockley, under cross-examination, accepts 3.7 metres is a significant setback.[52]

    [52] ts 99, 23 November 2023.

  14. Further, at the hearing the applicant agreed to lower the height of the boundary wall abutting the rear outdoor area of No 18A, such that it is no longer visible from No 18A.[53]

    [53] See also [106].

  15. These two factors sufficiently reduce building bulk on the subject site (particularly to No 18A), such that, in my view, it is consistent with the expectations of the R30 density code and the local planning framework.

  16. As to the fourth dot point (provide an attractive setting for the buildings, landscape, vegetation and streetscape), as mentioned the applicant provided a landscaping plan, which indicates landscaping treatments to the front setback area and within the side setbacks (north and south) for approximately half the length of the subject site.[54]  The two alfresco areas are treated with paving and sections of vertical landscaping and on structure planting.

    [54] Respondent's s 24 Bundle of Documents, pages 120 – 121, Exhibit 3.

  17. Mr Hockley considers the proposed development provides limited landscaping opportunities and, aside from the medium sized tree in each front setback area, it is unlikely the landscaping will be visible from the public realm or the adjoining properties to break up the mass of the building.  He also says the restriction to access to natural sunlight, particularly for the southern dwelling behind the street setback area, is likely to limit the opportunities for an attractive setting for landscaping.[55]

    [55] Witness Statement of Thomas Hockley, paras 39 and 42, Exhibit 6.

  18. Mr DePiazzi asserts the landscaping in the front setback closely resembles the neighbouring development (No 22B) which he considers is heavily landscaped and only has a pedestrian path to the dwelling.  I accept this is the case and that the landscaped open space in the front setback of the proposed development will be consistent with the existing streetscape.

  19. As to the remaining landscaping, Mr DePiazzi says the landscaping has been designed to be functional in its context and the vertical landscaping in the alfresco areas will provide an enhanced level of privacy.

  20. I prefer the evidence of Mr DePiazzi because he more carefully considers the design response of the landscape plan, which, in my view, sufficiently demonstrates the open space (and its associated landscape treatments) will provide a high level of amenity for occupants of the proposed development and contribute positively to the streetscape.

  21. As to the fifth dot point (provide opportunities for residents to use space external to the dwelling for outdoor pursuits and access within/around the site), Mr Hockley identifies two outdoor areas in each dwelling, being the alfresco area and an upper-level terrace (an area of approximately 12m2, accessed from the master suite and via stairs from the alfresco area).  He says, and I accept, the upper-level terraces are designed as enclosed spaces (as they are bounded by the parapet wall between the two dwellings and a 1.63 metre high visual privacy screen).[56]

    [56] Witness Statement of Thomas Hockley, para 44, Exhibit 6.

  22. As to the alfresco area (which is accessed from the living, dining and kitchen area of each dwelling), Mr Hockley's witness statement identifies this as being approximately 16m2 in area.[57]  However, under cross-examination he concedes it is in fact much larger, being 35m2.[58]

    [57] Witness Statement of Thomas Hockley, para 43, Exhibit 6.

    [58] ts 94, 23 November 2023.

  23. Mr Hockley, in his written evidence, also asserts both areas (being the upper level terrace and the alfresco area) 'to be of low amenity and provide little opportunity for outdoor pursuits'.[59]  However, under cross-examination Mr Hockley acknowledges that his concern was mainly to do with the position of the outdoor spaces within the lot and the design of the dwelling itself.[60]

    [59] Witness Statement of Thomas Hockley, para 45, Exhibit 6.

    [60] ts 95, 23 November 2023.

  24. Mr DePiazzi provides a closer analysis of likely intended occupant's outdoor pursuits, which he says could be entertaining, growing a herb garden or kicking a ball around.  His evidence, which I accept, is the open space could easily accommodate any of those pursuits.[61]

    [61] Ibid.

  25. Overall, considering the evidence and the earlier analysis, I am satisfied, and I find, the open space satisfies the design principle cl 5.1.4 P4 of the R-Codes and further, the provision of open space in this case does not, I find, result in a perception of excessive site cover or building bulk when the proposed development is considered in its context.

  1. Whether the overshadowing of southern neighbours is acceptable?

  1. When considering overshadowing in this case, Mr Hockley says, and I accept, cl 5.4.2 of the R-Codes requires the assessment of the southern neighbours (No 18A and No 18B) be treated separately.[62]  I will consider No 18B first, then No 18A.

    [62] Witness Statement of Thomas Hockley, para 48, Exhibit 6.  This is accepted by the respondent (ts 17, 23 November 2023) and the applicant (ts 36, 23 November 2023).

  2. On the evidence before me considering No 18B, the proposed development achieves the deemed-to-comply requirement of 35% overshadowing, achieving 20.4%.[63]  The evidence of Mr Hockley and the owner of No 18B, Mr Wesley, highlight overshadowing concerns from the proposed development.  However, while I accept there will be an impact on No 18B, the evidence before me is that the north facing rooms of this dwelling will continue to receive some direct solar access at the winter solstice.[64] Considering the provisions of the R-Codes at cl 2.4,[65] and the evidence before me, the extent of overshadowing of No 18B is acceptable, in my view, because it meets the deemed­to­comply requirements of the R-Codes.

    [63] Witness Statement of Steven DePiazzi, paras 91 – 92, Exhibit 10 and Witness Statement of Thomas Hockley, para 49, Exhibit 6.  Although, Mr Hockley does not provide a calculation of the percentage overshadowing to No 18B, he accepts the deemed-to-comply requirements of the R-Codes are met.

    [64] ts 134-135, 24 November 2023.

    [65] Detailed earlier at [32].

  1. For No 18A, it is uncontroversial the proposed development does not achieve the deemed-to-comply requirements of cl 5.4.2 C2.1 of the R‑Codes because the overshadowing of this property is 46%[66] (exceeding the 35% deemed-to-comply requirement) and I am to consider the relevant design principle and exercise judgment.[67]

    [66] When measured at 21 June, as required by cl 5.4.2, C2.1.

    [67] See earlier at [34].

  2. The relevant design principles are at cl 5.4.2 P2 of the R-Codes which state:

    P2.1Effective solar access for the proposed development and protection of solar access.

    P2.2Development designed to protect solar access for neighbouring properties taking into account the potential to overshadow existing:

    •outdoor living areas;

    •north facing major openings to habitable rooms, within 15 degrees of north in each direction; or

    •roof mounted solar collectors.

  3. Turning to P2.1, Mr DePiazzi's evidence identifies, correctly, the concern agreed by the parties in Issue 2 is limited in scope to the overshadowing of the southern neighbours (being No 18A and No 18B).[68]  However, the respondent's SIFC also identifies a concern that the proposed dwelling at lot 2 will have poor solar access to its own alfresco and outdoor area as it will be in winter shade from its own two-storey built form.[69]

    [68] Witness Statement of Steven DePiazzi, para 89, Exhibit 10.

    [69] Respondent's SIFC, para 55, Exhibit 2.

  4. In this regard, Mr DePiazzi's evidence identifies the outdoor area of this dwelling does not contain permeable roof cover, which he says allows sunlight to penetrate the dwelling rather than be filtered by an alfresco roof.[70]  Mr Hockley's evidence is that in seeking to maximise site cover and the two-storey built form, sunlight access into key habitable spaces is compromised internally and externally and he asserts this design principle is not satisfied.[71]

    [70] Witness Statement of Steven DePiazzi, paras 59 – 60 and 62, Exhibit 10.

    [71] Witness Statement of Thomas Hockley, para 51, Exhibit 6.

  5. While I accept the proposed dwelling on lot 2 has compromised solar access, in my view, this is largely unavoidable given the east-west orientation of the subject site, the (proposed) narrow lots and the resulting side-by-side form of development (which is an outcome supported in the local planning framework for this locality).  The Tribunal has previously accepted overshadowing is particularly susceptible for narrow lots with an east-west orientation.[72]  In this case, the dwelling on lot 2 has a 3.7 metre setback to its upper floor adjacent to its outdoor area (compared to 1.2 metres for the dwelling on lot 1) which provides greater openness to the alfresco area (with this area also being unroofed) which, in my view, sufficiently addresses P2.1, and I am satisfied, and I find, this design principle is met.

    [72] Boulter at [33] – [43] and Purser and City of Nedlands [2022] WASAT 87 at [89] – [99].

  6. Turning now to P2.2 (of cl 5.4.2), the planning experts agree, and I accept, roof mounted solar collectors are not present in this case.[73]  The three considerations for No 18A are the front verandah/front yard, the outdoor living area (at the rear) and the north facing major opening of the dining room (adjacent to the deck area/light court abutting the southern boundary of the subject site).[74]

    [73] ts 125, 24 November 2023.

    [74] Floor plan of No 18A is an Annexure to Witness Statement of Simon Vidovich, Exhibit 4.

  7. At this point, I observe the proposed development includes two boundary walls on the southern boundary of the subject site.  These walls are located opposite the deck area (facing the major opening to the dining room) and the other abuts the outdoor living area.  Although Mr Hockley identifies these walls as a cause of overshadowing to the outdoor area in his witness statement,[75] under cross-examination he concedes (and agrees with Mr DePiazzi) neither of these boundary walls cause additional overshadowing.[76]  The planning experts therefore agree overshadowing to No 18A is from the second storey of the proposed development (and its east-west orientation).

    [75] Witness Statement of Thomas Hockley, para 60, Exhibit 6.

    [76] ts 114-115, 120 and 122, 24 November 2023.

  8. I will now consider each aspect of the overshadowing of No 18A.

Front verandah and front yard of No 18A

  1. Firstly, the front verandah/front yard, and although Mr Hockley[77] asserts this area will be overshadowed by the proposed development and provides a shadow diagram in his evidence,[78] I prefer the evidence of Mr DePiazzi who provides a more detailed overshadowing analysis which also identifies the shadow from the existing boundary fence.  Mr DePiazzi's diagram demonstrates that (at the winter solstice) the northern aspect of the front verandah (which I accept is open) is already overshadowed by this fence and that most of the overshadowing from the proposed development will fall over the verandah roof.[79]  Accepting this evidence, I am satisfied, and I find, the overshadowing of the front verandah and front yard of No 18A acceptable.

Outdoor living area of No 18A

[77] Mr Vidovich also provides a photo of this area attached to his witness statement, but does not identify this area as a concern, Exhibit 4.

[78] Witness Statement of Thomas Hockley, para 52 and Figure 5, Exhibit 6.

[79] Witness Statement of Steven DePiazzi, Annexures SD06 and SD07, Exhibit 10.

  1. The outdoor living area of No 18A includes an open grassed area and a covered alfresco area which is partly open to the north.  This outdoor living area has a 1.95 metre high boundary wall (fence) abutting the common boundary with the subject site.

  2. The evidence of Mr DePiazzi, which I accept, is that the existing boundary wall at No 18A 'casts a shadow near identical to the shadow which will be cast by the proposed development'.[80]  Mr DePiazzi demonstrates this assertion with the shadow diagrams comparing the impact of the proposed development and the existing fence.[81]  Mr Hockley's evidence does not include similar shadow analysis and under cross-examination he accepts the analysis of Mr DePiazzi.[82]

    [80] Witness Statement of Steven DePiazzi, para 118, Exhibit 10.

    [81] Annexure SD06 and Annexure SD07, Witness Statement of Steven DePiazzi, Exhibit 10.

    [82] ts 97 – 98, 23 November 2023.

  3. Considering this evidence, I am satisfied, and I find, the proposed development does not detrimentally overshadow the outdoor living area at the rear of No 18A.

Major opening to dining room of No 18A

  1. At the hearing the planning experts calculated the overshadowing to the major opening to the dining room of No 18A and agree the shadow (calculated on 21 June) would extend approximately 1.8 metres up this window, with approximately 1.2 metres of solar access being maintained (given a window height of approximately 3 metres), with the shadow extending approximately 2.5 metres into the dining room.[83]  Under cross-examination, Mr Hockley accepts part of this window will continue to obtain direct sunlight on the winter solstice.[84]

    [83] ts 115 – 117, 24 November 2023.

    [84] ts 116, 24 November 2023.

  2. Given this evidence, I am satisfied, and I find, solar access to the north facing window of the dining room at No 18A is sufficiently protected, when considering the worst-case scenario, being the winter solstice.

  1. Whether the proposed development is compatible with its setting?

  1. The respondent contends the excess bulk of the proposed development (reflected in the lack of open space) is also reflected in the amount of overshadowing that will impact the dwellings to the south and to that extent the proposed development does not respect the established character of the locality.[85]

    [85] Respondent's SIFC, para 60, Exhibit 2.

  2. Firstly, it is necessary to outline the relevant local planning framework which addresses character (and desired future character) at a local level.  I will then consider proposed development in the context of that framework and the character of its locality.

  3. The aims of LPS 1, set out at cl 9, and relevantly includes at (e):[86]

    [T]o ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-

    (i)recognises the individual character and needs of localities within the Scheme Area; and

    (ii)can readily respond to change[.]

    [86] Respondent's SIFC, para 21, Exhibit 2.

  4. Table 3 of LPS 1 provides the objectives for the Residential zone as follows:[87]

    •To provide for a range of housing and a choice of residential densities to meet the needs of the community.

    •To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.

    •To provide for a range of non-residential uses, which are compatible with and complimentary to residential development.

    [87] Respondent's SIFC, para 22, Exhibit 2.

  5. Schedule A of LPS 1 provides 'Supplemental Provisions to the Deemed Provisions' and at cl 3A(1) divides the scheme area in the precincts set out in the 'Precinct Local Planning Policies'.[88]  It is uncontroversial the subject site is in precinct P5 - West Leederville.[89] This is identified in LPP 2.5 which also contains a statement of intent for development in the Residential zone in this precinct and relevantly provides at cl 1.1 (in part):[90]

    [88] Respondent's s 24 Bundle of Documents, page 155, Exhibit 3.

    [89] Although the subject site is in the suburb of Wembley.

    [90] Respondent's s 24 Bundle of Documents, page 172, Exhibit 3.

    •A range of dwelling densities and dwelling types will be accommodated in residential areas.  Grouped and multiple dwellings at medium and high densities will be favourably considered in the east and south area of the precinct, and along Cambridge Street.

    •Existing character of the area will be enhanced by:

    -an emphasis on rear laneway access to retain existing streetscapes;

    -avoidance of high fences or walls at the street alignment; and

    -new infill dwellings to respect the scale and significant forms (e.g. roof pitches) of existing dwellings.

    …

  6. The proposed development satisfies the first two character requirements (as it provides rear laneway access and the front fencing is accepted).[91]  The heart of this dispute relates to the scale of the proposed development, and whether it is acceptable in its context.

    [91] ts 25, 23 November 2023.

  7. Considering context, LPP 3.1 deals with streetscape.  The relevant objectives of LPP 3.1 are:

    …

    3.To encourage good quality and well-designed development that is respectful of established character and amenity whilst recognising any future character objectives.

    4.To maintain the openness of our streetscapes creating a safe and attractive pedestrian environment with passive surveillance of the street.

    5.To ensure the presentation, design and form of dwellings are considered as an integral part of the streetscape, connecting visually to the street and not being isolated by fencing, retaining walls, garages or other features.

    6.To encourage the retention and enhancement of plantings and landscaping on both private and public land to retain the green character of neighbourhoods, encourage canopy and improve the street presentation of dwellings.

  8. As mentioned,[92] LPP 3.1 identifies the pattern of subdivision in precinct P5 includes subdivision of lots down the middle (which the parties accept will result from the proposed development).

    [92] See [51].

  9. LPP 3.1 outlines the desired future character of West Leederville as follows:[93]

    •Good quality and well-designed development that is respectful of established streetscape character and amenity of the area;

    •Design and form of new development is considered to be an integral part of the streetscape, connecting visually to the street and is not isolated by fencing, retaining walls, garages or other features[;]

    •Use of laneways to maximise street trees and reduce the impact of crossovers on streets.

    [93] Respondent's s 24 Bundle of Documents, page 197, Exhibit 3.

  10. Also, cl 67(2) of the Deemed Provisions, which outlines matters to which I am to have due regard, relevant to this case includes:

    (m)the compatibility of the development with it setting including —

    (i)the compatibility of the development with the desired future character of its setting; and

    (ii)the relationship of the development 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 development;

    (n)the amenity of the locality including the following —

    …

    (ii) the character of the locality[.]

  11. Amenity is defined in the Deemed Provisions and:[94]

    means all those factors which combine to form the character of an area and include the present and likely future amenity[.]

    [94] At cl 1.

  12. In Canning Mews, the Tribunal, when considering amenity, also observed:[95]

    … in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents.  Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]

    [95] Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 (Canning Mews) at [48].

  13. In this regard, I am assisted by the evidence of Mr Vidovich[96] and Mr Wesley[97] who highlight a concern as to the impact of the proposed development on access to northern sun at their properties.

    [96] Exhibit 4.

    [97] Exhibit 5.

  14. As mentioned,[98] the respondent accepts the proposed development is acceptable in the streetscape.[99]  It is the impact on neighbouring sites to the immediate south which is of concern to the respondent when considering context.

    [98] See [40] and ts 16, 23 November 2023.

    [99] The LPS 1 definition of 'streetscape' is at [16].

  15. Mr Hockley accepts that the proposed development, which introduces two, two-storey grouped dwellings is consistent with the statement of intent in LPP 2.5 as to dwelling type and density.  However, he asserts that because the proposed development introduces a two-storey form which is continuous and not sufficiently setback from neighbouring sites there is potential for adverse impacts on amenity because of building bulk, scale, and solar access (to the dwellings to the south, particularly No 18A).[100]

    [100] Witness Statement of Thomas Hockley, paras 75, 77 – 78, Exhibit 6.

  16. Mr DePiazzi asserts the built form of the proposed development includes considerable articulation which creates interest in the (front) façade, and in the side and rear elevations.  As to the side elevations (north and south), he says these have regular stepping at ground and first floor level and stepping of levels to navigate the natural slope of the site.  He considers the wall lengths are 'broken down into small elements which mitigate visual impact'.  Further, he indicates the landscaping compliments the built form and it will grow over time to provide a soft element to the design.[101]

    [101] Witness Statement of Steven DePiazzi, paras 126 – 127 and 130, Exhibit 10.

  17. It is uncontroversial the building height of the proposed development is compliant (both wall height and overall roof height).[102]  I accept the evidence of Mr DiPiazzi that the side elevations of the proposed development are well articulated and respond appropriately to the sloping topography of the subject site, which does, in my view, significantly assist to ensure the proposed development is compatible with its setting.  Further, as mentioned,[103] the side setbacks generally meet the deemed-to-comply requirements of the R-Codes.  I have considered overshadowing impacts earlier (at Issue 2) and the open space provided (at Issue 1) and found them acceptable in this case.

    [102] ts 29, 23 November 2023 and ts 141, 24 November 2023.

    [103] See [31].

  18. Considering the proposed development against LPP 2.5, LPP 3.1 and cl 67(2)(m) and cl 67(2)(n) of the Deemed Provisions and the evidence before me, I am satisfied, and I find, the proposed development is compatible in its setting because it is consistent in the streetscape (this is agreed) and considering the side-by-side form of development which is anticipated under the local planning framework.  Further, the proposed development provides vehicle access from Dearle Lane which is supported under the local planning framework. 

  19. The impacts on the immediate neighbours to the south (No 18A and No 18B) are, in my view, appropriately addressed by a combination of significant setbacks (e.g., 3.7 metres for the upper floor master suite on lot 2) and the reduction in height of the boundary wall abutting the rear outdoor area of No 18A.  Further, the built form (which includes building height, roof pitch, setbacks and articulation (of the side elevations in particular) and response to the sloping topography and the landscaping) result in the proposed development being sufficiently respectful of its neighbours to the north and south and, in my view, provides a design outcome which I am satisfied, and I find, is compatible with the amenity expected by the local planning framework in this locality.

  1. Whether the boundary walls built up to the southern boundary of the proposed development are acceptable?

  1. Mr Hockley, in his witness statement,[104] identifies the two boundary walls on the southern boundary (lot 2) exceed the 3.5 metre deemed­to-comply height requirement of cl 5.1.3 C3.2 of the R-Codes.

    [104] Witness Statement of Thomas Hockley, para 23 (Table 1), Exhibit 6.

  2. Mr Hockley's evidence, which I accept, is the maximum height of the first boundary wall to the living room (of the dwelling on lot 2) is 3.66 metres. This wall is adjacent to the deck (light court) and dining room of No 18A. This wall requires consideration against the relevant design principles at cl 5.1.3 P3.2 of the R-Codes which states:

    Buildings built up to boundaries (other than the street boundary) where this:

    •makes more effective use of space for enhanced privacy for the occupant/s or outdoor living areas;

    •does not compromise the design principle contained in clause 5.1.3 P3.1;

    •does not have any adverse impact on the amenity of the adjoining property;

    •ensures direct sun to major openings to habitable rooms and outdoor living areas for adjoining properties is not restricted; and

    •positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.

  3. The design principle at cl 5.1.3 P3.1 is identified in P3.2 (above) and states:

    Buildings set back from lot boundaries or adjacent buildings on the same lot so as to:

    •reduce impacts of building bulk on adjoining properties;

    •provide adequate direct sun and ventilation to the building and open spaces on the site and adjoining properties; and

    •minimise the extent of overlooking and resultant loss of privacy on adjoining properties.

  4. The planning experts were cross-examined on this design principle for this boundary wall.  After undertaking a shadow analysis at the hearing, the planning experts agree on the winter solstice the shadow was not cast by the boundary wall but the upper level of the dwelling on lot 2.[105]  However, Mr Hockley thinks the impact will be building bulk perceived from the internal living spaces that adjoin the light court.[106]  However, after giving this further consideration, he says his concern is, in fact, the combination of the two boundary walls and that if he was only dealing with the one wall, he accepts 'the variation arising for the height of the [boundary] wall adjacent to the light court is quite minor'.[107]  Mr DePiazzi's evidence is this boundary wall will be visible but he says it will be finished professionally and is located to increase privacy.[108]

    [105] ts 114 – 115, 24 November 2023.

    [106] ts 68 – 69, 23 November 2023.

    [107] ts 70 – 71, 23 November 2023.

    [108] ts 70, 23 November 2023.

  1. Considering the evidence of the planning experts, I am satisfied, and I find, this boundary wall is acceptable because it meets the relevant design principles of the R-Codes and does not impact the level of solar access to No 18A and will, I accept, increase privacy for the residents of this property.

  2. The second boundary wall, adjacent to the outdoor living area at the rear of No 18A, Mr Hockley says, and I accept, ranges in height from 3.615 metres to 3.815 metres.  Further, as Mr Hockley identifies (and the applicant concedes) the applicant's drawings incorrectly show the height of this wall being lower than the existing brick boundary wall of No 18A, when it will in fact be higher.[109]  The planning experts agree it will be approximately 0.8 metres above the existing boundary wall of No 18A.

    [109] ts 32, 23 November 2023.

  3. However, at the hearing, the applicant accepts[110] this boundary wall can be lowered to be no higher than the adjoining boundary wall of No 18A because this wall does nothing more than support a series of raking beams for the alfresco area at the proposed dwelling on lot 2.  As this modification brings the wall below 3.5 metres high (measured from the subject site), I am satisfied, and I find it compliant with the deemed-to-comply requirements of cl 5.1.3 C3.2 of the R-Codes.  A condition, agreed at the hearing, should be imposed to address the reduction in height.[111]

    [110] ts 160, 24 November 2023.

    [111] See condition (b) of the Orders.

Whether the proposed development should be approved?

  1. Considering the analysis and my findings above at Issues 1 to 4, I am satisfied, and I find, the proposed development should be approved, subject to conditions.  This is for several reasons.

  2. Firstly, the proposed development is acceptable in the established streetscape of Connolly Street.  This includes its height, scale and landscaping when viewed from the street.

  3. Secondly, considering my findings to Issue 1, the open space provided by the proposed development, in my view, satisfies the design principle P4 at cl 5.1.4 of the R-Codes and further the provision of open space in this case does not, in my view, result in a perception of excessive site cover or building bulk when considered in its context.

  4. Thirdly, considering my findings to Issue 2, the solar access to the adjoining neighbours to the south of the subject site is sufficiently protected (satisfying cl 5.4.2 P2.2) and the design of the proposed dwellings provides allow for sufficiently effective solar access, notwithstanding the east-west orientation of the subject site (satisfying cl 5.4.2 P2.1). Solar access to the outdoor living area at the rear of No 18A, on the evidence before me, is substantially unaffected by the proposed development. Solar access to the dining room window of this dwelling is, in my view, sufficiently protected, even considering a worst-case scenario on the winter solstice. On the evidence before me, the overshadowing to No 18B meets the relevant deemed-to-comply requirement of the R-Codes.

  5. Fourthly, considering my findings to Issue 3 and the relevant provisions of the local planning framework (in LPS 1, LPP 2.5 and LPP 3.1 in addition to the R-Codes) the proposed development is, in my view, compatible with its setting, considering the side-by-side form of development which is anticipated under the local planning framework and (as mentioned) its impact in the streetscape of Connolly Street is acceptable.  Further, the proposed development provides vehicle access from Dearle Lane which is supported under the local planning framework.  The impacts on the immediate neighbours to the south (No 18A and No 18B) are, in my view, appropriately addressed by a combination of significant setbacks (e.g., 3.7 metres for the upper floor master suite of the dwelling on lot 2) and the reduction in height of the boundary wall abutting the rear outdoor area of No 18A.

  6. Fifthly, the boundary walls built up to the southern boundary of the subject site are acceptable. The boundary wall abutting the outdoor living area of No 18A will be reduced to be no higher than the existing boundary wall on this property, meaning it will meet the deemed­to­comply requirement of the R-Codes. The other boundary wall abutting No 18A, on the evidence before me, and in my view, meets the relevant design principle (cl 5.1.3 P3.2) of the R-Codes.

Conclusion

  1. The proposed development involves the development of two, two­storey grouped dwellings at the subject site.  The key issue in this review is the built form of the proposed development and its impact on the existing dwellings to the south, in particular No 18A.

  2. Considering the evidence before me and my findings on the four issues before me for determination, I consider the proposed development meets the applicable requirements of the statutory planning framework, including LPS 1, the R-Codes, LPP 2.5 and LPP 3.1.

  3. I conclude that having due regard to the relevant matters in cl 67(2) of the Deemed Provisions,[112] and to s 241(1) of the PD Act,[113] and weighing up my findings in respect to the four issues for determination, the correct and preferrable decision under s 27(2) and s 29(3) of the SAT Act is to set aside the respondent's decision and substitute a decision to approve the proposed development subject to conditions. The conditions are discussed below.

    [112] Including matters at (a), (c), (g), (m), (n) and (y)

    [113] Because the R-Codes are a State Planning Policy which affects this matter.

Conditions

  1. In the event the Tribunal determined the proposed development should be approved, the respondent provided eight without prejudice draft conditions,[114] which are agreed by the applicant.[115]  However, at the hearing one condition (the upgrade of Dearle Lane), was identified, and agreed, as being unnecessary because this lane is already constructed to the required standard.[116]  I accept this condition should not be imposed.  The remaining conditions are appropriate in this case.

    [114] Respondent's Without Prejudice Draft Conditions, Exhibit 7.

    [115] Applicant's Response to the Without Prejudice Draft Conditions, Exhibit 11.

    [116] ts 159 – 160, 24 November 2023.

  2. Further, and as mentioned,[117] at the hearing the applicant accepts the boundary wall adjacent to the outdoor living area can be reduced in height to be the same height as the boundary wall at No 18A Connolly Street.  A condition was agreed by the parties at the hearing[118] and considering my earlier findings, this condition should be imposed.

    [117] See [106].

    [118] ts 160, 24 November 2023.

  3. For these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:

1.The application for review is allowed.

2.The decision of the respondent on 8 September 2023[119] to refuse the development application for two grouped dwellings at No 20 Connolly Street, Wembley is set aside, and a decision is substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and the Town of Cambridge Local Planning Scheme No 1 subject to the following conditions:

[119] The Town's Decision Notice contains two different dates, being 7 August 2023 and 8 September 2023. I have adopted 8 September 2023 as the date of the determination the subject of this Application for Review because it is consistent with the date on the Town's covering letter and it flowed from the Council meeting of 22 August 2023 when this matter was considered (see Respondent's s 24 Bundle of Documents, page 104 ­ 106, Exhibit 3 and Respondent's SIFC, para 17, Exhibit 2.

(a)The development shall at all times comply with the application and the approved plans, subject to any modifications required as a consequence of any conditions of this approval;

(b)The height of the boundary wall of the alfresco area to the southern dwelling shall be reduced to no higher than the existing (abutting) boundary wall at No 18A Connolly Street, Wembley;

(c)All structures (and associated footings) shall be contained within the lot boundaries of the subject site;

(d)Prior to practical completion of the development, the existing crossover to No 20 Connolly Street, Wembley shall be removed, and the verge and kerb reinstated at the landowner's cost to the satisfaction of the Town of Cambridge;

(e)All stormwater shall be contained and disposed of on­site for the life of the development to the satisfaction of the Town of Cambridge;

(f)The landscaping areas within the 4 metres primary street setback of each proposed dwelling, as shown on the approved plans, shall be installed and reticulated within six months of practical completion of the development and thereafter maintained by the landowner(s) for the life of the development to the satisfaction of the Town of Cambridge;

(g)No verge trees shall be removed, pruned or disturbed in any way without approval of the Town of Cambridge; and

(h)All privacy screening and obscure glazing to major openings and unenclosed outdoor active habitable spaces, as shown on the approved plans, shall restrict views within the applicable cone of vision in accordance with cl 5.4.1 of State Planning Policy 7.3 – Residential Design Codes Volume 1; The privacy screening and obscure glazing shall be installed prior to practical completion of the development and thereafter remain in place for the life of the development to the satisfaction of the Town of Cambridge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR R Povey, MEMBER

15 JANUARY 2024


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NIELD and SHIRE OF SERPENTINE­JARRAHDALE [2021] WASAT 94
Sweetland and Town Of Cambridge [2005] WASAT 278
Boulter and City Of Subiaco [2007] WASAT 71