Aitken and ANOR and Town Of Cottesloe
[2005] WASAT 331
•12 DECEMBER 2005
AITKEN & ANOR and TOWN OF COTTESLOE [2005] WASAT 331
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 331 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:589/2005 | 9 DECEMBER 2005 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 12/12/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | 1. Application for review dismissed. 2. Development approval for an increase in building height of a previously approved house at Lot 216 (No 6) Stanhope Street, Cottesloe refused. | ||
| B | |||
| PDF Version |
| Parties: | J AITKEN K EIDNE TOWN OF COTTESLOE |
Catchwords: | Town planning Development application Increase in building height of approved dwelling Whether natural ground forms indicate that variation is warranted Whether amenity of neighbouring property unreasonably diminished |
Legislation: | Town of Cottesloe Town Planning Scheme No 2, cl 5.1.1 Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | Nil Nil |
Orders | 1. The application for review is dismissed.,2. Development approval for an increase in building height of a previously approved house at Lot 216 (No 6) Stanhope Street, Cottesloe is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : AITKEN & ANOR and TOWN OF COTTESLOE [2005] WASAT 331 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 9 DECEMBER 2005 DELIVERED : 12 DECEMBER 2005 FILE NO/S : DR 589 of 2005 BETWEEN : J AITKEN
- K EIDNE
Applicants
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning Development application Increase in building height of approved dwelling Whether natural ground forms indicate that variation is warranted Whether amenity of neighbouring property unreasonably diminished
Legislation:
Town of Cottesloe Town Planning Scheme No 2, cl 5.1.1
Town Planning and Development Act 1928 (WA), s 8A(1)
(Page 2)
Result:
1. Application for review dismissed.
2. Development approval for an increase in building height of a previously approved house at Lot 216 (No 6) Stanhope Street, Cottesloe refused.
Category: B
Representation:
Counsel:
Applicants : Mr KA Adam (agent)
Respondent : Mr A Jackson (agent)
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 Dr Aitken and Dr Eidne sought development approval for an increase in the building height of a previously approved house by 0.17 metre. In consequence of the proposed increase in building height, the wall height and roof height exceeded the maximum heights prescribed by the applicable town planning scheme when measured in accordance with the scheme.
2 The Tribunal determined that the application should be refused. The Tribunal was not satisfied that natural ground forms indicated that a variation was warranted to building height determined in accordance with the scheme. The Tribunal also considered that the amenity of a neighbouring property would be unreasonably diminished in consequence of the proposed increase in height.
Introduction
3 These proceedings involve an application by Dr J Aitken and Dr K Eidne for review pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) of the decision of the Town of Cottesloe to refuse a development application to increase building height of a previously approved dwelling house at Lot 216 (No 6) Stanhope Street, Cottesloe (site).
4 Development approval for the erection of the house was granted by the Town on 6 May 2005. The house, as approved, comprises a basement garage, cellar and store room with a finished floor level of 17.90 metres Australian Height Datum (AHD), a ground floor or middle level with a finished floor level of 20.73 metres AHD and a first floor or upper level with a finished floor level of 23.986 metres AHD. It is common ground that the house, as approved, complies with the maximum wall and roof height controls, when measured from natural ground level at the centre of the site as determined by the Town, prescribed by cl 5.1.1 of the applicable town planning scheme, Town of Cottesloe Town Planning Scheme No 2 (TPS 2).
5 A building licence was sought and obtained for the erection of the house. Excavation and construction of the basement level has taken place. It is anticipated that the basement and first floor slabs will be poured shortly.
(Page 4)
6 On 11 July 2005, Dr Aitken and Dr Eidne lodged the development application which is the subject of these proceedings. The development application proposes an increase in the finished floor level of the ground floor by 0.17 metre from 20.73 metres AHD to 20.90 metres AHD, an increase in the finished floor level of the first floor by 0.172 metre from 23.986 metres AHD to 24.158 metres AHD, an increase in the wall height by 0.157 metre from 26.4 metres AHD to 26.557 metres AHD and an increase in the roof height by 0.172 metre from, in the case of the uppermost point of the roof, 28.90 metres AHD to 29.072 metres AHD.
7 The development application to increase the height was notified to adjoining properties and an objection was received on 4 August 2005 from Ms Helen Swale who, together with her husband, owns and resides at No 6 Stanhope Street, Cottesloe, which adjoins the site to the east.
8 The Town considered the development application at its meeting on 22 August 2005 and passed two resolutions. First, it resolved to determine the natural ground level at the centre of the site to be 20.4 metres AHD for the purposes of cl 5.1.1 of TPS 2. Second, it resolved to refuse the development application for reasons including that the natural ground forms of the site do not warrant a variation and that the amenity of Ms Swale's property "would be adversely affected due to increased wall height, which would be exacerbated due to the lower ground levels on the eastern side boundary".
9 Although, in their application for review filed on 30 September 2005, Dr Aitken and Dr Eidne sought a redetermination by the Tribunal of the natural ground level at the centre of the site for the purposes of cl 5.1.1 of TPS 2 at 20.6 metres AHD (as opposed to 20.4 metres AHD as determined by the Town), Mr Ken Adam, a consultant town planner who is their representative in the proceedings, withdrew that application at a directions hearing on 2 December 2005. The final hearing proceeded on the common ground between the parties that natural ground level was correctly determined by the Town at 20.4 metres AHD for the purposes of cl 5.1.1. Mr Andrew Jackson, a town planner and the Town's Manager Development Services, gave the following evidence in relation to the Town's determination on natural ground level:
"The centre of the site is located between the contours of AHD 20m and AHD 20.5m, representing a level of approximately AHD 20.34m. Also, there are several spot heights shown close to the centre of the site which range from AHD 20.24m to AHD 20.44m. The average of all these spot
(Page 5)
- heights close to the centre of the site is a level of AHD 20.32m. Council adopted a slightly higher centreofsite level than this average level [that is, 20.4 metres AHD] as there are several spot heights closest to the centre of the site which range from AHD 20.42m to AHD 20.44m."
10 A survey plan drawn by Brown McAllister on 29 October 2003 indicates that the site falls from its western side boundary to its eastern side boundary by approximately 0.9 metre to 1.15 metres from 20.74 metres AHD or 20.87 metres AHD to 19.73 metres AHD or 19.82 metres AHD in the central part of the site. The lowest part of the site, located along the centre of the eastern boundary, is adjacent to Ms Swale's house on the property to the east. The fall continues to the east beyond the site.
11 Ms Swale's property comprises a single storey dwelling house with floor level at 19.78 metres AHD. This level is 0.04 metre below to 0.05 metre above the lowest part of the site in the area which is immediately adjacent to Ms Swale's property. The floor level of Ms Swale's house is 0.95 metre below the finished floor level of the ground floor of the house as approved on the site and 1.12 metres below the now proposed finished floor level of the ground floor.
12 I undertook a view of the site and of Ms Swale's property accompanied by the representatives of the parties on the morning of the hearing.
Building height
13 The site is zoned "Residential" under TPS 2. Clause 5.1.1 of TPS 2 concerns building height and is divided into pars (a) "General Policy", (b) "Specific Policy" and (c) "Measurement of Building Height". The General Policy states, in part, as follows:
"Council's general policy for development within the district favours low rise development of no more than 2 storeys to maintain privacy, views and general amenity notwithstanding that Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme."
14 The Specific Policy for the Residential Zone includes the following:
(Page 6)
- "The maximum building height shall be two storeys except that Council may permit a third storey to be located within the roof space of a dwelling provided that the development complies with the maximum wall and roof height provisions stipulated at paragraph (c) of this clause and also provided that, in Council's opinion, the dwelling will retain the appearance of a two storey dwelling and will not adversely affect local amenity."
15 Paragraph (c) of cl 5.1.1 states, in part, as follows:
"For the purpose of measuring 'storey' and hence 'building height', Council shall generally follow the following formula, except in particular cases where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished.
The maximum building height shall be measured from the natural ground level at the centre of the site as determined by Council to the crown of the roof and shall be
Single Storey Roof Height: 6.0 metres
Two Storey Wall Height: 6.0 metres
Roof Height: 8.5 metres." (Emphasis added.)
16 The maximum wall height now proposed is 26.557 metres AHD which is 6.157 metres above the natural ground level at the centre of the site as determined by the Town. The proposed wall height, therefore, exceeds the maximum wall height of 6.0 metres prescribed by TPS 2 by 0.157 metre. The ridge height now proposed is 29.072 metres AHD, which is 8.672 metres above the natural ground level at the centre of the site as determined by the Town. It, therefore, exceeds the maximum roof height of 8.5 metres under TPS 2 by 0.172 metre.
17 The development application cannot, therefore, be approved unless the Tribunal determines that "natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished".
(Page 7)
The parties' evidence and submissions
18 Mr Adam noted that the average level of the four corners of the site is 20.9175 metres AHD. He considered that the 0.5175 metre difference between the Town's determination of natural ground level and the average of the four corners of the site can be explained by two factors. First, "by the difficulty in establishing the natural ground level at the centre when the natural levels have been disturbed in the past, when a house and garden areas have been constructed". Second, and principally, "by the fact that the natural contours are not regular but create a hollowing effect in the centre of the site". In this regard, the survey indicates that the central part of the site is generally 0.4 metre to 0.7 metre below the levels at the front and rear boundaries at each equivalent point between the western and eastern boundaries. Mr Adam considered that the hollowing at the centre "is precisely the kind of situation envisaged by the discretion given to the Council in [cl] 5.1.1(c) of TPS 2", because it "unnaturally depresses the natural ground level from which height is to be determined under the usual 'formula' referred to in cl 5.1.1(c)".
19 Mr Adam considered that the proposed increase in height would not have any adverse impact on Ms Swale's property in terms of overshadowing, overlooking or airflow. Indeed, it would have some benefit in reducing western sun on summer afternoons, while not diminishing solar access on winter afternoons. He considered the effect of additional bulk and scale as "marginal" or "negligible", because of the angle of view from Ms Swale's property.
20 In contrast, Mr Jackson considered that the proposed variation in height "is not inconsequential". He considered that "the higher level of the site in relation to the eastern neighbour [warrants] adherence to the height limits in order to minimise the impact on amenity". In particular, he considered that the height, bulk and scale as now proposed would unreasonably diminish the amenity of Ms Swale's property.
21 In her objection, Ms Swale considered that the increase in wall height would have "a significant impact" on her property. She stated as follows:
"It doesn't take much imagination to realise the huge impact this dwelling will have especially if one considers that the ground floor level is almost a metre higher than ours. Couple this with an additional floor level and the eastern wall of the proposed dwelling being between 1.2 and 1.5 metres from our boundary and I'm sure you can appreciate the overwhelming dominance
(Page 8)
- of this dwelling alongside our home. Not only will we have to look into the massive brick sidewall of the proposed dwelling from several of our living areas (1.2 metres from the boundary) but as previously mentioned will lose some natural light."
Do natural ground forms indicate that a variation is warranted?
22 The Tribunal does not consider that "natural ground forms indicate that a variation is warranted" for the purpose of measuring building height in the circumstances of this case. The selection of natural ground level by the Town at 20.4 metres AHD is slightly higher than the average of the spot levels shown on the survey adjacent to the western and eastern side boundaries in the central part of the site, namely 20.235 metres AHD to 20.345 metres AHD. The Tribunal considers that these spot levels are most significant in the circumstances of this case, because the proposed two storey building envelope would be located in this central part of the site and because the houses on the adjoining properties are also located in the corresponding, central parts of their properties.
23 Reliance on the spot levels at the corners of the site or their average would result in an excessively high building relative to natural ground levels in the central part of the site. In this regard, the average of the corner points nominated by Mr Adam, namely 20.9175 metres AHD, is 0.6175 metre to 0.6825 metre higher than the average of the spot levels adjacent to the eastern and western side boundaries in the central part of the site.
24 Contrary to Mr Adam's evidence and submission, use of the "formula" referred to in cl 5.1.1(c) of TPS 2 does not "unnaturally depre[ss] the natural ground level" for the purpose of determining building height. Rather, it sets a level which reflects natural ground levels within the footprint of the proposed two storey building form. The result would be different if a site contains a natural, central depression which contrasts with natural ground levels below the proposed building footprint generally and below the proposed external walls in particular. The "hollowing" in the central part of the site does not warrant a variation in this case.
Would amenity of the neighbouring property be unreasonably diminished?
25 The Tribunal considers that the variation proposed would unreasonably diminish the amenity of the property to the east. Ms Swale's objection is reasonable and wellfounded.
(Page 9)
26 The approved building will, in consequence of its siting, height, bulk and scale, have an adverse impact on the visual amenity of Ms Swale's property. There will be a direct view from two large west facing windows in the open plan kitchen/meals area and from the rear patio/garden of a two storey masonry section having a width of 7.7 metres at ground floor and 9.7 metres at first floor and set back in a constant plane only 1.62 metres from the boundary. Moreover, the approved finished floor level of the ground floor at 20.73 metres AHD is 0.91 metre to 1.0 metre above the natural ground level in that section of the site adjacent to Ms Swale's residence. The approved floor to ceiling height of the ground floor is 3.0 metres. The adverse visual impact of the siting, height, bulk and scale of the proposed building when viewed from the kitchen/meals area and patio/garden of the adjoining property will be exacerbated by the elevated floor level relative to natural ground level and the high floor to ceiling height of the ground floor.
27 The variation in height sought would exacerbate the adverse impacts of building height, bulk and scale on the eastern property and would, therefore, unreasonably diminish its amenity. The proposed eastern wall height would be 6.857 metres above the natural ground level in that part of the site whereas the controls and consequent amenity expectations contemplate a maximum of 6.0 metres. Moreover, the proposed eastern wall would present as a notably elevated two storey building whereas cl 5.1.1 of TPS 2 refers to "low rise development of no more than two storeys to maintain … general amenity … ".
Conclusion and orders
28 It follows that the development application for an increase in the building height of the approved house must be refused as it is contrary to the maximum wall and roof building heights prescribed by cl 5.1.1 of TPS 2.
29 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. Development approval for an increase in building height of a previously approved house at Lot 216 (No 6) Stanhope Street, Cottesloe is refused.
(Page 10)
- I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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