Alver & Anor and City of Subiaco
[2007] WASAT 280
•26 OCTOBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | ALVER & ANOR and CITY OF SUBIACO [2007] WASAT 280 |
| MEMBER | : | MR L GRAHAM (SENIOR SESSIONAL MEMBER) |
| HEARD | : | 17 SEPTEMBER 2007 |
| DELIVERED | : | 26 OCTOBER 2007 |
| FILE NO/S | : | DR 178 of 2007 |
| BETWEEN | : LEIGH ALVER |
MAREE ALVER
Applicants
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Application for development approval - Second storey addition - Orderly and proper planning - Preservation of the amenity of the locality - Undue adverse impact on adjoining residential sites - Input on the streetscape - Surrounding development - Consistent with the character and scale of existing development - Precedent - Procedural fairness
Legislation:
City of Subiaco Town Planning Scheme No 4 , cl 7, cl 26, cl 27, cl 28, cl 37(2), cl 38, cl 41, cl 42
[2007] WASAT 280
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
| Applicants | : | Self-represented |
| Respondent | : | Mr J Algeri (Acting as Agent) |
Solicitors:
| Applicants | : | Self-represented |
| Respondent | : | City of Subiaco |
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, Town Planning and
Appeal Tribunal, WA; Appeal No 13 of 1988, 21 October 1988)
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
Rajneesh Foundation v Shire of Manjimup (No 2) (1985) 3 SR (WA) 65
[2007] WASAT 280
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the City
of Subiaco to refuse the construction of a second storey addition to the
front of the existing home at 9 Waylen Road, Shenton Park.2 The Tribunal examined the respective arguments of the parties, the
background to the proposal, the proposed development itself, the legislative and policy provisions and matters concerning orderly and proper planning, amenity, public consultation, precedent and procedural fairness.
It was determined that in the particular circumstances of this case that the proposed second storey addition should be approved.
The application for review was upheld.
Introduction
5 The application for review, dated 10 May 2007, was lodged with the
Tribunal by Leigh and Maree Alver (applicants) against a decision by the City of Subiaco (respondent) on 13 April 2007 to refuse an application for development approval of a second storey addition to the front of the existing house at 9 Waylen Road, Shenton Park. The decision was made by an officer under delegated authority from Council.
The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act).
The reasons for refusal were:
"a) A prominent two storey façade is proposed in an area where the surrounding development is predominantly single storey, resulting in an undesired streetscape and excessive bulk and scale as viewed from Waylen Road, Shenton Park and non compliance with the standards of the City's Streetscape and Building Height Standards Policy. b) The proposal does not meet the requirements of Clause 28(3) of the City's Town Planning Scheme as the proposed development is not consistent with the orderly [2007] WASAT 280
and proper planning of the locality, or preservation of the
amenity of the locality.
c) The proposal does not meet the requirements of Clause 42A(1)(a)(i) of the City of Subiaco Town Planning Scheme No 4 as the proposal would have undue adverse impacts on adjoining residential sites and the general amenity of the locality. d) The proposal does not meet the requirements of Clause 42A(1)(a)(ii) of the City of Subiaco Town Planning Scheme No 4 as the proposed wall heights are incompatible with the surrounding development. e) The proposal does not meet the requirements of Clause 41(2)(c), (f) and (g) of the City of Subiaco Town Planning Scheme No 4 as the proposal is considered to be disproportionate and excessive in terms of bulk and scale compared to the height of the surrounding development."
8 At the directions hearing on 18 July 2007 it was ordered that
amended plans be prepared reflecting the existing approved ground level and these were lodged by the applicants with the Tribunal the following day. The plans showed the original natural ground level prior to the construction of the current dwelling.
9 As a result of the lodging of the amended plans the respondent
advised in its Statement of Issues, Facts and Contentions dated
2 August 2007 that:
"9. The amended plans have modified ground level such that
reasons for refusal c) and d) are [no] longer relevant."
Subject land
10 The subject land can be described as Lot 8 on Certificate of Title
Volume 716, Folio 74 on Diagram/Plan 291. It has a lot area of 458 square metres with a frontage of 13.72 metres and a depth of 33.54 metres.
11 There is an existing single storey brick and tile residence which was
built in 1998/99 and it is located on the south side of Waylen Road. The land slopes downwards from the front to the rear south-east corner with a fall of approximately 1 metre. There is no right of way at the rear.
[2007] WASAT 280
12 The subject land is located between King Street to the west and
Herbert Street to the east and Waylen Road is dominated by single storey housing. There is a large single tree within the street verge at the front of the property which tends to obscure the roof of the dwelling when viewed from 8 Waylen Road, directly opposite.
Legislative framework
13 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" in the City of Subiaco Town Planning Scheme No 4 (TPS 4). It has a coding of R20.
14 Of relevance are the "Shenton Park Precinct Planning Policy (Shenton Park Policy) and the Streetscape and Building Height Standards for R15 and R20 Zones Policy 2006 (Streetscape Policy).
Respondent's position
The respondent's position is outlined in its "Statement of Issues, Facts and Contentions" dated 2 August 2007. It argues:
(a)
Only 3 out of 18 (16.6%) of the surrounding houses have strong two-storey façades in lieu of the 50% minimum required. Therefore, as the standards contained within part 6 of the Streetscape Policy have not been met the requirements of cl 42(1)(b) of TPS 4 are also not met as the development would have an adverse impact on adjoining residential sites and the general amenity of the locality.
(b)
The proposed second storey addition does not meet cl 6.1 of the Streetscape Policy as the proposed second storey addition does not have a comparable scale and proportion to the surrounding development or the adjoining two houses.
(c)
The proposal does not meet cl 28(3)(a)(i), cl 28(3)(a)(ii) and cl 28(3)(a)(iii) of TPS 4 as the second storey addition is not consistent with the orderly and proper planning of the locality, the preservation of the amenity in the locality or the established streetscape.
(d)
The proposal does not meet cl 28(b)(iii) of TPS 4 as the prominent two-storey façade would create a highly undesirable precedent for similar two-storey
[2007] WASAT 280
developments along Waylen Road. This would have an adverse effect on the likely future development of the locality.
(e)
The proposal would not meet cl 41(2)(c), cl 41(2)(f) and cl 41(2)(g) of TPS 4 because the two-storey development:
(i)
Would have a disproportionate height as viewed from the primary street.
(ii)
Would not enhance the amenity of the residential neighbourhood as the preservation of the existing housing stock would not be maintained.
(iii)
Would have an upper floor setback incompatible with the established streetscape.
Applicants' position
16 The applicants' position is outlined in its reply of 16 August 2007 to
the respondent's Statement of Issues, Facts and Contentions. The
applicants argue:
(a)
Council's assessment process is flawed and does not give a fair and unbiased judgment of the surrounding area. Also, it attempts to preserve outdated styles of housing that no longer serve modern living standards even though there are no heritage homes that may require special consideration.
(b)
The assessment process leads to planning officers making personal judgments as to what is acceptable or desired development. These subjective assessments will vary from officer to officer over time.
(c)
The proposal will not exceed the existing scale or proportion of existing development.
(d)
Council's requirement to push all second storey development to the back of the block invades the privacy of neighbours.
(e)
There will be no impact on streetscape from the development as there is no single defined character for Waylen Road.
[2007] WASAT 280
(f) The existing two-storey houses opposite (two homes) and west (two homes) of the subject land have not been given consideration in terms of their bulk and size. (g) Other nearby two-storey developments have already created a precedent. If there is a further need for this type of development then Council should be prepared to respond. (h) The proposal is based on a number of socially desirable objectives to house a 90-year-old parent. Also, the small block is efficient from a water and energy saving objective. (i) The proposal ensures the privacy of neighbours and, as a modern residence, cannot preserve the character of existing housing stock of World War I or II or prior. It is beyond expectation that this housing stock will continue to be a desirable feature.
(j)
There are no design elements which conflict with the current established streetscape. The setbacks, roof pitches, materials, design and landscaping are compatible within the street and wider neighbourhood.
Planning issues
The principal planning issues are:
(a)
Is the proposal in accord with relevant statutory and policy provisions?
(b)
Would the proposal be consistent with orderly and proper planning of the locality and the preservation of the amenity of the locality?
(c)
Would the proposal, if approved, create an undesirable precedent?
Assessment of proposal
Background
The background to this matter includes the following:
[2007] WASAT 280
(a) On 15 January 2007 the respondent received an application for the construction of a second storey addition to the front of the existing house. (b) In a letter, dated 15 February 2007, the respondent advised Unihomes (acting on behalf of the applicants) that from a preliminary assessment the proposal, with its strong two-storey facade as viewed from the street, was contrary to the Streetscape Policy. It advised Unihomes to amend the proposal or provide written justification addressing TPS 4 and the relevant performance criteria of the Residential Design Codes and/or the City's policies. (c) A detailed justification responding to (b) was received by the City on 29 March 2007. (d) The proposal was refused under delegated authority on 13 April 2007. (e) The application for review was lodged with the Tribunal on 10 May 2007.
19 In the view of the Tribunal the options offered to the applicants in
[18(b)] above did open up the opportunity for them to justify their proposals contrary to the Streetscape Policy. In other words, subject to this being done to the satisfaction of the respondent, the proposed development could have been approved under the discretionary provisions of TPS 4.
The existing and proposed development
20 The existing residence is a single storey brick and tile home built in
1998/99. It consists of a kitchen/living/dining area, three bedrooms, one
bathroom and a study.21 The proposed development is to accommodate an aged relative
downstairs in a main bedroom, bathroom and small sitting room. The upstairs extension would comprise a bedroom, ensuite bathroom/toilet and study. The existing lounge/dining area and kitchen would be common space.
The existing downstairs study is to be converted into a stairway to the second storey.
[2007] WASAT 280
Legislative and policy provisions
Town Planning Scheme No 4
The objectives and intentions of TPS 4 are covered by cl 7. They
include:
" …
(b) to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing … …
(e) to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of their locality; …
(g) to promote and safeguard the special character and cultural heritage of the City by:
(i) identifying, conserving and enhancing those places which are of significance to the City's cultural heritage. (ii) encouraging development that is in harmony with the cultural heritage value of an area."
Under cl 27 (Determination of Application: General Provisions) the Scheme advises:
"(4) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard do:
(a) The provisions of this Scheme … … (f) the orderly and proper planning of the locality; (g) the conservation of the amenity of the locality; and [2007] WASAT 280
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Under cl 28 (Determination of non-complying applications for development approval):
" …
(3) The Council cannot grant development approval for a non-complying application unless, if so required by the Council under clause 26, the application has been advertised and the Council is satisfied that:
(a) if approval were to be granted, the development would be consistent with: (i) the orderly and proper planning of the locality;
(ii) the preservation of the amenity of the locality; and
(iii) the planning objectives of the particular zone and relevant precinct planning policies; and
(b) non-compliance would not have any undue adverse effect on:
(i) the occupiers or users of the development; (ii) the property in, or the inhabitants of, the locality; or (iii) the likely future development of the locality."
26 The matter of "planning precincts" is addressed in cl 37(2) where for
each precinct there is a precinct planning policy. The Shenton Park Policy
is applicable in this case.
The matter of "Compliance with Development Standards and Requirements" is addressed in cl 38:
[2007] WASAT 280
"Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Residential Planning Codes."
Clause 41 (Aims and Objectives) explains:
"(2) In considering an application for development approval in the zones to which this division applies the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives: …
(c) the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings; … (f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock; (g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping."
29 In the view of the Tribunal although the respondent recognises the
need for diversity in the overall housing stock, it does so within the context of safeguarding the special character or heritage value of an area. This is enunciated by way of policy which presumably is evolved through community participation.
30 There is a strong emphasis on orderly and proper planning and the
preservation of the amenity of the locality by ensuring compatibility of new development to the established streetscape and the protection of the privacy of other residences.
[2007] WASAT 280
The respondent has discretionary powers built into the approval process as outlined in such clauses as cl 27(4) and cl 38.
Shenton Park Precinct Planning Policy
The precinct planning objectives are:
"1. to encourage consolidation of the existing pattern, character and mix of residential development … …
2.
to encourage retention of the heritage areas identified within the Precinct:
…
c) World War II Workers Homes Estate between Nicholson and Waylen Roads. 3. to encourage a more diversified range of housing types within the area."
Under the "Existing Character" the policy explains that the western end of the Precinct is notable for three Estates including:
"• The WWI workers housing estate bounded by Nicholson, Herbert and Waylen Roads and Grey Street; … "
Under the "Desired Future Character" the policy explains:
"2. The Gold Boom and Interwar period building stock should be retained with the three identified Estates being deemed as Conservation Areas."
35 It would appear to the Tribunal that although the Policy aims to
encourage a more diversified range of housing types within the overall Precinct, it also seeks to retain the interwar building stock within the three specified Estates. Just how this is intended to be achieved is not clarified by the Policy.
36 Based on photographic evidence before the Tribunal of existing
residences within Waylen Road, the dominant housing type is single
[2007] WASAT 280
storey development which appears to have been built between World War I and II and shortly thereafter. However, there is relatively new development on the subject land (1998/99) and what appears to be new development at No 8 and No 10 Waylen Road.
Streetscape and Building Heights Standards for R15 and R20 Zones
The objectives of the policy are outlined in cl 4. They include:
"1) To ensure that new development is consistent with the character and in particular the scale of existing residential development; …
3) To encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas; and
4) To prevent loss of amenity for adjacent properties."
The definition of "character" in the policy is:
"Means the qualitative interplay of built form, vegetation and topographic characteristics in both the private and public domains that make one place different from another. Character is generally limited to height, front setbacks, side setbacks and bulk and does not relate to colours and finishes."
The "streetscape standards" are explained in cl 5.0:
"A core principle of this policy is that development is to be consistent with the streetscape and neighbourhood character of its locality (i.e, height, front setbacks, side setbacks and bulk). For the purposes of this policy streetscape and neighbourhood character is determined with reference to “surrounding development …"
The definition of "surrounding development" is:
"Means the five properties on either side of the proposed development on both sides of the street (excluding laneways/right of ways) that the dwelling is orientated towards. More significance will be given to surrounding development
[2007] WASAT 280
that is closer to the proposed development, particularly in the
case of corner lots."Under cl 5.1 (Building Form and Orientation) the policy explains:
"The form of new development is to meet the following
requirements:
1) Any new house or alterations/extensions to the front façade of an existing house are to be designed so as to be orientated towards the street. 2) The front façade of the house (and secondary street façade in the case of corner lots) is to allow for surveillance of the street. Note: Casual surveillance of the street and the ability to see visitors from inside the dwelling without opening the door is a desirable aspect of design as it contributes positively to reducing incidents of crime.
… "
| 42 | The matter of "Building Height" is explained in cl 6.0 of the policy: "6.1 Scale and Proportion | |||||
|
Under cl 6.3 (Houses of Increased Height: Streetscape Standards):
[2007] WASAT 280
"In order to fulfil the requirements of this policy the City will require a building of increased height to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%). To ensure compatibility with the streetscape, sections of buildings of increased height should be setback from the street façade … "
In the Notes attached to cl 6.3 it advises:
" …
3. Where a second storey or building of increased height is desired the City generally encourages the storey to be wholly or partly incorporated into the roof space in the form of a loft."
45 From an examination of the policy it is clear that its primary intent is
to ensure that new development is consistent with the character and scale of the existing development and that the amenity of adjacent properties is not diminished.
46 Where the character and scale of the existing development is
essentially single storey, the design solution for a second storey addition is to push the extension as far back from the front setback as is necessary so that the overall development appears as predominantly single storey when viewed from the street. Such a solution would be difficult to achieve in all instances.
47 A further difficulty with such a design solution is that it places in
jeopardy another prime objective of the policy; namely to prevent a loss of amenity for adjacent properties. This is particularly so when backyard private open space is overlooked.
The matter of orderly and proper planning
48 This matter was addressed at the hearing in an exchange between
Mr Joe Algeri (agent for the respondent) and Mr Tim Clairfayt, a qualified town planner and senior planning officer at the City:
"Mr Algeri:
… for the benefit of both the applicants and the Tribunal,
what do you define as "proper and orderly planning"?[2007] WASAT 280
Mr Clairfayt:
I would probably break it into two. Obviously the "proper" I would refer to more enforcing the guidelines that are set forth, those statutory guidelines. The requirements of the scheme and the policies. And then "orderly" is the implementation of those. That was my understanding.
Mr Algeri:
How do you mean by "implementation"?
Mr Clairfayt:
Well, going through the right protocols, whether it's advertising to adjoining landowners or going through the specific requirements set out by the scheme."
49 The Tribunal has no great difficulty with the reasoning behind this
exchange and for the purposes of this review the proposed development will be assessed against the relevant provisions of TPS 4 and the applicable policies.
The matter of amenity and public consultation
Under TPS 4 "amenity" is defined as:
"Amenity: means all those factors, which combine to form the character of an area and include the present and likely future amenity."
However, in Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) "amenity" is defined at page 5:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
This definition is, to a large extent, subjective and relies on the personal views of residents.
52 In Rajneesh Foundation v Shire of Manjimup (No 2) (1985) 3 SR (WA) 65, Mr Malcolm QC (as he was then) expanded on the definition of amenity:
[2007] WASAT 280
"In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality …"
This latter view of "amenity" is a somewhat more objective assessment than in Cipriano v City of Perth.
54 The matter of "amenity" was addressed briefly by Mr Algeri in his
closing address in the context of community input into the planning
documents which deal with streetscape character:"As a final point, the City's scheme and this policy is quite recent with respect to similar schemes and policies of other municipalities. We're talking about instruments that were given effect and adopted in early 2001. The provisions of the scheme and this policy, one would assume, has been through a due process where they reflect the wishes of the community ratepayers and indeed the elected representatives of the respondent. It's not a policy that's appeared out of thin air.
Accordingly, the respondent is of the view that those planning instruments should prevail and this application should be refused."
55 The timing of the planning documents (TPS 4 and the
Streetscape Policy) was also addressed by Mr Clairfayt in his evidence at the Tribunal:
"The policy was adopted when the scheme was gazetted in 2001, and has subsequently undergone changes I think in 2004 and 2006, and presently we're undergoing an additional review. So since 2001 that policy has been ongoing."
56 Although the public consultation process in finalising a Scheme is
well understood, the process in finalising the various versions of the Streetscape Policy by way of public consultation are not known to the Tribunal.
57 If a full public consultation process did occur in formulating the
Streetscape Policy, then it could reasonably be argued by the respondent that the Cipriano v City of Perth definition of amenity has been fulfilled, and that the expectation of the residents sought on the quality of their residential environment was incorporated into the policy.
[2007] WASAT 280
58 Alternatively, the applicants could equally argue that the proposal
accords with an important objective of the Streetscape Policy in that by
having the second storey forward that it prevents a:"… loss of amenity for adjacent properties."
59 In that sense, the applicants could legitimately claim that their
proposal accords with the Rajneesh v Shire of Manjimup definition of
amenity.
The matter of precedent
The respondent argues in [15(d)] that:
"… the prominent two-storey façade could cause a highly undesirable precedent for similar two-storey development along Waylen Road."
61 As explained in Aspen Pty Ltd v State Planning Commission (Unreported, Town Planning and Appeal Tribunal, WA; Appeal No 13 of 1988, 21 October 1988), precedent is not to be treated as a "stand-alone" argument and is but one factor to be taken into account when assessing a planning proposal.
That same approach is adopted by the Tribunal in this matter.
The matter of procedural fairness
63 An important argument of the applicants was that by having their
proposals dealt with under delegated authority that they were denied
procedural fairness.64 From the evidence of Mr Clairfayt it appears that recommendations
on specific planning proposals are forwarded from the planning staff to Councillors by email and they can either agree with the recommendations or request that the matter(s) be referred to the Planning Committee for decision. No such action was taken by Councillors in this instance.
65 From the perspective of the Tribunal it is open to an applicant to
make themselves aware of the delegation process and, if that is considered unfair, to approach the Council or Councillors direct to explain the circumstances of their case.
The Tribunal finds no merit in the applicant's argument on this
matter.
[2007] WASAT 280
Conclusions
67 The application for review was lodged against a decision of the City
of Subiaco to refuse the construction of a second story addition to the
front of the existing home at 9 Waylen Road, Shenton Park.68 The Tribunal examined the respective arguments of the parties, the
background to the proposal, the proposed development itself, the legislative and policy provisions and matters concerning orderly and proper planning, amenity, public consultation, precedent and procedural fairness.
69 An important input into this review is that on 15 February 2007 the
respondent, after a preliminary assessment of the application, gave the applicants the opportunity to justify their proposal. In other words, subject to this being done to the satisfaction of the respondent, the proposed development could have been approved under the discretionary provisions of TPS 4. The respondent chose not to do so.
70 In examining this matter the position taken by the respondent is that
the proposed development, if approved, will have an adverse impact on adjoining residential sites and the general amenity of the locality. Also, that it would not have comparable scale and proportion to the surrounding development, or the adjoining two homes, and would not be consistent with the orderly and proper planning of the locality, the preservation of the amenity of the locality or the established streetscape. There is also the view that the proposed development would set a highly undesirable precedent.
71 The position taken by the applicants is that the proposed
development would not exceed the scale or proportion of existing developments nearby and that by locating the proposed second storey towards the rear of the building, as advocated by the respondent, that it would invade the privacy of the backyard private open space of adjoining residents.
72 It was also the view of the applicants that nearby two-storey
developments in Waylen Road have already been built to create a precedent, and that it was unrealistic to try and preserve the character of housing built between World War I and II or prior.
73 The applicants argue that their application, determined under
delegated authority by a planning officer, had not been treated with procedural fairness but the Tribunal finds no merit in that argument. It is
[2007] WASAT 280
up to an applicant to understand the procedures of a Council prior to initiating a development application and, if possible, to have the matter determined by the Council's Planning Committee.
74 In undertaking this review, it is clear to the Tribunal that although
TPS 4 recognises the need for diversity in the overall housing stock within the City, it does so within the context of safeguarding the special character or heritage values of specific areas. This is enunciated by way of policy.
75 Again, in TPS 4, there is a strong emphasis on orderly and proper
planning and the preservation of the amenity of the locality by ensuring compatibility of new development to the established streetscape and the protection of the privacy of other residences.
76 An examination of the Shenton Park Policy, which incorporates the
subject land, shows that it supports the intent of TPS 4 by wanting to encourage a more diverse range of housing within the context of retaining certain heritage or conservation areas. The housing in Waylen Road falls into one of three identified Estates or Conservation Areas.
77 From photographic evidence available to the Tribunal of the existing
housing in Waylen Road within a so-called "surrounding development" area, it is clear that the dominant housing type is single storey (over 80%); the majority of which appear to have been built between the two World Wars. However, there is also new development on the subject land and what appears as new development at No 8 and No 10 Waylen Road.
It is also understood that new two-storey developments are, or soon will be, constructed at No 6 and No 6A Waylen Road.
In answer to a question from Mr Algeri on the relatively new developments in Waylen Road, Mr Clairfayt responded:
"From the research that I was – that I had undertaken, none of the developments within the surrounding development were approved since the gazettal of the scheme in 2001. So since 2001 we've consistently – or the City – from my understanding is that we upheld the standards of the scheme and the policies that are related to that."
80 Just how the proposed developments at No 6 and No 6A
Waylen Road accord with Mr Clairfayt's statement are not immediately clear to the Tribunal.
[2007] WASAT 280
81 From an examination of the Streetscape Policy which specifically
relates to areas zoned R15 and R20, it is clear that its primary intent is to ensure that new development is consistent with the character and scale of the existing development and that the amenity of adjacent properties is not diminished in the process.
82 Where the character and scale of the existing development is
essentially single storey, the design solution advocated by the Streetscape Policy for a second storey is to incorporate a loft or push the addition to the existing structure as far back from the front setback as is necessary so that the overall development appears as predominantly single storey when viewed from the street. Such design outcomes are difficult to achieve in all instances.
83 It is also the case that such design solutions place in jeopardy another
prime objective of the policy; namely, to prevent a loss of amenity for adjacent properties. This is particularly so where backyard private open space is overlooked.
84 When the so-called "surrounding development" is examined it is
clear that the greater number of homes are single storey and are the original housing stock. Where renovations have taken place they appear to have improved the appearance of the property without change to the integrity of the original design.
85 Even where two-storey development has been approved and built it
appears to harmonise with, and is therefore compatible with, the existing
streetscape.86 The only modern brick and tile residence in the "surrounding
development" area is that on the subject land, and although it is an attractive dwelling in its own right, it is completely incompatible with the existing streetscape. The respondent has, in effect, approved a dwelling; albeit before the Streetscape Policy, that is out of harmony with the existing streetscape but is now part of it.
87 It is also the case that the subject land, which is only 13.72 metres
wide, is on the lower side of the street and that the proposed development at some 11 metres wide would be partially obscured by the existing large tree located in front within the road reserve.
88 The Tribunal certainly cannot agree with the respondent that the
proposed second storey, with no windows on the west side or the east side
[2007] WASAT 280
(apart from a small above eye-level window on the east side) would have
an adverse impact on the amenity of the adjoining residential sites.89 What could have an effect on the adjoining residences is if the
proposed development was pushed towards the rear of the existing structure where their backyard private open space would be overlooked from a window facing south in bedroom 3.
90 On balance, although the Tribunal acknowledges the reasoning
behind the Streetscape Policy from a planning perspective, it believes that the proposed second storey addition should be approved. It does not believe, within the context of the discretionary provisions of TPS 4, that this proposal would be contrary to orderly and proper planning in the circumstances of this case.
91 However, it should be noted that if the original home had been
designed in a style harmonious with the predominant streetscape character, the Tribunal may well have determined otherwise. This decision should therefore not be interpreted as a precedent for other second storey development proposals in Waylen Road.
92 The application for review is upheld in accordance with the draft
conditions and advice notes forwarded to the Tribunal on 3 September 2007, and accepted by the applicants in their letter to the Tribunal of 18 September 2007.
| Orders |
For the foregoing reasons, the orders of the Tribunal are:
1. The application for review is upheld.
2. The decision under review is set aside.
[2007] WASAT 280
I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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