Amana Living Incorporated and City Of Stirling
[2012] WASAT 19
•15 DECEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AMANA LIVING INCORPORATED and CITY OF STIRLING [2012] WASAT 19
MEMBER: MS R MOORE (MEMBER)
HEARD: 1 DECEMBER 2011
14 DECEMBER 2011
15 DECEMBER 2011
DELIVERED : 15 DECEMBER 2011
FILE NO/S: DR 108 of 2011
BETWEEN: AMANA LIVING INCORPORATED
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development Detailed Area Plan Private Institutions Zone Condition requiring specific finished floor levels Whether proposal is proper response to topography of site Effect of changes in finished floor levels on access, security, sunlight and streetscape Private Institutions Design Guidelines
Legislation:
City of Stirling Local Planning Scheme No 3, cl 4.2.10
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Condition of approval varied
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen
Respondent: Mr A Roberts
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment [1981] AC 578
SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal by the City of Stirling to grant approval to a Detailed Area Plan for No 11 (Lot 500) Freedman Road, Menora. The City was invited to reconsider its decision and, in doing so, approved a modified Detailed Area Plan with conditions.
The matter proceeded to a final hearing with one element of Condition 2 imposed by the City of Stirling in dispute. That element related to the requirement for a proposed Building C to have a finished floor level of 28.0 metres Australian Height Datum (AHD) in lieu of a finished floor level of 29.2 metres AHD as proposed by the applicant.
In undertaking this review the Tribunal examined a number of issues in dispute, including whether the applicant's proposed Building C was a proper response to the topography of the site, whether it presented appropriately to Freedman Road and in its relationship to an adjacent site to the north. Also, the Tribunal considered the effects of a finished floor level of 28.0 metres AHD on the two level apartment section of Building C in regard to matters of access, security, sunlight and streetscape issues, and whether internal changes to the building to respond to the topography of the site and to the Freedman Road streetscape would be appropriate.
The Tribunal also considered the application of the City of Stirling's Private Institutions Design Guidelines and the socalled Newbury test as raised by the applicant's counsel in submissions.
The Tribunal concluded that the requirement for Building C to have a finished floor level of 28.0 metres AHD in lieu of the proposed finished floor level of 29.2 metres AHD was not necessary and that the approval should be varied to read 'Building C 29.2 m AHD'.
The application for review was allowed and the decision of the respondent varied by deleting the words 'Building C 28.0 m AHD' and inserting the words 'Building C 29.2 m AHD'.
The Tribunal gave an oral decision following the hearing. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Introduction
These proceedings involve an application brought by Amana Living Incorporated (applicant or Amana Living) under s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Stirling (respondent or City) to refuse approval of a Detailed Area Plan for No 11 (Lot 500) Freedman Road, Menora (subject site). The matter was referred to mediation and, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent reconsidered its decision and approved a modified Detailed Area Plan for the subject site with conditions.
The matter proceeded to a final hearing with one condition in dispute, and that condition has been referred to by all the parties as Condition 2. It lists the finished floor level of various buildings of the modified Detailed Area Plan. The applicant objects to the requirement for Building C to have a finished floor level of 28.0 metres Australian Height Datum (AHD) in lieu of the proposed finished floor level of 29.2 metres AHD.
Mr Paul McQueen, the applicant's representative, made the submission that Condition 2 is inappropriate by reference to the Newbury test because the development does not give rise to the need for the condition and because it is unreasonable. It was Mr McQueen's position that the condition should be deleted or modified to read 'Building C, 29.2 metres AHD'.
The position of Mr Andrew Roberts, representing the respondent, was that the Tribunal could amend the condition in other ways and it was not just a choice between two figures. It was his view that, having regard to the issues which relate to the finished floor level of Building C, the Tribunal could find that the City's condition was appropriate, or that some other condition was appropriate in the circumstances.
Mr McQueen referred the Tribunal to SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138 and argued that the proposal before the Tribunal should be approved on its merits, notwithstanding that it may be architecturally possible to give effect to the respondent's requirements for a finished floor level of 28.0 metres AHD.
With regard to the issues that arise in the determination of this matter, Mr Roberts usefully distilled the issues arising from the witness statements as follows:
1)Two urban design/streetscape issues which included:
a)whether the proposal is a proper response to the topography of the site taking into account the sharp decrease in natural ground level of the site running from east to west; and
b)how Building C presents to Freedman Road.
2)The second issue concerned the relationship of Building C to the adjacent site to the north.
3)The third issue dealt with the two level apartment section of Building C which is marked in pink on the plan and included:
a)the access from the courtyards to Freedman Road;
b)security implications;
c)streetscape issues particular to this (pink) section of Building C; and
d)the impact on direct sunlight into the courtyards.
4)The fourth issue concerned the impact of the finished floor level on residents' access to Building C from within the site as well as access for the general public from outside the site.
5)Fifth, whether a finished floor level of 28.0 metres AHD necessitates internal level changes within Building C, and the impact of these internal level changes.
6)Finally, the application of the City's Private Institutions Design Guidelines (Design Guidelines) to developments of this nature.
Relating back to the matter at hand, Mr McQueen was in agreement with these issues which were used as a guide for the expert witnesses' conferral. The Tribunal had the benefit of evidence from five expert witnesses two architects and three planners as well as a view of the site during the hearing.
Mr Aaron Broadhurst, a planner, and Mr David Jenkins, an architect, both appeared on behalf of the respondent. Mr Benjamin Doyle, a planner, and Mr Ronnie Jee, an architect, both appeared on behalf of the applicant. Mr George Hadjigabriel, a planner, appeared by means of a summons to witness.
Assessment of issues in dispute
Is the proposal a proper response to the topography of the site and does Building C present appropriately to Freedman Road?
The experts addressed the two issues of the proposal's response to topography and streetscape as overlapping issues in their evidence. In reality the issues of urban design and streetscape incorporate many of the other five issues identified by Mr Roberts in [13] above.
Having read the witness statements and heard the oral evidence presented during the hearing the Tribunal is of the opinion that the proposal is a proper response to the topography of the subject site and that Building C presents to Freedman Road in an appropriate manner.
Condition 2, the subject of this review, requires the finished floor level of Building C to be at 28.0 metres AHD and not at 29.2 metres AHD, as proposed by the applicant.
In terms of the streetscape presentation of Building C, Mr Broadhurst argued that while having an entry that is accessible and visible from the street is important and that entries lower than the level of the street can be problematic, particularly for single-storey houses, this does not prevail over the idea that designs should be site responsive.
It was Mr Broadhurst's view that this proposal should respond more than it does to the topography of the site in order to meet the City's Design Guidelines and to avoid large retaining walls.
He expressed three possible options for the configuration of Building C:
•for a better streetscape presentation, have a finished floor level of 29.2 metres AHD;
•for a better topographical response to the site, have a finished floor level at 28.0 metres AHD, which he considered a compromise position for the respondent as it did not strictly relate to the natural ground level of the site; or
•address both the streetscape and the topography of the site and set the purple area, which is the four level section of Building C, lower than the pink and blue areas, which are both two storey.
Mr Jenkins expressed the opinion that, given the potential for up to 260 people living on the subject site, Building C, which contains the community facilities, should not be located on the highest point of the site as this poses accessibility issues for the majority of the users of Building C.
Mr Hadjigabriel was of the opinion that the pink and blue areas of Building C should be at 29.2 metres AHD so as to be slightly lower than street level which gives a better streetscape outcome. It was his preference that the purple section be split so as to follow the contours of the site, but given the applicant's concern regarding functionality of the building and its consideration of the site as a whole, he was of the view that keeping the building at one level was appropriate. He said that the applicant has not maximised the development potential of the site in other areas which are more sensitive from an amenity perspective; in particular, those parts of the site adjacent to single residential zoned land.
Mr Jee, the architect of the proposal, explained that the brief for the project was to design a modern retirement facility which was contemporary and generous in regards to open space and the provision of recreation and health facilities. He had intentionally located Building C, which houses the community services, on this corner of the site so that it was visible and accessible from Freedman Road, and would function, as he described it, as a community hub, drawing from the general public as well as the residents of the site. Mr Jee was against the idea of splitting the levels of the different sections of Building C as he believed that it is not desirable for a facility such as this to have internal ramps. He was satisfied that access for residents could be dealt with easily by gentle ramps throughout the grounds and access to the community facilities via a lift and a lobby at the basement level of Building C. He found this option preferable to a long ramp, perhaps 25 metres in length, for access from Freedman Road to a building set at 28.0 metres AHD.
Mr Doyle was of the opinion that if Building C had a finished floor level of 28.0 metres AHD, the bulk of the two storey building could be read from Freedman Road, but in terms of streetscape, the entry would still appear to be set well below ground level and would appear to be in a hole.
The Tribunal agrees with Mr Hadjigabriel and Mr Doyle and is satisfied that the proposal is an appropriate response to the topography of the site, particularly when considered against the objectives in cl 4.2.10 of the City of Stirling Local Planning Scheme No 3 (LPS 3) 'Private Institutions Zone' which are:
a)To provide for a range of privately owned community facilities, and uses that are incidental and ancillary to the provision of such facilities, which are compatible with surrounding development.
b)To ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area.
In this case, the location of Building C at the northeastern corner of the site encourages the community use of the facilities (health, recreation, etc) which are to be provided for the residents, as they are visible and located adjacent to other sites with similar Private Institutions zoning.
Other buildings located in more sensitive areas of the site, for example, adjacent to residential zoned areas to the west and southwest of the site, have been designed to be significantly lower in height.
The combination of these factors lead the Tribunal to the view that a finished floor level of 29.2 metres AHD for Building C is an appropriate response to the topography of the whole site and provides a good streetscape outcome for Building C and Freedman Road.
What is the relationship of Building C to the adjacent site to the north?
Building C is set back between 16 and 17 metres from the northern boundary. The land to the north is currently zoned Private Institutions and in the area adjacent to Building C there is currently a carpark, driveway, bin storage and three single level residential units. The natural ground level appears (from the site visit) to have been altered so that the courtyards to these units sit approximately 1.7 metres above natural ground level at the boundary.
Mr Jee gave evidence that with a finished floor level of 29.2 metres AHD for Building C there would be a maximum 3 metre level difference between the subject site and the adjoining property to the north. He said that this was to be dealt with by a stepped retaining wall planted with vegetation.
Mr Jenkins agreed that providing vegetation at ground level would screen the recreation area from adjoining properties. It was agreed by the expert witnesses that potential privacy and overlooking issues from the balconies could be dealt with by design measures.
The Tribunal is of the opinion that the impact of Building C having a finished floor level of 29.2 metres AHD instead of 28.0 metres AHD will be minimal on the adjacent site to the north, particularly given its Private Institutions zoning. It should also be noted that there are no overshadowing issues as the subject site is located to the south.
What are the effects of a finished floor level of 28.0 metres AHD on the two level apartment section of Building C (designated pink on the Detailed Area Plan) in regards to:
• access from the courtyards to Freedman Road;
• security implications;
• streetscape issues particular to this section of Building C; and
• impact of levels on direct sunlight into the courtyards?
The expert witnesses discussed the effect of a finished floor level of 28.0 metres AHD on the two level apartment section of Building C and agreed that, in order to maintain direct physical access from the courtyards to Freedman Road, longer ramps and/or more steps would be required. Mr Jenkins agreed that it would not be feasible to provide ramping in each courtyard but was of the opinion that the residents would still have access through the main part of Building C to Freedman Road.
Mr Hadjigabriel was of the opinion that while access was not essential it was desirable and would provide for good community interaction and passive surveillance opportunities.
Mr Doyle expressed the view that mobility issues should be considered in a spectrum. This view was also expressed by Ms Jill Hanna, General Manager, Strategy and Corporate Support at Amana Living. Her evidence was that changes in mobility could include eyesight problems and emotional barriers, not just physical barriers.
The Tribunal finds that lowering the finished floor level to 28.0 metres AHD would have a detrimental effect on the apartments located in the pink section of Building C as the courtyards would be significantly lower than Freedman Road. This will have implications primarily on the direct physical access to Freedman Road from the courtyards which will require longer ramps and/or more steps and which may reduce the area of courtyard space available for outdoor living.
With regard to security, the Tribunal is not of the view that this is a significant issue, as it can be dealt with by appropriate design. Similarly, a possible reduction in overall sunlight is not considered to be a significant impact by the Tribunal.
The Tribunal is more concerned about the streetscape presentation to Freedman Road and, for similar reasons as those in relation to Issue 1, finds that a finished floor level of 29.2 metres AHD will provide a better streetscape outcome than a finished floor level of 28.0 metres AHD. In addition, the Tribunal notes that if the courtyards are lowered by 1.2 metres, pedestrians and vehicles would have a direct view down into the courtyard and living spaces of the ground floor apartments.
What is the impact of a finished floor level of 29.2 metres AHD on residents' access to Building C from within the site and how does this compare to access for the general public from outside the site?
This issue was covered by the expert witnesses when discussing Issue 1; namely, whether the proposal is a proper response to the topography of the site and how Building C presents itself to Freedman Road.
Mr Jenkins was of the opinion that the majority of the users of Building C would be from within the complex, not from outside the complex, and that they would desire the finished floor level of Building C to be lower than the proposed 29.2 metres AHD and for there to be a better relationship to the centre of the site, possibly in another location.
Mr Jee, however, said that Building C had been specifically located in this position, and not in the centre of the site, so as to attract users from outside the site and to act as a 'community hub'.
Ms Hanna, in her evidence, pointed out that there will be 25 apartments in Building C itself with the residents benefitting from easy access to Freedman Road in order to go for a walk or to use public transport, in particular the bus stop located on Freedman Road, and to have an alternative exit other than by vehicles parked within the site.
In this case, the Tribunal agrees with the applicant and finds that the location of Building C enables the general public to both see and access Building C from Freedman Road which is appropriate, as it is at the point furthest away from the neighbouring residential zoned sites and adjacent to other similarly zoned Private Institutions sites, giving the opportunity for shared facilities and services in the future.
As discussed earlier, the location of Building C in this position gives rise to difficulties in terms of the slope of the site. In this case the Tribunal is satisfied that entry from Freedman Street at a level of 29.2 metres AHD is appropriate, as it eliminates the need for lengthy ramps or steps as the proposed entrance level will only be slightly lower than the existing verge level.
In terms of access for residents of the complex, the Tribunal is satisfied that a system of well designed paths and ramps within the grounds of the site, and a lift and a lobby area at basement level of Building C, will provide appropriate access to the community facilities from within the site.
Does a finished floor level of 28.0 metres AHD necessitate internal level changes within Building C and, if so, what is the impact of these level changes?
One of the three options put forward by Mr Broadhurst at [21] above was to have internal level changes within Building C so as to respond to both the topography of the site and the Freedman Road streetscape. This was elaborated on by Mr Hadjigabriel where he suggested that the building could be split in such a way that the four storey section was either 1.2 metres lower or, alternatively, the four storey section could be a full storey lower, which would mean a finished floor level of 25.2 metres AHD and a basement level of 22.4 metres AHD.
Mr Jee gave evidence that his client would be resistant to splitting the levels within the building for a number of reasons. The building was designed to function as one building with apartments at the same level as services and all levels accessed internally by lifts, not ramps.
Once again this issue interrelates with the other issues discussed earlier. The Tribunal is of the view that internal level changes would be necessary if a finished floor level of 28.0 metres AHD was imposed on the four storey section of Building C (marked purple on the plan).
This is because, as discussed earlier, it is appropriate for the pink section containing the two storeys of apartments, and the blue section containing the administration function and health services, to have a finished floor level of 29.2 metres AHD. This would allow for easy access from courtyards to Freedman Road, a good visual and physical relationship between the apartments as well as the entrance to the administration and community facilities and Freedman Road, thus providing a good streetscape outcome, as these sections will present as two storey to Freedman Road whilst avoiding long external ramps and stairs.
If the building is split internally, space will need to be given over to internal ramps, which can be done, but would then lead to design constraints on the internal layout of the building. The Tribunal is not convinced that lowering the purple section by 1.2 metres gives any substantial benefit to the residents of the site in terms of accessibility. The implications of lowering the purple section a full storey have not been fully assessed, as that is not the proposal before the Tribunal.
The application of the Design Guidelines
The Design Guidelines state in reference to 'Building Height' that:
•Development shall be restricted to two (2) storeys above natural ground level adjacent to lot boundaries and a maximum of four (4) storeys above natural ground level on the remainder of the site;
•Where buildings over two (2) storeys above natural ground level in height are proposed, an application shall include justification which addresses the impact of the proposal having regard to matters such as amenity, overshadowing, wind impacts and building design, siting, bulk, materials, scale and colour[.]
Building C is four storeys above an agreed finished floor level. In this case, the applicant is proposing a finished floor level of 29.2 metres AHD and the respondent has approved a finished floor level of 28.0 metres AHD.
It was agreed by the expert witnesses that neither of these figures is considered the natural ground level for the area of the site occupied by Building C. Notwithstanding this, Mr Broadhurst said that he thought that a finished floor level of 28.0 metres AHD was reasonable and within the discretion of the respondent.
The Tribunal notes that when examining the proposed Detailed Area Plan for this site it is apparent that lower height buildings have been appropriately located adjacent to the residential zoned areas to the west and south-west of the site, and that the highest buildings, Building B and Building C, have been located to the northernmost point of the site adjacent to a similarly zoned site as the subject site.
As discussed by the expert witnesses during the hearing, the view of Building C from the single residential areas will be obscured by distance as well as Building A and Building B. Building C will be most prominent from Freedman Road.
In regard to the justification required for buildings over two storeys, the Tribunal is satisfied that the applicant's proposed Detailed Area Plan does not have an adverse effect on the amenity of the surrounding properties; does not cause undue overshadowing; and is sympathetic to the scale and bulk of surrounding properties.
Although the Tribunal may be departing from a strict interpretation of the policy in regard to natural ground level, it is of the view that this will not undermine the intent of the policy as the policy states that variations are to be assessed against the objectives of the policy which are:
•To ensure that development does not adversely affect the amenity of surrounding properties;
•To encourage development that is sympathetic to the scale and bulk of surrounding properties;
•To ensure that the efficiency of the local transport network is not encumbered by development;
•To support the provision of viable and high quality retirement and aged care developments; and
•To ensure that development is well integrated with the surrounding community.
The Tribunal finds that a finished floor level of 29.2 metres AHD for Building C will not adversely affect the amenity of the surrounding properties. The proposed Detailed Area Plan is sympathetic to the scale and bulk of the surrounding properties. The proposal is to provide a viable and high quality retirement development and the proposal is well integrated with the surrounding community.
The matter of the Newbury test
At [10] above, Mr McQueen argues for the applicant that Condition 2 is inappropriate by reference to the Newbury Test. That test is outlined in the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment[1981] AC 578 (Newbury) and endorsed by the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57]. It contains the following three principles when considering the reasonableness of imposing a condition of planning consent:
1)It must be imposed for a planning purpose.
2)It must fairly and reasonably relate to the development for which permission is being given.
3)It must be reasonable.
In the view of the Tribunal the proposed Condition 2 with respect to Building C was an appropriate response from the respondent as it sought to impose changes to the applicant’s Detailed Area Plan for a planning purpose which they believed related fairly and reasonably to the particular development.
Although the Tribunal does not agree with the position taken by the respondent in this matter with respect to Condition 2 as outlined in these reasons, it certainly does not agree with the position of Mr McQueen with respect to the Newbury test.
Conclusion
In conclusion, having considered all of the issues in light of the evidence presented by the parties and in the context of the relevant planning framework, the Tribunal finds that the requirement for Building C to have a finished floor level of 28.0 metres AHD in lieu of the proposed 29.2 metres AHD is not necessary, and that the approval should be modified to read 'Building C 29.2 m AHD'.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent dated 16 November 2011 to approve the Detailed Area Plan for No 11 (Lot 500) Freedman Road, Menora, with conditions, is varied by deleting the words 'Building C 28.0 m AHD' and inserting the words 'Building C 29.2 m AHD'.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER
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