| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : AMBROSE and CITY OF NEDLANDS [2011] WASAT 121 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : 18 MAY 2011 DELIVERED : 8 AUGUST 2011 FILE NO/S : DR 56 of 2011 BETWEEN : EMMA AMBROSE Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords: Town planning - Development application - Refusal - Single storey additions and alterations to residence - Parapet wall on boundary - Whether parapet wall satisfies the performance criteria of Residential Design Codes of Western Australia (2010) - Whether parapet wall makes effective use of space - Whether parapet wall enhances privacy of the development - Whether parapet wall enhances the amenity of the development - Whether significant adverse effect on the amenity of the adjoining property - Whether direct sun is restricted to outdoor living areas
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Legislation: City of Nedlands Town Planning Scheme No 2, cl 5.2.3, cl 5.3, cl 5.3.1(b), cl 5.5, cl 5.5.4, cl 5.6.4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010), cl 5.3.1(b), cl 6.3, cl 6.3.2, cl 6.6.1, Element 6.8, cl 6.8.1 P1, Element 6.9, cl 6.9.1, cl 6.9.1 A1, cl 6.9.1 P1, Element 9 Result: Application for review dismissed
Development approval refused Category: B
Representation: Counsel:
Applicant : Mr G Douglas
Respondent : Mr C Slarke
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the refusal by the City of Nedlands of a development application for single storey additions and alterations to the rear of No 119 Rochdale Road, Mount Claremont. 2 The City of Nedlands was of the view that the proposed parapet wall to be built on the southern boundary would have an adverse impact on the outdoor living area of the neighbouring property. 3 The main issue was whether the proposed parapet wall satisfied the performance criteria of cl 6.3.2 of the Residential Design Codes of Western Australia (2010). 4 The Tribunal found that the proposed parapet wall was not required in order to make effective use of space on the lot, particularly given the relatively large area and regular shape of the lot combined with the low density coding R10. With regard to privacy, the Tribunal found that the proposed parapet wall was not required in order to enhance visual or acoustic privacy. The Tribunal found that a 1 metre setback would contribute to the amenity of the development by maintaining the open nature of the development. 5 Finally, the Tribunal found that the proposed parapet wall would have a significant adverse effect on the amenity of the adjoining property and would restrict direct sun to outdoor living areas. Consequently, the Tribunal found that the proposal did not satisfy the performance criteria of cl 6.3.2 of the Residential Design Codes of Western Australia (2010). 6 The application for review was therefore dismissed and the decision of the respondent to refuse development approval was affirmed.
Introduction 7 These proceedings involve an application brought by Ms Emma Ambrose (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for a review of the decision made by the City of Nedlands (respondent, City or Council) on 22 February 2011 to refuse development approval for single storey additions and alterations at No 119 (Lot 227) Rochdale Road, Mount Claremont (subject land or site). (Page 4)
Site and locality 8 The site is rectangular in shape with a street frontage and width of 20.12 metres, a length of 50.29 metres and an area of 1,012 square metres. The site is located at No 119 (Lot 227) Rochdale Road, Mount Claremont. 9 The site contains an existing single storey brick and tile dwelling with a floor area of approximately 155 square metres. There is a an existing garage to the rear of the site with access from a rear right of way as well as two car parking bays off Rochdale Road in the front setback area. 10 The properties on either side of the site are of similar size to the site and contain older single storey dwellings that have been modified over the years. The property immediately adjacent on the southern side of the site, No 121 Rochdale Road, has a covered patio area to the rear of the dwelling which opens on to an uncovered raised timber decked area and spa. This outdoor living area abuts the boundary with the subject land in the location of the proposed parapet wall. 11 The Tribunal had the benefit of a view of the site and adjoining property, in the presence of the parties, during the hearing.
The proposed development 12 The proposed development is the addition of approximately 208 square metres of built area consisting oftwo bedrooms (7.34 metres by 4 metres), a living/meals area and a covered verandah opening on to the rear garden and alterations to the existing building. 13 The proposed addition is single storey with a 1 metre setback to the northern side boundary and a nil setback to the southern side boundary. 14 Amended plans, now the subject of the review, show the parapet wall on the southern boundary with a length of 7.53 metres and a height of 3.12 metres above natural ground level (as calculated by the City and agreed by the parties). The height of the parapet wall will be discussed in more detail below. 15 Further amendments, made prior to the hearing, include privacy screening to the southern end of the verandah and the deletion of a window to the southern bedroom. (Page 5)
Background 16 On 22 December 2010, planning approval for single storey additions and alterations to the residence on the subject land was granted by the respondent. The approved development included a 1.5 metre setback to both the northern and southern boundaries. This approval was the subject of a review application to the Tribunal which was subsequently withdrawn. 17 On 17 January 2011, the applicant applied for planning approval for single storey additions and alterations to the existing residence on the subject land. This application included a parapet wall to be built on the southern boundary with a maximum height of 3.68 metres (measured from the existing ground level) and a length of between 14.65 metres and 16.3 metres (plans and elevations showed different lengths). 18 The neighbour to the south of the subject land objected to the proposed parapet wall as he was concerned that it was excessive in height and length and that these factors, combined with the difference in ground levels between the two properties, would increase the amount of overshadowing of his sundeck and detract from the amenity of his outdoor living area.
Council's decision 19 The Council resolved at its meeting on 22 February 2011 to refuse the application for planning approval for single storey additions and alterations at the subject land for the following reasons: 20 Following mediation, the applicant amended the proposal by reducing the length and height of the proposed parapet wall. 21 The Council considered the amended plans, now the subject of the review, at its meeting on 27 April 2011 and resolved to refuse the application for the following reasons: (i) The southern parapet wall does not comply with the Acceptable Development or Performance Criteria of the Residential Design Codes; (Page 6)
Planning framework 22 The subject land is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential under the City of Nedlands Town Planning Scheme No 2 (TPS 2) and has a residential density coding of R10/20. 23 Clause 5.2.3 of TPS 2 states that all residential development shall be in accordance with the Residential Planning Codes which is considered by both parties to mean the Residential Design Codes of Western Australia (2010) (Codes). 24 Clause 5.3 of TPS 2 sets out variations and exclusions to the Residential Planning Codes and refers to R10/20 split coding specifically in cl 5.3.1(b) as follows: 5.3.1(b) where an area is designated with an R. Code R.12.5/R.20 or R.10/R.20 no development other than a single dwelling house complying with R.12.5 or R.10 requirements (as the case may be) is permitted except that the Council may approve a grouped dwelling development containing a maximum of two dwellings subject to R.20 requirements if the following conditions are satisfied: (i) grouped dwellings do not occur at a frequency greater than one lot in five of all lots within an area bounded by four streets or other natural boundary; (ii) grouped dwellings are separated from any other grouped dwelling by not less than two single dwellings in the same street frontage; and (iii) the setback requirements of the first mentioned R. Code designation are observed. 25 Clause 5.5 of TPS 2 refers to preservation of amenity and specifically retaining walls over 0.5 metres in cl 5.5.4 as follows: 5.5.4 Unless otherwise approved by the Council, no person shall erect or construct a retaining wall other than in accordance with the Council's Bylaws and in no case without Council approval if the wall is greater than 0.5m in height at any point. In determining (Page 7)
an application to erect or construct a retaining wall, Council shall have regard to: (a) its likely impact on the amenity or appearance of the land immediately surrounding the proposed retaining wall; (b) the materials, shape, height or proximity of the retaining wall to, and their likely effect on the outlook from, surrounding land; (c) the effect on the usability of the land on which the retaining wall is proposed. 26 Clause 5.6.4 of TPS 2 sets out the height restrictions for dividing boundary fences as follows: No fence or screen wall shall be erected within 0.9m of a dividing boundary to a height greater than 1.8m above natural ground level without the approval of the Council. The Council may refuse to grant approval of a screen wall or fence higher than 1.8m above natural ground level if in the opinion of the Council such additional height would adversely affect the amenity of the occupants of the adjoining lot. 27 Element 6.8 of the Codes states the objectives for privacy requirements as follows: To site and design buildings to meet projected user requirements for visual privacy and to minimise the impact of development on the visual privacy of adjoining residents in their dwellings and private open space. Clause 6.8.1 Visual privacy P1 Direct overlooking of active habitable spaces and outdoor living areas of other dwellings is minimised by building layout, location and design of major openings and outdoor active habitable spaces, screening devices and landscape, or remoteness. Effective location of major openings and outdoor active habitable spaces to avoid overlooking is preferred to the uses of screening devices or obscured glass. Where these are used, they should be integrated with the building design and have minimal impact on residents' or neighbours' amenity. Where opposite windows are offset from the edge of one window to the edge of another, the distance of the offset should be sufficient to limit views into adjacent windows. (Page 8)
28 Element 6.9 of the Codes refers to design for climate requirements and includes, at cl 6.9.1 solar access for adjoining sites, as follows: A1 Notwithstanding the boundary setbacks in design element 6.3, development in climatic zones 4, 5 and 6 of the state shall be so designed that its shadow only cast at midday 21 June onto any other adjoining property does not exceed the following limits: Note: In this context site area refers to the surface of the adjoining lot and is measured without regard to any building on it but taking into account its natural ground levels. P1 Development designed to protect solar access for neighbouring properties taking account the potential to overshadow: 29 The City has a Fill and Fencing Policy which sets out the following: Objective To clarify the acceptable level of fill and the location of boundary fences on or adjacent to fill on residential lots throughout the City, so that existing landform and privacy between neighbours, is maintained. ... Amenity and Privacy • dividing fences will be acceptable to a maximum height of 1.8m above approved or permitted fill; and • primary (Page 9)
... Dividing Fences 1. Dividing Fences, other than the portion abutting a vehicle access point where greater restrictions apply (refer Fences Abutting Vehicle Access Points) shall be built in accordance with Clause 5.6.4 of the City of Nedlands Town Planning Scheme No. 2. No fence shall be built to a height greater than 1.8m from natural ground level without planning approval. 2. Dividing fences which are acceptable development under this policy shall: 3. Any dividing fencing which does not meet the above requirements will only be considered if: • the applicant can provide to Council the written agreement for the additional height of the fence from the owners of the adjoining lot; and • the development will not have a likely impact upon neighbouring amenity. … Fill and Retaining 1. All fill abutting a lot boundary shall be retained by the use of masonry retaining walls or by other methods approved by the Manager of Building Services
Main issue 30 The main issue which arises for determination in this review is whether the proposed parapet wall satisfies the performance criteria of cl 6.3.2 of the Codes.
Whether the proposed parapet wall satisfies the performance criteria of the Codes 31 The Codes provide for the assessment of boundary setbacks in cl 6.3. The stated objective is as follows: (Page 10)
To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties. 32 Specifically, cl 6.3.2 of the Codes addresses buildings on the boundary and contains the following acceptable development standards (A2) and performance criteria (P2): A2 Except where otherwise provided for in an adopted local planning policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of design element 6.9: i Where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension; or ii In areas coded R20 and R25, walls not higher than 3m with an average of 2.7m up to 9m in length up to one side boundary only; or iii In areas coded R30 and higher, walls not higher than 3.5m with an average of 3m for twothirds the length of the balance of the boundary behind the front setback, to one side boundary only; or iv Where a detailed area plan applies to the land; or v Where both the subject site and the affected adjoining site are created in a plan of subdivision submitted concurrently with the development application. P2 Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to: • make effective use of space; or • enhance privacy; or • otherwise enhance the amenity of the development; • not have any significant adverse effect on the amenity of the adjoining property; and • ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted. 33 The subject land has a split coding of R10/R20. Ms Coralie Anderson, a planning expert appearing on behalf of the respondent, gave evidence that the opportunity to achieve the R20 coding in accordance with cl 5.3.1(b) of the Codes was no longer available (Page 11)
to the subject land or any other lot in this street block. Mr Greg Rowe, a planning expert appearing on behalf of the applicant, and Ms Anderson agreed that the development should be assessed against the provisions of an R10 density coding. 34 As discussed earlier, amended plans the subject of the review, propose a parapet wall on the southern boundary with a length of 7.53 metres and a height of 3.12 metres above natural ground level. This height was provided by the parties' expert planners in the form of a table which included other heights relevant to these proceedings. 35 The existing retaining walls on the southern boundary of the subject land have not received planning approval. Notwithstanding this, it was agreed by the planning experts that fill to a level of 0.5 metres above natural ground level would comply with the acceptable development standards in cl 6.6.1 of the Codes and would likely be approved by the respondent. It was also agreed by the planning experts that the respondent's Fill and Fencing Policy provides for a dividing fence up to a maximum height of 1.8 metres above approved or permitted fill. 36 The proposed parapet wall will be 3.12 metres above the agreed natural ground level of 17.0 metres Australian Height Datum (AHD) (calculated in accordance with TPS 2) which gives a height of 20.12 metres (AHD). A permissible new fence could be 2.3 metres (0.5 metre retaining wall plus 1.8 metre fence) above natural ground level which is 19.3 metres (AHD). In this case, the proposed parapet wall will be 0.82 metres above a permissible new boundary fence (20.12 metres minus 19.3 metres). 37 The table provided by the expert planners also included the heights and levels of the neighbouring property, No 121 Rochdale Road. The ground level of the patio is 16.40 metres (AHD) and the finished level of the raised timber sundeck is 16.91 metres (AHD). There is a 0.6 metre difference in natural ground level between the two neighbouring properties. 38 It was common ground between the parties that the proposed parapet wall should be assessed against the performance criteria of cl 6.3.2 of the Codes. In order to satisfy these, one of the first three criteria and both of the last two criteria need to be satisfied. The Tribunal will now turn its attention to these performance criteria. 39 With regard to the effective use of space, Ms Anderson contended that providing a 1 metre side setback would contribute to the amenity (Page 12)
of the neighbouring property and the locality while Mr Rowe was of the view that a parapet wall would allow an additional 7.5 square metres to be used for building extensions that would otherwise not be useful. The applicant gave evidence that the extra 1 metre enabled the two new bedrooms to be 4 metres in width instead of 3.5 metres. The Tribunal notes that the proposed bedrooms are 7.34 metres in length and 4 metres in width plus a built in robe (generally 0.6 metres). 40 The Tribunal is mindful of the fact that the subject land is 1,012 square metres in area, has a width of 20.12 metres and has a density coding of R10/20 (and is assessed in accordance with R10 requirements). The relatively large area and regular shape of the subject land do not in the Tribunal's opinion provide for a difficult design solution to provide the required accommodation and at the same time maintain the required boundary setbacks. A simple design solution could be the relocation of the built in robes in the bedrooms combined with a small reduction in the width of the bedrooms and/or the living/meals area. 41 In terms of privacy, Ms Anderson was concerned that the rear window in the southern bedroom would reduce privacy but this window has since been deleted by the applicant. Both experts agreed in their joint statement that the installation of a new 1.8 metre high boundary fence above ground level would 'satisfy privacy screening requirements'. 42 The applicant gave evidence that both visual and acoustic privacy were of great concern to her and her family. It was her view that a parapet wall would prevent her two boys from intruding on the privacy of her neighbour, Dr Paddy Golden, particularly when he and his friends were enjoying the spa and sun deck. The proposed parapet wall would also eliminate the opportunity for her boys to disturb Dr Golden's dog thereby reducing the noise of barking. Mr Rowe argued that this was a case of aggravated neighbours and a strong physical separation was required, whereas Dr Golden stated that he had no concern about privacy as the existing fence was above his eye level. 43 The Tribunal appreciates the desire for privacy expressed by the applicant but is of the view that a 1.8 metre high boundary fence above any permitted retaining wall and fill would provide visual privacy to both properties and that a dwelling wall will perform to the same acoustic level whether on the boundary or set back 1 metre from the boundary. 44 In regards to the amenity of the development, Mr Rowe was of the view that the parapet wall would result in more effective use of space (Page 13)
and increased privacy thereby enhancing the amenity of the development. Ms Anderson disagreed and contended that the parapet wall would 'reduce the open nature that a setback provides for'. Mr Rowe also argued that the replacement of the existing fence with a rendered wall would provide an improved appearance to the development. 45 The Tribunal is of the view that a parapet wall is not required in this case to make effective use of space, particularly given the relatively large area and regular shape of the lot combined with the low density coding of R10. With regard to privacy, the Tribunal is of the view that the proposed parapet wall is not required in order to enhance privacy either visual or acoustic. Likewise, the parapet wall does not enhance the amenity of the development. The Tribunal agrees with Ms Anderson that, in this case, the provision of a 1 metre setback would contribute to the amenity of the development by maintaining the open nature that a setback provides for. 46 As stated above, in order to satisfy the performance criteria in cl 6.3.2 of the Codes, one of the first three criteria and both of the last two criteria need to be satisfied. The Tribunal has addressed the first three performance criteria above and determined that none have been met in this case. The Tribunal therefore finds that the proposed parapet wall does not satisfy the performance criteria of cl 6.3.2 of the Codes. Notwithstanding this finding, the Tribunal has addressed the final two criteria below. 47 With regard to the effect on the amenity of the adjoining property, Mr Rowe was of the view that the impact will not be significant while Ms Anderson contended that it would be significantly adverse. 48 Dr Golden gave evidence that his objection to the proposed parapet wall was based on his concern that the height and length of the wall combined with the existing difference in levels between the two properties would mean that he would feel 'hemmed in' and the wall would overshadow his spa and sundeck. 49 The Tribunal was provided with revised shadow diagrams showing the overshadowing of a maximum permitted boundary fence and the proposed parapet wall on the existing sundeck and patio. These diagrams illustrated that there will be approximately 1.2 metres of extra shadow on the sundeck and patio at 12 noon in midwinter. 50 The table of heights and levels states the height of the proposed parapet wall, as perceived from the patio level of Dr Golden's property, (Page 14)
as 3.72 metres above the patio level and 3.21 metres above the sundeck level. A permissible new fence could be 2.9 metres in height (0.82 metres lower than the proposed parapet wall). 51 The Tribunal considers that the proposed parapet wall will have a significant adverse effect on the amenity of the adjoining property by virtue of the increase in overshadowing of the sundeck and the increase in bulk and scale over and above a permissible new fence on the boundary. The extra 820 millimetres over and above a permissible fence and the 600 millimetres difference in natural ground level between the adjoining properties combined with an additional 500 millimetres of fill exacerbate the bulk and scale of the proposed parapet wall when viewed from the outdoor living area of the adjoining property. 52 With regard to the final performance criteria, Mr Rowe was of the view that direct sun would not be 'unreasonably restricted' to the adjoining property's outdoor living areas, whereas Ms Anderson contended that direct sunlight will be 'restricted'. 53 In his closing submissions, counsel for the applicant, Mr Douglas, referred to cl 6.9.1 of the Codes which addresses solar access for adjoining sites. The acceptable development provisions in cl 6.9.1 of the Codes require the shadow that is cast by developments at midday on 21 June onto adjoining properties zoned R25 and lower to not exceed 25% of the site area. It was Mr Douglas' argument that, 'where you meet the acceptable development criteria under 6.9.1, then looking at 6.3.2 it's not enough to say that there has been some overshadowing caused or some reduction in sunlight or some shading caused, because it needs to be a significant reduction.' 54 In this case, the respondent has not argued that the development will exceed the maximum of 25% overshadowing. It was counsel for the respondent, Mr Slarke's view, that design elements 6.9.1 and 6.3.2 are two separate elements that are to be considered separately and that both must be satisfied. Specifically, in relation to the final performance criteria of cl 6.3.2, Mr Slarke was of the view that 'any restriction on direct sun has to be unreasonable' and 'as the restriction on direct sunlight is tangible or material in this R10 density code, we say that it's likely to be an unreasonable impact on the access to direct sun in this location'. 55 Mr Douglas also argued that the reasonableness of the degree of overshadowing should be assessed against an alternative compliant application which could have more severe consequences on an adjoining (Page 15)
property. It was Mr Slarke's contention that a 'hypothetical example would be considered irrelevant because there are almost an infinite number of alternative proposals which may strictly comply with acceptable development provisions and may produce better or worse outcomes'. The Tribunal agrees with Mr Slarke and in any case, both parties have agreed that it is appropriate to refer to a permissible boundary fence which, it should be noted, has not been applied for or constructed. 56 As discussed above, shadow diagrams provided to the Tribunal show an increase of approximately 1.2 metres of shadow to the outdoor living area of the adjoining property at midday on 21 June. The diagram shows that a new permissible fence could overshadow a large portion of the patio and sundeck and that the proposed parapet wall will overshadow the remainder of the sundeck. The Tribunal is of the view that the wall will restrict direct sun to the outdoor living area. 57 For the reasons discussed above, the Tribunal finds that the proposed parapet wall does not satisfy any of the performance criteria of cl 6.3.2 of the Codes.
Conclusion 58 The Tribunal has determined that the proposed parapet wall does not satisfy the performance criteria of cl 6.3.2 of the Codes which refers to buildings on the boundary. 59 It follows that the application for review should be dismissed and the decision of the respondent to refuse development approval for additions and alterations to the subject land should be affirmed.
Orders 60 For the foregoing reasons, the Tribunal makes the following orders: (Page 16)
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