AUZCORP MEDICAL SERVICES OF AUSTRALIA PTY LTD and CITY OF FREMANTLE
[2009] WASAT 241
•7 DECEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AUZCORP MEDICAL SERVICES OF AUSTRALIA PTY LTD and CITY OF FREMANTLE [2009] WASAT 241
MEMBER: MR D R PARRY (SENIOR MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: 26 AUGUST 2009 AND 1 DECEMBER 2009
DELIVERED : 7 DECEMBER 2009
FILE NO/S: DR 485 of 2008
BETWEEN: AUZCORP MEDICAL SERVICES OF AUSTRALIA PTY LTD
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Development application Mixed use medical consulting rooms/hospital (day surgery)/residential dwellings development - Four storey plus basement building - Building height - Variation - Maximum external wall height standard of 7 metres - Proposed external wall heights 13 metres to 15 metres - Discretion to vary maximum external wall height standard where site contains or is adjacent to higher buildings and there is satisfaction in relation to each of four considerations - Site adjoins property with 27 metre high building - Amenity - Character - Streetscape - Consistency in scale of buildings - Degree to which proposed height effectively graduates the scale between buildings of varying heights within the locality - Conservation of cultural heritage value of buildings on adjacent sites
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.6.1(f), cl 5.8.1, cl 5.8.1(a), cl 5.8.1(b), cl 5.8.1(c), cl 5.8.1(d), cl 5.8.4, cl 5.8.4(a), cl 10.2, Sch 12 cl 4.1
Heritage of Western Australia Act 1990 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
Applicant: Mr PJ McQueen with Ms E McGrath
Respondent: Mr A Roberts
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods
Case(s) referred to in decision(s):
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned a development application for a four level above basement building comprising medical consulting rooms, hospital (day surgery) and four residential dwellings at the corner of South Terrace and Suffolk Street in Fremantle. The site was subject to a maximum external wall height development standard of 7 metres, equating to approximately two levels. However, the site adjoins land containing a 27 metre high residential building.
The proximity of the 27 metre high residential building enabled the exercise of a power to vary the maximum external wall height standard if the Tribunal was satisfied in relation to each of four considerations. However, the Tribunal was not satisfied in relation to any of these matters.
In particular, the Tribunal found that the variation in the external wall height proposed would be detrimental to the character and, thus, amenity of the locality, because the height would be incongruous and not sympathetic to the consistent streetscape of South Terrace.
The Tribunal was not satisfied that the proposed height of the external walls would effectively graduate the scale between buildings of varying heights within the locality. While four levels is somewhere in between eight levels and one level, scale is a product not only of the number of levels but also of bulk, built form, architectural design and setbacks. As, unlike the adjoining building, the proposed development would occupy the whole of the site, it would not effectively graduate the scale between buildings of varying heights.
The Tribunal was not satisfied that the development would conserve the cultural heritage value of an adjoining corner store building, because the height of the proposal was not consistent with the established scale of commercial buildings and would not provide an appropriate visual setting for the corner shop.
Finally, the Tribunal was not satisfied in relation to relevant matters concerning height in an applicable local planning policy, because the development would not preserve the traditional building forms and streetscapes or relate to the scale, height, form and mass of existing buildings. It would also not contribute to the traditional streetscape and amenity, including consistency in wall heights and roof pitches.
The development application was therefore refused consent. However, in its conclusion, the Tribunal observed that the proximity to the adjoining tall building would arguably enable the exceedance of the maximum external wall height standard of 7 metres (two levels) by one additional level, provided that the third level were set well back, in the order of about 4 metres, from all boundaries of the site.
Introduction
Number 65 South Terrace, Fremantle (site) occupies the southwestern corner of the intersection of Suffolk Street (which runs eastwest) and South Terrace (which runs northsouth). The site is located one block to the south of the intersection of Parry Street and South Terrace and is diagonally northwest across South Terrace from Fremantle Hospital. The site has been vacant for the past two decades. Between the 1960s and the early 1990s, the site was used as a petrol station.
The site has a roughly rectangular shape, a frontage of about 44 metres to South Terrace to the east, a frontage of about 21 metres to Suffolk Street to the north, a splayed frontage to the intersection of about 8 metres, and an area of about 1,169 square metres. The site is zoned Central City under the Metropolitan Region Scheme and Mixed Use with a residential density coding of R35 under the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme). The site is within Local Planning Area 4 South Fremantle, and specifically within Sub Area 4.3.1, under Sch 12 of the Scheme. Clause 4.1 of Sch 12 of the Scheme imposes a maximum external wall height of 7 metres for land zoned Mixed Use in Local Planning Area 4. This external wall height standard translates to essentially two storey development.
Suffolk Street predominantly comprises single storey dwellings mostly built during the late Victorian and Boom Federation (1890 1915) periods, with some late 20th century dwellings interspersed. Of the 28 properties fronting Suffolk Street, 25 are included on the City of Fremantle Heritage List under LPS 4, and four houses, at No 19, No 21, No 23 and No 25 Suffolk Street, are included on the State Register of Heritage Places maintained under the Heritage of Western Australia Act 1990 (WA) (HWA Act).
Development in South Terrace, particularly on its western side in the general vicinity of the site, is characterised by one to one and a half storey commercial development dating from the early 20th century. As Mr Alan Kelsall, an architect who gave evidence on behalf of the City of Fremantle (City or Council) observed, the characteristic scale of development on the western side of South Terrace is not significantly different to the scale of development in the residential streets to the west of South Terrace, although there is a distinct and obvious difference in character between the commercial and residential development.
There are two notable exceptions to the characteristic form of development in the locality. First, Fremantle Hospital, bounded by Alma Street to the south and South Terrace to the west, to the southeast of the site, includes a nine level monolithic building. Second, the Arundel Apartments at No 34 Arundel Street, on the northwestern corner of the intersection of Arundel Street and South Terrace, is an eight level building with a height of about 27 metres, originally built as nurses' accommodation and now comprising 80 stratatitled residential dwellings. The Arundel Apartments property adjoins the site to the south and west. The Arundel Apartments building is located centrally within the southern part of that property. The building is set back, at its closest point, approximately 9 metres from the southern boundary of the site and is set back approximately 10 metres from the South Terrace frontage. The portion of the Arundel Apartments property to the west of the site comprises the car park, including a deck, which is accessed from Suffolk Street.
On 31 March 2008, Auzcorp Medical Services of Australia Pty Ltd (Auzcorp) lodged a development application with the City for approval of the construction of a four level above basement mixed use development on the site comprising basement car parking, medical consulting rooms at ground level on South Terrace and Suffolk Street and at the second level, an hospital (day surgery) at the second and third levels, and four residential dwellings at the fourth level. The basement and the first, second and third levels are proposed to be built to the boundaries of the site. In the plans lodged with the development application, the fourth level was also proposed to be built to the southern boundary of the site. The proposed building has external wall heights of between 13.3 metres and 15 metres.
On 5 November 2008, the City's Planning Services Committee refused the development application under delegation because the proposal exceeds the maximum external wall height in relation to the site under LPS 4. Auzcorp subsequently sought review of this decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA).
Shortly after the commencement of the final hearing on 26 August 2009, Auzcorp sought an adjournment in order to amend the plans of the proposed development, principally to reflect advice it had received from two consultants, Mr Malcolm Mackay, an architect and urban designer, and Mr David Kaesehagen, an environmental scientist specialising in landscape visual assessment. Amended plans, dated 17 September 2009, were subsequently filed and, on the resumption of the hearing on 1 December 2009, were substituted as the plans for which Auzcorp sought consent. The amended plans incorporate a canopy/awning above the ground floor commercial area fronting South Terrace and Suffolk Street to improve pedestrian amenity; introduce vertical elements to express the structural rhythm and break down the scale of the building; set the fourth level back from the southern boundary by 3 metres; provide detailed treatments for the southern and western boundary walls; reduce the height of the stairwell tower on South Terrace; change the setbacks and modulation of the fourth level; and make internal changes to more effectively separate the hospital and residential uses.
Mr Cameron Leckey, a town planner and the City's Planning Projects Coordinator, who gave evidence on behalf of the City, agreed with Mr Mackay and Mr Kaesehagen that the amendments are improvements and that the setback of the fourth level from the southern boundary is a significant improvement. Mr Mackay gave evidence that the changes to the building 'now constitute an acceptable urban design outcome for the site' and Mr Kaesehagen considered that 'the revised proposal more effectively graduates the height and bulk of the building within the context of the local area'. However, Mr Leckey gave evidence that 'while the changes do improve the appearance of the building, … the height and bulk of the building remain an issue, and … the changes are [in]sufficient to satisfy the planning criteria set out in [the Scheme]'.
The principal issue for determination in this review is whether a variation to the maximum external wall height standard of 7 metres should be granted to enable the approval of the proposed development. The Tribunal will now proceed to address this issue.
Variation to height standard
Clause 5.8.1 of LPS 4 states as follows:
Where sites contain or are adjacent to buildings that depict a height greater than that specified in the general or specific requirements in schedule 12, Council may vary the maximum height requirements subject to being satisfied in relation to all of the following:
(a)the variation would not be detrimental to the amenity of adjoining properties or the locality generally,
(b)degree to which the proposed height of external walls effectively graduates the scale between buildings of varying heights within the locality,
(c)conservation of the cultural heritage values of buildings onsite and adjoining, and
(d)any other relevant matter outlined in Council's local planning policies.
Paragraph (a): 'the variation would not be detrimental to the amenity of adjoining properties or the locality generally'
'Amenity' is defined in Sch 1 of LPS 4 to mean:
All those factors which combine to form the character of an area and include the present and likely future amenity.
As Mr Kelsall explained, the character of the western side of South Terrace, north of Howard Street, is defined by two consistent factors. First, all buildings, with the notable exception of the Arundel Apartments, have a zero setback to the street frontage or, as Mr Kelsall put it, are built 'to the back of the footpath'. As Mr Kelsall said:
The character of South Terrace streetscape derives from this common building line which reinforces and defines the street and contributes to a harmonious whole.
Second,
The single storey scale of the commercial development on the western side of South Terrace is remarkably homogenous and again is an element defining the established characteristic of the streetscape.
The photographs showing development on the western side of South Terrace, between Howard Street and the northeastern corner of Suffolk Street, presented by Mr Kelsall, clearly confirm the correctness of his evidence. The buildings do have a remarkably homogenous scale, although it should be noted that, immediately to the south of the intersection of South Terrace and Arundel Street, buildings have a scale of about one and a half storeys, rather than single storey, because these buildings have a partially exposed basement. Mr Kelsall expressed the opinion that, while, when viewed from the eastern side of South Terrace, the Arundel Apartments project, in part, above the commercial development on the western side of South Terrace, the Arundel Apartments do not, in fact, form part of the relevant streetscape, because that building 'sits within the block, not at the edge of the block'.
Mr Kelsall also gave the following thoughtful evidence which greatly assisted the Tribunal in coming to the correct and preferable decision in relation to para (a) of cl 5.8.1 of the Scheme:
The proposed development will have a zero setback to the South Terrace footpath, which is consistent with the zero setback for other commercial development on the western side of South Terrace. Consequently, the proposed development will become a recognisable extension of the Howard Street to Arundel Street streetscape. However, the bulk and scale of the proposed development is completely incongruous with the bulk and scale of the other commercial development on the western side of South Terrace. The proposed development would not be sympathetic to the established significant character of the traditional streetscape of South Terrace. The incongruity of scale will be emphasised in oblique views from South Terrace to the south of the site. …
The character of South Terrace streetscape derives from how the individual buildings of a consistent human scale contribute to a harmonious whole by creating a consistent urban form. The urban form of Fremantle, including South Terrace, was in place before the use of the car became common and when most buildings were constructed using traditional construction techniques and materials. As a result, Fremantle now has what is commonly termed a human scale. Compatibility with the existing scale requires new developments to complement the established human scale of existing buildings and streetscapes. …
One of the defining characteristics of existing developments with frontage to the western side of South Terrace that contributes positively to the traditional streetscape is they all have zero setbacks. Further, all these buildings display a remarkable consistency in height. The proposed development will also have a zero setback [and] because of this it will be part of a consistent line of single storey [buildings]. The proposed development needs to be sympathetic to this established consistency of scale. The proposed development would be incongruous with the scale of existing development in the locality which make[s] a positive contribution to the traditional streetscape.
Mr Ronald Bodycoat, a heritage architect who gave evidence on behalf of Auzcorp, expressed the opinion that the proposed development would have 'no adverse impact on the South Terrace streetscape'. It appears that an important factor in Mr Bodycoat's formation of this opinion was his view that the Arundel Apartments building is not only part of the streetscape of the western side of South Terrace, but is 'a very major element'.
The Tribunal prefers Mr Kelsall's evidence over Mr Bodycoat's evidence. Mr Kelsall's evidence was detailed and well reasoned. It was also corroborated by the obvious characteristics of the built form. In contrast, Mr Bodycoat's evidence was expressed in generality. Furthermore, the Tribunal accepts Mr Kelsall's opinion that the Arundel Apartments does not form part of the streetscape for the purpose of assessing whether the variation in external wall height proposed in the development application would be detrimental to the character and, therefore, amenity of the locality. This is because, in contrast to all other buildings on the western side of South Terrace, between Howard Street and the northeastern corner of Suffolk Street, the Arundel Apartments has a considerable setback to South Terrace and is primarily oriented towards Arundel Street, rather than South Terrace. When walking north along the footpath on the western side of South Terrace, the Arundel Apartments cannot be seen at all until one is in Arundel Street itself. When viewing from the eastern side of South Terrace, although the Arundel Apartments can be seen, in part, above the buildings on the western side of South Terrace, the Arundel Apartments building appears to sit, as Mr Kelsall observed, 'within the block, not at the edge of the block'. Finally, as Mr Leckey said in evidence, the Arundel Apartments is 'inconsistent with the character of the locality as a result of the height, bulk and setback of the building from South Terrace'.
The Tribunal, therefore, is not satisfied that the variation in the external wall height proposed in the development application would not be detrimental to the character and, thus, amenity of the locality generally. Indeed, the Tribunal finds that the variation in external wall height that is proposed is, to quote Mr Kelsall, 'completely incongruous' and 'not … sympathetic to the established significant character of the traditional streetscape of South Terrace'.
Furthermore, the Tribunal considers that the bulk and scale of the southern wall of the proposed development would be detrimental to the character and visual amenity of the locality. While, as Mr Leckey agreed, the setting back of the fourth level by 3 metres is a significant improvement, and although Auzcorp proposed banding, texturing and other detailing to mitigate the bulk and scale of the southern wall, it would remain, as Mr Mackay conceded in crossexamination, 'a big blank wall'. In particular, the proposed wall abutting the southern boundary of the site would be 23 metres in width and range from 11 metres (at the South Terrace frontage) to 13.5 metres in height. This large wall would be directly apparent from the street. While Mr Mackay gave examples of such walls elsewhere, he was unable to give an example in Fremantle. The variation in the external wall height proposed in the development application manifested in the southern boundary wall would clearly be detrimental to the character and visual amenity of the locality.
Mr Mackay expressed the opinion that, because of the setback to the fourth level, the building would read as a predominantly three storey building from the immediate street environment. While this would be correct in the immediate vicinity of the site, as the photo montages prepared by Mr Kaesehagen show, the fourth level of the proposal would be clearly apparent from relatively close to the site. In any case, having regard to the 'remarkable consistency in [one to one and a half storey] height' noted by Mr Kelsall, even a full three storey presentation on the site would be incongruous and, therefore, detrimental to the character and, hence, amenity of the locality. Furthermore, as the Tribunal found earlier, the three storey presentation of the southern boundary wall would be detrimental to the character and visual amenity of the locality.
Mr Mackay also referred to a three to four storey building at the intersection of South Terrace and Wray Avenue, about 250 metres south of the site, and a recent four storey building on Marine Terrace, between Suffolk Street and Arundel Street. However, as Mr Leckey noted, both of these developments were approved under a former planning scheme. Furthermore, and in any case, neither building is a characteristic element, nor indeed an element, of the streetscape in which the proposed development would sit.
Mr Mackay also referred to new buildings of between four and five storeys having been recently constructed in both new and historic regional centres, such as Joondalup and Midland, and mixed use and commercial buildings of between four and six storeys having been recently constructed in traditional regional centres such as Claremont and Subiaco. However, as Mr Mackay conceded in crossexamination, appropriate height in a locality is context and planning framework dependent. There was no evidence presented to the Tribunal to show that the context and planning framework in the cases to which Mr Mackay referred were similar to the physical context of the site and the planning framework applicable to it.
Finally, Mr Mackay referred to the site as being located in 'a transitional area' in which the scale of development is 'constantly evolving'. He said that:
In the context of [draft Statement of Planning Policy: Network City], and the more recently released [draft State Planning Policy Activity Centres for Perth and Peel] and the accompanying Model Centre Framework (WAPC), mixed use development of an urban scale is actively encouraged to increase the level and diversity of activity within centres. Fremantle is no exception.
However, as Mr Leckey said, while the site itself is in a transitional stage, because it is vacant, the area in which the site sits is not in a transitional stage. The buildings on the western side of South Terrace that create the streetscape character and, hence, amenity of the locality are historic buildings and, consistently with the aim of LPS 4 to 'protect and conserve Fremantle's unique cultural heritage' (cl 1.6.1(f)), it is extremely unlikely that these buildings would be allowed to be demolished. As Mr Leckey observed, Network City predates the making of LPS 4. While the draft State Planning Policy Activity Centres for Perth and Peel was released for public comment in June 2009, after the making of LPS 4, if it is ultimately approved and made, then it will need to be implemented carefully through local planning. As Mr Leckey said, the City is well advanced to increase densities, but this is likely to occur in the East End, where there are opportunities presented by open sites used for car dealerships and the like, rather than in the closelydeveloped and heritageladen West End.
While 'amenity' includes 'likely future amenity', it is not likely that the character and, hence, amenity of the locality will change in the foreseeable future, except in terms of the development of the site. As Mr Kelsall said, development of the site 'needs to be sympathetic to [the] established consistency of scale'. As the proposed development 'would be incongruous with the scale of existing development in the locality which make[s] a positive contribution to the traditional streetscape', the variation to the maximum external wall height standard that is proposed in the development application would be detrimental to the amenity of the locality. Consequently, the variation cannot be granted under cl 5.8.1(a) of LPS 4 and the development application must be refused consent.
Paragraph (b): 'the degree to which the proposed height of the external walls effectively graduates the scale between buildings of varying heights within the locality'
Mr Mackay and Mr Kaesehagen each considered that the height of external walls proposed effectively graduates the scale between buildings of various heights within the locality. Mr Mackay gave the following evidence:
In the area to the west and north of the proposal, the building stock is predominantly single and twostorey. As such, the proposal, at four storeys provides an effective transition between the eight-storey buildings to the south and east, and more domestic-scaled buildings to the north and west.
Similarly, Mr Kaesehagen gave the following evidence:
The proposed development helps remove the disparity between the current scale difference of single storey buildings to multiple storey buildings. This will provide an improved visual composition and thereby improve visual values of this section of South Terrace.
However, as Mr Leckey said, and as Mr Mackay agreed:
A building's scale is determined not only by the height of external walls, but also the bulk, built form, architectural design and setbacks.
Mr Leckey gave the following evidence:
I consider that the proposed development will not effectively graduate the scale between the Arundel apartment building and other buildings in the locality, as the built form and massing of the proposed development are completely different to the Arundel building, and other buildings in the immediate locality.
The Tribunal accepts Mr Leckey's evidence. While it is correct, crudely expressed, that a four storey building is somewhere in between an eight storey building and a one storey building, in terms of height, as Mr Leckey pointed out, the Arundel Apartments occupies only between 15% and 20% of its site area, giving it a tall and slender profile when viewed from the north and east, whereas the proposed development would occupy 100% of the site. In consequence, the proposal would have a 'heavier and bulkier presence' when viewed from the public domain to the north and east. While there was disagreement between the expert witnesses and between the parties as to whether the Fremantle Hospital is within 'the locality' for the purposes of cl 5.8.1(b) of the Scheme, assuming that the hospital is within the locality, the nine level building does not occupy the whole of that property. Furthermore, the taller elements of the hospital building are set back some distance from the street.
The Tribunal is, therefore, not satisfied that the proposed height of external walls in the development effectively graduates the scale between buildings of varying heights within the locality. For this reason also, the variations to the maximum external wall height standard cannot be approved and the development application must be refused.
Paragraph (c): 'conservation of the cultural heritage values of buildings onsite and adjoining'
As noted earlier, there is a group of four houses at No 19, No 21, No 23 and No 25 Suffolk Street that are listed on the State Heritage Register under the HWA Act. However, as the closest of these places to the site is separated from the site by the car park of the Arundel Apartments, these buildings are not 'adjoining', but rather, are adjacent to the site. It is common ground that the only building with cultural heritage value 'adjoining' the site is a single storey original corner shop building at No 63 South Terrace directly across Suffolk Street from the site. The building at No 63 South Terrace is included on the City's Heritage List under the Scheme. While Mr Bodycoat observed that 'the details of that building have been altered', he conceded that it can be recognised 'as an early building that belongs to the early development of the area'. In particular, it retains its original physical form.
The term 'conservation' is defined in Sch 1 of LPS 4 as having the same meaning as in the HWA Act, namely:
In relation to any place, the management of that place in a manner that will
(a)enable the cultural heritage significance of that place to be retained; and
(b)yield the greatest sustainable benefit for the present community without diminishing the cultural heritage significance of that place,
and may include the preservation, stabilisation, protection, restoration, reconstruction, adaption, and maintenance of that place in accordance with relevant professional standards, and the provision of an appropriate visual setting; (emphasis added)
As Mr Kelsall explained, the cultural heritage significance of South Terrace lies, fundamentally, in the established scale created by 'a remarkable consistency in height' and zero setbacks. Although, as a corner shop, No 63 South Terrace is a different form of building to the commercial buildings between Howard Street and Suffolk Street, it nevertheless essentially reflects the same cultural heritage significance.
The Tribunal is not satisfied that the proposed development conserves the cultural heritage value of No 63 South Terrace, because the incongruous and excessive height of the proposal does not provide an appropriate visual setting for the corner shop. This is demonstrated by the photomontage provided by Mr Kaesehagen showing the corner shop at No 63 South Terrace being visually framed by the proposed development on both sides and above. As Mr Kelsall said, development on the site 'needs to be sympathetic to the established consistency of scale' of commercial buildings on the western side of South Terrace. The proposed development, in consequence of its excessive height, is clearly not sympathetic to the established consistency of scale. As the proposal does not provide an appropriate visual setting for No 63 South Terrace, it does not satisfy cl 5.8.1(c) of LPS 4. For this reason, also, the development application requires refusal under the Scheme.
Paragraph (d): 'any other relevant matter outlined in Council's local planning policies'
The Council's local planning policy DGF 29 Suffolk to South Streets Local Area (DGF 29) contains relevant matters in relation to height of development on the site. DGF 29 applies to the area bounded by South Street to the south, South Terrace to the east, Norfolk Street to the north and Marine Terrace to the west. In particular, the strip of properties fronting South Terrace, including the site, falls within Area B of DGF 29. The objectives of DGF 29 include:
Ensure that any new development in or adjoining the policy area contributes to the preservation and enhancement of the cultural heritage of the area. This includes defining the residential core (Area A) and mixed use/commercial areas (Areas B and C) and preserving the traditional building forms and streetscapes. (Emphasis added)
The development guidelines in cl 3 of DGF 29 include:
Generally development should relate to the scale, height, form and mass of the existing buildings. …
Development should contribute to the traditional streetscape and amenity including:
…
•consistency in wall heights, roof pitches, building materials and colours;
Having regard to Mr Kelsall's evidence referred to earlier, the proposed development is fundamentally inconsistent with these relevant elements of DGF 29. Because of the proposed three level height of the development at the street frontage, increasing to four levels, the proposal does not preserve the traditional building forms and streetscapes. The proposed development does not relate to the scale, height, form and mass of existing buildings. It does not contribute to the traditional streetscape and amenity including consistency in wall heights and roof pitches.
Mr PJ McQueen, who appeared with Ms E McGrath on behalf of Auzcorp, presented four arguments as to why the proposed development is consistent with DGF 29. First, Mr McQueen emphasised the word 'generally' in cl 3 of DGF 29. Second, he suggested that the words 'the existing buildings' in cl 3 of DGF 29 include the Arundel Apartments and the Fremantle Hospital building. Third, Mr McQueen submitted that the proposal will contribute to a traditional streetscape by 'blocking out' the Arundel Apartments. Finally, he relied on the evidence of Mr Norman Bateman, the designing architect, that the building materials proposed, 'reflect the predominant historic building material in Fremantle'.
While it is correct that the word 'generally' imports some flexibility, having regard to Mr Kelsall's evidence that there is 'a remarkable consistency in height' of between one and one and a half storeys along the western side of South Terrace, a three storey presentation along the full length of the street alignments, increasing to four storeys in a manner that can be read as such from reasonably close to the site, goes well beyond the flexibility imported by the word 'generally' in the circumstances of this case.
It is unlikely that the words 'the existing buildings' in cl 3 of DGF 29 include buildings outside the area that is subject to DGF 29. However, in any case, as Mr Kelsall and Mr Leckey each explained, both the Fremantle Hospital building and the Arundel Apartments are entirely uncharacteristic in height and scale. It could not have been the intention of DGF 29 for a new development to relate to the scale, height, form and mass of those buildings.
While it is correct that, from certain viewing positions, the proposed development would 'block out' views of the Arundel Apartments, the blocking out does not contribute to the preservation and enhancement of the cultural heritage of the area or the preservation of the traditional building forms and streetscapes, because the proposal does not embody or reflect traditional building forms and streetscapes. Rather, the proposed development would introduce a third discordant element into the urban environment to add to the Arundel Apartments and the Fremantle Hospital building. This is, plainly, inconsistent with DGF 29.
Finally, while the proposed development does incorporate certain building materials that are reflective of traditional construction in Fremantle, this positive aspect of the proposal is considerably outweighed by the excessive and discordant height and scale.
It follows that the Tribunal is not satisfied in relation to relevant matters concerning height in DGF 29. This is a further reason for refusal of the development application.
Clause 5.8.4(a) of LPS 4: 'approval of the proposed development would be appropriate having regard to the criteria set out in cl 10.2'
Additionally, cl 5.8.4(a) of LPS 4 states that the power conferred by cl 5.8.1 may only be exercised if the Council is satisfied that:
Approval of the proposed development would be appropriate having regard to the criteria set out in cl 10.2.
The most relevant criteria in cl 10.2 identified in the evidence and submissions of the parties are:
…
(b)the requirements of orderly and proper planning including any relevant proposed new local planning Scheme or amendment or region Scheme or amendment, which has been granted consent for public submissions to be sought,
…
(i)the compatibility of a use or development with its setting,
…
(k)the cultural significance of any place or area affected by the development, including but not limited to provision for the preservation, incorporation or recording (by means including public art works) and significant cultural values of the site,
…
(o)the preservation of the amenity of the locality,
…
(s)the way in which buildings relate to the street and adjoining lots, including their effects on … the traditional streetscape …
…
(w)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal,
…
The Tribunal does not consider that approval of the proposed development would be appropriate having regard to these provisions. Because of the proposal's excessive and discordant height and scale in the context of the consistent scale of historic buildings along the western side of South Terrace, the proposal is materially inconsistent with the criteria in para (i), para (k), para (o), para (s) and para (w). As noted earlier, Mr Mackay referred to and relied upon draft State Planning Policies in forming the opinion that the proposed development is appropriate in height and scale from an urban design perspective. In particular, Mr Mackay considered that the proposal is an appropriate development 'in the context of the growth of a strategic regional centre, and arguably reflects the scale of building that will be more commonly constructed in Fremantle in the future'. However, as found earlier, if the draft State Planning Policies referred to by Mr Mackay are ultimately adopted and made, they would need to be carefully implemented by means of local planning, particularly in an area such as the central part of Fremantle in which heritage considerations are an established and important element of urban planning. For reasons set out earlier, it is unlikely that the commercial buildings on the western side of South Terrace will be demolished. Furthermore, as Mr Leckey said, there is capacity to increase density elsewhere in Fremantle, particularly in the East End.
Approval of the proposed development is, therefore, also precluded by cl 5.8.4(a) of LPS 4.
Conclusion
The proposed development does not comply with the maximum external wall height standard that is applicable to the site under LPS 4. In particular, whereas the maximum external wall height standard contemplates two level development, the proposed development consists of four levels, including three levels directly abutting each of the boundaries of the site.
As the site adjoins a property which comprises a building that significantly exceeds the maximum external wall height standard, the power to vary the maximum external wall height standard in cl 5.8.1 of the Scheme becomes relevant. However, in order for the Council (and the Tribunal on review) to exercise the power to vary the maximum external wall height standard, it must be satisfied of each of the matters set out in para (a) para (d) of that clause. For reasons set out earlier, the Tribunal is not satisfied in relation to any of these four matters. Furthermore, the power conferred by cl 5.8.1 of LPS 4 may only be exercised if the Council (or the Tribunal on review) is satisfied that approval of the proposed development would be appropriate having regard to the criteria set out in cl 10.2 of the Scheme. The Tribunal is not satisfied that approval of the proposed development would be appropriate having regard to relevant criteria in cl 10.2. The development application, therefore, must be refused under the Scheme.
Finally, it is appropriate to address three particular submissions made on behalf of Auzcorp.
First, Mr McQueen submitted, in reliance on Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 at 171 175 (Pinder Architects), that 'if there is considered that there is detrimental impact to the amenity of the surrounding locality, … the overwhelming public benefit of adding essential health services to an area which already contains other health services such as the Fremantle Hospital, would outweigh any such detrimental impacts'. However, the principles discussed in Pinder Architects are not relevant in this case for each of two reasons. First, as the proposed development is not compliant with the maximum external wall height standard, it requires variation to that standard under cl 5.8.1 of the Scheme. As the Tribunal is not satisfied in relation to the considerations set out in cl 5.8.1(a) to cl 5.8.1(d) of LPS 4, the Scheme requires refusal of the application. Pinder Architects is apposite in circumstances where there is a merit assessment of an application. However, in this case, the application does not get to the stage of a merit assessment under the Scheme, because the power to vary the maximum external wall height standard cannot be exercised. Second, the principles discussed in Pinder Architects concern a public use in the sense of a noncommercial community facility serving particular needs of the public. Assuming that the proposed development is necessary to serve a public need, it is a commercial proposal and, therefore, falls outside the scope of the principles discussed in Pinder Architects.
Second, Mr McQueen relied on the evidence of Mr Linden Quin, the project manager of the proposed development, who said that the size of the proposal is necessary to make the development viable. In particular, Mr Quin told the Tribunal that the proposed development would not be viable and would not go ahead unless the four residential dwellings were approved on the fourth level. However, the viability of a proposed development is not a matter for consideration under cl 5.8.1 of the Scheme.
Third, Mr McQueen submitted that the circumstances of the site are 'extraordinary', because it adjoins the property containing the 27 metre high Arundel Apartments and because of its limited size.
The site is not extraordinarily small. The cadastral map indicates that the size of the site is fairly typical for properties on the western side of South Terrace. The proximity to a building that significantly exceeds the maximum external wall height standard is, however, an unusual characteristic of the site. Consistently with the criteria in para (a) para (d) of cl 5.8.1 and cl 5.8.4 of the Scheme, the proximity to the Arundel Apartments would arguably enable the exceedance of the maximum external wall height standard of 7 metres (two levels) by one additional level, provided that the third level were set well back, in the order of about 4 metres, from all boundaries of the site. Subject to appropriate design and materials, a two level presentation at the street alignments, with an awning above the first level, would be reasonably consistent with the characteristic scale of development on the western side of South Terrace, particularly given that the scale of the buildings immediately south of Arundel Street is one and a half storeys. Owing to the topography, the basement level would become increasingly exposed along the southern and western boundaries and fully exposed at the southwestern corner of the site. However, as the area to the south is a utility area and the area to the west is the car parking area of the Arundel Apartments, this presentation on the southern and western boundaries would accord with cl 5.8.1, cl 5.8.4 and cl 10.2 of the Scheme, provided that appropriate banding, texturing and other detailing were utilised to mitigate the bulk and scale and to increase the visual interest of these walls. Subject to appropriate design and materials, it would appear that a third level, set well back from each boundary, in the order of about 4 metres, would also be consistent with the criteria for variation of height and acceptable on a merit assessment, in the particular circumstances of the site.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 5 November 2008 to refuse development approval for the construction of a development described as 'medical consulting, day surgery facility, 26 bed inpatient and four apartments' at No 65 South Terrace, Fremantle is affirmed.
I certify that this and the preceding [63] 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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