Bennett Watt and Town Of Cambridge
[2006] WASAT 34
•14 FEBRUARY 2006
BENNETT WATT and TOWN OF CAMBRIDGE [2006] WASAT 34
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 34 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:546/2005 | 25 OCTOBER 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 31 OCTOBER 2005, 7 NOVEMBER 2005 AND 16 NOVEMBER 2005) | |
| Coram: | MS M CONNOR (MEMBER) | 14/02/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | NATALIE BENNETT WATT TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development application Three level dwelling Noncompliance with Acceptable Development provisions of the Codes and Residential Design Guidelines Inconsistent with planning framework Character and streetscape Building height Setbacks Access to views of significance Bulk and scale Amenity |
Legislation: | Metropolitan Region Scheme Residential Design Codes of Western Australia (2002), Pt 2.6, cl 3.3.1, cl 3.3.2 Town of Cambridge Residential Design Guidelines, Pt 2.1.5 Town of Cambridge Town Planning Scheme No 1, cl 5, cl 17, cl 18, cl 19, cl 33(1), cl 33(1)(e), cl 32(2), cl 33(2), cl 33(1)(e), cl 33(2)(a), cl 33(2)(b), cl 38(3), cl 38(4), cl 48, cl 48(8) Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | Sweetland and Town of Cambridge [2005] WASAT 278 Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to refuse approval for a three level dwelling including an undercroft on No 16A Clune Avenue, West Leederville is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : BENNETT WATT and TOWN OF CAMBRIDGE [2006] WASAT 34 MEMBER : MS M CONNOR (MEMBER) HEARD : 25 OCTOBER 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 31 OCTOBER 2005, 7 NOVEMBER 2005 AND 16 NOVEMBER 2005) DELIVERED : 14 FEBRUARY 2006 FILE NO/S : DR 546 of 2005 BETWEEN : NATALIE BENNETT WATT
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development application Three level dwelling Noncompliance with Acceptable Development provisions of the Codes and Residential Design Guidelines Inconsistent with planning framework Character and streetscape Building height Setbacks Access to views of significance Bulk and scale Amenity
(Page 2)
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia (2002), Pt 2.6, cl 3.3.1, cl 3.3.2
Town of Cambridge Residential Design Guidelines, Pt 2.1.5
Town of Cambridge Town Planning Scheme No 1, cl 5, cl 17, cl 18, cl 19, cl 33(1), cl 33(1)(e), cl 32(2), cl 33(2), cl 33(1)(e), cl 33(2)(a), cl 33(2)(b), cl 38(3), cl 38(4), cl 48, cl 48(8)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
1. The application for review is dismissed
2. The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr S Allerding (Agent)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Sweetland and Town of Cambridge [2005] WASAT 278
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 Natalie Bennett Watt applied to the State Administrative Tribunal for review of the decision of the Town of Cambridge refusing planning approval for the construction of a three level dwelling, including an undercroft, on Lot 64 Clune Avenue, West Leederville.
2 The design of the proposed development involved a number of departures from the "Acceptable Development" provisions of the Residential Design Codes of Western Australia (2002) and the Town of Cambridge Residential Design Guidelines. The principal departures related to building height and the proposed setback to the western boundary. Approval of the application, therefore, required the exercise of discretion under the Codes and Guidelines.
3 The principle departures raised significant planning issues relating to views of significance, amenity and bulk and scale. The Tribunal found that these departures did not satisfy the relevant Performance Criteria and, as such, would compromise the objectives of the Codes and Guidelines resulting in an outcome that would not accord with the principles of orderly and proper planning.
Introduction
4 This is an application by Natalie Bennett Watt (applicant) for review of a decision of the Town of Cambridge (respondent) to refuse planning approval for the construction of a three level dwelling, including an undercroft, on Lot 64 (No 16A) Clune Avenue, West Leederville (subject land).
5 The development application was refused by the respondent at its ordinary meeting of 26 July 2005. In refusing the application, the respondent gave the following reasons:
"(i) noncompliance with WA Residential Design Codes (R Codes) and Town of Cambridge Residential Design Guidelines (RDG's) with regard to:
• the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Element Streetscape;
- • the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Element 3 Boundary Setbacks;
• the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Element 7 Building Height;
• the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Element 8 Privacy;
• the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Town's Residential Design Guidelines Pt 2.1.5 Roof Pitch;
- (ii) the number and extent of the variations to the acceptable development standards of the R Codes and RDG's will result in development which will adversely affect the amenity of the neighbouring properties and the area in general;
(iii) the neighbour to the south of the subject sites [sic] has raised concerns regarding the scale of the development and the impact it will have on their amenity."
6 The applicant, on 19 August 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) to have the decision reviewed.
Subject land
7 The subject land is described as Lot 64 on Deposited Plan 42948, in certificate of title volume 356 folio 18A and has a total area of 367 square metres. The subject land is rectangular in shape and has dual frontage to St Leonards Avenue and Clune Avenue, with St Leonards Avenue being the primary street frontage.
8 The subject land is currently vacant. Until March 2004, the land formed part of Lot 42. At that time, the Western Australian Planning
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- Commission granted approval to subdivide the lot into two freehold lots, creating Nos 16A and 16B Clune Avenue.
9 Lot 64 rises up from the front (northeastern) corner of the site by approximately 1.5 metres to the rear (southwestern) corner.
The nature of the proposal
10 The proposal involves the construction of a three level "Single House". The dwelling has been designed with varying finished floor levels on all levels so as to address the topography of the land. The undercroft and lower level incorporate a double garage which is accessed from St Leonards Avenue, a theatre room and bar area, gym and bathroom, cellar, laundry and alfresco area including an outdoor kitchen. The ground floor level of the dwelling comprises an entry, formal dining, family room, kitchen and scullery, alfresco area and guest accommodation incorporating bathroom, lounge/dining and kitchen facilities. The upper level encompasses a master suite, ensuite, dressing room and walkin robe and two bedrooms, each with a robe and ensuite. The dwelling is proposed to have a low pitched skillion roof, with the highest part of the skillion facing Clune Avenue but pitched behind parapet walls.
11 The dwelling is proposed to be set back from the St Leonards Avenue boundary (primary street) between 4.75 and 5.0 metres and set back between 1.5 and 2.110 metres from the secondary street boundary (Clune Avenue). The proposed dwelling and its appurtenant features have been orientated toward Clune Avenue to take advantage of the views to the north and Lake Monger.
12 The respondent's planning officers, as part of their assessment of the proposal, prepared a table to demonstrate noncompliance with the Acceptable Development requirements of the Residential Design Codes of Western Australia (2002)(Codes) and with the Town of Cambridge Residential Design Guidelines (Guidelines). The noncompliance aspects of the table are reproduced below:
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Table of Assessment
|
|
|
(RCodes and Guidelines) Secondary Street Clune Avenue (north) Roof Pitch Landscaping (amount of hard paving) | 1.5 metres 30 40 degrees
| 0.75 metre (to entry stairs) 3 degrees
|
(R Codes) Ground Floor (west) First Floor (west) Upper Floor (west) |
2.6 metres 1.7 metres |
Nil 1.785 metres 0.8 1.785 metres |
(Guidelines) Wall Height |
|
|
(R Codes) Dining Room (west) |
|
|
13 Mr Allerding, who represented and gave evidence on behalf of the respondent, generally endorsed this table. There was, however, one area of dispute relating to building height. Mr Allerding contended that "[a]t the [north] eastern corner the wall height is estimated to be up to 1.5 metres greater than allowable under the [guidelines]".The table prepared by the respondent's planning officer indicated a departure of 1.05 metres above the required 7.0 metre height requirement, a difference of 0.45 metres. The applicant disputed the claims made by Mr Allerding. Written submissions from the parties on this point were required by the Tribunal (see further below).
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Planning framework
14 The subject land is zoned "Urban" in the Metropolitan Region Scheme and residential development is an appropriate use within the "Urban" zone.
15 Development of the subject land is also governed by the Town of Cambridge Town Planning Scheme No 1 (TPS 1). Lot 64 is currently zoned "Residential" with a permitted site density of R30 as illustrated on the scheme maps.
16 Clause 5 sets out the Objectives and Intentions of TPS 1. A general objective of the scheme that is of particular relevance to this matter is:
"5(3)(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:-
(i) recognises the individual character and needs of localities within the Scheme Area; and
(ii) can respond readily to change."
18 The "Zoning Table" contained in TPS 1 classifies the use class "Dwelling (Single)" as a "P" (permitted) use in the "Residential" zone and as such, the proposed development is a permitted use.
19 Under subclause 33(1)(e) of TPS 1, planning approval is not required for the erection of a single dwelling house on a lot in a zone where the proposed use is designated as a "P" use, except where otherwise provided by the Scheme. Notwithstanding this provision, any person who wishes Council to exercise discretion under the Codes or a Planning Policy must seek Council's approval for the variation (subclause 33(2)). The matter came to be determined by the respondent as the proposal involves a number of departures from the Acceptable Development provisions of the Codes and Guidelines, as demonstrated in the respondent's Table of Assessment.
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20 Before granting approval to the requested variations, the Council must satisfy itself, in the first instance, that the discretion requested is one which the Council has the power to approve and secondly, that granting of that discretion would not compromise the objectives of the Codes or Planning Policy (subclauses 33(2)(a) and 33(2)(b)).
21 Clause 18 of TPS 1 requires the development of land to be in accordance with standards and requirements contained in the Scheme Text, Planning Policy and the Codes, unless otherwise consistent with a planning approval.
22 Pursuant to cl 19 of TPS 1, development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes, unless otherwise specified in the Scheme.
23 Subclause 38(3) of TPS 1 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Without limiting the scope of the discretion to determine an application, subclause 38(4) sets out the matters to which regard is to be had in the determination of an application. The relevant matters relating to this application are as follows:
"(a) the provisions of this Scheme and of any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b) any relevant Planning Policy;
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
24 Clause 48 of TPS 1 empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme, which may be applied to all or part of the Scheme Area. The Guidelines referred to in the refusal of this application have been adopted by the respondent pursuant to cl 48.
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25 Subclause 48(8) of TPS 1 provides that a planning policy prepared under cl 48 shall be consistent with the Scheme and where any inconsistencies arise the provisions of the Scheme prevail.
Planning issues
26 The respondent argued that the overall combined effect of the noncomplying matters outlined in the planning officer's report to Council (refer above) resulted in development that would adversely affect the amenity of the neighbouring properties and the area in general. Mr Allerding acknowledged all of the noncompliant aspects identified in the respondent's "Reasons for Refusal" but considered the following noncompliant elements to be the fundamental concerns in this review:
• building height (in excess of 8.0 metres proposed as opposed to maximum 7.0 metres); and
• western boundary setbacks (ranging from nil to 1.78metres proposed as opposed to minimum 1.5 metres to 2.6 metres).
27 Mr Allerding argued that the combination and extent of the departures from the Acceptable Development provisions resulted in a form of development that would not be consistent with the respondent's adopted planning framework and contrary to the strategic intentions for the locality. Mr Allerding also contended that the proposed development would have a prejudicial impact on the amenity of the adjoining lot to the south (Part Lot 41) and the area in general, particularly in relation to building height and access to views, as well as bulk and scale on the streetscape.
28 Mr Allerding referred to the Precinct Statements to establish the statement of intent for the "West Leederville" Precinct, which states:
"Because most of the original houses are modest in scale and even more so in their appointment, they have been vulnerable to replacement or insensitive alteration. However, in recent years a combination of socioeconomic circumstances smaller, more affluent households with a greater proportion of occupants in full time work and general embracing of heritage values by the community has meant that 'character' houses, often on small lots, have become sought after. Their future is assured now more than ever.
Protection of this character will be the highest priority."
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29 Given this context, Mr Allerding contended that the protection of the character of the area was paramount. He relied on the description contained in "Sub Precinct P5C Central West Leederville" to characterise the area, which states:
"Most houses are brick or rendered brick, with some timber, and terracotta tiled or iron rooves, with front verandahs and small front gardens. The architecture is largely Federation Queen Anne, with a proportion of interWar California bungalow houses, increasingly so to the west of McCourt Street. The range of housing demonstrates the evolving development of housing in the first quarter of this Century.
The character of this subprecinct is largely intact and resides in the area as a whole. No individual building is singled out as having special heritage value."
30 He further defined the character of the area in his opening statement as "a traditional area which contains predominantly modest heritage and character dwellings". Mr Allerding maintained that, in its current form, the proposed three level contemporary dwelling was not consistent with the respondent's intentions for the area, as the built form of the proposed dwelling would present as a dominating structure that would significantly impact on the character of the area and would detract from the more traditional streetscape of St Leonards Avenue.
31 Ms Bennett Watt established that the subject land was situated on the northern and western boundary of SubPrecinct P5C, immediately east of the entrance to SubPrecinct P5D "Hill of Tara", characterised by two to three storey large "City Beach" style housing, mostly constructed during 1980's. She contended that the paved carriageway, which marked the entrance to the "Hill of Tara", commenced at the northeast corner of the lot and gave the impression that the subject land was located within the "Hill of Tara" precinct. Mr Allerding agreed with this contention but qualified his position by explaining that the streetscape of Clune Avenue was different to the more traditional forms of development found in St Leonards Avenue as it was comprised of an eclectic mix of housing types. Mr Allerding further conceded that there are a number of two and three levels dwellings situated in St Leonards Avenue in the immediate vicinity of the subject land.
32 Ms Bennett Watt asserted that the proposed development was compatible with the contemporary style of housing of the "Hill of Tara"
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- precinct and the style and form of the proposed dwelling was consistent with the Clune Avenue streetscape. Ms Bennett Watt also produced a number of photographs to demonstrate that the respondent had previously supported contemporary architectural design within the West Leederville precinct, and more particularly, within the immediate vicinity of the subject land. She further claimed that the respondent in February 2005 approved a similar development on the lot immediately to the west of the subject land, and argued that the elements of the proposed development in dispute are incorporated into the design of the approved development. Mr Allerding agreed that there were a number of recent development examples of skillion style roofs along Clune Avenue, and considered the design of the dwelling to be more akin with the design characteristics of developments in the "Hill of Tara" precinct than those of St Leonards Avenue and, as such, was not opposed to the skillion roof.
33 The evidence shows that the respondent's planning officer also considered the style and form of the proposed dwelling to be consistent with the streetscape. The planning officer's report, presented to the Council at its meeting of 28 July 2005, contended that the proposed three level dwelling had been designed to compliment the streetscape and satisfied the performance criteria relating to streetscape, boundary setbacks, wall height and visual privacy and recommended that the development be approved.
34 The evidence clearly establishes that the subject land is situated on the border of two distinct and diverse precincts; one characterised as a traditional area, the other characterised by large two to three storey "City Beach" style dwellings, mostly constructed in the 1980's. The topography of the area, the street patterning and the orientation of the proposed dwelling suggests that the subject land lies within the "Hill of Tara" precinct.
35 However, it is necessary to consider the impacts of the proposed development on both precincts. The evidence shows that the built form of the dwelling would be consistent with that of the "Hill of Tara" precinct and would not adversely affect the streetscape of Clune Avenue. The applicant also was able to establish that St Leonards Avenue, although predominantly traditional in form, included in the immediate vicinity of the subject land dwellings that were of a scale comparable to the proposed dwelling. Although the proposed dwelling is contemporary and will present as a dominant structure in Clune Avenue, given its context, the Tribunal does not consider that it will detract from the character of the area or the St Leonard Avenue streetscape.
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Non-complying matters of concern
Building height and loss of view
36 Mr Allerding contended that the increase in wall height compared to a compliant wall height would result in significant disruption to the capacity to access views of significance from Part Lot 41. At the hearing, Mr Allerding produced some rudimentary elevation plans to demonstrate, firstly, the noncompliant portions of the building with the building height requirements of the Codes and the Guidelines, and secondly, the impact of this additional bulk on views from Part Lot 41 (see Exhibit 5). Mr Allerding explained that the method of calculating the line of noncompliance was determined by selecting a number of reference points on the elevation plans and scaling 7.0 metres from the natural ground level. He argued that the plans demonstrated that the additional building bulk would obscure the view of Lake Monger from the top balcony of the dwelling on Part Lot 41. He maintained that the loss of this view significantly impacted on the amenity of the adjoining lot, and as such, the proposed development did not satisfy the Performance Criteria as it failed to recognise the need to protect the amenity of the adjoining lot in regard to access to views of significance.
37 The Tribunal was also informed that the original plans were referred to the owners of Part Lot 41 for comment and that a written objection was received raising concerns about loss of views due to the height of the dwelling and loss of winter sun to an outdoor pergola area as a result of the proposed western setback on the upper level. A copy of the letter was included in the respondent's s 24 bundle of documents, although the authors were not called as witnesses. Ms Bennett Watt contended that the respondent had not sought further comment from the owners of Part Lot 41 on the amended plans, which incorporated modifications addressing some of the concerns raised previously. Ms Bennett Watt included as an annexure to her documentation a letter dated 5 October 2005 from the owners of Part Lot 41 confirming that they had requested a change in the original plans from a pitch roof to a flat roof as this modification would allow better sunlight and views from their property. However, as pointed out by Mr Allerding, the letter did not allay the concerns previously raised. Given the position of the parties, evidence from the owners of Part Lot 41 would have been of benefit to the Tribunal.
38 During the hearing, Mr Allerding was questioned on the disparity between his building height calculations (8.5 metres on the northeastern corner) and that of the respondent's planning officer (8.05 metres on the
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- northeastern corner). Mr Allerding was unable to offer any explanation for the difference in figures. Ms Bennett Watt did not agree with Mr Allerding's assessment but was not able to offer any expert evidence in relation to this issue due to the lateness of Mr Allerding's witness statement. Given the circumstances and the importance of this issue, the Tribunal provided opportunity for both parties to address this issue in the form of written submissions.
39 The applicant put forward the following explanation for the discrepancy between the calculations:
"The NGL depicted on the St Leonard's Ave elevation is the NGL at the eastern boundary 5 metres east of the proposed building corner NOT directly below the wall. It should also be noted that the NGL depicted on the Clune Avenue elevation is on the northern boundary which is 1.5 metres north. New diagrams submitted with this response show this clearly."
40 Based on the revised diagrams, the applicant rejected the assertions made by Mr Allerding on this matter and contended that the wall height on the northeastern corner was 7.885 metres based on NGL of 23.90, reducing significantly the area of noncompliance on both elevations.
41 Written submissions from the respondent were provided by Mr Pas Bracone, Manager Planning Services for the Town of Cambridge, which principally supported the assertion of the applicant. Written submissions were not received from Mr Allerding. In relation to this matter, the respondent offered the following explanation:
"The Town in it's assessment of the proposal, came to the conclusion that the natural ground level (directly beneath the north eastern corner of the building) is approximately 23.80 (from the site survey provided). This realised an overall height assessment of approximately 8.05 metres in this location (to the top of the roof above the master suite balcony was realised).
After discussions with the applicant, it was ascertained that in their [sic] assessment a natural ground level of 23.90 was utilised and hence the overall height of 7.88 metres to the top of the upper storey master suite balcony roof was realised.
The Town is of the view that the building does not exceed an overall height of 8.05 metres and the asserted overall height of 8.50 metres by Mr Steven Allerding during the hearing was
(Page 14)
- based upon utilising the natural ground level at the St Leonards Avenue (eastern) property boundary rather than the natural ground level (NGL) point directly beneath the affected wall."
42 On the additional evidence, the Tribunal finds that the elevation plans submitted by Mr Allerding during the hearing demonstrating the noncompliant portions of the building with the building height requirements of the Codes and Guidelines and the impact of this additional bulk on views from Part Lot 41 do not correctly reflect the requirements and therefore do not correctly demonstrate the impact of the additional bulk of the dwelling on views from Part Lot 41. For the purpose of determining this aspect, the Tribunal will rely on the additional plans attached to the written submission submitted by the applicant on 31 October 2005.
43 During the hearing, the applicant submitted an alternative proposal which involves the removal of the roof structure over the master suite balcony area, which is located in the northeastern corner of the dwelling. The effect of this modification would be to reduce the wall height on this corner to approximately 5.6 metres. Mr Allerding was of the view that the proposed modification was quite a significant concession in addressing the concern with respect to building height from a streetscape perspective, but did not resolve the issue of loss of views from the adjoining property. Mr Bracone, in the respondent's written submission, held the view that the proposed modification would reduce the bulk and scale of the structure, but highlighted the fact that height variations would still exist, citing the wall height of the northeastern corner of the master suite as 7.9 metres.
44 The alternative proposal will assist in reducing the bulk and scale of the dwelling on the northeastern corner of the subject lot, reducing the impact of the dwelling on the streetscape. However, the proposed modification does not resolve the issue of building height as portions of the building on at least three elevations remain over the Acceptable Development provision.
45 In relation to the loss of views of significance, the applicant provided sight line diagrams showing a fully compliant wall height, the alternative proposal and the roofline that would enable lake views from Part Lot 41. As well, the applicant submitted computer generated images to demonstrate the impacts on the view of the various options.
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46 The evidence shows that, at present, the owners of Part Lot 41 enjoy significant views of Lake Monger and its environs. It must be acknowledged, however, that at present the subject land is vacant. Figure 2 of the computer generated images shows that a compliant wall height on the northern elevation (resulting in the south wall being reduced to 6.2 metres) would significantly reduce the view of Lake Monger to what could be termed a "glimpse". The sight line diagrams indicate that a compliant proposal, that being 7.0 metres on the northern and southern elevations, would obscure the view of Lake Monger. Figure 3 (which shows the impacts on views for the proposal submitted in July 2005) and Figure 4 (which shows the impact on views for the alternative proposal) both result in the loss of view of Lake Monger but retains some view of the Lake Monger environs. The effect of the alternative proposal is to reduce the impact on the loss of view of the Lake Monger environs.
47 The respondent, in its written submission, contended that loss of views of significance was still apparent, but that it was too difficult to determine the extent of the loss. The respondent was of the view that the greatest access to views of significance was obtained when the proposed building was fully compliant with the Acceptable Development provisions of the Codes and the Guidelines regarding wall height.
48 The applicant, during the hearing and in the written submissions, also argued that the development as proposed with a flat roof would be far less intrusive on views than a compliant proposal that incorporated a pitch roof which would eclipse all but the sky. No evidence was led to substantiate this claim, and therefore the Tribunal was unable to form any conclusion.
Setbacks
49 Mr Allerding identified the setback to the western boundary as an issue, as the proposed setbacks (ground and first floor levels nil setback and 1.785 metres; upper floor level 0.8 metre and 1.785 metres) would adversely affect the amenity of Part Lot 41. Mr Allerding asserted that the proposed setbacks would not satisfy the Performance Criteria or the Objective of "Element 3 Boundary Setbacks" of the Codes as the building bulk would potentially limit ventilation into open spaces and adversely affect the amenity of Part Lot 41. No evidence was produced by the respondent to support this assertion. Mr Allerding also considered that planning opportunities on Part Lot 41 may be prejudiced by the proposed relaxations.
50 Ms Bennett Watt argued that the setback variation related only to the adjoining lot to the west and that that lot was not adversely affected by the
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- departure as a similar wall on the common boundary had been approved by the respondent. Mr Allerding agreed that the proposed parapet wall on the western elevation would not impact on adjoining lot to the west. He maintained that the combined developments of the subject land and that of the adjoining lot to the west resulted in a built form that would prevent adequate ventilation to Part Lot 41. Mr Allerding claimed that the respective developments effectively produced a 40 metre length of wall without any openings except for the upper level which created an opening of 1.8 metres. Given the impact of the two developments on Part Lot 41, Mr Allerding considered that the upper floor level did not meet the objective of Element 3 and as such, the setback of the upper level from the western boundary should be compliant with the Acceptable Development provisions of the Codes.
Tribunal's view
51 The proposed development requires a number of departures from the Acceptable Development provisions of the Codes. As the Tribunal has previously stated in Sweetland and Town of Cambridge [2005] WASAT 278 this, in itself, is not fatal to the application as the Codes are concerned with the fundamental aspects of good design and achieving the best planning outcome through a "performance approach."
52 Two areas of departure from the Acceptable Development provisions of the Codes and Guidelines, that being building height and setbacks, raised significant planning issues relating to loss of views of significance, amenity, and impact of bulk and scale.
53 Subclauses 33(2) and 33(2)(b) require that before granting approval to the requested variations, the decisionmaker must be satisfied that the discretion requested is one which it has the power to approve and that the granting of that discretion would not compromise the objectives of the Codes or Planning Policy.
54 The Codes and the respondent's Guidelines provide for a departure from the Acceptable Development provisions, provided the Performance Criteria have been satisfied and that the aim or Objective of the design element has been met.
55 The respondent's Guidelines which have been prepared as a local planning policy under Pt 2.6 of the Codes and adopted under cl 48 of TPS 1 sets out the objective and requirements for the design element "Building Height". The stated aim is as follows:
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- "To avoid excessive disruptions in building height which could result in an adverse impact on the streetscape and amenity of neighbouring properties."
56 The Acceptable Development provision relating to a skillion roof development in West Leederville is:
"A1.1 West Leederville, Wembley and Floreat
iii. Top of a skillion, curved or flat roof that does not exceed 7.0 metres in height."
57 It was common ground between the parties that the proposed development did not comply with the Acceptable Development provision and needed to be assessed against the Performance Criteria of the Guidelines. However, the extent of the noncompliance is still at issue. The applicant asserted that the building did not exceed an overall height of 7.885 metres, whereas the final position of the respondent maintained that the building did not exceed an overall height of 8.05 metres.
58 The Performance Criteria of the "Building Height" element requires that new development meets the following criteria:
"P1• Buildings which respect the scale of buildings generally in their vicinity, in terms of their height and bulk and remain subservient to the green streetscape;
• Buildings which are respectful of the predominant character and style of existing development with in the locality;
• Where the front of the building facing the street is broken up, presenting a varied and interesting façade to the street, rather than a continuous wall; and
• Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
• adequate direct sun to buildings and appurtenant open spaces;
• adequate daylight to major opening to habitable room; and
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- • access to views of significance."
59 The Guidelines provide a proper measure of orderly and proper planning in this area. The essence of the respondent's concerns lay in dot point four of the Performance Criteria which seeks to protect the amenities of the adjoining properties, including access to views of significance. The significance of the view of Lake Monger and its environs was not disputed.
60 It is a fact that development on the subject land will reduce the views of Lake Monger from Part Lot 41. However, the extent of the dwelling on the subject land will determine the degree of view lost from the top balcony of the dwelling on Part Lot 41. The sight line diagrams show that a compliant building height will obscure the view of Lake Monger from Part Lot 41, however, the view of Lake Monger's environs is retained. The noncompliant portions of the dwelling will reduce access to the view of Lake Monger's environs. Figure 4 demonstrates that the alternative proposal put forward by the applicant would marginally reduce the impact of the proposed dwelling on Part Lot 41. Even assuming that the applicant's assessment of height is correct, the variations in height, for either proposal, will exacerbate the adverse impact of the building height on Part Lot 41 and would, therefore, unreasonably diminish its amenity. The proposed development does not satisfy the Performance Criteria and would therefore compromise the objectives of the Guidelines.
61 The second significant variation requested involves a departure from the Acceptable Development provisions for "Element 3 Boundary Setbacks" of the Codes. The objective for this element is "[t]o ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impact of building bulk, interference with privacy, and overshadowing on adjoining properties". It was agreed that the adjoining property to the west was not affected by the proposed boundary setbacks. The respondent was concerned that the cumulative effect of the massing of the buildings on the subject land and that on the adjoining lot to the west would adversely affect the amenity of Part Lot 41. The Performance Criteria for cl 3.3.2 "Buildings on Boundary" addresses amenity impacts on the "adjoining property", which, in this instance, would be the lot to the west. It was the applicant's contention that the proposal satisfied the relevant Performance Criteria as the amenity of the affected lot, that being the lot to the west, was not adversely affected by the proposed wall.
(Page 19)
62 This may be the case for the portion of the building located on the boundary, however, the upper portion of the wall is setback from the western boundary and would need to satisfy the Performance Criteria set out in cl 3.3.1 "Buildings Set Back from the Boundary", which under dot point fours provides for "[b]uildings set back from boundaries other than street boundaries so as to assist in ameliorating the impacts of building bulk on adjoining properties." Therefore, under this criterion, the impacts of the building bulk on the southern lot can be taken into consideration. As well, under subclause 38(4) of TPS 1, the decision maker is required to take into consideration the design, scale and relationship to existing buildings and surroundings of any proposed building or structure. On this matter, the Tribunal finds that the concerns raised by the respondent in relation to the cumulative effect of the proposed developments on the amenity of Pt Lot 41 to be valid and considers that support for the proposed departure would compromise the objectives of the Codes.
Conclusion
63 One of the fundamental aims of the Codes is to minimise the adverse impact of proposed residential development on adjoining residential properties. The Tribunal does not consider the proposed development would achieve this goal and, as such, it is of the opinion that approval to the variations sought would compromise the objectives of the Codes and the Guidelines, resulting in an outcome that would not accord with the principles of orderly and proper planning.
Orders
64 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to refuse approval for a three level dwelling including an undercroft on No 16A Clune Avenue, West Leederville is affirmed.
- I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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