BOLLIG and TOWN OF CAMBRIDGE
[2007] WASAT 135
•30 MAY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BOLLIG and TOWN OF CAMBRIDGE [2007] WASAT 135
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE PAPERS WITH A VIEW ON 22 MARCH 2007
DELIVERED : 30 MAY 2007
FILE NO/S: DR 25 of 2007
BETWEEN: EDWIN BOLLIG
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning – Condition(s) of development approval – Roof pitch – Visually permeable front fence – Primary roofs visible from street – Hipped and/or gabled roof – Skillion or flat roof
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002)
Town of Cambridge Residential Design Guidelines, cl 2.1.5, cl 2.3 A1.1(iii)
Town of Cambridge Town Planning Scheme No 1, cl 17, cl 18, cl 33, cl 38, cl 48
Result:
The application for review is dismissed
The decision of the respondent to impose condition (ii) is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr A Stewart (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Town of Cambridge
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of a condition imposed by the Town of Cambridge requiring change to the proposed roof on a development application approval for a new two storey dwelling at 71 Blencowe Street, West Leederville.
The condition reflected the desire of the Council to maintain the predominant roof form in the precinct.
The Tribunal found that the proposed roof did not comply with the orderly and proper planning and the conservation of the amenity of the area.
The application for review was dismissed and the condition retained.
Introduction
These proceedings involve an application brought by Edwin Bollig (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of condition (ii) imposed by the Town of Cambridge (respondent or Council) on the development approval granted on 19 December 2006 for a two storey dwelling at 71 Blencowe Street, West Leederville (subject land or site).
Site and locality
The subject land is rectangular in shape with an east facing street frontage and right of way (ROW) to the rear (west). According to plans submitted for development approval, the subject land has a width of 15.39 metres and a length of 42.65 metres. The building licence application provided by the respondent states the lot area is 647 square metres. The site is located at 71 Blencowe Street, West Leederville and is described on Certificate of Title Volume 1923 Folio 81 as being Lot 282 on Plan 133. There is a fall of approximately 2.5 metres across the site from front to rear. The site is currently vacant.
The Tribunal was assisted by a view of the subject land and also Blencowe Street between Woolwich Street and Ruislip Street. To the north of the subject land is a pair of two storey contemporary dwellings constructed with painted rendered brick walls and skillion metal roofs. The adjoining property to the south is a traditional single storey dwelling constructed with red faced brickwork, rendered bands, bullnosed verandah, high pitched metal hipped roof and a low timber picket front fence.
Blencowe Street between Woolwich Street and Ruislip Street is a residential tree lined street containing approximately 26 dwellings. The buildings on the eastern side are generally more traditional in character and due to the topography, situated higher than those on the western side. The streetscape is fairly intact with one vacant site directly opposite the subject land. The western side of the street is more various in character as it consists of dwellings of differing ages and architectural styles (including the most contemporary pair described above).
Planning framework
The site is zoned "Urban" under the Metropolitan Region Scheme (MRS). The site is zoned "Residential" and has a residential density coding of "R30" under the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme).
Clause 18 of TPS 1 provides that "the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Planning Policies and the Residential Planning Codes". Clause 48 provides for the respondent to adopt policies.
Policies adopted by the respondent relevant to this matter are:
•Policy 3.9: Residential Design Guidelines (RDGs); and
•Policy 7.5: Precinct Planning Policy P5 – West Leederville (West Leederville Policy).
Clause 33 of TPS 1 allows for the exemption of planning approval in the case of a permitted use provided "it is in compliance with all the requirements prescribed by the Scheme, Council Planning Policies and the Residential Planning Codes". This proposal requires Council's approval for the design elements of setbacks, roof pitch and front fence which do not comply with those requirements.
Clause 38 of TPS 1 allows the respondent to approve an application subject to conditions considered appropriate by the respondent. The respondent is to have regard to the MRS, TPS 1, any planning policies, and:
" ...
(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."
Proposed development
The proposed development is a new two storey dwelling consisting of guest bedroom, ensuite, laundry, kitchen, dining, living and family rooms at ground floor level. There are four bedrooms, a study, ensuite, bathroom, walk in robe and store on the second level. On the boundary of the ROW, there is a single storey building containing a double garage, store and games room.
The building is to be constructed of painted rendered brick walls with minor areas of cedar cladding and cedar battens. The roof is to be constructed with two different roof sheeting profiles: "custom orb" and "kliplok".
The roof over the dwelling is divided into four distinct areas. The section to the north is pitched at 35 degrees, hipped at each end and constructed with "zincalume custom orb". The roof area to the south‑east is a skillion pitched at 10 degrees, constructed with "zincalume kliplok" which then folds over the east wall elevation to form a 4.0 metre by 6.2 metre wide section. The roof area to the west of this is pitched at 3 degrees and constructed with "zincalume kliplok". The northern and southern areas of roofs are separated by a 2.0 metre wide section of "zincalume kliplok" roof pitched at approximately 3 degrees.
Council's decision
The proposed development was assessed under the respondent's Community Consultation Policy and rated "Level 1" for which no community consultation was required. Letters of consent (or non‑objection) from the adjoining landowners were provided by the applicant.
The officer report to the Council concluded that although the proposed roof did not comply with the relevant Acceptable Development standards, it was considered to comply with the Performance Criteria.
The officer recommended a condition requiring a visually permeable front fence on the basis that the proposed fence did not satisfy either the Acceptable Development standards nor the Performance Criteria.
The Council approved the development application as follows:
"That in accordance with the provisions of Part 4 of the Town of Cambridge Town Planning Scheme No 1, the Council APPROVES the application submitted by Bollig Design Group, for a two storey dwelling, noting the following variations to setbacks and roof pitch at Lot 282 (No 71) Blencowe Street, West Leederville as shown on the plans dated 15 November 2006 subject to:
(i)the front fencing to be visually permeable in accordance with the provisions of the Town's Residential Design Guidelines;
(ii)the roof pitch complying with the requirements of the Town's Residential Design Guidelines (Clause 2.1.5 A1.3)."
The applicant's application for review requested the deletion of condition (ii). The applicant accepted the respondent's condition (i) requiring a visually permeable front fence.
The issue
The issue agreed by both parties that arises for determination in this review is:
•Whether the proposed roof form complies with the orderly and proper planning and the conservation of the amenity of the area.
The Tribunal will address this issue with regard to the respondent's RDGs and West Leederville Policy.
Residential Design Guidelines sub‑precinct P.5C Central West Leederville
The subject land is located in precinct P5 West Leederville as identified in TPS 1, cl 17. The West Leederville Policy states the following:
"Protection of the existing character of development within the locality will be a priority.
New development must be designed in a manner that complements the scale and character of this housing and the locality in general. In particular roof pitches, wall and eaves heights, building materials, front fences and building location and orientation are important."
For the purposes of the RDGs, precinct P5 West Leederville is further divided into five sub‑precincts. The subject land is in sub‑precinct P.5C Central West Leederville (Townscape Precinct 3).
The RDGs Precinct Statement for sub‑precinct P.5C describes Central West Leederville as follows:
"Most houses are brick or rendered brick, with some timber, and terracotta tiled or iron roofs, front verandahs and small front gardens. The architecture is largely Federation Queen Anne, with a proportion of Inter‑War Californian 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 sub‑precinct is largely intact and resides in the area as a whole. No individual building is singled out as having special heritage value."
Residential Design Guidelines development requirements
The RDGs set out Council's objectives and requirements for each of the identified precincts. Clause 2.1.5 of Design Element 1 – Streetscape identifies the required Acceptable Development standards and Performance Criteria for architectural character as follows:
"2.1.5 Architectural Character
Acceptable Development
A1.1All Precincts
...
iii.Where a building is proposed to be two or more storeys, the upper storeys facing the street designed to provide relief and articulation contributing to variety and interest in the streetscape.
...
A1.3West Leederville
Primary roofs of a dwelling that are visible from the street:
•are hipped and/or gabled; and
•have a pitch between 30 degrees and 40 degrees.
Performance Criteria
P1• Buildings which respect the height, massing and roof pitches of existing housing in the street and immediate locality;
•Buildings which respect the architectural styles which characterise the immediate locality; and
•Buildings which relate to the palette of materials and colours are characteristic of housing in the immediate locality."
Does the roof form satisfy the Acceptable Development requirements?
There are two distinct roof forms of the proposed building that will be visible from the street. The northern section of roof is to be hipped and pitched at 35 degrees and the southern section of roof is a skillion pitched at 10 degrees. This skillion continues down the eastern facade of the building and forms part of the elevation. The central flat section of roof will not be visible from the street as it sits behind a parapet wall.
The respondent's expert planning witness, Mr Allerding, is of the view the Acceptable Development standards require "that all roofs shall be hipped or gabled with a pitch of between 30 and 40 degrees".
The applicant's expert witness, Mr Stewart, is of the opinion that this applies to only the "primary" roof of a dwelling and that other "secondary" roof types are permissible provided they satisfy the Performance Criteria.
Mr Stewart argues that the reference to skillion roofs under the Acceptable Development provisions for Design Element 3 – Building Height means that secondary skillion roofs are permissible. Clause 2.3 A1.1(iii) of the RDGs provides:
"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."
Mr Allerding's response to this is that the reference to skillions and flat roofs applies to rear extensions which are "secondary" roofs.
Mr Stewart argues that there can be only one "primary" roof form and in his opinion "it means the most dominant element of the roof". He is of the view that the hipped northern roof is the dominant and therefore "primary" element and the skillion is a secondary roof element and not subject to the Acceptable Development standards of cl 2.1.5.
The Tribunal is of the view that the Acceptable Development provision's reference to "primary roofs … visible from the street" includes all major roof forms visible from the street which, in this matter, include both the hipped section on the north and the skillion section to the south.
The dominant roof form from the street will be the skillion as it projects to 5.5 metres from the front boundary and continues the same roofing material 4.0 metres down the south elevation. Whereas, the hipped roof to the north sits behind a parapet wall and is set back 6.5 metres from the front boundary. The nature of the hipped (as opposed to gabled) roof form sitting behind a high parapet wall means it will be less visible from the street.
In either case, the proposed roof form does not satisfy the Acceptable Development requirements of cl 2.1.5 of the RDGs and must therefore be evaluated against the Performance Criteria.
Does the roof form satisfy the Performance Criteria?
The "Council Officer's Report" prepared for the Committee Meeting on 12 December 2006, states:
"It is considered that the roofing style to the proposed dwelling provided an appropriate transition between the two styles of housing as it incorporates components of both architectural styles which are characterised in the immediate locality.
It is therefore considered that the proposal meets the performance criteria of the RDGs. In addition, the low roof pitch will contribute to reducing overall building height, bulk and scale of the dwelling."
Mr Stewart offers a similar opinion:
" ... the proposed dwelling is able to achieve a transition in building height between the adjoining dwellings and at the same time display a roof that reflects both the traditional and contemporary roof styles of the adjoining dwellings."
Mr Stewart's argument with regard to the Performance Criteria is that the roof pitches must respect those of the "existing" housing not just "original" housing. The existing housing includes the contemporary houses with skillion roofs to the north of the subject land.
His second point is that "street and immediate locality" obviously includes Blencowe Street but that "immediate locality" is not defined in the RDGs. He is of the opinion that it is "Sub Precinct 5C – Central West Leederville" which includes examples of contemporary dwellings incorporating non‑pitched roof elements such as skillions and flat roofs.
Mr Allerding asserts that there are only two existing dwellings in the length of Blencowe Street that have a skillion or flat roof. These are the two dwellings to the north of the subject land. He contends that other examples of contemporary dwellings within the Central West Leederville sub‑precinct with non‑conforming roofs were approved prior to the respondent's revised RDGs in June 2005.
The Council amended the RDGs by removing the following section from the Performance Criteria of cl 2.1.5:
"Buildings with contemporary and modern interpretations of pitched roofs, such as skillion or vaulted roofs, which reflect traditional styles of roof pitches."
The Council Minutes for the meeting on 28 June 2005 state that this section was deleted "in light of recent decisions by the Town Planning Appeal Tribunal to approve developments where the roof pitch was not in compliance with the acceptable development requirement".
The Council's deletion of this section reflects the importance attached to appropriate roof form in this locality. Notwithstanding this deletion, the current proposal is to be assessed against the Performance Criteria as they are in cl 2.1.5.
There is no doubt that contemporary dwellings are contemplated as indicated in the explanatory notes of cl 2.1.5:
"Design should have respect for existing character, which can be expressed in either of two ways:
(a)by a genuine application of or reference to the established style, and its common elements; or
(b)by adopting a contemporary style which is still respectful of the established character."
In the view of the Tribunal, the existence of some contemporary dwellings and the contemplation of future infill developments does not define the character of the area. As stated in the RDGs Precinct Statement for Central West Leederville, the character of this area is largely intact and consists of housing predominantly from the first quarter of the 20th century.
The TPS Policy Manual (7.5 P5 – West Leederville) states that:
"Protection of the existing character of development within the locality will be a priority.
New development must be designed in a manner that complements the scale and character of this housing and the locality in general. In particular roof pitches, wall and eaves heights, building materials, front fences and building location and orientation are important."
The Tribunal finds that the combination of skillion, flat and hipped roof forms as proposed on this development does not respect the roof pitches of existing housing in the street and immediate locality. The Tribunal therefore finds that the roof form does not satisfy the Performance Criteria of cl 2.1.5.
Conclusion
The Tribunal has determined that the proposed roof form does not satisfy either the Acceptable Development requirements or the Performance Criteria of cl 2.1.5 of the RDGs. Nor does the proposed roof form satisfy the aims of the West Leederville Precinct Policy. It follows that the proposed roof form does not comply with the orderly and proper planning and the conservation of the amenity of the area. Therefore the Tribunal has decided to dismiss the application for review and to affirm the decision of the Council to approve the development subject to conditions.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 19 December 2006 to impose condition (ii) on the conditional development approval for a two storey dwelling at 71 Blencowe Street, West Leederville is affirmed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER
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