BOTTECCHIA and TOWN OF VINCENT
[2007] WASAT 299
•21 NOVEMBER 2007
BOTTECCHIA and TOWN OF VINCENT [2007] WASAT 299
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 299 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:197/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER) | 20/11/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER BOTTECCHIA TOWN OF VINCENT |
Catchwords: | Town planning Development application Additions to existing residence Side boundary setbacks Twostorey bulk and scale Wall lengths and height Intense development Constraints on neighbours' amenity Performance criteria |
Legislation: | Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia (2002), cl 3.3.1, cl 3.3.2, Table 1, Table 2a, Table 2b Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 18, cl 19, cl 33(e), cl 38(3), cl 38(5), cl 39 |
Case References: | Nil |
Orders | 1. The application for review is dismissed. ,2. The decision of the Town of Vincent to grant conditional approval for the application dated 23 April 2007, with the conditions set out in the approval, is affirmed subject to condition (iii) to read as follows:,(iii) prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the upper floor southern wall of new bedroom 2 being set back a minimum of 2.0 metres from the southern side boundary and the upper floor northern wall of new bedroom 4 being set back a minimum of 2.0 metres from the northern side boundary. The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOTTECCHIA and TOWN OF VINCENT [2007] WASAT 299 MEMBER : MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 NOVEMBER 2007 FILE NO/S : DR 197 of 2007 BETWEEN : PETER BOTTECCHIA
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Additions to existing residence -Side boundary setbacks - Twostorey bulk and scale - Wall lengths and height - Intense development - Constraints on neighbours' amenity - Performance criteria
Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2002), cl 3.3.1, cl 3.3.2, Table 1, Table 2a, Table 2b
(Page 2)
Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 18, cl 19, cl 33(e), cl 38(3), cl 38(5), cl 39
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S Bain (Acting as Agent)
Respondent : Mr R Rasiah (Acting as Agent)
Solicitors:
Applicant : SJB Planning and Urban Design
Respondent : Town of Vincent
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of a condition of approval by the Town of Vincent of a development application for a rear two-storey extension of an existing dwelling.
2 The application proposed that the upper floor setbacks of the extension would follow the structural supporting walls of the ground floor over which a significant part of the upper floor was to be built.
3 The Town of Vincent found that the resulting proposed side boundary setbacks of the upper floor were not in accordance with the Residential Design Codes of Western Australia (2002). A condition on the approval so as to increase setbacks was imposed accordingly.
4 The issue of this application was therefore whether a variation or departure from side boundary setbacks for the upper floor, as required by the Residential Design Codes of Western Australia (2002), should be supported.
5 The Tribunal determined that variation of the setback standards was unjustified and the application for review of the relevant condition imposing additional setbacks was dismissed.
Introduction
6 This application for review concerns the Town of Vincent's conditional approval for a two storey extension at the rear of an existing two-storey dwelling at No 5 (Lot 10) Leake Street, North Perth (subject land or site).
7 The application for review is brought by Mr PW Bottecchia (applicant) for review of the condition (iii) of the approval of the Town of Vincent (respondent or Town) dated 23 April 2007.
8 Condition (iii) of the approval states:
"… prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the upper floor southern wall of new bedroom 2 being set back a minimum of 2.0 metres from the southern side boundary. The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies."
(Page 4)
9 Subsequent to the issue of the approval dated 23 April 2007, it came to the attention of the applicant's agent that the condition for setback had mistakenly been required by the Town from the southern boundary and that the Town had intended it to apply to the northern boundary setback.
10 Consequently, the proceedings came before the Tribunal for further directions on 25 July 2007. The Tribunal noted that the Town's position in the proceedings was that condition (iii) should be affirmed with a variation that the following words should be added at the end of the first sentence:
"and the upper floor northern wall of new bedroom 4 being setback a minimum of 2.0 metres from the northern side boundary."
11 Effectively the application for review required consideration of the setback requirements for both side boundaries.
12 The Tribunal made orders which allowed the parties to make further submissions on this issue.
Subject land and existing dwelling
13 The subject land has an area of 349 square metres, and is rectangular in shape with a front and rear dimension of 9.28 metres. As such it is unusually narrower and smaller in the context of adjacent neighbouring landholdings generally along the west side of Leake Street which commonly have frontages of 13.9 metres and areas of 539 square metres or thereabouts. The immediate neighbouring land to the south at No 3 Leake Street (No 3) is 537 square metres and to the north, No 7 Leake Street (No 7), is larger at 701 square metres with a frontage of 18.5 metres.
14 The site is serviced by a laneway at the rear, commonly used for vehicular access.
15 The existing twostorey dwelling is of relatively modern construction with generous ground floor living areas currently opening out onto an existing rear verandah. A substantial existing garage structure, allowing general storage and ability to secure two vehicles off the rear lane, is separated from the rear verandah of the dwelling by an open courtyard which is the full width of the site and having a depth of approximately 5.2 metres.
(Page 5)
16 The existing upper floor comprises three bedrooms two of which are of good proportion with walkin robes, two bathrooms and a small general purpose area.
17 The ground floor ceiling height is 3.0 metres and the upper floor ceiling height is 2.7 metres. The dwelling is roofed with the structure pitched at 30 degrees.
18 The existing dwelling is set back 5.4 metres from the street, which generally accords with the street setback. With the exception of side boundary setbacks which vary from nil to 1.6 metres and the courtyard referred to above, the existing dwelling generally covers the remainder of the subject land.
19 The dwellings on the adjoining properties are single storey and are stated by the respondent as included on the Town's Municipal Inventory. The dwelling to the south on No 3 is set back from the common boundary by approximately one metre. At the rear of No 3 there are outbuildings comprising a shed and an old brick structure and a substantial area developed as a vegetable garden. The dwelling to the north on No 7 is set back approximately 6 metres from the common boundary and is separated at the rear by approximately 5 metres from a substantial studio and garage structure constructed on the laneway.
The proposal
20 The applicant proposes to remove the existing verandah which is attached to a single storey area nominated on the applicant's plans as "existing meals" and extend the ground floor by approximately 2.34 metres, two steps down from the general ground floor level. It is then proposed to build over the existing meals area and the 2.34 metre addition to provide for two new bedrooms on the upper floor in an extension of the upper floor totalling 4.98 metres in length.
21 Additionally, it is proposed to connect the ground floor extension to the rear garage structure with a single storey pitched roof addition which is proposed to be an open structure on the sides and is identified on the application as a "new alfresco" area. Consequently, on completion of the proposed extensions, the footprint of the structure would extend for the full length of the site, with the exception only of the front setback.
22 The ground floor existing meals area, over which it is proposed to build the two new bedrooms, is set back 1.6 metres and 1.5 metres respectively from the south and north side boundaries. The application
(Page 6)
- proposes that the upper floor addition would follow the ground floor alignment of structural support giving rise to the contested condition, the subject of this review, for the upper floor side setbacks to be increased by an additional 0.4 metre and 0.5 metre respectively.
23 It appears from the application drawings that the existing western wall of the upper floor, which spanned clear over the living area below, is supported by an upstand beam requiring that the upper floor bedroom extension be raised approximately a half-metre above the existing upper floor level in order to step over this upstand. However, by minimising the pitching heights, the roof of the proposed extension is designed to be a direct extension of the existing gabled roof thereby retaining the same overall ridge and wall height of the existing building.
Planning framework
Town Planning Scheme
24 The relevant matters for consideration under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or the Scheme) are set out below:
25 The subject land is zoned "Residential" with a permitted density of R40 under TPS 1.
26 Clause 6 sets out the Objective and Intentions of TPS 1. A general objective of the Scheme that is of relevance to this matter is:
Clause 6(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 zone area; and
(ii) can respond readily to change;"
(Page 7)
28 The "Zone Table" contained in TPS 1 classifies the use class "single house" as a "P" (permitted) use in the "Residential" zone and, as such, the proposed development is a permitted use.
29 Under cl 33(e) of TPS 1, planning approval is not required for the erection of a single dwelling house where it complies with the Residential Design Codes of Western Australian 2002 (Codes) and where it is considered that the amenity of the area generally is not adversely affected. This application requires a departure from the Acceptable Development provisions of the Codes in regards to boundary setback requirements and, as such, requires planning approval.
30 Clause 18 of TPS 1 requires the development of land to be in accordance with the standards and requirements contained in the following documents:
"… Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential [Design] Codes."
31 Pursuant to cl 19 of TPS 1, the Codes are to be read as part of the Scheme and development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes unless otherwise provided for in the Scheme.
32 Subclause 38(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 38(5) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
(a) the provisions of this Scheme and of any other written law applying within the Schedule area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
…
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(Page 8)
- (h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
33 The subject land is located within the Smith's Lake Precinct (Policy 3.1.6), where the desired character of future developments should be of a height and scale compatible with the majority of adjacent buildings. The site also falls within the Monastery Locality Plan No 19 Policy 3.3.19 (Policy 3.3.19), where a general two-storey height limit is advocated, and the amenity of the area is to be protected in terms of "privacy, scale and bulk".The policy also strongly encourages the maintenance of existing and rear setbacks.
Residential Design Codes
34 Element 3 Boundary Setback Requirements (Element 3), together with Table 1 General Site Requirements, Tables 2a & 2b Boundary Setbacks and Figure 2D Measurements of Boundary Setbacks (Figure 2D) of the Codes, establishes the building setback requirements for wall heights 10 metres and less. The specified objective for Element 3 is:
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties".
The applicant's argument
35 On the principal issue of wall height and length as applicable to the application of the Codes (Table 2a), Mr Bain, for the applicant, asserts that the proposed side setbacks complies with the Acceptable Development standards of the Codes.
36 In calculating the setbacks, Mr Bain correctly applied a wall height of approximately 6 metres. A wall length of 11.6 metres to both north and south sides was used whereas the total length of the wall is 21.23 metres.
37 The Codes provide that separate wall lengths in an external wall can be applied in certain circumstances, which are set out in Figure 2D. This diagram indicates the method for establishing setback measurements under Table 2a and Table 2b, subject to the privacy requirements of Element 8.
(Page 9)
38 However, the plan profile of the proposal does not delineate a situation apparently appropriate to the circumstances provided by the application of Figure 2D.
39 Mr Bain argued that on the north side where there is a boundary wall, the Codes deal separately with walls on the boundary and that this therefore justifies that separate wall lengths can be applied. To support this argument, Mr Bain drew the attention of the Tribunal to cl 3.3.1 and cl 3.3.2 of the Codes where this distinction is made by nature of separate headings. On the south side Mr Bain contended that as the wall length is broken by the projection of the stairwell, which passes through both, ground and upper floor levels, the wall could be measured as separate lengths.
40 Mr Bain agreed that there was some difficulty in identifying where and how the current Codes could be read substantially in support of either of these two contentions, relying, where he believed that the Codes lacked clear definition, that it was reasonable to apply separate wall lengths for reasons as explained in the above paragraph. He did not accept that the Figure 2D was necessarily the operative criteria in this case.
41 Mr Bain submitted that the application of the Codes was firstly to consider the relevant objective, then to apply the provisions of the Performance Criteria (cl 3.3.1 P1), of which the Acceptable Development requirements (A1) was but one method of so doing.
42 Mr Bain's understanding, as he expressed it, was that the Objective and the Performance Criteria of the Codes had to be met in any event.
43 Mr Bain made supporting submissions on each of the Performance Criteria (cl 3.3.1 P1).
44 The Performance Criteria of the Codes are stated as:
"Buildings set back from boundaries other than street boundaries so as to:
• provide adequate direct sun and ventilation to the building;
• ensure adequate direct sun and ventilation being available to adjoining properties;
• provide adequate direct sun to the building and appurtenant open spaces;
(Page 10)
- • assist with protection of access to direct sun for adjoining premises;
• assist in ameliorating the impacts of building bulk on adjoining properties; and
• assist with protecting privacy between adjoining properties."
45 Two of the criteria deal with the amenity of the proposed development and the applicant argued that the proposed two-storey addition achieves, or at least does not unreasonably diminish, adequate direct sun and ventilation to the subject building and appurtenant open spaces. Mr Bain observed that the proposal is designed to have alfresco areas which, together with the courtyard at the rear of the building, provide sufficient outdoor living and open space for the occupants of the dwelling.
46 Two of the performance criteria relate to the impact on the respective adjoining properties' amenity and in relation to this Mr Bain referred to Element 9 - "Design for Climate" requirements of the Codes, with which he stated the proposed development complied without compromising the prevailing breezes. The overshadowing evidence, submitted by the applicant, provides calculations to the effect that overshadowing of the proposed development on No 3 is less than the 35% requirement of the Codes at 21 June, and that in any event most of the shadow falls over the neighbour's roof or existing outbuilding.
47 The effect that overshadowing is increased by the applicant's ground levels being higher than that of the southern neighbour and that the overshadowing effect would be correspondingly exacerbated was raised as an issue. Relative ground levels were not indicated on the applicant's drawings and neither Mr Bain nor Mr Rasiah could recall whether a difference in levels actually existed to any material degree, although in recognition of the general fall of land as can be observed in Leake Street, it is reasonable to assume a difference of something less than half a metre, which would make little material difference to the actual effect. In any event, the parties conceded that the Codes did not provide for level differences to be taken into account, the 35% calculation being applied in a flat plane projection onto neighbouring properties.
48 The remaining two performance criteria relate to the impact of bulk and privacy on the adjoining properties. The applicant argued that, given the extension per se is approved, the additional 0.4 metre and 0.5 metre
(Page 11)
- setbacks to the respective boundaries will not materially provide increased benefit to the respective neighbouring properties, and that even with the setback increases, the roof and wall heights and the wall length remain unchanged.
49 The windows of the applicant's upper floor, where located, have been designed as highlights or with obscure glazing to avoid any loss of privacy for the neighbours.
50 Mr Bain further argued that the Policy 3.3.19 supported a general two-storey height limit and strongly encouraged maintaining existing side and rear setbacks. He submitted that the proposed two new upper floor bedrooms, which are set back 1.6 metres and 1.5 metres respectively, follow the existing ground floor setback alignment. An element of rational structural thinking is thus linked to the argument for the setbacks as proposed.
51 The applicant also considered that if the required setbacks were imposed on the development, the upper floor bedrooms would be restricted in the width of useable floor space which would limit appropriate room widths to minimum standards.
52 Primarily, however, the applicant submitted that the imposition of an additional 0.4 metre and 0.5 metre setback to the respective side walls will not alter the visual impact nor have any perceived increase in benefit to the amenity of the respective neighbouring properties, given that, even with the setback increases, the roof and wall heights and the wall length remain unchanged.
The respondent's argument
53 Mr Rasiah, for the respondent, argued that the additions as proposed resulted in appreciable bulk and scale requiring adherence to the setback requirements of the Codes.
54 By application of Table 2a of the Codes, the respondent in evidence set out a setback assessment in tabular form on the basis of the wall height being 5.917 metres and the wall length running parallel to each side boundary of 21.23 metres, resulting as follows:
(Page 12)
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55 The applicant's drawings indicate that there are no new major openings to the side wall upper floor bedrooms and there are no submissions suggesting that any of the existing windows constitutes a major opening and consequently this has been taken as accepted by both parties.
56 Mr Rasiah confirmed that the 2.2 metres requirement had been reduced to 2.0 metres in the condition of approval, the subject of this review.
57 Mr Rasiah was quite clear that, when considering the application of separate wall lengths, Figure 2D of the Codes was the determinative criteria to be applied. In this matter he disagreed with Mr Bain's contentions and asserted that the full length of the wall should apply to the setback calculations for both side boundary setbacks.
58 The respondent argued that the extension of the upper floor by a further 4.98 metres to a total length of 21.23 metres, contributes to a considerable sense of confinement towards the adjoining lots on either side, which are noted as being single storey dwellings and observed that the existing upper floor wall facing the respective boundaries, when extended by the proposal, represents approximately 56% of the common boundary length.
59 The respondent further argued that both neighbouring properties, although included in the Town's Municipal Heritage Inventory, have the capacity for infill development and that the upper floor additions proposed by the applicant may have adverse constraints upon such development should variation to setbacks, as now proposed, be permitted.
60 In terms of the Performance Criteria, the respondent does not argue the aspects concerning the amenity of the subject building but focuses on the criteria that deal with the amenity of the adjoining properties.
(Page 13)
61 Whilst the respondent agreed that overshadowing is compliant with the Codes, it submitted that overshadowing of No 3 does reduce the desirability of achieving good solar access for the rear courtyard of this property. Furthermore, whilst not expressed in exact terms, the respondent generally contended that the upper floor addition would affect air circulation and penetration of prevailing breezes to the subject properties.
62 The respondent informed the Tribunal that significant objection to the application has been received from the two neighbours of adjoining properties. Copies of the neighbours' objections were provided for the Tribunal to consider. The concerns raised by the objectors related to the adverse impact of the bulk and scale of the development on their amenity. The objections add little to, other than to strongly reinforce, the position advanced by the respondent.
63 The summary position of the respondent is that the reduced side boundary setbacks of the additions contribute to an undesirable sense of confinement towards the adjoining lots on either side of the subject land. The resulting bulk of the two-storey footprint and extensive site coverage is expressed as "intense development" and results in overcrowding on the neighbours' amenity, justifying that discretion to vary the side boundary setbacks cannot be sustained.
Tribunal's consideration
64 Policy 3.3.19 and Policy 3.1.6 provide a framework for consideration of the planning issues, although Policy 3.1.6 is rather more focussed on commercial development. More specifically, Policy 3.3.19 advocates that:
"New contemporary developments are encouraged provided that the design responds to the existing character".
- As single storey dwellings on either side of the subject site are listed on the Municipal Heritage Inventory the design of the new development should be responsive to the entire character of the dwelling..
65 Furthermore, the Tribunal must have regard to the proper application of the Codes for the side boundary setbacks.
66 The Tribunal is aware of the limitations imposed on the applicant due to the small lot landholding. As a consequence, the ambition for added living amenity and bedroom accommodation understandably is proposed to be achieved with added twostorey bulk.
(Page 14)
67 The Tribunal considers, however, that the proposed additions will impose appreciable constraints on the visual and general amenity of the adjoining properties. The extended upper floor as a percentage of the common boundary is measured at over half, and the footprint of the completed proposal would extend at ground level for the full length of the site with the exception only of the front setback.
68 The applicant's assessment of setback compliance against Table 2a of the Codes cannot be sustained as a reasonable application of the Codes at Figure 2D. In contrast, the respondent's application to the Code's Table is considered to be consistent with the intent of the Codes.
69 The dwelling at No 3 is closely set back from the common boundary and the existing dwelling on the subject land is also closely set back at a minimum of 1 metre. The dwelling on No 7 is less affected as it is set back approximately 6 metres from the common boundary.
70 The degree of overshadowing on No 3 is shown to be less than allowable limits but in terms of amenity it cannot be reasonably said that, with reference to the Performance Criteria of the Codes, that the proposal, as an extension, would either assist with the protection of access to direct sun for adjoining properties or assist in ameliorating the impacts of building bulk on adjourning properties.
71 The northern neighbour at No 7 cannot reasonably claim denial of winter sun penetration. To some degree the proposed development will obstruct the flow of cool prevailing evening breezes for the benefit of the neighbour but it is considered that the reasonably generous separation of the dwellings, and with the new alfresco area of the applicant's proposal being single storey, there will not be a significant impost on the adjoining property. There remains, however, understandably, an acute discomfort for the neighbour in the degree of increased enclosure and overbearing resulting from the proposed upper floor extension on the subject land.
72 In both cases, there is no issue as to overlooking or denial of visual privacy for the neighbours as this aspect has been addressed by design.
Conclusion
73 The applicant's submission relies to a significant degree on the principle that the proposal per se is approved and that an additional 0.4 metre and 0.5 metre setback to the respective boundaries will have no increased benefit to the respective neighbouring properties, arguing that
(Page 15)
- even with the setback increases, the roof and wall heights and the wall length remain unchanged.
74 The Tribunal accepts this as having some relevance but whilst the matter for review is focused on the setback issue, the Tribunal must also be mindful of the complete development picture of which the particular condition under review is part.
75 In this respect the Tribunal concludes that an extensive development of two storeys as proposed, on the subject land of limited size, constitutes a development potentially having an undesirable impact on the adjoining properties. The setback requirements of the Codes are designed to reduce adverse impact on adjoining properties in such circumstances and are also designed to ameliorate the impacts of overcrowding on the adjoining properties. The Tribunal concludes that such is the case, significantly for No 3, but also for No 7, in the degree to which bulk and scale of the proposed development contributes to visual confinement and loss of general amenity. Therefore, for the reasons stated above, the Tribunal is not satisfied that the variations/discretions sought satisfy the relevant Performance Criteria of the Codes.
Orders
For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Town of Vincent to grant conditional approval for the application dated 23 April 2007, with the conditions set out in the approval, is affirmed subject to condition (iii) to read as follows:
(iii) prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the upper floor southern wall of new bedroom 2 being set back a minimum of 2.0 metres from the southern side boundary and the upper floor northern wall of new bedroom 4 being set back a minimum of 2.0 metres from the northern side boundary. The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies.
(Page 16)
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR A EDNIE-BROWN, SENIOR SESSIONAL MEMBER
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