Boulter and City Of Subiaco
[2007] WASAT 71
•27 MARCH 2007
BOULTER and CITY OF SUBIACO [2007] WASAT 71
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 71 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:309/2006 | 20 MARCH 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 27/03/07 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Development approval granted subject to conditions | ||
| A | |||
| PDF Version |
| Parties: | SANDRA BOULTER CITY OF SUBIACO |
Catchwords: | Town planning Development application Two-storey single houses on each of two 6.0 metre wide allotments oriented east-west built to common boundary Streetscape Whether planning policy excludes the acceptable development provision in cl 3.2.1 A1 of the Residential Design Codes generally or in relation only to averaging of front setback Open space Design for climate Boundary setbacks Buildings on boundary Whether acceptable development provision in cl 3.3.2 A2 of Residential Design Codes allows boundary walls on two boundaries Whether proposed development is acceptable having regard to development objectives for zone including "to enhance the amenity of the residential neighbourhood by ... the adherence to solar and environmentally sound design principles" Discussion about difficulty which can result from split planning system in Western Australia under which subdivision is assessed at State level and development is assessed at local government level |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 39(3), cl 41(2), cl 41(2)(f) Development Act 1993 (SA), s 4 Environmental Planning and Assessment Act 1979 (NSW), s 4 Integrated Planning Act 1997 (Qld), s 1.3.2 Land Use Planning and Approvals Act 1993 (Tas), s 3 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1), Pt 10 Div 2 - Div 4, Pt 10 Div 5 Planning and Environment Act 1987 (Vic), s 3 Planning Act 1993 (NT), s 3 Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.2.1 A1, cl 3.2.1 P1, cl 3.3.2 A2, cl 3.4.1, cl 3.4.1 P1, cl 3.9.1, cl 3.9.1 A1, cl 3.9.1 P1, cl 3.3.2 A2(i), cl 3.3.2 A2 (iii), Table 1 |
Case References: | Antonas and Town of Vincent [2006] WASAT 303 Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 Sweetland and Town of Cambridge [2005] WASAT 278 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent to refuse development approval for demolition of the existing house and outbuildings and for the erection of a single house on each of two lots which are the subject of a conditional subdivision approval granted by the Western Australian Planning Commission at No 88 (Lot 33) Winthrop Avenue, Nedlands is set aside and a decision is substituted that development approval is granted under the Metropolitan Region Scheme and the City of Subiaco Town Planning Scheme No 4 subject to the following conditions:,(1) The development shall be carried out in accordance with seven sheets of plans drawn by Urban Project No OOR-WAO1 site plan drawing no A-01 rev E, layout plans northern house drawing no A-02 rev F, layout plans southern house drawing no A-03 rev F, front/rear elevation drawing no A-04 rev E, side elevations drawing no A-05 rev E, roof plan drawing no A-06 rev A and sections drawing no A07 rev A except as varied by the following conditions.,(2) The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.,(3) Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.,(4) Prior to the commencement of demolition, two copies of archival records are to be provided to the City and are to consist of the following information:,(i) A site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished.,(ii) Photographs of all four elevations of the existing house, its interior and any special architectural features. These photographs are to be appropriately labelled, and are to be provided in plastic archival sleeves.,(5) Convex mirrors are to be installed at the rear of the property on both sides of the access driveway prior to occupation for the purpose of improving vehicle sightlines, details of which are to be provided prior to construction and be to the satisfaction of the City.,(6) An orange flashing light is to be installed at the rear of each of the proposed dwellings to warn other users of the right-of-way when a vehicle is exiting the garage, details of which are to be provided prior to construction and be to the satisfaction of the City.,(7) The balustrades associated with the upper level balconies are to be visually permeable. The balustrade materials are to be in the main open and not permitted to consist of a single solid material such as Perspex or glass, details of which are to be provided prior to construction and be to the satisfaction of the City.,(8) The west facing upper level window associated with the study in House B is required to have a permanent minimum sill height 1.6 metres above the finished internal floor level or is to be constructed of fixed obscured glazing below this level and be unopenable.,(9) Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development, details of which are to be submitted prior to commencement of the development.,(10) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Codes and the City's relevant policies.,(11) Any new or replacement fencing is to conform to the requirements of the City's Perimeter Fencing Policy. The front fence (including side fencing forward of the building line) is not to exceed 1.8 m in height from natural ground level.,(12) The House A and House B double garages are to have a minimum internal width of 5.4 m and a minimum opening width of 5.0 m.,(13) All crossovers and driveways are to be constructed in accordance with Australian Standard AS 2890.1 and maintained to that standard and in accordance with Policy 14.2.3.,(14) Existing ground levels at all proposed vehicle and pedestrian access points are to remain unaltered.,(15) Any damage to the right-of-way as a result of the development is to be repaired at the owner's cost.,(16) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.,(17) No service meters or related infrastructure are to be placed on the streetfront of the front wall, but may be incorporated into the wall if covered by a cover which matches the wall to the City's satisfaction.,(18) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alternation of these levels is to be retained.,(19) All conditions must be complied with prior to occupation of the development unless otherwise stated. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOULTER and CITY OF SUBIACO [2007] WASAT 71 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 20 MARCH 2007 DELIVERED : 27 MARCH 2007 FILE NO/S : DR 309 of 2006 BETWEEN : SANDRA BOULTER
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application - Two-storey single houses on each of two 6.0 metre wide allotments oriented east-west built to common boundary - Streetscape - Whether planning policy excludes the acceptable development provision in cl 3.2.1 A1 of the Residential Design Codes generally or in relation only to averaging of front setback - Open space - Design for climate - Boundary setbacks - Buildings on boundary - Whether acceptable development provision in cl 3.3.2 A2 of Residential Design Codes allows boundary walls on two boundaries - Whether proposed development is acceptable having regard to development objectives for zone including "to enhance the amenity of the residential neighbourhood by ... the adherence to solar and environmentally sound design principles" - Discussion about difficulty which can result from split planning system in Western Australia under which subdivision is assessed at State level and development is assessed at local government level
(Page 2)
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 39(3), cl 41(2), cl 41(2)(f)
Development Act 1993 (SA), s 4
Environmental Planning and Assessment Act 1979 (NSW), s 4
Integrated Planning Act 1997 (Qld), s 1.3.2
Land Use Planning and Approvals Act 1993 (Tas), s 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1), Pt 10 Div 2 - Div 4, Pt 10 Div 5
Planning and Environment Act 1987 (Vic), s 3
Planning Act 1993 (NT), s 3
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.2.1 A1, cl 3.2.1 P1, cl 3.3.2 A2, cl 3.4.1, cl 3.4.1 P1, cl 3.9.1, cl 3.9.1 A1, cl 3.9.1 P1, cl 3.3.2 A2(i), cl 3.3.2 A2 (iii), Table 1
Result:
Application for review allowed
Development approval granted subject to conditions
Category: A
Representation:
Counsel:
Applicant : Mr JCW Skinner
Respondent : Mr C O'Neill (Acting as Agent)
Solicitors:
Applicant : Jackson McDonald
Respondent : Chris O'Neill and Associates (Town Planners)
Case(s) referred to in decision(s):
Antonas and Town of Vincent [2006] WASAT 303
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Sweetland and Town of Cambridge [2005] WASAT 278
(Page 3)
Summary of Tribunal's decision
1 Ms Sandra Boulter sought review of the City of Subiaco's refusal of a development application for two-storey single houses on each of two adjoining allotments. The allotments each have an area of approximately 232 square metres, a width of approximately 6.0 metres and a length of approximately 38.0 metres and are oriented east-west. The houses would be built to the common boundary, so as to minimise overshadowing and privacy impacts on the adjoining property to the south, but with the consequence that the southern house would significantly overshadow itself.
2 The principal issues concerned whether the development conformed to the streetscape, open space, design for climate and boundary setback provisions of the Residential Design Codes of Western Australia (2002) and whether it satisfied the objectives for development in the zone, which include to enhance amenity of the neighbourhood by, among other things, the adherence to solar and environmentally sound design principles.
3 The Tribunal determined that the development conformed to the Acceptable Development provisions in relation to streetscape (southern house) and setback, and conformed to the Performance Criteria in other respects. The Tribunal also determined that the development generally satisfied the objective of the zone in the circumstances. In particular, although the southern house had very poor solar access, it incorporated solar and environmentally sound design principles to the maximum extent possible, having regard to the size, orientation and dimensions of the lots and the need to avoid potential impacts on the adjoining property to the south.
4 The Tribunal therefore allowed the application for review and granted conditional development approval.
5 The Tribunal observed that the case highlighted a difficulty which can result from the split planning system in Western Australia, which is unique to this State, under which subdivision control and assessment is undertaken at State level whereas development control and assessment is generally undertaken at local government level. In this case, the proposed southern house, while a reasonable response to characteristics of the approved allotment, has very poor solar access. This difficulty raised the issue of whether, in some contexts, such as urban infill, a single system of development/subdivision control and assessment may be preferable.
(Page 4)
Introduction
6 These proceedings involve an application brought by Ms Sandra Boulter, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Subiaco (City or Council) to refuse a development application for twostorey single houses on each of two adjoining allotments which are the subject of a conditional subdivision approval granted by the Western Australian Planning Commission (Commission) at No 88 (Lot 33) Winthrop Avenue, Nedlands (site). The site is located across Winthrop Avenue, a major arterial road, from Kings Park and a short distance to the north of the University of Western Australia. The site has access to an unnamed rear laneway.
Subdivision approval
7 The lots which are the subject of the subdivision approval each have an area of approximately 232 square metres, a width of approximately 6.0 metres and a length of approximately 38.0 metres. The lots are oriented east-west. Attachment A to these reasons is a copy of the approved subdivision plan.
8 Condition 5 of the subdivision approval requires the transfer to the Crown of the westernmost 0.99 metre of the site to enable the widening of the rear lane to 5.0 metres. Condition 8 requires the lodgement of a restrictive covenant on the Certificate of Title of each lot which prohibits vehicular access onto Winthrop Avenue. Condition 7 of the subdivision approval, as revised following reconsideration by the Commission, states as follows:
"The subdivider obtaining development approval for the development of a dwelling(s) on the lots less than 350 square metres in accordance with Clause 2.3.3 of the Residential Design Codes."
Zoning
9 The site is zoned "Urban" under the Metropolitan Region Scheme and "Residential" with a density coding of "R50" under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme). Table 1 of the Residential Design Codes of Western Australia (2002) (Codes) identifies the R50 code as medium density and prescribes a minimum site area per dwelling of 160 square metres and an average site area per dwelling
(Page 5)
- of 180 square metres. Clause 39(3) of the Scheme requires that the development conform to the provisions of the Codes.
Development application
10 In April 2006, Ms Boulter submitted the development application to the Council in order to fulfil the requirement to obtain development approval for a dwelling on each of the two approved lots in accordance with condition 7 of the subdivision approval. In August 2006, the City refused the development application. In September 2006, Ms Boulter commenced these proceedings for review of the City's decision. In November 2006, Ms Boulter submitted amended plans to the City which were considered by the City's Planning Committee on 20 February 2007. The Planning Committee resolved to advise the Tribunal that the amended plans are not supported for a number of reasons. Ms Boulter now seeks approval of the amended plans in these proceedings.
11 The development application involves the demolition of an existing single-storey single house on the site and the erection of a two-storey single house on each of the approved lots built to the common boundary. Each house has a front setback of 4.0 metres at the lower level and 6.0 metres at the upper level. Each house has an upper level front balcony which is either entirely above the lower level (southern house) or substantially above the lower level (northern house). This balcony is set back 3.5 metres (northern house) and 4.0 metres (southern house) from the front property boundary.
12 Each house has a double garage at the western or rear end of its lot which has a setback of 1.0 metre from the portion of the site which is required to be transferred to the Crown for lane widening under condition 5 of the subdivision approval. Given the 6.0 metre width of each lot and the Acceptable Development provision in cl 3.5.1 A1 of the Codes, which allows two on site parking spaces, the garages run boundary to boundary and present as 6.0 metre wide by 3.0 metre high boundary walls to the adjoining properties to the north and south. In addition, the northern house has a centrally located 9.0 metre wide by 3.0 metre high boundary wall on its northern boundary with two properties adjoining to the north and the southern house has a 3.54 metre wide by 3.0 metre high boundary wall and a 4.82 metre wide by 3.0 metre high boundary wall, separated from one another by a 4.0 metre wide courtyard, on its southern boundary.
(Page 6)
13 Each of the proposed houses has a front courtyard enclosed by a 1.8 metre high painted render and stone wall. The Council regards a 1.8 metre high front wall as acceptable along Winthrop Avenue. The northern house has another courtyard and a drying yard at the lower level and a courtyard above roof at the upper level, as well as a pool. The southern house also has a courtyard and a drying yard at ground level and an outdoor living area off a TV room above roof on the upper level.
14 The amended development application plans are Attachment B to these reasons.
Issues for determination
15 The following five issues arise for determination in this review:
1. Whether the proposed development conforms to the provisions of the Codes in relation to streetscape (Element 2).
2. Whether the proposed development conforms to the provisions of the Codes in relation to open space (Element 4).
3. Whether the proposed development conforms to the provisions of the Codes in relation to design for climate (Element 9).
4. Whether the proposed development conforms to the provisions of the Codes in relation to boundary setbacks (Element 3).
5. Whether the proposed development is acceptable in the exercise of planning discretion having regard to the objectives for development in the Residential zone stated in cl 41(2) of TPS 4.
16 The Tribunal will address each of these issues in turn.
Does the proposed development conform to the streetscape provisions of the Codes?
17 The Acceptable Development provision in cl 3.2.1 A1 of the Codes in relation to streetscape states, in part, as follows:
(Page 7)
- "Except as otherwise provided for in an adopted Local Planning Policy development that complies with the following is deemed to meet the relevant Performance Criteria:
…
A1 Buildings other than carports and garages set back from the primary street in accordance with Table 1: or
i. corresponding to the average of the setback of the existing dwellings on each side fronting the same street;
… "
"1) Clause 3.2.1 (A1) of the Codes, relating to averaging of the front setback, does not apply with respect to small lots within the policy area.
2) The front setbacks of any development:
a) Are to be set back from the primary street at a distance no less than the 'Prevailing Street Setback'. The prevailing street setback is the setback calculated by averaging the setback of surrounding development.
or
b) Should match the setback of the houses on either side of the subject property. Where the setbacks of the two adjoining houses vary, the setback should be approximately mid-way between those of the adjoining houses." (Emphasis in bold added.)
(Page 8)
19 The proposed front setbacks do not comply with either the prevailing street setback or the mid-way position between the adjoining houses as determined under Policy 3.6. The prevailing setback is approximately 6.5 metres and the mid-way position in relation to the adjoining houses is approximately 9.0 metres.
20 However, Mr JCW Skinner, counsel for Ms Boulter, correctly submits that cl 5.2.1 of Policy 3.6 only excludes the provisions of cl 3.2.1 A1 of the Codes relating to the averaging of setbacks. This is apparent both from the express limitation in cl 5.2.1(1) of the Policy of the exclusion of cl 3.2.1 A1 "relating to averaging of the front setback" and the terms of cl 5.2.1(2) of the Policy which provide alternative setback averaging provisions to the averaging provision in cl 3.2.1 A1 of the Codes. Clause 5.2.1 of Policy 3.6 does not exclude the alternative Acceptable Development provision in cl 3.2.1 A1 of the Codes, which is by reference to Table 1, or the Performance Criteria in cl 3.2.1 P1 of the Codes.
21 Table 1 of the Codes prescribes a minimum setback to a primary street of 4.0 metres in the R50 Code. The proposed southern house, which has a minimum setback of 4.0 metres (lower level) and 6.0 metres (upper level) is, therefore, deemed to comply with the relevant Performance Criteria. The proposed northern house has the same setbacks as the southern house, with the exception of a balcony which projects 0.5 metre closer to the street frontage. This balcony is off an upstairs lounge room and kitchen which has a view to Kings Park.
22 The corresponding Performance Criteria in cl 3.2.1 P1 of the Codes are as follows:
"Buildings set back an appropriate distance to ensure they:
• contribute to the desired streetscape;
• provide adequate privacy and open space for dwellings; and
• allow safety clearances for easements for essential service corridors."
23 The proposed northern house conforms to these Performance Criteria. It is set back an appropriate distance to ensure that it contributes to the desired streetscape, because view diagrams indicate that, in consequence of the 1.8 metre high front boundary wall,
(Page 9)
- a pedestrian standing in front of the site would not be able to see the projecting base of the balcony or the lower level of the house and would only see the upper portion of the balustrade and the upper level which has a 6.0 metre setback behind. Drivers and passengers of motor vehicles on Winthrop Avenue would have the same or a lesser view of the development. There is no footpath on the opposite side of Winthrop Avenue and the closest walking track within Kings Park is set back approximately 50 metres from Winthrop Avenue. Consequently, as Mr Gordon Smith, a consultant town planner who gave evidence on behalf of Ms Boulter, indicated, and as is plainly the case, there is little opportunity to view the front of the house. Furthermore, there is a mature street tree which is located directly in front of the proposed northern house.
24 The northern house is set back an appropriate distance to ensure that it provides good privacy, given the front wall. For reasons discussed in relation to issue 2 below, the house is also set back an appropriate distance to ensure that it provides adequate open space. In particular, the front courtyard has dimensions of approximately 6.0 metres by 4.0 metres and is one of four open space areas, of which three are off living rooms.
25 The proposed development conforms to the streetscape provisions of the Codes.
Does the proposed development conform to the open space provisions of the Codes?
26 The Acceptable Development provision in cl 3.4.1 A1 of the Codes states, in part, as follows:
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
A1 Open space provided in accordance with Table 1 and Elements 2 and 3."
27 Table 1 of the Codes states that minimum total open space in the R50 code is 45% of site area. As noted earlier, each of the proposed houses contains areas of courtyard above internal parts of the lower level. These courtyards fall within the definition of "open space" in cl 2.2 of the Codes, which "includes … open areas of accessible and usable flat roofs … ". The upper level courtyards are open areas of accessible and usable flat roofs. The front balconies are also wholly or substantially open areas of
(Page 10)
- accessible and usable flat roofs. Nevertheless, the northern house does not satisfy the minimum 45% site area open space Acceptable Development provision by approximately 2.0 3.0 metres and the southern house does not satisfy this provision by approximately 7.0 9.0 square metres.
28 The corresponding Performance Criteria in cl 3.4.1 P1 of the Codes are as follows:
"Sufficient open space around buildings:
• to complement the building;
• to allow attractive streetscapes;
• to suit the future needs of residents, having regard to the type and density of the dwelling."
29 The Tribunal accepts Mr Smith's evidence that the proposed development satisfies the Performance Criteria. The open space areas complement each building as they wrap around all living areas and maximise the opportunities for outdoor/indoor living in a variety of weather conditions. The open space in front of each building allows for an attractive streetscape by setback and by enabling landscaping within the 3.5 4.0 metre setback area. The open space areas also suit the future needs of residents, having regard to the type and density of the dwelling, as they provide opportunities for domestic activities, gardening, children's play, outdoor entertaining, leisure and hobbies in a variety of locations. The open space provision is also sufficient in the context of the location of the site which is directly across the road from Kings Park.
30 The Tribunal does not accept the evidence of Mr Chris O'Neill, a consultant town planner who both represented and gave evidence on behalf of the City, in relation to compliance with the open space Performance Criteria. Mr O'Neill's analysis was based on a comparison between the area of open space that would satisfy the Acceptable Development provision and the area of open space that is proposed. This approach is erroneous. As the Tribunal held in Sweetland and Town of Cambridge [2005] WASAT 278 at [36]:
"[W]here there is non-compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather the test is whether the particular application meets the
(Page 11)
- Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent[2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4.
Therefore, the focus should not be the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the Codes."
31 Moreover, Mr O'Neill's analysis proceeded on the misunderstanding that courtyard and balcony areas above lower level internal areas do not fall within the definition of "open space". He therefore assumed that the quantity of "open space" proposed is considerably less than that which is, in fact, the case.
32 The proposed development conforms to the provisions of the Codes in relation to open space.
Does the proposed development conform to the design for climate provisions of the Codes?
33 The Acceptable Development provision in relation to solar access for adjoining sites in cl 3.9.1 A1 of the Codes states, in part, a follows:
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
A1 Notwithstanding the boundary setbacks in Element 3, development in [the Perth Metropolitan Region] shall be so designed that its shadow cast at midday, 21 June onto any other adjoining property does not exceed the following limits:
…
• on adjoining properties coded … higher than R40 50% of the site area.
- Note: In this context 'site area' refers to the surface of the adjoining lot without regard for any building on it but taking into account its natural ground levels."
(Page 12)
34 The proposed southern house conforms to this Acceptable Development provision in relation to overshadowing of the adjoining property to the south. However, the proposed northern house would overshadow 92.2% of the site area of the approved southern lot at midday in midwinter and therefore does not conform to the Acceptable Development provision by a significant extent.
35 The corresponding Performance Criteria for solar access for adjoining sites in cl 3.9.1 P1 of the Codes are as follows:
"Development designed with regard for solar access for neighbouring properties taking into account the potential to overshadow:
• outdoor living areas;
• major openings to habitable rooms;
• solar heating devices; or
• balconies or verandahs."
36 Mr Skinner submits that, unlike the Acceptable Development provision, the Performance Criteria in cl 3.9.1 "are clearly not required to be applied 'without regard for any building on [the neighbouring property]', as they expressly have regard to the potential for overshadowing of elements of a building". Consequently, Mr Skinner submits that the northern dwelling conforms to the Performance Criteria with respect to the southern dwelling, because the southern dwelling overshadows itself to the same extent.
37 In contrast, Mr O'Neill contends that the Performance Criteria should be applied with reference to the protection of prospective, as well as existing or proposed development. He submits that this is implied from the "note" in the Acceptable Development provision set out earlier.
38 It is unnecessary to come to a considered view in relation to whether the Performance Criteria refer only to existing (including, as in this case, simultaneously built) elements of an actual building on an adjoining property or also to elements of a potential building on an adjoining property. On either Mr Skinner's or Mr O'Neill's approach, the proposed development conforms to the Performance Criteria. This is because, as Mr Smith explained:
(Page 13)
- "Although the extent of overshadowing is significant, it is within the reasonable contemplation of the zoning and the planning controls, and is an inevitable consequence of R50 development of a lot having the width and orientation of the site (and the adjoining properties) consistently with the applicable zoning controls."
39 As Mr Smith observed, the design of the southern house is a reasonable response to the approved width, configuration and orientation of its allotment. It is a reasonably, not excessively, sized house in the context of an R50 coding and the locality. In order to minimise the extent of overshadowing on the adjoining property to the south, it makes sense that the southern house is built to the northern boundary, with the result that any reasonable development on the southern lot would overshadow itself to the approximate extent that would occur in the proposed development. Therefore, even if the Performance Criteria were applied with reference to the position of a prospective house on the southern lot, the prospective house is likely to generate a similar level of internal overshadowing.
40 Mr O'Neill also pointed to the explanatory text at page 82 of the Codes which contains the following:
"In terms of residential development, the three main aims of climate-sensitive design are to reduce energy consumption, optimise on-site solar access, and protect solar access for neighbouring properties."
and:
"While specific Acceptable Development requirements for solar access are not provided in the Codes, solar access guidelines have been included in the Explanatory Text and may be taken into account in the consideration of applications according to the Performance Criteria."
41 Although the explanatory text contains guidelines for optimising onsite solar access, it is not clear how these guidelines could be taken into account in the consideration of applications according to the Performance Criteria, other than perhaps by accepting lesser solar access for an adjoining property so as to increase on-site solar access.
42 In any case, the explanatory text relevantly includes the following:
(Page 14)
- "However, it is difficult to translate these aims into development provisions. This is not because the issues are subjective but because conditions vary greatly from one situation to another, making it difficult to establish universally valid rules. To give an obvious example, a narrow east-west oriented lot on the south side of a development site, especially where the terrain slopes towards the south, is highly vulnerable to being overshadowed, even by a relatively low building set back from the common boundary. [Page 82] …
The shape and orientation of lots sometimes make it difficult to achieve optimum layout of a development. Sometimes this may conflict with the principle of dwellings facing the street. Often a compromise will have to be made. [Page 83] …
It is clear that the sites most vulnerable to overshadowing are narrow east-west oriented sites, on the south side of a development site, especially if they are also lower or on a southfacing slope. In such cases, even a relatively low building may cast mid-winter shadows over a greater proportion of the site than allowed under cl 3.9.1. [Page 84]." (Emphasis in bold added.)
43 As Mr Skinner submits, on the basis of Mr Smith's evidence, the design of the southern dwelling is necessitated by the orientation and dimensions of the lot and the need to address potential impacts on the adjoining property to the south. In these circumstances, which are largely dictated by the approved subdivision, the proposed development conforms to the provisions of the Codes in relation to design for climate.
Does the proposed development conform to the boundary setback provisions of the Codes?
44 The Acceptable Development provision in relation to buildings on boundaries in cl 3.3.2 A2 of the Codes state, in part, as follows:
"Development which complies with the following is deemed to meet the relevant Performance Criteria: …
Except where otherwise provided for in an adopted Local Planning Policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9:
(Page 15)
- i. Where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension; or
…
iii. In areas coded R30 and higher, walls not higher than 3.5 m with an average of 3 m for 2/3 the length of the balance of the boundary behind the front setback, to one side boundary; … "
45 For reasons discussed earlier, the proposed development conforms to the overshadowing provisions of Element 9. For reasons also discussed, the front setbacks of the proposed houses conform to the streetscape requirements in Element 2. Consequently, each of the boundary walls are located "behind the front setback line" for the purposes of cl 3.3.2 A2.
46 Mr Smith gave evidence, which was not challenged or contradicted by Mr O'Neill, that each of the proposed boundary walls satisfies either par (i) or par (iii) of the Acceptable Development provision in cl 3.3.2 A2. Both the northern boundary wall of the southern house and the southern boundary wall of the northern house, each of which are built to the common boundary, "abuts an existing or simultaneously constructed wall of similar or greater dimension" (par (i)). The three southern boundary walls of the southern house and the two northern boundary walls of the northern house are not greater than 3.5 metres in height, are an average of 3.0 metres and do not occupy more than two-thirds of the length of the balance of the boundary behind the front setback to one side boundary (par (iii)).
47 Mr Skinner correctly submits that the Acceptable Development provision in cl 3.3.2 A2 allows, for example, a wall up to a boundary in accordance with cl 3.3.2 A2(i) as well as a wall built up to one side boundary in accordance with cl 3.3.2 A2(iii). The Acceptable Development provision focuses on each wall built up to each boundary in order to constitute Acceptable Development. The provision does not suggest, expressly or by implication, that walls can only be built up to one boundary (although cl 3.3.2 A2(iii) states that that paragraph can only be used in relation to one side boundary). Moreover, development which complies with the Acceptable Development provision is deemed to meet the relevant Performance Criteria. The Performance Criteria refer to "buildings built up to boundaries other than the street boundary … ". The Performance Criteria, therefore, contemplate that walls may be built up to more than one boundary of the site.
(Page 16)
48 The proposed development conforms to the provisions of the Codes in relation to boundary setbacks.
Is the proposed development acceptable in the exercise of planning discretion having regard to the objectives for development in the Residential zone?
49 Clause 41(2) of TPS 4 states, in part, as follows:
"In considering an application for development approval in [all areas zoned Residential in the Scheme area] the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
(a) the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
…
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock.
… " (Emphasis in bold added.)
50 Mr O'Neill contends that the proposed development does not enhance the amenity of the residential neighbourhood by the adherence to solar and environmentally sound design principles. In particular, he considers that the northern house fails to meet this objective, because it has limited crossventilation to most, if not all, habitable rooms with reference to prevailing south-west cooling summer breezes. Mr O'Neill considers that the southern house fails to meet the objective, because of an absence of north-facing openings to all habitable rooms and very limited solar access to ground floor living rooms during winter months.
51 Mr O'Neill gave evidence that, while the principles of solar and environmentally sound design are not identified in TPS 4, "they are widely understood and accepted as part of good design for residential development". He explained that the basis for sound environmental design "is a recognition of climatic factors such as solar radiation and wind, with buildings being designed so as to optimise the positive benefits
(Page 17)
- and ameliorate the negative impacts associated with such climatic factors". He also gave the following evidence:
"The focus of a sound design response is not only to provide a comfortable living environment for occupants, but of increasing importance, to minimise energy demand associated with the need for heating (in winter) and cooling (in summer) of buildings."
"The [laneway] at the rear of [the site] funnels the sea breeze from the south to north along the [laneway] in a way that is surprisingly stronger than the actual breeze felt in the surrounding streets. I have no idea how this phenomenon works, just that it does and I experience this most days, even when only the faintest sea breeze is reaching Nedlands. This is why I have designed the [northern house] upstairs corridor to run the length of the house between the two balcony doors, to trap some of this breeze, with the same principle applying to a lesser extent on the ground floor level."
53 Mr Smith said that he, too, has experienced the breeze along the laneway. During the view of the site and the locality, this phenomenon was experienced and commented on by the parties' representatives and the Tribunal. It is likely that some breeze would, therefore, be channelled through the Juliet balcony at the rear of the upper level of the northern house along the corridor to the dining room, kitchen and lounge room. In addition, the Tribunal accepts Mr Smith's evidence that the internal courtyards within each of the proposed houses are sufficiently large to enable airflow into living rooms and bedrooms.
54 The proposed southern house would receive direct solar access to the front courtyard, which has dimensions of 4.0 metres by 6.0 metres (although part of this area would be overshadowed by the front and side walls), and to the upper front balcony, which has dimensions of 2.0 metres by 4.495 metres (although part of this area would be overshadowed by the fin wall separating the balconies), during the morning and at noon in midwinter. The amended plans incorporate two large and well located skylights which would enable direct solar access to the second level TV room, passageway and study in midwinter. The lower level dining area, which is located at the front of the house, is likely to receive direct
(Page 18)
- solar access during part of the morning in midwinter. However, the central courtyard, living room and kitchen would not receive any direct solar access in midwinter, although daylight and reflected sunlight would be obtained through a skylight above the stairs.
55 Mr Smith considers that the ability to reflect solar and environmentally sound design principles is severely compromised by the size, orientation and dimensions of the lots as approved by the Commission. He referred in this regard to the explanatory text in the Codes, which is set out at [42] above, concerning the difficulty in obtaining solar access on a narrow east-west oriented lot on the south side of a development site.
56 The Tribunal considers that the objective stated in cl 41(2)(f) of the Scheme is generally achieved by the proposed development, bearing in mind the significant constraints posed by the width and orientation of each of the approved lots.
57 As noted earlier, it is reasonable and sensible for a house on the southern lot to be built to the northern boundary so as to minimise its impact on the property to the south. The proposed southern house is not excessive in its scale in the context of the applicable planning controls and the locality. It incorporates solar and environmentally sound design principles to the maximum extent possible having regard to the size, orientation and dimensions of the lots and the need to avoid potential impacts on the adjoining property to the south.
58 The design of the development allows for direct solar access to some internal and some external living areas in midwinter. It is possible to incorporate solar heating. Finally, the development adheres to solar and environmentally sound principles by locating the building as far away as possible from the southern boundary.
59 The proposed development is, therefore, acceptable in the exercise of planning discretion having regard to the objectives for development in the Residential zone.
Difficulties which can result from split planning system in Western Australia
60 This case highlights a difficulty which can result from the split planning system in Western Australia under which subdivision control and assessment is undertaken by the Commission at State level whereas development control and assessment is generally undertaken by local governments applying local planning schemes and policies at local level.
(Page 19)
- The Commission also undertakes some development control and assessment under region planning schemes, although certain of these functions are delegated to the relevant local government.
61 Subdivision control in Western Australia is regulated by Div 2, Div 3 and Div 4 of Pt 10 of the PD Act, whereas development control is regulated by Div 5 of the PD Act and local and region planning schemes. This split planning system is unique to Western Australia among Australian planning systems. In the other States and the Northern Territory, "development" relevantly includes subdivision of land so that development approval is required for subdivision and there is a single system of development/subdivision control and assessment which is generally administered by local governments: see Environmental Planning and Assessment Act 1979 (NSW) s 4; Planning and Environment Act 1987 (Vic)s 3; Integrated Planning Act 1997 (Qld) s 1.3.2; Development Act 1993 (SA) s 4; Land Use Planning and Approvals Act 1993 (Tas) s 3; and Planning Act 1993 (NT) s 3. The Australian Capital Territory has a unique leasehold system of land tenure and primary land use control is through lease use clauses.
62 As noted at the outset of these reasons, the Commission approved the creation of two east-west oriented lots, each having an area of approximately 232 square metres, a width of approximately 6.0 metres and a length of approximately 38.0 metres, subject to conditions. The conditions, in effect, preclude vehicular access from Winthrop Avenue, with the practical result that the rear of each allotment will comprise a garage stretching from one side boundary to the other. Another condition, which appears by its terms to be a standard condition, requires the subdivider to obtain development approval for a dwelling on each of the lots. The development application which is the subject of this review has been formulated and lodged in response to this condition.
63 It is not open to the Tribunal, in these proceedings, to review the decision to grant the conditional subdivision approval. The subdivision approval subsists and is operative: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197. It must be assumed to be valid unless it is declared invalid by a court of competent jurisdiction: Antonas and Town of Vincent [2006] WASAT 303 at [55].
64 The subdivision approval contemplates development of the site at a density of R50. As Mr Smith explained, the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single
(Page 20)
- dwellings of the nature proposed in the development application. The proposed southern house is a reasonable response to the size and orientation of the site and the applicable local zoning and planning controls. On the other hand, as Mr O'Neill pointed out, the southern house would have very poor solar access.
65 The imposition of a standard condition on the subdivision approval requiring the subdivider to obtain development approval for a house on each lot is not an adequate response to a planning application to create a constrained site. The subdivision approval, in itself, creates reasonable expectations for development of the site. The condition is redundant, because development approval for a house would be required in any case. Furthermore, the condition can be satisfied by the approval of a house which the subdivider does not intend to build. When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
66 This creates a difficulty in the planning system and may result in a less than optimal net planning outcome. It raises the issue of whether, in some contexts, such as subdivision to enable urban infill in established areas, a single system of development/subdivision control and assessment, possibly by delegation to the relevant local government, may be preferable to the split system.
Conditions
67 In accordance with the Tribunal's usual practice, the City produced a set of draft "without prejudice" conditions and Ms Boulter commented in relation to them. The Tribunal allowed the parties an opportunity during the hearing to discuss conditions in dispute, which resulted in a large number of disputed conditions being reduced to only four.
68 The first disputed condition requires Ms Boulter to provide two copies of archival records consisting of a site plan and photographs of each elevation of the existing house, its interior and any special architectural features. Ms Boulter objected to this condition on the basis that the existing house is not identified as a heritage item. However, the Tribunal considers that the condition is appropriate in the circumstances of this case, as the house has formed part of the built character of the locality for probably 70 or 80 years. The house also
(Page 21)
- appears to contain some interesting architectural features of which a photographic record should be made.
69 The City proposes a condition that the balustrades at the front upper level balconies are to be visually permeable and, in particular, that Perspex or glass may not be used. Ms Boulter wishes to maintain the potential for Perspex or glass. Mr Smith accepts that visual permeability is appropriate, but considers that Perspex or glass balustrades would be visually permeable most of the time, except when they give off glare at certain times in the morning. In the discussion of issue 1 relating to streetscape above, the Tribunal noted that a pedestrian standing in front of the site would only be able to view the upper part of the balustrade and the front façade of the upper level behind. For streetscape reasons, it is important that the balustrade appear visually permeable at all times. The Tribunal therefore considers that the Council's proposed condition should be imposed.
70 Ms Boulter objects to a proposed condition that any damage to the rear laneway as a result of the development is to be repaired at her cost, as this obligation would exist under other legislation. Whether that is the case or not, it is a usual and reasonable condition to impose on development.
71 Finally, Ms Boulter objects to a condition which would preclude the placement of service meters and related infrastructure on the streetside of the front fence. Mr O'Neill explained that this is a standard condition imposed for aesthetic reasons. The Tribunal agrees that service meters and related infrastructure should not be allowed to adversely affect the streetscape. However, in order to provide access to utility service providers from the street, service meters and infrastructure can appropriately be incorporated into the front wall if they have a cover which matches the front wall to the City's satisfaction. The condition will be amended to this effect.
Conclusion
72 The Tribunal has determined that the development application for single houses on each of the approved lots conforms to the requirements of the Codes. Furthermore, the proposed development is acceptable in the exercise of planning discretion having regard to the objectives for development in the Residential zone stated in the Scheme.
73 The application for review should be allowed and development approval should be granted subject to conditions.
(Page 22)
Orders
74 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent to refuse development approval for demolition of the existing house and outbuildings and for the erection of a single house on each of two lots which are the subject of a conditional subdivision approval granted by the Western Australian Planning Commission at No 88 (Lot 33) Winthrop Avenue, Nedlands is set aside and a decision is substituted that development approval is granted under the Metropolitan Region Scheme and the City of Subiaco Town Planning Scheme No 4 subject to the following conditions:
(1) The development shall be carried out in accordance with seven sheets of plans drawn by Urban Project No OOR-WAO1 site plan drawing no A-01 rev E, layout plans northern house drawing no A-02 rev F, layout plans southern house drawing no A-03 rev F, front/rear elevation drawing no A-04 rev E, side elevations drawing no A-05 rev E, roof plan drawing no A-06 rev A and sections drawing no A07 rev A except as varied by the following conditions.
(2) The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.
(3) Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.
(4) Prior to the commencement of demolition, two copies of archival records are to be provided to the City and are to consist of the following information:
- (i) A site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished.
(ii) Photographs of all four elevations of the existing house, its interior and any special architectural features. These photographs are to be appropriately labelled, and are to be provided in plastic archival sleeves.
- (5) Convex mirrors are to be installed at the rear of the property on both sides of the access driveway prior to occupation for the purpose of improving vehicle sightlines, details of which are to be provided prior to construction and be to the satisfaction of the City.
(6) An orange flashing light is to be installed at the rear of each of the proposed dwellings to warn other users of the right-of-way when a vehicle is exiting the garage, details of which are to be provided prior to construction and be to the satisfaction of the City.
(7) The balustrades associated with the upper level balconies are to be visually permeable. The balustrade materials are to be in the main open and not permitted to consist of a single solid material such as Perspex or glass, details of which are to be provided prior to construction and be to the satisfaction of the City.
(8) The west facing upper level window associated with the study in House B is required to have a permanent minimum sill height 1.6 metres above the finished internal floor level or is to be constructed of fixed obscured glazing below this level and be unopenable.
(9) Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development, details of which
- are to be submitted prior to commencement of the development.
- (10) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Codes and the City's relevant policies.
(11) Any new or replacement fencing is to conform to the requirements of the City's Perimeter Fencing Policy. The front fence (including side fencing forward of the building line) is not to exceed 1.8 m in height from natural ground level.
(12) The House A and House B double garages are to have a minimum internal width of 5.4 m and a minimum opening width of 5.0 m.
(13) All crossovers and driveways are to be constructed in accordance with Australian Standard AS 2890.1 and maintained to that standard and in accordance with Policy 14.2.3.
(14) Existing ground levels at all proposed vehicle and pedestrian access points are to remain unaltered.
(15) Any damage to the right-of-way as a result of the development is to be repaired at the owner's cost.
(16) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.
(17) No service meters or related infrastructure are to be placed on the streetfront of the front wall, but may be incorporated into the wall if covered by a cover which matches the wall to the City's satisfaction.
(18) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or
- excavation required as a result of any alternation of these levels is to be retained.
- (19) All conditions must be complied with prior to occupation of the development unless otherwise stated.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
(Page 26)
Attachment A
(Page 27)
Attachment B
(Page 28)
(Page 29)
(Page 30)
23
2
10