Burnett and Town Of Cambridge
[2006] WASAT 29
•13 FEBRUARY 2006
BURNETT and TOWN OF CAMBRIDGE [2006] WASAT 29
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 29 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:479/2005 | 7 AND 18 OCTOBER 2005 | |
| Coram: | MR P McNAB (MEMBER) | 13/02/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed | ||
| B | |||
| PDF Version |
| Parties: | JUSTINE ANNE BURNETT TOWN OF CAMBRIDGE |
Catchwords: | Town planning Retrospective approval for roofed alfresco area Issue confined to bulk, scale and noise impact on rear neighbours Principles governing retrospective approvals Awkwardly shaped lots with "extreme angle" rear boundary Existing outbuildings or structures in both principal and neighbouring properties' rear setbacks Variation sought to rear setback Local government made reasonable concessions Proposed development improved overall amenity Conditions to ameliorate impact on neighbour's amenity Truncation of roof rejected by Tribunal Application allowed |
Legislation: | Residential Design Codes of Western Australia(2002), Pt 3.3 Town of Cambridge Town Planning Scheme No 1 Town Planning and Development Act 1928 (WA) |
Case References: | Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36 Swan Cove Holdings Pty Ltd v City of Subiaco and Anor [2001] WATPAT 7 Taddei v City of Stirling [2004] WATPAT 85 Van Egmond v City of Knox (1985) 16 APA 56 Harrison v City of Knox (1987) 29 APAD 47 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and in substitution thereof there will be a decision granting development approval on such conditions as are reasonable and appropriate to be approved by the Tribunal.,3. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions, not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent within 28 days of the date of this decision.,4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of order 3. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : BURNETT and TOWN OF CAMBRIDGE [2006] WASAT 29 MEMBER : MR P McNAB (MEMBER) HEARD : 7 AND 18 OCTOBER 2005 DELIVERED : 13 FEBRUARY 2006 FILE NO/S : DR 479 of 2005 BETWEEN : JUSTINE ANNE BURNETT
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
<Catchword>Town planning Retrospective approval for roofed alfresco area Issue confined to bulk, scale and noise impact on rear neighbours Principles governing retrospective approvals Awkwardly shaped lots with "extreme angle" rear boundary Existing outbuildings or structures in both principal and neighbouring properties' rear setbacks Variation sought to rear setback Local government made reasonable concessions Proposed development improved overall amenity Conditions to ameliorate impact on neighbour's amenity Truncation of roof rejected by Tribunal Application allowed</Catchword>
(Page 2)
Legislation:
Residential Design Codes of Western Australia(2002), Pt 3.3
Town of Cambridge Town Planning Scheme No 1
Town Planning and Development Act 1928 (WA)
Result:
<Order>Application for review allowed</Order>
Category: B
Representation:
Counsel:
Applicant : Mr RJ Nash
Respondent : Mr P Fitzgerald (by leave)
Solicitors:
Applicant : Williamson & Co
Respondent : N/A
Case(s) referred to in decision(s):
Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36
Swan Cove Holdings Pty Ltd v City of Subiaco and Anor [2001] WATPAT 7
Taddei v City of Stirling [2004] WATPAT 85
Case(s) also cited:
Van Egmond v City of Knox (1985) 16 APA 56
Harrison v City of Knox (1987) 29 APAD 47
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Summary of Tribunal's decision
1 In this application for review, the Tribunal was asked to set aside a decision by the Town of Cambridge (respondent) not to grant retrospective approval for the building of a roof covering an outdoor (alfresco) area.
2 The roof was part of a stylish upgrade and extension of the existing residence, and replaced or modified some outbuildings or other structures already existing on this particular part of the block. The covered area was located very close to a sharplyangled rear dividing fenceline, and therefore close to part of a neighbouring residence (itself relatively close to the boundary). The neighbours at the rear principally complained of a loss of amenity because of their perceptions of the bulk and scale of the development. They were also concerned about an increase in noise they received from activities in the alfresco area.
3 A variation to the rear setback was sought upon the basis that it was justified having regard to: the existing structures on the land; the shape of the land; the angle of the common rear boundary, and the improvement to the amenity caused by the development, when considered overall. The respondent conceded that there were factors favouring the application but remained concerned about the adverse impact on the neighbour's amenity.
4 On balance, the Tribunal agreed with the applicant and approved the development, but in effect with conditions that would significantly ameliorate the impact on the neighbour's amenity.
5 The Tribunal also discussed the applicable law on retrospective approvals of this nature.
6 The application for review was therefore successful and the respondent's original decision was set aside by the Tribunal.
Introduction and background
7 This review concerns an application to review a decision of the Town of Cambridge (respondent) made on 31 May 2005 not to give retrospective planning approval in relation to the roofing of an alfresco area at the rear of no 3 Roscommon Road, Floreat (subject land).
8 As the respondent's officers below (and Mr Fitzgerald who appeared for the respondent in the Tribunal) properly conceded that, in other
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- respects, the applicant had met the relevant performance criteria under the Residential Design Codes of Western Australia 2002 (Codes), the principal issue in this review concerns the impact of the new structure on the neighbours at the rear of the subject land, particularly as to the bulk and scale of the development.
The subject land and the development proposal
9 The subject land is conceded to be "awkward" in shape with an "unusual (angular) … common rear boundary". The respondent's planning officers below described it as an "extreme angle". Mr Nash, counsel for the applicant, described the situation as "a significant compression of the block at the eastern side by virtue of the angle of the rear boundary". The Tribunal understands that the respondent does not disagree with that description. In the circumstances, this is an entirely proper concession on the part of the respondent.
10 The western boundary of the property is almost twice as long as the eastern side, with the rear (southern) boundary longer than the northern frontage (by about 8.0 metres) because of the angular nature of that boundary. This broad description is illustrated in the two plans which appear in the Annexure to these reasons. These plans indicate the proposal, the close to the boundary structures that preceded it, the shape of the subject land and the nearness of the rear neighbour's residence.
11 A fuller description of the proposal itself appears in Mr Fitzgerald's witness statement as follows:
"The proposal is for a roof cover to an alfresco area to the side and rear of an existing dwelling. The wall height of the structure would be 2.829 metres. It would be located up to 1.5 metres from the rear boundary of the property with the eaves of the structure extending to within 0.6 metres of the boundary."
12 It is perhaps worth emphasising here that the shape of the subject land and the existing structures on that land relate to the design proposal contemplated for it (that is, the proposal under review) and results in a structure well within the rear setback (as were both part of the existing dwelling house and former outbuildings), and which is very close to part of the neighbouring property (that part itself is well within its rear set back, and again on an awkwardly shaped block). It is also worth noting that the alfresco structure, to a certain extent, replaces an existing set of structures.
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13 The Tribunal had the advantage of a view of the premises on site (including the neighbouring premises) at the invitation of and in the presence of all of the parties. During that view, the Tribunal was invited by the parties to observe, amongst other things, the noise emanating from the ordinary domestic use of the alfresco area, as received by and in the adjoining property.
14 Draft conditions were exchanged by the parties, should the Tribunal be minded to allow the application for review.
Planning framework
15 It is common ground between the parties that this review is governed by the following framework instruments:
• the Codes, particularly Pt 3.3;
• the Town of Cambridge Town Planning Scheme No 1 which requires the application of the Codes, and permits retrospective approval of the development;
• generalised and aspirational statements in relevant local precinct policies.
16 It is also common ground between the parties that:
• the subject land is zoned "Low Density Residential" (R12.5) and is located within Precinct P3 (Floreat) and Sub-precinct P3C (Floreat West);
• the respondent's approval is needed for the development;
• the respondent's Residential Design Guidelines (Development Requirements) of June 2005 applicable to the precinct do not provide relevant guidance in resolving this matter (as they do not deal with rear setbacks).
17 The acceptable rear setback under the Codes is 6.0 metres. One factor of design element 3.3.1 of the Codes (in the alternative performance criteria, P1) is central to this review. It provides as follows:
"Buildings [should be] set back from boundaries … so as to assist in ameliorating the impacts of building bulk on adjoining properties."
18 The respondent fairly and reasonably concedes (notwithstanding the prevailing low density development pattern in the precinct - which would be assisted by generous setbacks), that the upgrading of housing stock, the
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- shape of both the subject land and the neighbour's land, and the existing, in effect already compromised, rear setbacks all indicate that the answer to the critical question (under a variation sought by reference to the performance criteria) turns upon the degree of the "bulk impact" of the proposal, particularly having regard to the neighbour's amenity.
19 It is convenient, however, to turn first to the relevant principles that govern retrospective applications of this nature.
Retrospective planning approval: the principles
20 In Taddei v City of Stirling [2004] WATPAT 85, the predecessor body to this Tribunal observed as follows (internal headings omitted, at [19] [22]):
"It is important for the role of the Tribunal in determining an application for retrospective planning approval to be made clear. [The town planning scheme under consideration gives] power to approve development notwithstanding the fact the development has already been carried out [and the scheme] allows an approval to be issued where the application conforms with [the scheme].
In determining an appeal of this nature, the Tribunal is required to test the application against the legislative and policy framework of the Respondent in order to determine whether approval should be given. It is not for the Tribunal to take into consideration the lawfulness or otherwise of the developer's actions in constructing the building without the necessary approvals in place.
This position has been made clear by the Supreme Court [of Western Australia] in the decision of [Low v Swan Cove Holdings Pty Ltd(2003) 127 LGERA 36], an appeal from the [former] Tribunal. In this case, His Honour RobertsSmith J held … [at 64]:
' ... the fundamental position remains that a development application under the Scheme is an application for planning approval and the only considerations relevant to that are planning considerations, which relate to whether the proposed development is appropriate to the locality and in accordance with the objects of the Scheme and the objectives of the R Codes. The conduct or motivation of
- the proponent are not such considerations and neither the Council nor the Tribunal is equipped to deal with allegations of that nature.'
- In the decision which gave rise to the [unsuccessful] appeal in [Low v Swan Cove Holdings Pty Ltd], Swan Cove Holdings Pty Ltd v City of Subiaco and Anor [2001] WATPAT 7, the Tribunal held that the onerousness of the appellant in being required to alter the existing development to comply with the relevant planning controls is irrelevant. There is no room for the 'balance of convenience' to sway the Tribunal in determining the application [at [48]]:
'The issue must be solved only on planning grounds and an Appellant that comes to the Council or the Tribunal with a completed development must expect that the decision as to approval will be based entirely on planning grounds. The fact that the development is already in place must be disregarded.'''
22 It is with these principles in mind, applicable as they are to retrospective approval applications of this scale, that the Tribunal has approached this review.
Applicant's case
23 In summary, the applicant's case, supported by the opinion of an experienced architect, Mr Giles HardenJones, was that there had been no significant increase in bulk or scale caused by the development. Mr HardenJones said:
"The roof over the alfresco area was one of a number of recent renovations undertaken by [the owners] to the house on the property. The renovations included the removal of an old substantial outhouse (which included a shower and lavatory), and a store area. … In my opinion [a] comparison [between the old and the new structures] shows that in terms of bulk, the current structure has not increased the building bulk and when one compares the new structure with the old the aesthetic outlook has been substantially improved."
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Respondent's case
24 Mr Fitzgerald, for the respondent, said in reply:
"Following a site inspection [by Mr Fitzgerald], in my opinion the development did not have the appearance 'of a two storey' development [as suggested by the neighbour, see below] … But, it is highly visible from the [neighbouring property] by virtue of its proximity to the common boundary, the solid nature of the structure and the roof pitch associated with the development. As a new structure, it creates an additional bulk impact, which the rear neighbour considers to be unreasonable and an intrusion on his amenity. This is considered to be an important factor in determining the appropriateness of the setback variation sought in the context of the performance criteria of the Codes."
25 The objecting neighbours were called by the respondent. So far as is relevant, the amenity concerns of the neighbours at the rear, Mr and Mrs Di Nardo at no 27 Ulster Road, may be summarised as follows:
1. The new rear structure is of substantially greater visual impact than its predecessor (it "creates the illusion that a two storey house overlooks us").
2. There is excessive light spill from the new development.
3. Excessive noise is carried onto their premises.
4. Their privacy is intruded upon (they are "forced … to whisper" in their rear garden).
5. That sunlight penetration into their property is reduced (the "rear boundary is dark and gloomy").
26 (Other concerns expressed by the neighbours as to the administrative processes surrounding the development, some of which were admitted by the applicant to be wanting, are touched on below.)
27 Several additional points may be noted. First, the respondent's officers noted that "the neighbouring property is lower than the subject property by at least half a metre and this exacerbates the bulk and scale issues". Secondly, the neighbours have a dining/living area in their residence ending at the rectangular corner point more or less adjacent to the southeastern extremity and corner point of the covered alfresco area
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- (that is, where the covered area's eaves are 0.6 metre from the dividing fence). In front of this, there is a small open courtyard. Thirdly, there is some established greenery on the neighbouring property that provides limited screening. The most prominent noise received into this courtyard area appears to be that emanating from the applicant's small children.
Discussion of the issues and findings
28 An aerial photograph taken from "Google Earth" (tendered by the applicant) shows a substantial shed structure approved by the respondent by way of a building licence issued in September 1995. The new development replaced and expanded that structure. The previous structure had, however, a pitched roof or cover further set back than the proposal under review. There is no doubt that the new structure, replacing the shed and outbuildings, is a substantial building which impacts upon the neighbours and is a significant encroachment in the rear setback.
29 As to that impact on the neighbours, they remain somewhat justifiably upset at the radical change as they saw it one they were not fully prepared for, and one that they felt they were not fully consulted about. Subjectively, there is no doubt that the neighbours have been affected by what, from their point of view, is a relatively sudden and an unexpected change to their surroundings in terms of a new fence, new neighbouring structures and particularly ambient noise. In addition, the "illegality" of the structure was a point they repeatedly emphasised in their joint statement. The impact of these matters can, in the Tribunal's experience, naturally influence the perception of matters such as bulk, scale and noise. That their property is lower than the subject land has no doubt exacerbated their concerns.
30 In the Tribunal's respectful view except perhaps as to the noise impact there was some unintended, albeit understandable, oversensitivity regarding the neighbour's subjective amenity concerns, which, if the matter were to be viewed more objectively, would not necessarily result in concerns expressed to such a degree. Thus, the Tribunal shares Mr Fitzgerald's rejection of their description of the new roof as appearing like a "two storey house".
31 On its planning merits, and stripped of these more subjective concerns, the overall design and proposal, viewed objectively, makes productive use of both what is conceded to be an awkward site, and the "framework" (or perhaps opportunity), in effect, created by the existence of the previous buildings. The local policies referred to by Mr Fitzgerald envisage "substantial additions and upgrading of original houses [in this
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- area] to contemporary standards". Some necessary compromise in the rear setback is acknowledged on all sides. The development, taken as a whole, might well be described as stylish and contemporary and, as Mr Nash submits, an improvement in the amenity in the immediate vicinity of the subject land, including the benefits flowing from the associated new rear dividing fence.
32 Here, after careful reflection, the Tribunal has concluded that, on balance, the development ought to be permitted. The impact on the amenity of the neighbours at the rear, which is conceded, can be, in the Tribunal's view, reasonably ameliorated by the imposition of certain conditions to lessen the visual, noise and privacy impact of the proposal upon them.
33 The Tribunal turns to consider those conditions.
Conditions to be imposed
34 Both parties filed draft conditions with supporting arguments as to their respective merits. The applicant also subsequently filed, in November 2005, a detailed reply to the respondent's arguments concerning conditions.
35 The applicant offered a number of options to be implemented, either singularly or in combination. These included clear PVC café-style blinds, large pots with established trees, a natural matting in the alfresco area (to absorb sound) and wooden slats with creeper coverage. The least preferred option suggested by the applicant was truncation of the rectangular corner point.
36 Apart from truncation, the respondent rejects the applicant's suggested conditions as insufficiently permanent and difficult to enforce. Mr Fitzgerald properly admits that "some form of screening could assist in the amelioration of bulk and noise issues". However, the neighbours at the rear have indicated that they would not consent to raising the height of the dividing fence by the height suggested by the applicants. Apart from truncation, which the respondent supports, the respondent argues for permanent screening vegetation and the installation of solid, nonretractable screening on the southern side of the alfresco structure.
37 The Tribunal does not favour truncation. In the Tribunal's view, the proposed truncation would have little or marginal effect on the bulk and scale issues, and might even exacerbate them. Truncation should perhaps
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- be reserved as a solution for cases of overhang or for similar problems; this is not the situation here.
38 Putting aside the issue of truncation, in reply, the applicant argues essentially for flexibility, convenience, practicability (given the applicant's design and existing fixtures) and for cost to be taken into account.
39 Insofar as a significant financial burden is said to be imposed upon the applicant by reason of complying with some of the proposed conditions, the "onerousness of the [applicant] in being required to alter the existing development to comply with the relevant planning controls is irrelevant": see Swan Cove Holdings Pty Ltd v City of Subiaco and Anor, referred to above.
40 The Tribunal broadly agrees with Mr Fitzgerald that relative permanency and ease of enforcement favours conditions along the lines that he has suggested. Hence, it will be necessary for a compromise to be reached favouring Mr Fitzgerald's position but one that also recognises, if necessary, that some design/existing fixture problems might nevertheless need to be addressed.
41 The parties will be directed to negotiate in good faith as to the final conditions to be imposed. Those conditions are to be consistent with the indications of the Tribunal just given. If the parties cannot agree on the final form of the conditions by way of a minute of consent orders, then the Tribunal shall rule upon them. That course should not be necessary if the parties approach the matter constructively and in good faith. And, of course the Tribunal retains the flexibility, if circumstances warrant it, to make a costs award should unreasonable intransigence be shown by either party on this issue.
Orders
42 For the foregoing reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision under review is set aside, and in substitution thereof, there will be a decision granting development approval on such conditions as are reasonable and appropriate, to be approved by the Tribunal.
3. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions, not inconsistent with the reasons for decision
- of the Tribunal, to be filed by the respondent within 28 days of the date of this decision.
- 4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of order 3.
- I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
Annexure
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3