Callan and Anor and City of Fremantle
[2007] WASAT 133
•30 MAY 2007
CALLAN & ANOR and CITY OF FREMANTLE [2007] WASAT 133
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 133 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:27/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 30/05/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for review upheld and development conditionally approved | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL CALLAN MARY CALLAN CITY OF FREMANTLE |
Catchwords: | Development application – Two storey residence – Compatibility in terms of height, scale, bulk and sensitivity to local heritage characteristics – Applicability of repealed town planning scheme – Compatibility of policies with new town planning scheme – Consideration of expected streetscape character – Assistance of streetscape drawing |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 6.3 City of Fremantle Town Planning Scheme No 3, cl 67 Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 60(2) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent, made on 27 December 2006, to refuse development approval for the demolition of an existing dwelling and the subsequent construction of a two storey residence at Lot 16 (No 150) Marine Terrace, South Fremantle is set aside and a decision is substituted that development approval is granted subject to the following conditions:,1) The development must be carried out in accordance with the plans drawn by Stylewise Designs, PO Box 296, Leederville WA 6903, entitled "Proposed Residence for Callan", originally dated July 2006, but subsequently amended, received and date stamped at the Tribunal on 20 February 2007.,2) An archival record is to be made of the building to be demolished and submitted to the City of Fremantle for approval prior to the commencement of demolition and shall include:,(a) A site plan prepared at 1:200 scale, floor plan(s) of the building and four elevations prepared at 1:100 scale.,(b) Digital photographs taken of the building (once vacated) to include:,i) A general/overall photo of the building to be demolished;,ii) Photos of each of the four elevations;,iii) Internal photos of all rooms; and,iv) Photos of any special architectural features.,3. All stormwater discharge shall be contained and disposed of on site.,Advisory notes:,(i) The proposed development is to comply with the provisions of the Building Code of Australia.,(ii) Any works within the road reserve, such as crossovers or pathways, require a separate application to the City of Fremantle.,(iii) Any damage that occurs during construction to the kerb/footpath shall be rectified at the cost of the applicants to the satisfaction of the City of Fremantle prior to occupancy.,(iv) Any existing easement or right of carriageway should be protected and remain fully accessible at all times.,(v) This approval does not authorise the commencement of any building/demolition works. A building/demolition licence must be obtained prior to the commencement of construction works. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CALLAN & ANOR and CITY OF FREMANTLE [2007] WASAT 133 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 30 MAY 2007 FILE NO/S : DR 27 of 2007 BETWEEN : MICHAEL CALLAN
- MARY CALLAN
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Development application – Two storey residence – Compatibility in terms of height, scale, bulk and sensitivity to local heritage characteristics – Applicability of repealed town planning scheme – Compatibility of policies with new town planning scheme – Consideration of expected streetscape character – Assistance of streetscape drawing
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 6.3
(Page 2)
City of Fremantle Town Planning Scheme No 3, cl 67
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application for review upheld and development conditionally approved
Category: B
Representation:
Counsel:
Applicants : Mr P Goff (Acting as Agent)
Respondent : Mr Downes / Mr Bowering (Acting as Agent)
Solicitors:
Applicants : MGA Town Planners (Town Planners)
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Michael and Mary Callan sought review of the decision of the City of Fremantle to refuse their development application to demolish an old dwelling on their land in South Fremantle and replace it with a modern two storey residence.
2 The City of Fremantle's reasons for refusal of the application were based on the presumption that the proposed development was excessive in scale and bulk and was out of character with the surrounding streetscape which included the presence of several heritage listed buildings. The proposed development was considered to be in conflict with relevant provisions of the City of Fremantle's town planning scheme and associated policies.
3 Following an unsuccessful mediation process in the course of which amended plans were agreed to be substituted and considered by the parties, the Tribunal found that the City of Fremantle's reasons for refusal were unable to be sustained. The Tribunal concluded that the proposed development, as amended, conformed with the relevant provisions of the City of Fremantle's town planning scheme and policies and was demonstrably compatible with the reasonably expected character and heritage sensitivities of the locality.
4 The application for review of the City of Fremantle's decision was allowed and the proposed development was conditionally approved.
Introduction
5 This is an application for review of the decision of the City of Fremantle (respondent) to refuse a development application by Michael and Mary Callan (applicants) seeking approval to demolish a single storey dwelling located at No 150 (Lot 16) Marine Terrace, South Fremantle and replace it with a modern two storey residence.
6 The development application was submitted to the respondent in September 2006.
7 The application was referred by the respondent for an independent assessment of heritage significance.
8 Following consideration of the development application, the heritage assessment and a comprehensive report on the proposal by the
(Page 4)
- respondent's officers taking account of relevant development control issues, the respondent refused the application at the ordinary meeting of Council held on 20 December 2006. The respondent's decision, and reasons therefore, was conveyed to the applicant in writing on 27 December 2006.
9 An application for review of the respondent's decision was lodged with the State Administrative Tribunal (Tribunal) on 17 January 2007.
10 In the course of mediation between the parties conducted by Senior Sessional Member Mr Ednie-Brown, the applicants submitted amended plans of the proposed residence on 20 February 2007, which were further considered by the respondent. The respondent rejected the amended plans on 28 March 2007 on grounds that the amendments to the plans still did not overcome the reasons for the original decision of refusal.
11 Mediation of the matter was subsequently unsuccessful and Mr Ednie-Brown ordered that the matter be determined on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The proposal and its context
12 Lot 16 (No 150) Marine Terrace, South Fremantle (subject land) is located on the edge of a well established, coastal residential neighbourhood, facing westwards towards premises occupied by the Fremantle Sailing Club and to the ocean beyond.
13 Land to the north, south and east is utilised for housing and is generally characterised by small housing lots, occupied by one storey and two storey dwellings.
14 Marine Terrace is a wide dual carriageway in this locality and is a substantial north/south traffic conduit connecting Fremantle to South Beach.
15 The dwelling proposed to be demolished is described as a modest bungalow constructed some short time prior to the 1950s. Significantly, the dwelling is set above a limestone, street front retaining wall which sustains the elevated landform of the street block and contributes significantly to the character of the street.
16 The two dwellings immediately north of the subject land are typical of an older, simple bungalow style with western facing verandahs. To the
(Page 5)
- south are a variety of developments illustrating much more complex elevations and roof structures. Three of these houses are, or are intended to be, two storey structures.
17 According to the plans of 20 February 2007, the proposed two storey residence on the subject land will be of masonry construction with a conventionally pitched tile roof, set back from the street generally in alignment with adjacent houses. The front (western) elevation will be featured by a street entry via steps from Marine Terrace to a small front garden and a ground floor verandah. A balcony at the upper level combined with large windows to living and dining areas of the house will afford commanding westward views. The overall height of the building will exceed the height of the immediately adjoining houses but will be similar in height to the more modern two storey buildings to the south at No 156, No 158 and No 160 Marine Terrace.
18 The Marine Terrace retaining wall will be preserved and otherwise, vehicle access to the subject land will be obtained via a right of way at the rear.
Statutory and policy instruments
19 At the time of the application, the land was zoned "Inner Urban R30" under the City of Fremantle Town Planning Scheme No 3 (TPS 3).
20 Clause 67 of TPS 3 addressed "Urban Design" in the following terms:
"Where in the opinion of the Council the amenity of a place, street or locality relates significantly to the architectural or physical character of existing buildings and landscape, the Council shall ensure that the appearance of any proposed development will not impair the amenity of the place, street or locality in question and will maintain the harmony in the exterior designs of buildings. In making a determination the Council shall seek expert advice and shall have regard to such advice."
21 On 8 March 2007, the City of Fremantle Local Planning Scheme No 4 (LPS 4) was gazetted and superseded TPS 3. LPS 4 provides that the land is now zoned "Residential R30".
22 LPS 4 includes provisions for Local Planning Areas with the purpose of protecting and enhancing locally desired character (cl 6.3). The Local
(Page 6)
- Planning Area relevant to the land is Local Planning Area 4 (LPA 4) Sub-Area 4.3.3 within which "building height shall be limited to a maximum of three storeys". The allowance of maximum height is qualified to the extent that the respondent is satisfied that:
• the proposal is consistent with predominant height patterns of adjoining properties and the locality generally;
• the proposal would not be detrimental to the amenity of the area;
• the proposal would be consistent, if applicable, with conservation objectives for the site and locality generally; and
• any other matter outlined in the respondent's local planning policies.
24 The respondent has adopted development control policies to assist in the exercise of town planning determinations.
25 Policy DBH 1 – Urban Design and Streetscape Guidelines (Policy DBH 1) sets out an objective "to conserve and enhance areas of architectural or historic character while encouraging harmonious development with the existing authentic character and appearance of the traditional residential areas of Fremantle".
26 Relevant to the matter before the Tribunal, Policy DBH 1 addresses the subject of "scale" and "mass" in the following terms:
• The great majority of traditional residential areas of Fremantle consist of single to two storey houses. Therefore a two storey limit will be generally applied to the design of new infill houses.
• In a predominantly single storey narrow inner suburban street, the new development should be single storey at the street frontage, with any two storey extension (if required) constructed to the rear. Alternatively, on larger lots in wider streets a traditional two storey built form may be located in line with other residences in the street.
(Page 7)
- • Building mass or bulk is the apparent massiveness of a building in relation to its surroundings. To complement the scale of the existing streetscape, new houses should be designed to blend with, rather than dominate, that space. Oversize buildings which overwhelm existing houses and dominate the streetscape will be discouraged.
27 Policy DBH 13 – Impact of Developments on Heritage Places (Policy DBH 13) includes the objective "to ensure that Council has regard, among other things, to heritage issues when determining applications, particularly with respect of impacts of proposed developments on heritage places and their site and streetscape contexts".
28 Policy DGF 16 – Marine Terrace Policy (Policy DGF 16) expresses its objective as encouraging "a form and scale of development appropriate to Marine Terrace's character as a sea-front forming an edge between the City and the ocean. Development should not adversely affect residential uses in adjoining streets. The identification and fostering of heritage elements on and adjacent to Marine Terrace also forms an integral part of the policy".
29 The policy goes on to state:
• The general character of the area should be distinctly inner urban.
• Marine Terrace should act as a seafront boulevard and a formal gateway entrance to the city.
• Development should be hard edged relating directly to the street, both on the horizontal and vertical planes. Development should be of a scale appropriate to its setting and serve to close off the ends of street blocks abutting Marine Terrace. Incongruous isolated developments, and the overdevelopment of individual sites, will not be supported.
• Landscaping should be formal consistent with the status of Marine Terrace as a boulevard entrance to the city.
• All uses that are residential or have a general relationship to harbour activities both industrial and recreational would be encouraged, given the usual environmental standards.
(Page 8)
30 In the area from South Street to Scott Street, the policy recommends that:
"this area should remain predominantly residential in character, and domestic in scale. Mixed use developments may occur on those sites with redevelopment opportunity. Many of the dwellings have local historic significance and the Council will encourage their retention and restoration".
The respondent's decision
31 On 20 December 2006, the respondent refused the application for demolition of the existing dwelling on the land and the construction of a two storey replacement residence as detailed on plans, dated 11 September 2006, for the following reasons:
1) The proposed development does not comply with Policy DBH 1 in that it is considerably larger in scale and bulk than the adjacent residences and would be extremely prominent in the raised streetscape of this section of Marine Terrace.
2) The design of the proposed building is inconsistent with Policy DBH 13 as it shows no consideration for the existing streetscape or the character of the adjacent buildings.
3) The proposed development does not comply with Policy DGF 16 as it would result in an incongruous and isolated development within the context of the existing streetscape.
4) The proposed elevations are out of character with the surrounding development and would therefore be contrary to cl 67 of TPS 3.
32 Advisory note:
• The proponent should be encouraged to adapt and extend the existing residence or resubmit a more sympathetic and appropriate proposal for a replacement residence which addresses the following:
• Reducing the bulk and mass to the street front.
- • Modulating the design so that a portion of the new residence is single storey to the street front.
• Introducing materials and colours in harmony with the historic built form of the streetscape and the area.
33 Following the submission of amended plans by the applicant, dated 20 February 2007, and the conduct of mediation by the Tribunal, the respondent further considered its decision, but resolved on 28 March 2007 that it was not prepared to amend its decision "as the amended plans were not considered to have met Council's reasons for refusal".
34 In consequence to the unsuccessful mediation of the matter, Senior Sessional Member Mr Ednie-Brown ordered that "the matter is to proceed on the amended proposal as considered by Council at the meeting held on 28 March 2007 as advised to the Tribunal on 5 April 2007".
The respondent's argument
35 The respondent's argument is based on the proposition that the proposed development is visually incompatible with the scale, mass and general character of surrounding buildings which form the streetscape of the immediate locality. Accordingly, the development should be refused because it would otherwise negatively impact on the character of the existing streetscape.
36 Factors that should be taken into account in assessing the application include:
• the elevation of the land and the consequent prominence of any development thereon;
• the modest scale of the single storey houses either side of the proposed development;
• the heritage importance of the adjacent houses; and
• the heritage importance of the street front limestone retaining wall.
37 The respondent argued that the proposed development in the context of the factors outlined in the preceding paragraph, did not conform with Policy DBH 1 because the intended two storey residence was considerably larger in scale and bulk compared to the adjacent houses.
(Page 10)
- The policy expressly discourages oversize buildings which would overwhelm existing houses and dominate the streetscape.
38 The respondent also argues that the proposal is inconsistent with Policy DBH 13 because the intended development shows no consideration for the existing streetscape or the character of adjacent buildings. In this regard, attention is drawn to the report of the independent heritage architect which drew the following conclusion in assessment of the original application:
"The residence at 150 Marine Terrace has some heritage significance as a modest example of a larger bungalow style residence in Fremantle dating from the first half of the twentieth century. The building contributes to the streetscape of this section of Marine Terrace.
The proposed development is considerably larger in scale and bulk than the adjacent residences and would be extremely prominent in the raised streetscape of this section of Marine Terrace.
The design of the proposed building shows no consideration for the existing streetscape or the character of adjacent buildings.
The existing residence appears to be in a sound condition and it would be feasible to adapt it to provide a modern residence similar to the standard that would be achieved by replacing it, with the advantage of retaining the character of the existing building and streetscape.
Both the proposed demolition of the existing residence and the new development would impact negatively on the streetscape and character.
The proponent should be encouraged to adapt and extend the existing residence or resubmit a more sympathetic and appropriate proposal for a replacement residence."
39 Policy DGF 16 is also cited as a reason for refusal on grounds that it specifically discourages "incongruous isolated developments and the over development of individual sites".
40 The respondent argues that the provisions of cl 67 of TPS 3 obligate the obtaining of expert advice and the need to have regard for such advice.
(Page 11)
- In this case, the advice of the independent heritage architect identifies the inappropriateness of the proposed development and supports the respondent's decision of refusal.
The applicants' argument
41 The applicants' argument contends that the amended plans for the proposed residence conform with the respondent's policies, notwithstanding that the policies have limited relevance because there was no authority under TPS 3 to make such policies, and also because the policies are not now entirely compatible with the new LPS 4 which has superseded TPS 3.
42 Mr P Goff, a qualified and experienced town planner, provided evidence on behalf of the applicant in the form of a witness statement signed and dated 4 May 2007.
43 Attached to his statement, Mr Goff included a drawing of the Marine Terrace streetscape illustrating the elevations and colour schemes of all dwellings between Jenkin Street and Sheedy Street, incorporating the proposed residence, the subject land and a dwelling presently under construction at No 158.
44 Addressing Policy DBH 1, Mr Goff contrasted the differing expectations of the policy with respect to narrow and wider streets. On narrow streets, the policy encourages new development to be single storey at the front with any two storey development at the rear. On wider streets, standard two storey development is acceptable. As Marine Terrace constitutes a wide street, relative to others in Fremantle, the proposed two storey development therefore conforms with the scale requirements of the policy.
45 With respect to Policy DBH 13, Mr Goff noted the presence of heritage listed dwellings at No 146, No 148, No 152, No 154 and No 156. The house at No 148 is given a significance of level 2 (considerable) whilst the others are level 3 (moderate). Mr Goff pointed out that the policy requires that a new development next to a heritage place should, in part, be assessed in relation to comparability of building "bulk". He went on to refer to the illustration of elevations, attached to his witness statement, that showed that the profile of the proposed development was not out of scale with the adjoining residences.
46 The amended plans have modified the form of the proposed residence so that less than 50% of the width of the building comprises
(Page 12)
- two storeys at the front setback. Additionally, the proposed residence has single storey sections to either side which creates a stepped down effect to the houses either side.
47 Mr Goff referred to Policy DGF 16, noting that the policy had been outdated by gazettal of LPS 4. Even so, the policy refers to Marine Terrace as a "seafront boulevard and a formal gateway to the City", and that development should be "hard edged" to the street "both on the horizontal and vertical planes". Mr Goff interprets that the language of Policy DGF 16 suggests elements of grandeur with building heights of greater than single storey, even in the context of heritage listed single storey buildings.
48 Whilst TPS 3 applied at the time of the respondent's original decision occasioning reference to cl 67, Mr Goff reminded the Tribunal that the provisions of cl 67 have been made redundant by the gazettal of LPS 4 on 8 March 2007.
49 Mr Goff described the amended plans of the proposal considered by the respondent on 28 March 2007. The overall height of the building has been reduced by 0.9 metres. A portion of the street front of the building has been reduced to single storey and the construction materials have been specified as masonry and limestone to be consistent with the building materials used in the area. Whilst a colour scheme has not been finalised, pastel shades will be used to harmonise with colour schemes of the neighbouring heritage houses. Mr Goff was of the opinion that the modifications to the plans accorded with the requirements of the respondent as expressed in advice to the applicant at the time of the original refusal.
50 Mr Goff drew attention to the provisions of LPS 4 which sets a maximum limit of three storeys for buildings along the Marine Terrace frontage. LPS 4, because of its recent gazettal and currency, can be accepted as expressing the community's desired identity and character for Fremantle. The proposed development therefore fits within the prescribed guidelines and conforms with community aspirations for the area.
51 LPS 4 allows development up to three storeys on the subject land in contrast to Policy DBH 1 which contemplates a maximum of only two storeys. It clearly demonstrates that the new Scheme effectively supersedes the policy.
52 Mr Goff commented on the streetscape between Jenkin Street and Sheedy Streets noting that there was no set pattern or rhythm. The
(Page 13)
- separation between buildings varies but notably the separation distances associated with the proposed development will be more generous than most. On the issue of bulk, Mr Goff remarked that, in contrast to most of the buildings in this section of Marine Terrace which presented a "flat" facade to the street, the proposed development was "modulated" so that different parts of the structure will be at different setbacks, thus reducing the impression of bulk.
Analysis
53 The arguments set out by the parties have attempted to address the merits of the application with respect to all the statutory and policy instruments that have had a bearing since the application was first considered by the respondent. It must be said at the outset of the analysis of this matter that the respondent has adopted a new town planning scheme, the provisions of which will prevail in determining this application. Accordingly, the provisions of TPS 3 will be disregarded in favour of the requirements of LPS 4.
54 As to the application of the respondent's policies, the Tribunal will obviously not be able to accord weight to the application of the policies where there is inconsistency with the provisions of LPS 4. This should not mean that the various policies should not have any application to the proposed development. Where there is no inconsistency with LPS 4 and no ambiguity of intent, the Tribunal is satisfied that the policies otherwise remain a useful tool to assist the determination of the application.
55 The principal issues to be addressed in this review are, firstly, to clarify the expected general character of the streetscape for this section of Marine Terrace, secondly, to determine the compatibility of the proposed development with that general character, and then finally to determine whether the proposed development is also compatible with adjacent buildings listed for their heritage significance.
56 On the first issue concerning the expected general character of the streetscape, LPS 4 provides a clear indication that LPA 4 Sub-Area 4.3.3 (Marine Terrace – South Street to Scott Road) could accommodate buildings to a maximum of three storeys with a wall height of up to 10 metres subject to the qualifications of compatibility with predominant height patterns, amenity and conservation objectives.
57 Policy DGF 16 is substantially compatible with the provisions of LPS 4 although its use of expressions such as "hard edged relating directly to the street ... on the horizontal and vertical planes" is open to question as
(Page 14)
- to a precise meaning. The Tribunal leans towards the applicants' interpretation that the policy infers a level of development "grandeur". This would be consistent with the other expressed policy objectives of encouraging formal landscaping and creating a seafront boulevard as a formal gateway entrance to Fremantle.
58 Policy DGF 16 is softened to some extent by the reference to retaining the "domestic" scale of residential development in the South Street to Scott Street sector. The Tribunal is nevertheless very conscious of the express provision of LPS 4 which sets a three storey limit for this same sector of Marine Terrace.
59 Policy DBH 1 provides useful guidelines for assessment of the compatibility of new buildings particularly in terms of scale and mass. The policy makes a distinction as to the expectation of building form in narrow inner urban streets as opposed to the greater flexibility permissible on larger lots on wider streets. In the latter category, Policy DBH 1 provides that a traditional two storey built form may be appropriately located in line with other residences in the street. It seems clear from the facts that Marine Terrace is not a narrow inner urban street, and that accordingly, the policy would not intend a high degree of constraint on development of two storey structures on such a street. Again, this accords with the intent of LPS 4.
60 Given the aspects of LPS 4 and the respondent's policies thus far discussed, it is readily apparent that general expectations for the streetscape would not preclude the construction of a two storey residence configured in the manner of the proposed development in the section of Marine Terrace between South Street and Scott Street. Indeed, there are many examples of residences of similar scale and bulk along the same section of street.
61 As to whether the proposed development is compatible with the adjacent dwellings listed for their heritage significance, the respondent has argued that the proposed residence is inconsistent with Policy DBH 13 because it shows no consideration for the existing streetscape or the character of the heritage buildings. In this instance, the report of the independent heritage architect has relevance. He said that the proposed development is considerably larger in scale and bulk than the adjacent residences and would be extremely prominent in the raised streetscape of this section of Marine Terrace. He went on to conclude that the proponent should be encouraged to adapt and extend the existing residence, or
(Page 15)
- resubmit a more sympathetic and appropriate proposal for a replacement residence.
62 The Tribunal notes several mitigating factors in relation to the heritage architect's report. Firstly, that the proponent has amended the plans of the proposed development as described by Mr Goff in his evidence. The amended plans reduce the height of the proposed building and "modulate" the roof configuration to reduce the street front presence of the structure. Secondly, the Tribunal has the advantage of viewing the drawing of the Marine Terrace streetscape submitted by Mr Goff which illustrates that the elevational mass of the proposed residence (as amended), is in fact, fairly comparable with most of the other residences in the street, including the more significant heritage house at No 148. The houses at No 152 and No 154 are the odd ones out, but are already dominated by the existing or impending developments at No 156, No 158 and No 160 Marine Terrace. It is notable from the detail of the drawing that the wide frontage and high roof structure of the houses at No 146 and No 148, coupled with the maximum elevation of the limestone retaining wall at the northern end of the block, are a reasonable balance to the narrower frontage and lower ground level of the proposed development on the subject land, notwithstanding that its overall height is a little greater. Thirdly and finally, the Tribunal notes the potential for either redevelopment or extension of the older buildings in the streetscape having regard for the allowable development described in LPS 4. Such development will in turn increase the overall scale and bulk of the smaller buildings, even though additional storeys may or may not be set to the rear.
63 It is therefore apparent that the proposed residence is unlikely to constitute an over development by way of scale, bulk or height or result in an unreasonable reduction of amenity by way of a negative visual impact or incongruity with the heritage significance of other buildings in the area.
64 Having regard to the preceding circumstances, the Tribunal is satisfied that the proposed development, as illustrated on the amended plans, dated 20 February 2007, satisfies the requirements of LPS 4 and the associated policy instruments where applicable.
Conclusion
65 Based on the preceding analysis, it is concluded that the application for review of the respondent's decision to refuse the proposed development should be upheld and that the proposed development, as
(Page 16)
- amended in the course of mediation before the Tribunal, should be conditionally allowed.
Orders
1. The application for review is allowed.
2. The decision of the respondent, made on 27 December 2006, to refuse development approval for the demolition of an existing dwelling and the subsequent construction of a two storey residence at Lot 16 (No 150) Marine Terrace, South Fremantle is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1) The development must be carried out in accordance with the plans drawn by Stylewise Designs, PO Box 296, Leederville WA 6903, entitled "Proposed Residence for Callan", originally dated July 2006, but subsequently amended, received and date stamped at the Tribunal on 20 February 2007.
2) An archival record is to be made of the building to be demolished and submitted to the City of Fremantle for approval prior to the commencement of demolition and shall include:
(a) A site plan prepared at 1:200 scale, floor plan(s) of the building and four elevations prepared at 1:100 scale.
(b) Digital photographs taken of the building (once vacated) to include:
i) A general/overall photo of the building to be demolished;
ii) Photos of each of the four elevations;
iii) Internal photos of all rooms; and
iv) Photos of any special architectural features.
(Page 17)
- 3. All stormwater discharge shall be contained and disposed of on site.
Advisory notes:
(i) The proposed development is to comply with the provisions of the Building Code of Australia.
(ii) Any works within the road reserve, such as crossovers or pathways, require a separate application to the City of Fremantle.
(iii) Any damage that occurs during construction to the kerb/footpath shall be rectified at the cost of the applicants to the satisfaction of the City of Fremantle prior to occupancy.
(iv) Any existing easement or right of carriageway should be protected and remain fully accessible at all times.
(v) This approval does not authorise the commencement of any building/demolition works. A building/demolition licence must be obtained prior to the commencement of construction works.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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