Canning Mews Pty Ltd v City of South Perth - [2005] WASAT 272

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: CANNING MEWS PTY LTD and CITY OF SOUTH PERTH [2005] WASAT 272

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS J SMITHSON (SESSIONAL MEMBER)
MS R MOORE (SESSIONAL MEMBER)

HEARD: 19 AND 21 SEPTEMBER 2005

DELIVERED : 7 OCTOBER 2005

FILE NO/S: DR 302 of 2004

BETWEEN: CANNING MEWS PTY LTD
Applicant
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning Planning application Multiple dwelling development High density coding Corner site with frontages to arterial road and to residential street characterised by single storey early 20th century dwellings Transitional site Building height Whether Tribunal should determine alternative point at ground level for measurement of height because of topography Housing density Whether Tribunal should exercise discretion under Residential Design Codes cl 3.1.3 to reduce minimum site area to accommodate three additional single bedroom dwellings Whether landscaped entrance to building constitutes "communal open space" Whether discretion available under Residential Design Codes to vary maximum plot ratio Impact of height, bulk and scale on streetscape, visual amenity and character Whether amenity determined objectively Resident objectors' evidence Adequacy of landscaping areas Removal of eucalyptus not native to Western Australia Traffic generation

Legislation:

Town Planning and Development Act 1928 (WA), s 8A, s 62

Result:

Application for review dismissed
Planning approval refused

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr DW McLeod

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Canning Mews Pty Ltd sought review of the City of South Perth's decision to refuse planning consent to the erection of a four level residential building comprising 13 units. The site had frontages to both Canning Highway, a major arterial road with a significant variety of built form, and Hovia Terrace, a residential street characterised by original, early 20th century, single dwelling houses on similarly shaped allotments. The site was transitional between these two fundamentally different localities.
The Tribunal determined that the application warranted refusal for several reasons. Most significantly, the proposed development exceeded a mandatory wall height limit, did not provide adequate communal open space, exceeded the maximum floor space for the site and had a significant and detrimental impact on the streetscape, visual amenity and character of Hovia Terrace. These reasons for refusal reflected a single, significant flaw in the proposal, namely that it sought to address two different streetscape contexts in very similar terms.
However, the Tribunal considered that the site was amenable to high density residential development. In its conclusion, the Tribunal identified what physical changes were required, if the general form of the proposed development were pursued, in order to appropriately address the reasons for refusal. Most significantly, the Hovia Terrace elevation closest to the low density precinct should be reduced to three storeys, with the third storey set back behind the lower two, and the area available for landscaping in this part of the site should be increased to enable landscaping in scale with the proposed built form.

Introduction

These proceedings concern an application for review under s 8A of the Town Planning and Development Act 1928 (WA) (the Act) of the City of South Perth's refusal to grant planning approval to the erection of a four level residential flat building at Lots 33, 42 and 43 (Nos 60 62) Canning Highway, Kensington (site). The site has frontages to both Canning Highway and Hovia Terrace.
The site has an area of 2027 square metres, of which the western 669 square metres comprises an 18 metre wide strip reserved under the Metropolitan Region Scheme (MRS) for widening of Canning Highway. The site has frontages of 37.22 metres to Canning Highway (northwest), 58.74 metres to Hovia Terrace (northeast), 36.62 metres to a 4 metre wide laneway which runs from Hovia Terrace to Banksia Terrace (southeast), and 52.02 metres to an adjoining property which fronts Canning Highway (southwest). Although the laneway adjoining the site is sealed and drained, it was referred to in the evidence as a "rightofway" and is zoned "Residential", rather than "Local Roads", under the City of South Perth Town Planning Scheme No 6 (TPS 6). The area of the site which falls outside the MRS reservation is 1357 square metres.
The part of the site which excludes the MRS reservation falls approximately 2.29 metres from west (18.11 metres AHD) to east adjacent to the intersection of the Hovia Terrace and rightofway frontages (15.82 metres AHD). Presently erected on the site in the MRS reservation area is a single storey commercial building at the corner of Canning Highway and Hovia Terrace and a single storey residential building to its south-west. Most of the site comprises large open yards with a number of trees. One of these trees, a Eucalyptus grandis, was described by Mr John Murray, the City's streetscapes supervisor, as "well worth retaining if possible", although it has not been identified as being of Citywide significance.
The planning application proposes the retention of the commercial building, the demolition of the residential building and its replacement with a 14 bay car park accessed via a new driveway from Hovia Terrace over part of the unreserved portion of the site, and the erection of the residential flat building on the unreserved portion of the site. The proposed building would have an L-shape, with the long sides facing Hovia Terrace and Canning Highway. A single driveway is proposed off Hovia Terrace with four visitor spaces in the Hovia Terrace setback off the driveway and 21 at grade, open resident car parking spaces accessed via a remote-controlled garage door. A generally 1.8 2.0 metre high rendered and painted screen wall is proposed to enclose the resident car parking area along the southeastern and southwestern boundaries of the site. Communal open space comprising lawn, pool deck, barbecue area, swimming pool and landscaping is proposed to the west of the building.
Thirteen residential units are proposed including six three bedroom multiple dwellings and seven single bedroom dwellings. The overall length of the building would be approximately 27.5 metres to Canning Highway and approximately 30.5 metres to Hovia Terrace. The main structure of the building would be set back approximately 25.0 metres from the Canning Highway frontage and approximately 7.0 metres from the reserved portion of the site, with two corner points and parts of balconies projecting into this setback area.
The setback of the main façade of the building to Hovia Terrace would generally range from 5.64 metres to 6.45 metres up to Level 3 and 6.5 metres to 8.0 metres at Level 4. Two metre wide balconies would project into this setback at each of Levels 2 and 3 and a 2.4 metre wide balcony would project at Level 4. The northernmost portion of the building, which would be located adjacent to the corner of Canning Highway and Hovia Terrace following the widening of the highway, has a setback of 3.5 metres to Hovia Terrace up to Level 3 and 6.5 metres at Level 4 with a projecting roof terrace defined by a masonry balustrade, pillars and parapet set back 3.5 metres.
The section of the building at the lowest part of the site adjacent to the intersection of Hovia Terrace and the rightofway would have a constant setback of 6.5 metres along a length of 3.4 metres to Hovia Terrace and 1.14 metres along a length of 8.9 metres to the rightofway. A 3.2 3.4 metre high and 3.1 metre wide parapet wall is proposed immediately adjoining the rightofway in the closest part of the building to Hovia Terrace. This corner of the building would rise to approximately 11.5 metres above natural ground level (16.5 metres AHD).
In October 2004, the planning application was recommended for refusal by the City's professional staff and was refused by the City. Following amendments made by Canning Mews to the plans after commencement of the proceedings, the City's officers recommended that the City enter into consent orders subject to conditions. In July 2004, the City rejected that recommendation and resolved to continue to defend the refusal of the application.
At an early directions hearing, the Tribunal granted leave pursuant to s 62 of the Act to the Kensington Community Association Inc (KCA) to make a written submission in relation to the application. The KCA subsequently provided a written submission to the Tribunal and the parties. The KCA has approximately 120 members most of whom reside in the City's Kensington precinct. The KCA did not oppose multiple dwelling development of the site, but made a number of submissions, including that the development should be modified to 10 units with increased setbacks and landscaping and that the maximum wall height of the building should be determined from a ground point of 16.0 metres AHD.
The Tribunal undertook a view of the site and the immediate locality accompanied by the representatives of the parties.
For reasons set out below, the Tribunal has determined that the application is required to be refused or warrants refusal for several reasons namely:
(i)The building is in breach of a mandatory wall height limit imposed by TPS 6 when determined from ground level which reflects the topography of the site;
(ii)The discretion to reduce the minimum site area to permit additional single bedroom units should not be exercised positively in the circumstances of the case;
(iii)The development does not conform to the communal open space Acceptable Development or Performance Criteria set out in cl 3.4.4 of the Residential Design Codes of Western Australia (Codes);
(iv)The building exceeds the maximum plot ratio of 1.0 imposed by Table 1 of the Codes and, if discretion to vary this control is available, the Tribunal is not satisfied that it should exercise that discretion to permit the noncompliance; and
(v)The Hovia Terrace elevation, particularly its southeastern half, would have a significant and detrimental impact on the streetscape, visual amenity and character of that street.
Ultimately, each of these reasons for refusal reflects a single, significant flaw in the proposed development. As Mr KA Adam, an architect and planner who gave evidence in Canning Mews' case, observed, "there is a fundamental difference between the environment of Canning Highway and that of the adjoining residential areas" and "context is everything in urban design terms". The significant failure of the proposed development lies in the fact that it presents to two fundamentally different streetscape contexts in very similar terms. Whereas the proposed presentation to Canning Highway is generally acceptable, a similar height, bulk and scale of presentation to Hovia Terrace is not. In particular, the southeastern half of the Hovia Terrace elevation at the fourth level causes the building to breach a number of the controls which warrants refusal in the circumstances of this case. It is also this section of the building that results in an unacceptable impact on the streetscape, visual amenity and character of Hovia Terrace.
However, the Tribunal has little doubt that the site is amenable to residential development generally in accordance with its density coding. In its conclusion to these reasons, the Tribunal has identified what physical changes would be required if the general form of the proposed development were pursued to appropriately address the reasons for refusal. Most significantly, the Tribunal considers that the floor space of Unit 13 which occupies the southeastern half of the Hovia Terrace elevation at the fourth level should be deleted and replaced with roof form, Units 9 and 10 which comprise the southeastern half of the Hovia Terrace elevation at Level 3 should be set back from the street, walls adjacent to and adjoining the rightofway should be set back, and the landscaping area adjacent to the rightofway and Hovia Terrace frontages should be increased to enable landscaping in scale with the proposed built form.

The locality

As noted earlier, the site actually forms part of and addresses two fundamentally different localities.
Canning Highway is a major arterial road with a significant variety of built form ranging from single storey commercial and residential buildings on original allotments to a 10 storey hotel tower and two storey podium on a site which occupies the whole street block frontage diagonally across from the site.
In stark contrast, Hovia Terrace and surrounding residential streets to the southeast of Canning Highway are characterised by original, early 20th century, single dwelling houses on similarly shaped allotments. According to a survey of 75 allotments in the immediate vicinity of the site undertaken by Mr SJ Bain, a consultant town planner who gave evidence on behalf of the City, 93 per cent of the dwellings in the immediate locality are one storey at the street frontage, although some have had a second storey addition behind the frontage. The dwelling houses appear to be predominantly of weatherboard and tin roof construction. There are also a number of brick and tile buildings. The dwelling houses which characterise the Hovia Terrace and wider Kensington precinct appear to be generally well maintained and present in a landscaped setting behind a low front fence of brick or timber construction. A further, important characteristic of the streetscape of Hovia Terrace in particular is a series of street trees which frame the built form. Diagonally across from the site, on land having the same density coding under TPS 6, is a two storey, medium density, grouped dwelling development. All other buildings fronting Hovia Terrace are single dwelling houses.

The statutory planning framework

A 17.5 metre strip of the site on its northwestern side fronting Canning Highway is zoned "Primary Regional Roads" under TPS 6. As noted earlier, however, the MRS reservation for widening of Canning Highway has a width of 18.0 metres, rather than 17.5 metres. Of the remainder of the site, the northeastern third, which fronts Hovia Terrace, is zoned "Highway Commercial" and the remaining twothirds is zoned "Residential" under TPS 6.
The site and most properties in the strip fronting Canning Highway in the vicinity are subject to a density coding of R80 under TPS 6. As Table 1 to the Codes recognises, R80 is a "high density" coding. On Hovia Terrace, on the same side as the site, the R80 coding also includes the rightofway and four properties to the southeast of the site. The properties on the opposite side of Hovia Terrace from the site form part of a street block bounded by Canning Highway, Hovia Terrace, First Avenue (diagonally across from the site) and Lansdowne Road which is also coded R80.
All other properties in Hovia Terrace are subject to a density coding of R15. As Table 1 to the Codes recognises, R15 is a "low density" coding. Indeed, the Table considers that all residential codings up to and including R25 are "low density" codings. It is to be noted that the four properties southeast of the rightofway on Hovia Terrace, which are subject to a density coding of R80, contain single dwelling houses which are substantially similar in age, character and built form as the dwelling houses which characterise Hovia Terrace generally, the vast majority of which are within the low density R15 coding.
The Codes state, at pages 8 9, as follows:
"Care needs to be taken when selecting the boundary between adjacent areas with different codes; for example, between an area coded R20 and one coded R30. As a general rule, the rear property boundary will be the preferred dividing line. For consistency of streetscape it is preferred that the same code applies along both sides of the street."
Although the Tribunal is not a strategic planning authority, having given careful consideration to the characteristics of the site and the locality in this review, it notes that the coding boundary line selected on the southwestern side of Hovia Terrace reflects poor strategic planning. The juxtaposition of a high density coding with a low density coding is fraught with practical planning difficulties. As the extract from the Codes demonstrates, care needs to be taken, even when selecting a boundary between an area coded R20 and one coded R30. The problem is compounded, in this case, by the selection of a line across the side boundary between two properties developed in a similar, characteristic way. A more sensible strategic planning approach would have been to utilise the rightofway as the line of demarcation, and to impose a medium density coding as a transitional step in the southeastern half of the nonreserved part of the site.
Nevertheless, the Tribunal must assess the proposed development on the basis of, and subject to, the development standards imposed in respect of the high density R80 coding. In undertaking its planning assessment of the application, the Tribunal must also give proper regard to the fact that the rightofway and the four properties to the southeast of the site are also coded R80. If a planning discretion arises in relation to the application, the fact that there are properties to the southeast of the site also coded R80 would certainly permit a building of greater height, bulk and scale in the southeastern portion of the site than would be the case if the coding boundary was at the rightofway.
Clause 3.3(1) of TPS 6 states that, subject to the provisions of the Scheme, the various purposes for which land may be used are set out in Table 1. Table 1 designates "multiple dwelling" use as a Discretionary Use in the "Highway Commercial" zone and as a Permitted Use in the "Residential" zone. It designates "single bedroom dwelling" use as a Discretionary Use in both zones. Clause 3.3(5) provides that, in respect of a Discretionary Use, "in exercising its discretion as to whether or not planning approval ought to be granted, the Council shall have regard to the Scheme objectives listed in clause 1.6 and to any objectives for the precinct as stated within the relevant Precinct Plan and to such matters referred to in clause 7.5 as Council considers to be relevant in the circumstances".
Clause 1.6(1) of TPS 6 states that "the overriding objective of the Scheme is to require and encourage performancebased development in each of the 14 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct". Clause 1.6(2) sets out the general objectives of the Scheme which include:
"(a)Maintain the City's predominantly residential character and amenity;
(b)Introduce performancebased controls supported by planning policies and Precinct Plans;
(c)Facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performancebased objectives which retain the desired streetscape character and, in the older areas of the district, the existing built form character;
(d)Establish a community identity and 'sense of community' both at a City and precinct level and to encourage more community consultation in the decisionmaking process;
(e)Ensure community aspirations and concerns are addressed through Scheme controls; [and]
(f)Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development; … "

Clause 7.5 of TPS 6 provides, in part, as follows:
"In considering an application for planning approval, the Council shall have due regard to, and may impose conditions with respect to, such of the following matters, as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application:
(a)The objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;
(b)The requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;
(c)The provisions of the Residential Design Codes[;] …
(f)Any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme; …
(i)The preservation of the amenity of the locality;
(j)All aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance; …
(n)The extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details; …
(q)The topographic nature … of the land; … [and]
(v)Whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved; … ."
The term "focus area" which is used in par (n) of cl 7.5 is defined in Sch 1 to mean "the section of a street extending from one crossintersection to the next crossintersection, together with the residential properties fronting onto both sides of that section of the street".
There was a great deal of discussion at the hearing about what "focus area" or areas the site forms part of. The Tribunal considers that there are, in fact, two focus areas which are relevant to the application; a focus area on Hovia Terrace from the site to Third Avenue and a focus area on Canning Highway from the site to Banksia Terrace. However, in considering the extent to which the Hovia Terrace façade of the proposed building is in visual harmony with neighbouring existing buildings within the Hovia Terrace focus area, the Tribunal must give due weight to the reasonable contemplation of the different density coding of the site to the majority of that focus area.
Clause 3.2 of TPS 6 creates 14 precincts including Precinct 6 Kensington of which the site forms part. It appears that the City's Precinct Plan for the Kensington Precinct remains in draft although, on Mr Bain's evidence, it was prepared as part of the process of formulating TPS 6. The draft Precinct Plan is used by the City's officers as though it were an adopted policy.
The draft Kensington Precinct Plan states at page 4 as follows:
"Desired Future Character
To preserve the majority of Kensington as a low density, leafy, 'character housing' suburb by precluding any redevelopment other than in accordance with performance criteria and in specific locations as a consequence of the nature of adjoining development, including Canning Highway and adjoining Berwick Street properties, development along Canning Highway itself, or generally northwest of Vista Street.
Residential Controls
Objectives
(i)To preserve the majority and character of existing housing stock predominantly for family occupation or for owners seeking a low density lifestyle and wishing to invest in maintenance or restoration of 'period housing'. …
(iii)To encourage higher density development adjacent to … Canning Highway, amidst commercial development, and on land surplus to road widening requirements."
The draft Kensington Precinct Plan states at page 7 as follows:
"Coding for High Density R80
Objective
To facilitate higher density redevelopment of single house properties adjoining Canning Highway which minimises the number of crossovers by encouraging lot amalgamation, recognises the high accessibility of the area by public and private transport and the extent of nonresidential commercial development adjoining the Coding Area, and development which encourages highway widening in the future.
Specific Controls
(i)In considering development proposals for [the R80coded] area, the Council will have regard to the impact of the proposal of traffic movement along Canning Highway and on the residential amenity of properties adjoining and at the rear prior to granting approval."
(The same provisions as are set out in this and the preceding paragraph are also contained in the City's draft Local Housing Strategy at pages 70 71 and 73. The draft Local Housing Strategy was also prepared as part of the process of formulating TPS 6 and is used by the City's officers as though it were an adopted policy.)
Clause 4.5 of TPS 6 provides that "in considering an application for planning approval for any residential development in any zone, the Council shall have regard to any planning policy adopted under clause 9.6 relating to the design of residential development". It appears that the City's Policy P370_T General Design Guidelines for Residential Development (Policy P370) was formulated for the purposes of the City of South Perth Town Planning Scheme No 5 which TPS 6 repealed and replaced. However, it is common ground in the proceedings that Policy P370 remains an operative policy of the City relating to the design of residential development. The policy has the following objectives:
"(a)To preserve and enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings.
(b)To enhance residential amenity standards generally … ."
Policy P370 contains policy provisions including the following:
"3.      STREETSCAPE CHARACTER
All residential development shall be designed in a manner that will preserve or enhance desired streetscape character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area. In assessing the design compatibility of a proposed development, the Council will have regard to the primary and secondary contributing elements as identified in the … definition of the term "design compatibility". …
6.        BUILDING FORM AND SITE PLANNING
Drawings submitted in support of any proposed residential development are required to demonstrate compliance with the following:
(a)     Scale
Building bulk shall be generally distributed to ensure that a proposed building will not have an overpowering impact on neighbours and the street. …
(b)     Building Height and Site Filling
…
(ii)     Building siting and height shall relate to land form with minimum cut and fill. Where cut and fill is necessary, floor levels shall be established so as to equalise cut and fill as far as is practicable. … ."
The term "focus area" is defined in Policy P370 in the same terms as in TPS 6. The Policy also contains the following definitions:
"Amenity means those qualities and characteristics of a site and its neighbouring area that contribute to the comfort and pleasantness of the residential environment."
"Design compatibility means the extent to which a proposed residential building is visually in harmony with neighbouring existing buildings within the focus area. Primary elements contributing to design compatibility are generally scale; colour; form or shape; and rhythm. Secondary elements include construction materials; setbacks from the street and side boundaries; the extent and nature of site landscaping visible from the street; and architectural details."
"Scale means the perceived visual magnitude of a building in relation to neighbouring existing buildings within the focus area. The perceived scale is determined by the height and bulk of the proposed building and its spatial separation from the street and adjacent buildings."
"Streetscape character means the dominant visual characteristics of a residential street environment formed by the interrelationship between the principal elements within the street reserve and the adjacent residential properties. Principal elements contributing to streetscape character include street trees (species, size and spacing); fencing visible from the street; site landscaping in front of buildings (extent and characteristics); vehicle pavement visible from the street; building setbacks; and design compatibility between neighbouring buildings within the focus area. Building design compatibility is generally the most critical element in preserving or enhancing desired streetscape character."
Clause 4.1(3) of TPS 6 states that "unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes". Clause 4.3(1) provides express variations from the Codes. These include that the City may permit a cantilevered balcony or a balcony supported by columns to extend not more than 2.0 metres into the prescribed setback from the street alignment (par (c)) and that the City may permit unroofed car parking bays to be provided within a street setback area if it is satisfied that, among other things, the parking bays and associated access ways are screened by dense landscaping at least 1.5 metres in width. The Tribunal will set out and discuss relevant provisions of the Codes in considering the issues below.
Finally, clause 6.2(1) of TPS 6 prescribes a maximum external wall height control in accordance with published maps for the local government area. The strip of properties fronting Canning Highway which have a density coding of R80 are subject to a wall height limit of 10.5 metres whereas properties having a lower density coding are subject to a wall height limit of 7.0 metres.
Clause 6.2(1)(b) provides, in part, as follows:
" … The height of a building shall be measured as follows:
(i)Subject to subparagraphs (ii) and (iii), the point at ground level on a lot from which height is measured shall be the highest point under the building …
(ii)Notwithstanding the provisions of subparagraph (i), in cases where the topography would, in the opinion of the Council, cause the height of a building to be in conflict with the objectives of any planning policy relating to the design of residential buildings as referred to in clause 4.5, the Council shall determine the point at ground level from which height shall be measured. …
(iv)Subject to subparagraph (v), height shall be measured to the highest point of the external wall of the building which rises to the highest altitude.
(v)Notwithstanding subparagraph (iv), the measurement of the height of a building shall not include the following:
…
(D)minor projections … including, but without in any way restricting the generality of this provision, such structures as vertical glass planes within the roof structure, dormer and sawtoothed windows, and chimneys."
Clause 7.8(1) of TPS 6 confers discretion on the City to grant an application for planning approval notwithstanding noncompliance with "site requirements prescribed by the Scheme" with respect to listed matters including plot ratio. The list of matters does not include building height. Plainly, cl 7.8(1) does not provide discretion to vary site requirements, such as plot ratio, prescribed by the Codes or to vary building height requirements prescribed by the Scheme. However, for the avoidance of doubt, subclause (2) makes explicit that the power conferred by subclause (1) may not be exercised with respect to building height limits referred to in cl 6.2 or requirements prescribed by the Codes.

The issues for consideration

Although the City identified a large number of issues in its Response and Statement of Issues, Facts and Contentions a number of issues were satisfactorily resolved through the conferral and joint report of Mr AA Stewart, a consultant town planner who gave evidence on behalf of Canning Mews, and Mr Bain, and through the preparation by the City and discussion between the parties of draft, without prejudice conditions of approval. Ultimately, the following seven issues emerged for consideration:
(1)Whether the proposed building height complies with cl 6.2 of TPS 6;
(2)Whether the discretion to permit the minimum site area to be reduced by up to onethird and therefore allow additional single bedroom dwellings under the Codes should be exercised;
(3)Whether the development conforms to cl 3.4.4 of the Codes in relation to communal open space;
(4)Whether there is a discretion under the Codes to permit noncompliance with the maximum plot ratio set out in Table 1 and, if so, whether the discretion should be exercised in the circumstances of the case;
(5)If, in light of the earlier issues, it is open to the Tribunal to grant approval in the exercise of planning discretion, whether the impact of the proposed building on the streetscape, visual amenity and character of Hovia Terrace is acceptable;
(6)Whether the landscaping proposed and the removal of the Eucalyptus grandis is acceptable; and
(7)Whether the development would give rise to unacceptable traffic impacts.
The Tribunal will now consider each of these issues in turn.

Building height

As noted earlier, under cl 6.2(1)(b)(i) of TPS 6, subject to subparagraph (ii), the point at ground level from which height is measured for the purposes of the maximum wall height control is "the highest point under the building". As appears to be recognised by subparagraph (ii), this approach to building height control can produce unfortunate results where land falls, particularly in the case of a large building. Mr Stewart considered that the highest point of ground level under the proposed building footprint is 17.72 metres AHD. Mr Bain considered that the highest point is 17.67 metres AHD. Ultimately, nothing turns on this difference. The town planning experts agreed that, measuring building height from either 17.72 metres AHD or 17.67 metres AHD, the building satisfied the maximum 10.5 metre control other than in the case of 400 millimetre high projecting sections located in the central part of the site, including a part of the lift structure. Mr Stewart considered these to be "minor projections" for the purposes of cl 6.2(1)(b)(v)(D) of TPS 6. Mr Bain disagreed.
The Tribunal considers that, if building height were determined by reference to 17.72 metres AHD or 17.67 metres AHD, the sections of wall which exceed a height of 10.5 metres are "minor projections" within the meaning and for the purposes of the Scheme. As noted, these sections have a height of only 400 millimetres and, most significantly, are located, as Mr Hardy emphasised, in the central part of the site, 16.0 17.0 metres from the property boundaries and are not apparent at all from the public domain.
However, the Tribunal considers that, at least in the southeastern half of the nonreserved part of the site, height should be measured under subparagraph (ii) from the lowest point of ground level below the footprint of the building in that part, namely 16.5 metres AHD. This is because the Tribunal considers that the topography would cause the height of the building in this part of the site to be in conflict with the objectives of Policy P370. In particular, the topography would cause the height of the building to be in conflict with the objectives "to preserve or enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings" and "to enhance residential amenity standards".
Although the Tribunal recognises that the concept of "desired streetscape character" in relation to the site must take into account the reasonable contemplation of the R80 density coding and 10.5 metre building height control which regulate development of the site, the height of the building in its southeastern portion would be, in consequence of topography, inimical to "desired streetscape character" on a site which forms part of what Mr Stewart correctly conceded is a "transition" area from a low density precinct to the Canning Highway precinct. Similarly, although the Tribunal accepts Mr Adam's evidence that "it is fundamentally not possible, and consequently unreasonable to expect, that any development that achieved the desired objective of high density contemplated by the R80 code could be fully compatible in streetscape terms with the single storey, low density housing of Kensington generally", and that the application of the words "strong design compatibility" in this case must include due recognition of the differential density coding, nevertheless, a degree of compatibility is reasonably required. The topography causes the height of the building to conflict with the objective of promoting (a degree of) design compatibility. The problem is exacerbated by the fact that the land falls again from the lowest part of the site under the proposed building footprint (16.5 metres AHD) to the corner of the site at the intersection of Hovia terrace and the rightofway (15.82 metres AHD) and to the footpath (15.74 metres AHD).
If the point at ground level from which building height is measured is 16.5 metres AHD, the building height should be approximately 1.2 metres lower than if it was determined by reference to the highest point under the building footprint. The Tribunal does not accept Mr Stewart's evidence that 1.2 metres of building height does not have any adverse impact. The Tribunal prefers the evidence of Mr Bain that, in consequence of the topography, the southeastern part of the building would be incompatible with desired streetscape character and promoting design compatibility. Under crossexamination, Mr Stewart could point to only one element of the proposed building, namely its incorporation of a pitched roof, as creating an element of design compatibility with the other buildings in Hovia Terrace. Mr Adam considered that the architectural style of the development, the detail and degree of articulation, the materials and finishes, and the way it addresses the street "reduce the degree of incompatibility". The elements identified by Mr Stewart and Mr Adam are each referred to as "secondary elements" (rather than "primary elements") contributing to "design compatibility" in Policy P370. The Tribunal does not consider that any of these factors, individually or collectively, result in the satisfaction of objective (a) of Policy P370, giving due regard to the coding of the site and its transitional position, notwithstanding the height.
Moreover, the topography would cause the height of the building in its southeastern portion to be in conflict with objective (b) of Policy P370 "to enhance residential amenity standards". The qualities and characteristics which constitute and create residential "amenity" are to be determined objectively. However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. This can include visual amenity.
Ms CL Ellison, whose home is three properties to the southeast of the site, emphasised "the fact that all the properties in the street [are] single residential". She considered that "the character of the homes in the street is the whole reason the street has such appeal". In this context, she viewed the proposal as "extremely daunting" and "just too big". Similarly, Cr SD Doherty considered that the characteristics of the building, including its four storey height, are "too unsympathetic to the existing development in Hovia Terrace". Mr Bain described the building as "palpably too large" in its proposed context. The Tribunal accepts this evidence and finds that the characteristic building form and height in Hovia Terrace constitutes significantly to visual amenity and that the topography would cause the height of the building to detrimentally affect that visual amenity.

In light of these findings, the Tribunal is required by cl 6.2(1)(b)(ii) of TPS 6 to determine the point at ground level from which height shall be determined. The Tribunal considers that the point should be 16.5 metres AHD in the southeastern half of the building, as that is the lowest point under the footprint in that section.
Mr Stewart and Mr Bain agreed that, if building height is measured from 16.5 metres AHD, the building is in breach of the building height limit on its Hovia Terrace façade. In particular, compliance with the 10.5 metre building height determined from 16.5 metres AHD would require the removal of the uppermost approximately 600 millimetres of wall along half of the Hovia Terrace elevation. Given the size of this section and its prominence when viewed from the public domain in Hovia Terrace, the Tribunal does not consider that it is a "minor projection" within the meaning of cl 6.2 of the Scheme. Although the City proposed a draft condition of approval that "no part of the building shall exceed the Building Height Limit of 10.5 metres", that condition was prepared in the expectation that the building height was to be determined by reference to 17.67 metres or 17.72 metres AHD. Moreover, it is unclear on the evidence whether the floortoceiling heights are sufficiently generous to enable the building as proposed to be modified in compliance with the building height limit taken from 16.5 metres AHD in the southeastern half.
As the City, and the Tribunal on review, has no discretion under cl 7.8(1) to permit variations from the building height limit control in cl 6.2 of the Scheme, the planning application must be refused in consequence of its height.

Housing density

It is common ground that, based on the minimum site area per dwelling set out in Column 3 of Table 1 to the Codes, the unreserved portion of the site can accommodate a maximum of 10 dwellings. Paragraph A3 of cl 3.1.3 of the Codes provides, in part, as follows:
" … The following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
i. for the purposes of … a Single Bedroom Dwelling, the minimum site area may be reduced by up to onethird, in accordance with Section … 4.1.3; … ."
The term "Single Bedroom Dwelling" is defined in cl 2.2 of the Codes (and, by incorporation, for the purposes of TPS 6) as "a dwelling that contains a living room and no more than one other habitable room that is capable of use as a bedroom". Clause 4.1.3 of the Codes provides as follows:
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
...
A3.Single Bedroom Dwellings with a maximum plot ratio floor area of 60sqm."
The Performance Criteria in cl 4.1.3 is as follows:
"P3.Dwellings that provide limited accommodation, suitable for one or two persons."
It is common ground that, if the Tribunal were to exercise the discretion under par A3 of cl 3.1.3 of the Codes to reduce the minimum site area required for each dwelling by up to onethird, the site could accommodate the six multiple dwellings and seven single bedroom dwellings proposed. Mr Stewart considered that the discretion should be exercised, because three dwellings do not constitute a significant number of additional residences and because a reduction in the number of dwellings "does not result in a corresponding reduction to plot ratio floor area and would still allow for the same (or a greater) amount of accommodation, in terms of the number of bedrooms". Mr Bain emphasised that the proposed single bedroom dwellings had an average floor area in excess of 80 square metres, whereas "it is not uncommon for bedsitters to be 45 square metres to 55 square metres". He considered that the three additional single bedroom dwellings contributed to an excessive bulk and scale of the proposed building.
None of the proposed single bedroom dwellings has a plot ratio floor area of 60 square metres or less. The Acceptable Development criterion in cl 4.1.3 is, therefore, not satisfied. However, the Tribunal finds that each of the single bedroom dwellings satisfies the Performance Criteria that it "provide limited accommodation, suitable for one or two persons". In particular, the physical characteristics of each of the single bedroom dwellings as drawn are such that they could not be readily converted into a two bedroom unit.
However, the Tribunal does not consider that the discretion under par A3 of cl 3.1.3 should be exercised to permit three additional dwellings in this case. The explanatory text to cl 4.1.3 indicates that the planning rationale for permitting a potential reduction in site area in the case of single bedroom dwellings includes that such dwellings "result in less building bulk". The Tribunal finds that the three additional single bedroom dwellings result in a considerable increase in building bulk. Although, as Mr Stewart observed, a development of 10 multiple dwellings comprising five two bedroom dwellings and five three bedroom dwellings would yield the same number of bedrooms as does the proposal in 13 units, the majority of the floor space of the single bedroom units is not due to the bedroom, but rather is the form of living and dining areas, kitchen, entry and other facilities. Plainly, therefore, a building which would be compliant with the minimum site area per dwelling requirement of the Codes for the R80 coding is likely to present with materially less bulk and scale than the proposal.
The Tribunal finds in these reasons below that the section of the building fronting Hovia Terrace would present with excessive and unsympathetic bulk and scale to a low density residential precinct, and would thereby significantly and detrimentally affect the streetscape, visual amenity and character of Hovia Terrace. This section of the building contains four single bedroom dwellings. The elimination of three of these four single bedroom dwellings would materially reduce building bulk to Hovia Terrace. The Tribunal, therefore, considers that the discretion under par A3 of cl 3.1.3 should not be exercised with the result that the application must be refused under cl 4.1(3) of TPS 6 as it is not in conformity with Element 3 and Table 1 to the Codes.

Communal open space

Clause 3.4.4 of the Codes provides, in part, as follows:
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
…
A4.1Communal Open Space for Multiple Dwellings provided in accordance with Table 1."
It is common ground that, in accordance with Column 7 of Table 1, the proposed 13 units would require 208 square metres of communal open space. The term "Communal Open Space" is defined in cl 2.2 as follows:
"Open space set aside for the recreational use of the occupants of the dwellings in a common development and does not include driveways or carparking areas."
Mr Stewart and Mr Bain agreed that the lawn, barbecue area, pool deck, swimming pool and associated landscaping constitutes "Communal Open Space" and has an area of 187.5 square metres, which is 20.5 square metres less than the minimum area of communal open space required.
Mr Stewart considered that two 1.0 metre wide landscape strips on either side of the driveway and the entry path and adjacent landscaping from Hovia Terrace should be included in the calculation of communal open space as "passive areas/setting for building". Although areas available for passive recreation would fall within the definition of "Communal Open Space" for the purposes of the Codes, the Tribunal does not consider that the landscape strips or entrance area satisfies that definition. These areas serve to provide limited screening of the building and a means of access. They are not "set aside for the [passive] recreational use of the occupants of the dwellings".
Mr Stewart also referred to a 51.0 square metre triangular portion of the site which is presently proposed as driveway to serve the commercial building at the corner of Hovia Terrace and Canning Highway, but which would form part of the site after the resumption of the reserved area. However, given that this area is proposed to serve as a driveway until resumption and that the communal open space is proposed to be separated from this area by a masonry wall, the Tribunal considers that it cannot be included in the calculation of communal open space.
The development would nevertheless conform to cl 3.4.4 of the Codes if it satisfied the stated Performance Criteria. The Performance Criteria is in the following terms:
"P4.1Adequate area of Communal Open Space for Multiple Dwelling developments to meet the future needs of residents, having regard to the location of the development."
Mr Stewart considered that this criterion is satisfied. In particular, he relied on the provision of balconies for each of the units above ground level and the courtyard of the unit at ground level. The Tribunal accepts that, in some circumstances, generous private balconies might result in noncompliant communal open space being regarded as adequate. However, of the 12 balconies proposed, six only barely satisfy the minimum dimension of 2.0 metres and the minimum area of 10.0 square metres in the Acceptable Development provision in cl 3.4.3 of the Codes. Although the remaining six balconies have areas of approximately 20.0 square metres, they have depths only marginally greater than 2.0 metres. In these circumstances, the Tribunal does not consider that the private balconies proposed have the effect that the communal open space is adequate to meet the future needs of residents. As the proposed development is not in conformity with cl 3.4.4 of the Codes, it must be refused under cl 4.1(3) of TPS 6.

Plot ratio

Column 5 of Table 1 to the Codes imposes a maximum plot ratio of 1.00 on land coded R80. It is common ground that this provision restricts the gross floor area of the building, calculated in accordance with the definition of "plot ratio" in cl 2.2, to 1357 square metres. In his written evidence, Mr Stewart related advice from the designer that the building exceeded the maximum plot ratio by only 4.8 square metres. However, following a conference with Mr Bain which took place at the Tribunal's request, Mr Stewart accepted that the noncompliance was 107.35 square metres. Mr Bain calculated the noncompliance at 111.4 square metres. Ultimately, nothing turns on this difference of 4.05 square metres.
Mr Hardy submitted that the City, and the Tribunal on review, has discretion under cl 2.3.4 of the Codes to approve the application notwithstanding the breach of the maximum plot ratio control. Clause 2.3.4 provides, in part, as follows:
"(1)Where Codes Approval is required the applicant shall make an application in accordance with the form set out in Appendix 1 to the Codes to the Council for approval. Subject to clause 2.3.4(2) and (3) the Council is to exercise its discretion in considering such application having regard to the considerations, standards and requirements provided in the Codes.
(2)Discretion shall be exercised having regard to the following considerations:
i.the stated purpose and aims of the Scheme;
ii.the provisions of Parts 2, 3 and 4 of the Codes as appropriate;
iii. the Performance Criteria in the context of the RCoding for the locality that corresponds to the relevant provision;
iv. the explanatory text of the Codes that corresponds to the relevant provision;
v. any Local Planning Strategy incorporated into the Scheme;
vi. a provision of a Local Planning Policy pursuant to the Codes and complying with subclause (5) below; and
vii. orderly and proper planning.
(3)A Council shall not vary the minimum or average site area per dwelling requirements set out in Table 1 except as provided in the Codes or in the Scheme. … ."
The meaning of cl 2.3.4 is far from clear. On the one hand, it appears to be premised on a requirement for "Codes Approval" which, under cl 2.3.1(3), is required where residential development is exempted from development approval under a town planning scheme. On the other hand, the beneficial and facultative purpose of the clause, to permit flexibility in circumstances of noncompliance, would appear to be equally apposite where approval is required under a town planning scheme which, in turn, requires that a development conform to the provisions of the Codes. The explanatory text, at page 25, certainly contemplates that "all Codes provisions (with the exception of the site area requirements set out in Table 1) are open to the exercise of discretion". On balance, it would appear that discretion is available, although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question.
On the assumption that a discretion is available under cl 2.3.4 of the Codes, the Tribunal does not consider that it should be exercised so as to permit the application notwithstanding the exceedance of the maximum plot ratio. The proposed building is contrary to objective (c) of the Scheme to "retain the desired streetscape character" and objective (f) to "safeguard and enhance the amenity of residential areas": Codes cl 2.3.4(2)(i). The inconsistency of the proposed building height in the southeastern part of the building with substantially similar objectives of Policy P370 was discussed earlier in these reasons. The proposed building is contrary to objectives (c) and (f) of the Scheme, because the fundamental aspects of its design its height, siting and massing are incompatible with desired streetscape character and visual amenity on a transitional site between a low density precinct and the Canning Highway precinct. Moreover, the orderly and proper planning of the site requires a more transitional built form in its southeastern part: Codes cl 2.3.4(2)(vii).
Mr Hardy submitted that the Tribunal should exercise discretion to permit the application, because the deletion of the breaching floor space would not make any obvious difference in the bulk of the building. The Tribunal rejects this submission. In particular, the floor space of Unit 13 which occupies the southeastern half of the Hovia Terrace façade of the building on the fourth level (124.1 square metres) only exceeds the breaching floor space by 12.7 or 16.75 square metres. The elimination of this unit and its replacement with roof form would result not only in compliance with the maximum plot ratio of 1.00, but also with the height control under cl 6.2 of TPS 6 and substantial compliance with the communal open space requirement of the Codes. The deletion of this unit would result in a building of considerably less bulk and scale to Hovia Terrace.
As the proposed development is not in conformity with the Codes in relation to plot ratio, it must be refused under cl 4.1(3) of TPS 6.

Impact on streetscape, residential amenity and character

Had it been within the planning discretion of the Tribunal to grant the application, it would have determined that the proposal warrants refusal in the exercise of that discretion. In particular, for reasons already discussed, the Tribunal considers that the proposed development would have a significant and detrimental impact on the streetscape, visual amenity and character of Hovia Terrace, particularly in consequence of the height and bulk of the southeastern part of the building and the limited opportunity for landscaping in scale with the built form in that part of the site. It is true, as Mr Hardy submitted, that the effect of existing street trees in Hovia Terrace is that, as one moves away from the site, views of the proposed building would be filtered and obscured. Nevertheless, when viewed from parts of the low density precinct in Hovia Terrace and First Avenue, and as transitional built form to and from that precinct, the visual impact of the proposed development would be unacceptable: TPS 6 cl 7.5(b), (i), (j) and (n). It would have an "overpowering impact on … the street": Policy P370 provision 6. Indeed, the height, bulk and scale of a full four storey building on the southeastern part of the site would be excessive even in relation to the two storey grouped dwelling development on the opposite side of Hovia Terrace in the same density coding.
Finally, the Tribunal does not accept Mr Adams' evidence that "the overall bulk and scale of the proposed development are simply a consequence of the high density coding". The unacceptable height, bulk and scale of the proposal is due largely to its exceedance of R80 planning controls and its failure to provide a transitional and sensitive design in the portion of the site closest to the low density residential area.

Landscaping and loss of Eucalyptus grandis

As noted earlier, cl 7.5(v) of TPS 6 requires that the City, and the Tribunal on review, have regard to whether adequate provision has been made for landscaping and whether any trees should be preserved. The Tribunal considers that inadequate provision has been made for landscaping in consequence of the proposed location of four visitor car parking spaces in the Hovia Terrace setback and the zero setback of the building at Level 1 to the rightofway, where it is closest to Hovia Terrace. Appropriate landscaping of this section of the site is essential both to retain the desired streetscape character of Hovia Terrace of which street trees and landscaped front gardens form an important part and to soften the proposed built form.
The only landscaping areas proposed to soften the full four storey built form in the southeastern half of the site are two 6.0 metre long and 1.0 metre wide strips separated by a 5.5 metre wide driveway. These areas are plainly inadequate.
The Eucalyptus grandis is located adjacent to the southwestern boundary of the site in the area proposed for car parking. Mr Murray gave evidence that it is a good specimen with structure and form intact. It is a juvenile tree approximately five to six years old. It has already reached a height of approximately 10.0 metres, and is likely to reach a height of 40.0 to 45.0 metres and a spread of 15.0 to 20.0 metres in an urban setting. While it is a eucalypt, the tree is not native to Western Australia.
The Tribunal does not consider that the application would warrant refusal because of the removal of the tree. It is a juvenile specimen, not native to Western Australia, located where it is least required for screening purposes, and would grow to a size which might well not be manageable in its context.

Traffic impacts

It is apparent from the evidence of the residents that there is considerable concern about the traffic impacts of the proposed development. Mr DJ Leigh, a resident of Hovia Terrace and the President of the KCA, explained that the traffic associated with the proposed development is of particular concern, because a median in Canning Highway blocks righthand turns into and out of Hovia Terrace and Hovia Terrace is regularly used by drivers wishing to avoid traffic lights at various intersections with Canning Highway.
As noted earlier, an objective of the draft Kensington Precinct Plan is to minimise the number of crossovers by encouraging lot amalgamation. Under the draft Plan, the City is required to have regard to the impact of a proposal on traffic movement along Canning Highway. The Tribunal considers that the proposed development is responsive to this objective and provision. Vehicular and pedestrian access to the proposed development is appropriately from Hovia Terrace.
Although development of the site in accordance with its coding is likely to have adverse consequences on the amenity of Hovia Terrace in terms of traffic generation, this is largely an inevitable consequence of the coding of the site and the reservation of the part of the site fronting Canning Highway. Were the application otherwise acceptable, traffic generation would not warrant refusal.

Conclusion

The fundamental flaw of the proposed development is that it seeks to present in a very similar way in two entirely different street contexts. Moreover, although the site is amenable to development in accordance with the R80 coding (draft Kensington Precinct Plan pages 4 and 7), the proposed development breaches important controls which apply to that coding.
There are, no doubt, a number of design solutions for the site. However, the proposed development would satisfactorily address the reasons for refusal discussed above if it were modified as follows:
(i)Unit 13 on Level 4 should be deleted and replaced with roof form;
(ii)Units 9 and 10 on Level 3 should be set back from the Hovia Terrace frontage such that the edge of their forward balconies project no closer to the frontage than the wall of Units 5 and 6 on Level 2;
(iii)The balconies of Units 9 and 10 on Level 3 should be unroofed and the balustrades should be of an open metal construction;
(iv)Units 5 and 6 on Level 2 should be set back a minimum of 6.0 metres from the Hovia Terrace frontage with their balconies projecting no closer than 4.0 metres from the Hovia Terrace frontage;
(v)The balconies of Units 5 and 6 on Level 2 should not have columns or a parapet and their balustrades shall be of an open metal construction;
(vi)The setback of the building to the rightofway should be increased to a minimum of 2.0 metres to enable sufficient space for landscaping;
(vii)The two visitor spaces closest to the Hovia Terrace frontage should be deleted and that area converted to landscaped area so as to enable landscaping in scale with the built form; and
(viii)The setback of the building to Canning Highway should be increased by 1.0 metre to ensure compliance with the communal open space requirement of the Codes (192 square metres for 12 units) if the 18 metre wide MRS reservation rather than the 17.5 metre wide zoning boundary were shown on the plans.
The Tribunal has not undertaken an analysis of whether a building modified in accordance with the previous paragraph would satisfy all applicable development controls. The development should satisfy all mandatory controls and generally satisfy all other controls.

Orders

The Tribunal makes the following orders:
1.The application for review of the decision of the City of South Perth to refuse planning approval to the erection of six multiple dwellings and seven single bedroom dwellings at Lots 33, 42 and 43 (Nos 60 62) Canning Highway, South Perth is dismissed.
2.Planning approval is refused.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER