Christie and Town of East Fremantle
[2006] WASAT 150
•9 JUNE 2006
CHRISTIE and TOWN OF EAST FREMANTLE [2006] WASAT 150
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 150 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:376/2005 | 1 AND 10 MARCH 2006 | |
| Coram: | MS M CONNOR (MEMBER) | 9/06/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decision of the respondent to refuse approval for a two-storey dwelling with an undercroft garage on Lot 5049 (No 18 Munro Street, East Fremantle) is affirmed | ||
| B | |||
| PDF Version |
| Parties: | PETER CHRISTIE TOWN OF EAST FREMANTLE |
Catchwords: | Town planning Development application Demolition of existing dwelling and construction of a two level "Single House" with an undercroft garage Applicable building height standards Impact on views of significance Bulk and scale Streetscape Impact of development on visual amenity and character of street Impact of retaining walls on streetscape and adjoining properties |
Legislation: | Metropolitan Region Scheme Residential Design Codes of Western Australia 2002, cl 2.6.1, cl 2.6.2 Town of East Fremantle Town Planning Scheme No 3, cl 2.2, cl 4.2, cl 5.1, cl 5.2.2, cl 8.1, cl 8.2, cl 10.2, cl 10.3, cl 5.5.2 Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | Nil Bennett Watt and Town of Cambridge [2005] WASAT 34 Sweetland and Town of Cambridge [2006] WASAT 278 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to refuse approval for a two-storey dwelling with an undercroft garage on Lot 5049 (No 18) Munro Street, East Fremantle is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CHRISTIE and TOWN OF EAST FREMANTLE [2006] WASAT 150 MEMBER : MS M CONNOR (MEMBER) HEARD : 1 AND 10 MARCH 2006 DELIVERED : 9 JUNE 2006 FILE NO/S : DR 376 of 2005 BETWEEN : PETER CHRISTIE
- Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning Development application Demolition of existing dwelling and construction of a two level "Single House" with an undercroft garage Applicable building height standards Impact on views of significance Bulk and scale Streetscape Impact of development on visual amenity and character of street Impact of retaining walls on streetscape and adjoining properties
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002, cl 2.6.1, cl 2.6.2
(Page 2)
Town of East Fremantle Town Planning Scheme No 3, cl 2.2, cl 4.2, cl 5.1, cl 5.2.2, cl 8.1, cl 8.2, cl 10.2, cl 10.3, cl 5.5.2
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
1. The application for review is dismissed
2. The decision of the respondent to refuse approval for a two-storey dwelling with an undercroft garage on Lot 5049 (No 18 Munro Street, East Fremantle) is affirmed
Category: B
Representation:
Counsel:
Applicant : Ms B Moharich
Respondent : Mr C Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Bennett Watt and Town of Cambridge [2005] WASAT 34
Sweetland and Town of Cambridge [2006] WASAT 278
(Page 3)
Summary of the Tribunal's decision
1 Mr Peter Christie applied to the State Administrative Tribunal for review of the decision of the Town of East Fremantle refusing planning approval for a two-storey residence with undercroft garage at No 18 Munro Street, East Fremantle. The principal issues were:
1. Whether Category "B" of Element 3.7 of the Residential Design Codes of Western Australia 2002 or the Local Planning Policy 142 should be used to determine the height standards for this particular lot.
2. Whether the proposed development is:
(a) excessive in height; and
(b) has an unacceptable impact on streetscape and amenity by reason of its bulk and scale.
2 The Tribunal determined as the locality was one where views were an important part of the amenity, the alternative height standards as specified in Local Planning Policy 142 were the appropriate starting point from which to assess building height for this matter.
3 The Tribunal also found that the proposed development, in terms of height, scale and bulk, would be visually imposing and unsympathetic with its surrounds and thereby detrimentally affect the streetscape, visual amenity and character of Locke Crescent. The Tribunal was not satisfied that the present form of the development met the objectives of the "Residential" zone of the Town of East Fremantle Town Planning Scheme No 3 or accorded with the principles of orderly and proper planning for the locality. Furthermore, The Tribunal was not satisfied that treatment of the northern portion of the site relating to the pool and terrace areas was in keeping with the objectives of the Codes and was of the view that the proposed retaining walls would detrimentally affect the streetscape, visual amenity and character of the Locke Crescent and have an adverse impact on the amenity of the adjoining property.
4 The application for review was dismissed and development approval refused.
(Page 4)
Introduction
5 This is an application by Peter Christie (applicant) for the review of a decision of the Town of East Fremantle (respondent) to refuse planning approval for a two-storey dwelling with undercroft garage at Lot 5049 (No 18) Munro Street, East Fremantle (subject land).
6 The development application was refused by the respondent at its ordinary meeting of 15 February 2005 on the grounds of non-compliance with:
"1. RCode provisions Category B in respect of heights; and
2. Local Planning Policy Residential Development in respect of setbacks."
7 The Council further resolved to write to owners requesting that discussions take place with Council officers regarding "a proposed residence at this location that meets their needs and considers the broad amenity of the Town for this specific site".
8 The applicant, on 16 March 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act), to have the decision reviewed.
9 The reasons for refusal were supplemented by the respondent in its Statement in Response to the application, filed with the Tribunal on 5 April 2005, to include the following:
"1. The application does not comply with the Acceptable Development provisions of the Codes (with respect to building height);
2. No, or alternatively insufficient, justification had been received that would enable the respondent to conclude the application meets the Performance Criteria for building height in the Codes;
3. The application does not comply with the respondent's Local Planning Policy with respect to building height;
4. The application does not comply with the Town's Local Planning Policy in respect to setbacks; and
(Page 5)
- 5. The proposed development is not consistent with the preservation of the amenity of the locality or with the interests of orderly and proper planning."
10 The matter proceeded to hearing on 1 and 10 March 2006. The Tribunal was assisted by a view of the subject land during the course of the hearing.
Subject land
11 The subject land is more particularly described as Lot 5049 on deposited plan 205392, being the whole of the land in Certificate of Title Volume 1198 Folio 409, and is 736 square metres in area.
12 The subject land is located on the northeast corner of Locke Crescent and Munro Street, East Fremantle. The site slopes generally from south to north. The highest portion of the lot is generally in the south-western part, facing Munro Street, which has a high point of 32.90 metres Australian Height Datum (AHD). The land experiences a fall of about 3.68 metres, to a low point in the northern corner at 29.22 metres AHD. The land also falls away from the high point towards Munro Street to the south and Locke Crescent on the north-western side.
13 Due to the topography and road layout, the site is highly visible, and could be considered as a "landmark" site. Panoramic views will be available through an arc of about 180 degrees, "from the south-west, through north-west, to north-east) of the Indian Ocean through to Perth City. The site will enjoy an uninterrupted view as, directly across Locke Crescent is Locke Park, a reserve of natural bushland.
14 The existing single-level dwelling with undercroft garage/carport was constructed in the 1950s. The existing development has altered the natural ground levels (NGL) of the site. It was agreed between the parties that the levels resulting from the pre-existing approved development represented natural ground levels for the purposes of this matter.
The nature of the proposal
15 The proposed development involves the demolition of the existing dwelling and the construction of a two-storey dwelling with an undercroft garage, which is accessed via Locke Crescent. The dwelling has been designed to achieve views from both the Munro Street and Locke Crescent elevations. The front of the dwelling fronts onto Munro Street.
(Page 6)
- The first level of the dwelling consists of a foyer, guest room and en suite, office, theatre room, a family/meals/kitchen area that has access onto a verandah which has panoramic ocean views. Other service facilities are also provided on this level. The second level of the dwelling consists of a master suite with walk-in-robe and en suite, two bedrooms, study, bathroom, and an entertaining area with access to a terraced gazebo.
16 The proposal also involves filling the northern portion of the subject land to provide for a pool and terrace area (outdoor living area). The pool area is located directly adjacent to Locke Crescent, with a terrace area located in the north-eastern corner of the subject land. The finished floor level (FFL) of the ground floor of the dwelling is RL 32.5 (Reduced Level at Australian Height Datum) and there is proposed to be a slight fall to the outdoor area which is RL 32.414 and a further fall to the terrace area at RL 31.386 and the pool area at RL 31.9900. To accommodate this form, retaining walls are required along the common with Lot 5048 and the Locke Crescent boundary. The height of the retaining wall is 1.8 metres at the northern corner of the subject land. The retaining wall along the common boundary with Lot 5048 decreases to 1.18 metres at the north eastern corner. A 1.0 metre high glass screen/balustrade is proposed above the retaining wall adjacent to the pool area, together with planted strip adjacent to Lot 5048, and a 1.6 metre high screen wall above the retaining wall adjacent terrace area. Along the Locke Crescent boundary, the retaining wall decreases to approximately 1.6 metres where it adjoins the wall of the undercroft garage. A 1.0 metre high glass screen/balustrade is also proposed above the retaining wall.
Planning framework
17 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with a permitted site density of R12.5 under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme).
18 Clause 4.2 sets out the "Objectives of the zones" of TPS 3. For the "Residential" zone, the following objectives are of particular relevance to this matter:
"• To provide for a range and variety of housing to meet the social and economic needs of the community, while recognising the limitations of re-development necessary to protect local character.
(Page 7)
- • To safeguard and enhance the amenity of residential areas and ensure that new housing development is sympathetic with the character and scale of the existing built form."
19 The "Zoning Table" contained in TPS 3 classifies the use class "Single House" as a "P" (permitted) use in the "Residential" zone and, as such, the proposed development is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme.
20 Clause 8.1 of TPS 3 requires all development on land zoned and reserved under the Scheme to obtain approval prior to commencing development. Clause 8.2 sets out exceptions to the requirements of cl 8.1, but does not include "Single House". Therefore, planning consent is required in this instance.
21 Clause 5.1 of TPS 3 requires that any development of land is to comply with the provisions of the Scheme. Furthermore, under cl 5.2.2, TPS 3 provides:
"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes."
22 Clause 10.3 of TPS 3 provides the authority for the Council to refuse or approve an application, either conditionally or subject to such conditions as the Council considers appropriate. Further, cl 10.2 sets out the matters that the Council is to have due regard to in considering an application for planning approval. The relevant matters relating to this application are as follows:
• the aims and objectives of the Scheme (subclause (a));
• any local planning policy adopted by the local government (subclause (g));
• the preservation of the amenity of the locality (subclause (o)); and
• the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk,
- scale and orientation and appearance of the proposal (subclause (p)).
23 Clause 2.2 of TPS 3 empowers the Council to make planning policies in respect of any matter relating to planning and development of the Scheme area so as to apply generally or for a particular class or classes of matter and throughout the Scheme area or in one or more parts of the Scheme area. The respondent has adopted Local Planning Policy 142 Residential Development (LPP 142) which, among other things, deals with maximum building height (LPP 142 is discussed further below).
Planning Issues
24 The following three principal issues were identified and require consideration in the review of this matter:
(i) Whether Category "B" of Element 3.7 of the Codes or LPP 142 should be used to determine the height standards for this particular lot.
(ii) Whether the proposed development is:
(a) excessive in height; and
(b) has an unacceptable impact on streetscape and amenity by reason of its bulk and scale.
25 The Tribunal will address each issue in turn.
Whether Category B of Element 3.7 of the Codes or LPP 142 should be used to determine the height standards for this particular lot?
26 Clause 5.2.2 of TPS 3 requires that development of land for residential purposes dealt with by the Codes is to conform to the provisions of those Codes, unless otherwise specified in TPS 3. TPS 3 (cl 2.2) and more specifically the Codes, (clauses 2.6.1 and 2.6.2) provide for the formulation and adoption of local planning policies to address local requirements for building height and enable the development of alternative approaches to controlling the height of buildings. The respondent at it council meeting held 16 November 2004 resolved to adopt LLP 142, which among other things addresses maximum building heights.
(Page 9)
27 The relevant objectives of LLP 142 are:
"1. To retain and maintain the vertical scale and character of residential dwellings and ensure the height of buildings are consistent with the locality/precinct.
3. To consider the amenity of adjoining properties with regard to access to views."
28 The policy statement relating to maximum building height states that the general intention is for buildings to retain the predominant bulk and scale of the locality/precinct. The policy establishes standards to be applied in specific circumstances and provides that Category "B" provisions as set out within Table 3 – Maximum Building Heights of the Codes are applicable as the "Acceptable Development" standards, except in localities where views are an important part of the amenity of the area. The following table set outs the applicable building heights standards:
Category B |
Alternative Standards - Views | |
|
|
|
|
|
|
|
|
|
29 The applicant contended that the appropriate height standards to apply in this instance were the Codes' Category "B" standards. The applicant submitted that LPP 142 applies only in circumstances where views are likely to be affected by any proposed development and as this proposed development was unlikely to affect views of adjoining properties, the Codes' Category "B" height standards were the applicable standards to apply. The applicant further asserted that the respondent in assessing the proposal applied these standards and not LPP 142.
(Page 10)
30 The applicant called Mr David Caddy, a planning consultant, to give evidence in these proceedings. Mr Caddy asserted that LPP 142 did not apply in this instance because it is only those residents whose houses are located further up Locke Crescent (to the south) whose view could possibly be affected by the proposal. Mr Caddy referred to the finished AHD levels as provided by the respondent's surveyor (McMullen Nolan Surveyors) and on his analysis concluded that the proposed development would not impact on the views of adjoining properties. On this basis he contended that the more appropriate measurements to use were those found in the Codes.
31 Mr Caddy in his oral evidence considered LPP 142 to be at variance with the Scheme, as the Scheme by way of cl 5.5.2 adopted the general height limit prescribed in the Codes. Under cross-examination Mr Caddy accepted that the Codes allowed for the possibility of local planning policies to vary building height and therefore the adoption of a policy in respect to building height did not create any inconsistency with the Scheme. However, he considered the respondent's policy to be fairly rare in that it only varied the provisions of the Codes in respect to this precinct, rather than the whole of the municipality. He agreed that there was no impediment to a policy that related to parts of the Scheme area, such as LPP 142.
32 LPP 142 relates to all residential development and therefore is applicable to any proposal that involves residential development. The matter before the Tribunal involves an application for approval to demolish the existing dwelling and construct a two level "Single House" with an undercroft garage on the subject land. This application clearly falls within the ambit of LPP 142. LPP 142 considers, among other matters, maximum building height and specifies height standards to be applied in certain circumstances. Subclause (ii) of Part 1 of LPP 142 establishes that in general the Codes' Category "B" standards are applicable as the "Acceptable Development" standards for determining height. However, in "localities where views are an important part of the amenity of the area" LPP 142 specifies alternative height standards that are to be applied (refer to table above). The evidence clearly demonstrated, and Mr Caddy agreed, that the subject locality is one where views are an important part of the amenity. The Tribunal finds that the alternative height standards specified in LPP 142 are the starting point for which to consider this aspect of the proposal.
(Page 11)
Whether the proposed development is (a) excessive in height; and (b) has an unacceptable impact on streetscape and amenity by reason of its bulk and scale.
33 A number of facts were agreed by the parties in respect to the height of the proposed development, and included:
i) the height of the walls of the building range from 5.23 metres to 8.1 metres when measured from NGL, the variation being caused by the slope of the site;
ii) the two highest roof ridge lines range from approximately 8.48 to 8.56 metres AHD, and 8.09 and 8.18 metres AHD respectively;
iii) the northern turret is the highest point on the building, and is situated at a low point of the site, resulting in a building height at that point of 11.02 metres; and
iv) the proposed design shows the finished ground floor level at approximately 32.5 metres AHD, which equates to approximately the hight point of the site.
34 Mr John Anthony McMullen (a Licensed Surveyor called by the Respondent) gave evidence in respect to the proposed development of the subject land in relation to its height above NGL. Mr McMullen modelled the proposed building against the alternative height standards provided for in LPP 142 and the Codes' Category "B" height standards and produced sketch plans (SK1 to SK12 refer to Exhibit 3) to demonstrate the areas of non-compliance with the respective standards. Based on the results, Mr McMullen concluded the following:
i) the northern turret and the two higher roof ridges exceeded the 8.1 metre height standard as specified in LPP 142;
ii) the wall height of the northern quadrant of the building is above 5.6 metres;
iii) the wall height on the Locke Crescent frontage exceeded the 5.6 metre standard for approximately 12.0 metres of the 21.6 metre length of the building; and
iv) the wall height on the north eastern elevation exceeded the 5.6 metre standard for approximately 8.7 metres of the 14.8 metre length of the building.
35 The applicant did not dispute any of the findings of Mr McMullen.
(Page 12)
- However, it was the applicant's contention that as the height of the roof ranged from 7.90 metres to 8.56 metres, which was compliant with the Codes, only the northern turret at 11.02 metres was non-compliant. The applicant argued that this aspect was only 15 centimetres over the finished AHD level of the complying aspects of the roof, which represented a minor incursion above the acceptable height standards.
36 The applicant conceded that the height of the walls of the building in the location of the turret area exceeded the heights prescribed by the Codes and argued that this resulted from the unusual NGL in this area, and that the turret is an architectural feature that warranted discretion being exercised.
37 Mr Caddy was of the view that the residential amenity of the locality would not be compromised by the proposed development in that there would be no significant adverse impact on adjacent residences in terms of privacy or amenity (which included loss of views) and that the proposed dwelling would add to the character of the streetscape in general.
38 The evidence led by the parties' experts in relation to the impact of the proposed development on the loss of views on adjoining properties was not conclusive, although it can be said that any loss of view resulting from the non-compliant parts of the building would not be significant as most of the affected lots would be looking over complying parts of the building in order to obtain views, and that these would be lost in any event.
39 The applicant argued that the portions of wall that did not comply with the height requirements (reflected as points D, E, F, G, H, I, and J of Attachment 2 to Exhibit 3) corresponded to the area cut away for the undercroft area of the existing home and would not result in the loss of any views. In relation to LPP 142, the applicant argued that as the proposed development would not adversely impact on the views of adjoining properties, there is no reason to deny the exercise of discretion in relation to this application.
40 If the only planning aspect to be considered in relation to the height of the building was the impact the proposed building may have on views enjoyed by owners of adjoining properties, the Tribunal would be minded to approve the application. However, in determining this matter the Tribunal is also required to consider the objectives of the "Residential" zone and have due regard to relevant matters listed in cl 10.2 of TPS 3. Of particular relevance to this application are subclauses (o) and (p), which state:
(Page 13)
- "(o) the preservation of the amenity of the locality;
(p) the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal."
41 Mr Caddy considered the bulk and scale of the proposed development to be appropriate to its location. He characterised the locality as residential, with dwellings predominantly two-storeys in height. He considered the locality to be in a transitional period as many of the existing dwellings in the area were ready for redevelopment. Mr Caddy considered the vertical scale of the proposed development to be consistent with the locality and did not perceive the bulk and scale of the proposed building to be an issue.
42 Mr Peter Webb, a planning consultant called by the respondent, gave evidence in relation to the impact of the proposed development on the surrounding streetscape. Mr Webb submitted that the fall of the subject land emphasised the height, bulk and scale of the building, particularly in respect to the northern corner of the proposed development. He asserted that the development, when approached from Locke Crescent to the east, would be an imposing and dominant aspect of the streetscape.
43 The Tribunal accepts that the subject land, given its location and topography, may be capable of supporting a development that is outside of the height parameters set by LPP 142. The Tribunal is also cognisant that the topography of the subject land will accentuate the height of any development as viewed from Locke Crescent north of the site. However, any variation should not adversely affect the adjoining property (Lot 5048) or result in a negative visual relationship between the public realm and the subject land. The extent of the variations sought, particularly in relation to the northern quadrant of the building, are substantial. The fall of the land, and the treatment proposed in relation to the outdoor area, combine to emphasis the bulk and scale of the proposed building as viewed from the surrounds. The interrelationship of the northern quadrant of the building with the outdoor area and the interface of the development with Locke Crescent are integral in establishing the effect of the scale of the development on the streetscape and surrounds. There is no doubt that the proposed development, in its current form, in terms of height, scale and bulk will be visually imposing and unsympathetic with its surrounds and thereby detrimentally affect the streetscape, visual amenity and character of Locke Crescent.
(Page 14)
- The Tribunal is not satisfied that the present form of the development meets the objectives of the "Residential" zone of TPS 3 or accord with the principles of orderly and proper planning for this locality.
Whether the design of the north east boundary wall and the adjacent outdoor living area and pool is acceptable?
44 The applicant contended that the proposed retaining wall would look like any other boundary fence when viewed from Locke Crescent and would not adversely affect the adjoining property as much of the affected area is within the 7.5 metre front setback area of that lot. The Tribunal noted that no objection was received from the owner of the adjoining property.
45 Mr Caddy asserted that the proposed retaining wall would appear as a boundary fence from the street and to further justify the proposal, indicated that the applicant could construct a 1.8 metre front boundary fence along this boundary. He considered that the only difference between the options was that the proposed wall would have a glass screen on top of it and a swimming pool behind. Under cross-examination Mr Caddy acknowledged that there was a ground level difference between the two options but did not consider this to be of any significance when viewed from Locke Crescent.
46 The applicant argued that because of the significant earthworks that have been undertaken over the years to build the existing house, it was difficult to establish what the natural level of the site was to provide a reasonable measure against the performance criteria of the Codes. A further option of assessment suggested was that the Codes allowed for a wall to be built on the boundary.
47 As stated above, the treatment of this area will have significant impact on the visual amenity from Locke Crescent. The Tribunal does not agree that the proposed retaining walls will present to the street as boundary walls as there is a distinct ground level difference. The objective of Element 6 – Site Works Requirements of the Codes states:
"To preserve the sense of the natural topography of the site and locality with a view to the protection of streetscape and the amenity of adjoining properties."
48 The Tribunal recognises that the natural topography of the subject land has been substantially modified by the existing development.
(Page 15)
- However, the area of the site to be filled to accommodate the terrace area and swimming pool has been less affected and any development of this area should seek to protect the streetscape and the amenity of the adjoining property. The Tribunal is not satisfied that treatment of this area of the subject land is in keeping with the objectives of the Codes and is of the view that the proposed walls will detrimentally affect the streetscape, visual amenity and character of the Locke Crescent and have an adverse impact on the amenity of the adjoining property.
Orders
49 For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to refuse approval for a two-storey dwelling with an undercroft garage on Lot 5049 (No 18) Munro Street, East Fremantle is affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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