CORRICA and CITY OF SUBIACO
[2007] WASAT 286
•31 OCTOBER 2007
CORRICA and CITY OF SUBIACO [2007] WASAT 286
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 286 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:41/2007 | DETERMINED ON THE PAPERS | |
| Coram: | MS R MOORE (SENIOR SESSIONAL MEMBER) | 30/10/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | JOHN CORRICA CITY OF SUBIACO |
Catchwords: | Town planning Development application Infill development Survey strata subdivision Battleaxe subdivision Grouped dwellings Twostorey dwellings Size of upper floor Amenity of rear neighbours |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 41, cl 42, cl 42A Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002) |
Case References: | Nil |
Orders | 1. The application for review is dismissed,2. The decision of the respondent made on 4 January 2007 to refuse development approval for the construction of two new grouped dwellings at No 111 Churchill Avenue, Subiaco is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CORRICA and CITY OF SUBIACO [2007] WASAT 286 MEMBER : MS R MOORE (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 31 OCTOBER 2007 FILE NO/S : DR 41 of 2007 BETWEEN : JOHN CORRICA
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application - Infill development - Survey strata subdivision - Battleaxe subdivision - Grouped dwellings - Twostorey dwellings - Size of upper floor - Amenity of rear neighbours
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 41, cl 42, cl 42A
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002)
(Page 2)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr S Famiano (Acting as Agent)
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : S Famiano (Independent Town Planning Consultant)
Respondent : Property Planning and Appeals Consultants
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal by the City of Subiaco of a development application for the demolition of an existing single storey dwelling and the construction of two new grouped dwellings at No 111 (Lot 47 and Lot 48) Churchill Avenue, Subiaco.
2 The main issue arising was whether the proposed development was acceptable with regard to building height. In particular, whether the proposed upper floor was acceptable with regard to its impact on streetscape; adjoining residential sites; and the general amenity of the locality.
3 The Tribunal found that the design of the proposed dwellings was not acceptable in that the total maximum upper floor area allowed was exceeded and would cause undue adverse impact on adjoining residential sites.
4 The application for review was therefore dismissed and the decision of the respondent affirmed.
Introduction
5 These proceedings involve an application by Mr J Corrica (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision made by the City of Subiaco (respondent or Council) on 4 January 2007 to refuse development approval for the construction of two new grouped dwellings at No 111 (Lot 47 and Lot 48) Churchill Avenue, Subiaco (subject land or site).
Site and locality
6 The subject land is located at No 111 Churchill Avenue, Subiaco and is described as Lot 47 and Lot 48 on Deposited Plan 30303 Certificate of Title Volume 438 Folio 74A.
7 A single storey dwelling currently occupies the subject land and sits over both lots. The combined lots are rectangular in shape with eastern and western boundary dimensions of 37.34 metres and northern and southern boundary dimensions of 14.03 metres and a total site area of 524 square metres. Lot 47 has a street (northern) frontage of approximately 7.9 metres and Lot 48 has a street (northern) frontage of approximately 6.1 metres.
(Page 4)
8 The Western Australian Planning Commission (WAPC) has approved a survey-strata plan for the subject land subject to conditions. Condition 8 is "the applicant obtaining development approval for the development of dwellings on the approved lots".
9 The survey-strata plan re-aligns the boundaries so as to provide two lots, one to the front (Lot 1) and one to the rear (Lot 2) with a common property access leg (CP3). Lot 1 is 213 square metres; Lot 2 is 209 square metres; and CP3 is 102 square metres.
10 The subject land is situated on the south side of Churchill Avenue. The adjoining property to the east is No 109 and is an original brick and tile single storey dwelling. The adjoining property to the west is a modern two-storey brick and tile dwelling with a double garage to the front. The remainder of the southern side is residential, predominantly traditional single storey dwellings built in the early to mid twentieth century.
11 The northern side of Churchill Avenue consists of primarily office/commercial development occupying a variety of building types including single storey traditional houses to modern two-storey purpose built offices.
Planning framework
12 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS).
13 Under the provisions of the City of Subiaco Town Planning Scheme No 4 (TPS 4) the subject land is zoned "Residential" with a density code of R20.
14 Clause 41(2) of TPS 4 outlines the Residential Zone objectives as follows:
"(2) In considering an application for development approval in the zones to which this division applies the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
(a) the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
(b) the protection of residential areas from any interaction between different intensities of uses
- or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;
- (c) the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d) the protection of the privacy of indoor and outdoor living spaces of dwellings;
(e) the encouragement of new concepts of residential design, including the development of new types of residential accommodation and comprehensive development projects;
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock,
(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping."
15 Clause 42 of TPS 4 sets out the variations to the provisions of the Residential Design Codes for different density zones.
"(1) Residential Zone: R Code Density R15 and R20
(a) Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b) The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be
- no undue adverse impact on adjoining residential sites or the general amenity of the locality."
16 Clause 42A of TPS 4 is relevant with regard to the determination of an application regarding non-compliance of a wall or overall height.
"(1) If a development is the subject of an application for planning approval and does not comply with the maximum overall height or the maximum wall height referred to in clause 42, then, despite the non-compliance, the Council may approve the application where:
(a) the Council is satisfied that:
(i) the non-compliance will have no undue adverse effect on any adjoining residential land or the amenity of the locality; and
(ii) the wall or overall height which is non compliant is compatible with the wall and overall heights of surrounding developments that are designed for residential purposes and are considered by the Council to enhance the streetscape;
(b) the wall/overall height which is non-compliant:
(i) meets the Acceptable Development standards of the Residential Design Codes in relation to setbacks; or
(ii) is necessitated be a sloping site and would be unlikely to occur if the site had been level; or
(iii) is the result of a irregular roof design and is unlikely to have occurred if the proposed development had a conventionally shaped roof.
(Page 7)
- (3) For the purpose of this clause a "conventionally shaped roof" means a uniform flat, pitched, hipped, or skillion roof."
17 Relevant to this matter are the Residential Design Codes of Western Australia (2002) (Codes) and the following policies adopted by Council:
• Policy 3.1 Streetscape and Building Height Standards for R15 and R20 Zones (Policy 3.1)
• Policy 3.6 Development and Subdivision of Small Lots (Policy 3.6)
Proposed development
18 The proposed development consists of two new two-storey brick dwellings to be built in a battle-axe formation. The dwellings (marked Unit 1 and Unit 2) are located one behind the other with a 24 metre long and 4 metre wide common access driveway along the eastern boundary.
19 Unit 1 has a front setback from the northern (Churchill Avenue) boundary of 3.3 metres and a side setback from the western boundary that varies from nil to 1.5 metres. The ground floor contains a laundry; wc; study; living area; open plan kitchen/meals area opening onto a private outdoor area; and a double garage with store located towards the middle of the site. The upper floor is smaller in area and is setback 8.5 metres from the street boundary and generally 1.5 metres from the west boundary with a 1.6 metre wide section of wall setback 1.2 metres. It houses 3 bedrooms; ensuite; walk-in-robe; and bathroom.
20 Unit 2 has similar accommodation to Unit 1, without the study. The garage is located adjacent to the garage for Unit 1 and the private outdoor area is to the rear south-eastern corner of the site. Unit 2 has a rear setback of 1 metre and western side setbacks that vary from nil to 1.5 metres. The upper floor is setback 1.4 metres from the rear (southern) boundary and generally 1.5 metres from the western boundary.
21 The southern elevation (rear) contains no openings, while the western elevation (side) contains openings but none are major openings to habitable rooms. All major openings to habitable rooms occur along the eastern (side) and northern (street) elevations.
22 The roof is pitched at 30 degrees and marked as either tiles or metal sheeting. The street elevation of Unit 1 shows a hipped main roof with a ridge height of approximately 7.5 metres continuing to include the verandah over
(Page 8)
- the entry. There is no change in pitch and the verandah has a gutter height of approximately 3.2 metres. There is a gable over the living area. There are no openings to the upper floor of Unit 1 on the street elevation.
Council's decision
23 It was agreed by the parties that the development plans to be reviewed are the amended plans date stamped 25 May 2007. These plans were refused by the respondent on 22 June 2007 for the following reasons:
"(a) The proposal is contrary to Clause 41(2)(a) of the City of Subiaco Town Planning Scheme No 4 as it does not provide a wide range of different types of residential accommodation to meet the diverse needs of the community.
(b) The proposal is contrary to Clause 42(1)(a) of the City of Subiaco Town Planning Scheme No 4 relating to wall and overall heights in the R15 and R20 Zones as it [sic] the development incorporates wall heights in excess on [sic] 3.6m and overall heights in excess of 6.5m.
(c) The proposal is contrary to Clause 42(1)(b) of the City of Subiaco Town Planning Scheme No 4 relating to wall and overall heights in the R15 and R20 Zones as it is considered that the development will adversely impact on the adjoining residential sites and general amenity of the locality.
(d) The proposal is contrary to State Planning Policy 3 Urban Growth and Settlement (section 5.1 - Creating sustainable communities) which states that:
• variety and choice in the size, type and affordability of housing to support a range of household sizes, ages and incomes and which is responsive to housing demand and preferences; and
• making the most efficient use of land in existing urban areas through the use of vacant and
- under-utilised land and buildings, and higher densities where these can be achieved without detriment to neighbourhood character and heritage values: the cost-effective use of urban land and buildings, schools and community services, infrastructure systems and established neighbourhoods; and promoting and encouraging urban development that is consistent with the efficient use of energy.
- (e) The proposal is contrary to State Planning Policy 3 Urban Growth and Settlement (section 5.2 - Managing urban growth and settlement across Western Australia) which states that:
• In preparing local planning strategies, local governments should assess housing demand and the type of additional housing for which they should plan. Local planning strategies should secure an appropriate mix of housing types in the light of housing demand and the changing composition of households. Local governments should adopt a systematic approach towards identifying locations suitable for new housing development, redevelopment and infill and opportunities for increased densities particularly around activity centres and close to public transport nodes.
(f) The proposal does not meet the upper floor area requirements of the City's Streetscape and Building Height Standards for R15 and R20 Zones Policy.
(g) The proposal does not meet the acceptable development or related performance criteria of the Residential Design Codes in relation to setbacks.
(h) The proposal does not meet the acceptable development or related performance criteria of the Residential Design Codes in relation to vehicle sightlines."
(Page 10)
The main issue
24 The main issue arising from this review for determination is whether the proposed development meets the requirements for a variation in height above single storey. In particular, whether the proposal complies with Policy 3.1 and warrants a height variation in accordance with TPS 4, cl 42(1)(b).
Is the proposed design acceptable with regard to the upper floor?
25 TPS 4 allows for single storey development for areas zoned R20. Clause 42(1)(b) provides for the Council to permit two-storey development "where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality." The respondent's Policy 3.1 states that "the requirements of clause 42(1)(b) may only be satisfied subject to meeting the standards contained within part 6 of this policy."
26 Part 6 of Policy 3.1 requires the proposed development to be designed with regard to the scale and proportion of the buildings in the surrounding area and specifically where the surrounding development has over 50% single storey, "to appear as a predominantly single storey house as viewed from the primary street". In this case, notwithstanding the two-storey commercial buildings directly opposite the subject land, the surrounding area is predominantly single storey and the proposed dwelling has been designed to appear as a single storey house when viewed from the street.
27 The design standards in part 6 of Policy 3.1 are as follows:
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(Page 11)
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28 The proposed development which includes both Unit 1 and Unit 2, satisfies standards 1 and 3 - the maximum height standard and the overshadowing of adjoining properties standard.
29 With regard to standard 2, the bulk and scale of the proposed development, it is agreed that the total upper floor area of the proposed development exceeds the maximum of 25% of the total site area by 3%. Mr S Famiano, a town planner and the applicant's representative, contends that the variation of 3% is minor and does not have any streetscape or amenity impacts on adjoining properties and should therefore be approved. Mr J Algeri, a town planner and representative for the respondent, is of the view that approving such a variation would undermine the intent of Policy 3.1 and TPS 4 with regard to two-storey development in areas zoned R20.
30 The Tribunal is of the view that the figure of 3% may not be considered minor when it is noted that the maximum upper floor area allowed is 25% and 28% is being proposed - which is actually an increase of 12% over the allowable upper floor area.
31 With regard to streetscape, as discussed previously, the front dwelling has been designed to appear as a single storey house from the street. In the context of streetscape, it should also be noted that the applicant, according to Mr Famiano, "considered that a boundary re-alignment would create a more consistent streetscape outcome for the future built form rather than aiming to construct on the two narrow and elongated existing lots that the existing house straddles."
32 Regarding the issue of amenity impacts on adjoining properties, it is important to note that a portion of the outdoor living area of two properties to the rear of the subject land, No 86 and No 90 Barker Road, will be
(Page 12)
- overshadowed by the proposed development. The Tribunal has received witness statements from Mr R Hall of 86 Barker Road and from Mr P Rundell of No 90 Barker Road, both of who object to the proposed development.
33 Given that the boundaries of the subject land are to be re-aligned to create a battle-axe subdivision, and a second dwelling is to be constructed to the rear of the site, the impact on adjoining properties to the rear are of relevance.
34 The upper floor of Unit 2 is setback 1.4 metres from the rear (southern) boundary and results in the overshadowing of No 86 and No 90 Barker Road. This upper floor in its entirety is a variation under TPS 4 cl 42(1)(b).
35 The Tribunal is of the view that the proposed development does not comply with part 6 of Policy 3.1 as it exceeds the maximum upper floor area allowed. The excess 3% equates to 16 square metres, which if removed from the rear of Unit 2 could reduce the impact on the rear adjoining properties.
36 The Tribunal is also of the view that the proposed development does not comply with TPS 4, cl 42(1)(b) due to its adverse impact on the adjoining rear properties and does not warrant a height variation from single to two storey. The Tribunal therefore finds that the proposed development is not acceptable with regard to the total upper floor of both units.
Conclusion
37 The Tribunal has determined that the proposed development does not comply with Policy 3.1 with regard to bulk and scale, as the total upper floor is greater than 25% of the total site area. The Tribunal has also determined that the proposed development does not comply with TPS 4, cl 42(1)(b) due to its adverse impact on the adjoining properties to the rear and therefore does not warrant a variation from the height requirements of TPS 4, cl 42(1)(a).
38 The proposal is therefore not acceptable with regard to the upper floor and it follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.
(Page 13)
Orders
39 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 4 January 2007 to refuse development approval for the construction of two new grouped dwellings at No 111 Churchill Avenue, Subiaco is affirmed.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, SENIOR SESSIONAL MEMBER
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