Dew and Town of Cambridge
[2007] WASAT 215
•28 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DEW and TOWN OF CAMBRIDGE [2007] WASAT 215
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 AUGUST 2007
FILE NO/S: DR 145 of 2007
BETWEEN: ELANA DEW
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town Planning - Application for planning approval - Twostorey grouped dwelling - Orderly and proper planning - Streetscape - Flat/skillion roof - Neighbourhood character - Acceptable development standards - Performance criteria - Maximum building height - Precinct policy framework - Preservation of the amenity of the locality - Hipped or gabled roof
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Town of Cambridge Town Planning Scheme No 1, cl 5(3), cl 17, cl 18, cl 37, cl 38(4), cl 39(3), Part 5
Result:
The application for review was dismissed
Category: B
Representation:
Counsel:
Applicant: No appearance
Respondent: No appearance
Solicitors:
Applicant: No appearance
Respondent: No appearance
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Town of Cambridge to refuse an application for a proposed two‑storey grouped dwelling, with undercroft garage, at 17 Ruislip Street, West Leederville.
The Tribunal examined the respective arguments of the parties, the background to the development, the relevant legislative and policy provisions and matters of orderly and proper planning and streetscape.
It was determined that the emphasis of the Scheme, and associated policies, was to set design guidelines for specific Precincts and sub‑precincts and that the orderly and proper planning of the Woolwich Street – East sub‑precinct would not be assisted by the type of building contemplated.
Again, it was determined that the proposed flat/skillion roof was out of harmony with the immediate locality, and its overall form was unsympathetic to the neighbourhood character and streetscape.
The application for review was dismissed.
Introduction
The application for review, dated 12 April 2007, was lodged by Ms Elana Dew (applicant) against a decision of the Town of Cambridge (respondent) on 7 March 2007 to refuse an application for a proposed two‑storey grouped dwelling, with undercroft garage, at 17 Ruislip Street, West Leederville.
The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
The reasons for refusal were:
"(i)non compliance with acceptable development provisions and performance criteria for side setbacks of the Residential Design Codes and the resultant detrimental impact on the adjoining landowners to the east;
(ii)non compliance with the acceptable development provisions and performance criteria for building height of the Town's Residential Design Guidelines and the resultant detrimental impact on the adjoining landowners and the streetscape;
(iii)non compliance with the acceptable development provisions and performance criteria for roof pitch and the Town's Residential Design Guidelines and the resultant detrimental impact on the streetscape."
Subject land
The subject land can be described as Lot 3 (No 17) Ruislip Street, West Leederville, and is located in Certificate of Title Volume 660, Folio 88 on Diagram or Plan No 4330. It has a lot area of 491 square metres.
The property is oriented north‑south and the proposed two‑storey dwelling has a frontage to a secondary street (Newnham Street) and a right‑of‑way (ROW) immediately to the west (McNeill Lane). There is a downward slope from Newnham Street to Ruislip Street of approximately 4.5 metres.
There is an existing single‑storey three bedroom residence on the subject land with a frontage to Ruislip Street, and a two‑storey dwelling immediately to the west of McNeill Lane. There is a four unit strata development immediately to the east.
The proposed grouped dwelling would be located on a land area of some 247 square metres with a frontage to Newnham Street of 12.29 metres and a depth of approximately 20.20 metres.
The legislative framework
The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "Residential" in the Town of Cambridge Town Planning Scheme No 1 (the Scheme or TPS 1). It has a medium density coding of R40.
Of relevance are:
(a)The Residential Design Codes – Western Australian Planning Commission, October 2002 (the Codes).
(b)Residential Design Guidelines (Development Requirements) – Town of Cambridge (RDG (Development Requirements)).
(c)Residential Design Guidelines (Precinct Statements) – Town of Cambridge (RDG Precinct Statements)).
Respondent's position
The position of the respondent is outlined in its response of 28 June 2007 to the applicant's earlier submissions. It argues:
(a)The proposed dwelling does not comply with the Acceptable Development requirements of the RDG which state that building height should not exceed 7.0 metres. The proposed dwelling has a maximum height to the top of the double skillion roof on the lower side of the lot of 8.18 metre at the lowest existing ground level on the site.
(b)The variation to building height contributes to building bulk to the streetscape as well as to adjoining properties to the eastern side of the dwelling. This is exacerbated by the use of a flat/skillion roof building style.
(c)The proposed development does not respect the predominant character and style of existing development within the locality which largely consists of modest housing from the first quarter of the 20th century.
(d)An assessment of all residential housing in Newnham Street and Ruislip Street showed that housing is almost solely characterised by gabled and/or pitched roofs of between 30 to 40 degrees. There are very few examples which reflect a flat or skillion roof, and these should not be a sufficient precedent by which to consider the Performance Criteria which respect the height, massing and roof pitches of existing houses in the street and the immediate locality.
(e)The proposed roof design does not comply with the RGD (Development Requirements) which state that all roofs should be hipped or gabled with a pitch of between 30 and 40 degrees.
The respondent also advised that, as the applicant had submitted amended drawings to show a 1.6 metre setback at ground floor level and a 2.2 metre setback at upper floor level, that the matter of building setback was no longer at issue.
Applicant's position
The position of the applicant is outlined in the grounds of review. It argues:
(a)an exemption from the 7.0 metre height limitation is sought due to the slope of the site and the need to meet the respondent's gradient requirement for the undercroft driveway.
(b)There are existing dwellings in the West Leederville area that are well over the 7.0 metre height regulation. One of these residences is immediately to the west of the subject land and appears to measure approximately 7.3 metres to the underside of the eaves.
(c)There are numerous examples of skillion, flat and curved roofs within the West Leederville area.
Planning issues
The principal planning issues are:
(a)Is the proposal consistent with the orderly and proper planning of the locality; particularly with respect to building height and roof pitch?
Assessment of proposal
Background
The background to the proposal can be broadly summarised:
"(a)An application for planning approval was lodged with the Council on 25 September 2006. The application proposed a two‑storey dwelling with an undercroft garage and cellar. The ground floor comprised two bedrooms, toilet and laundry and an activity room and external bakery. The first floor comprises a master bedroom, ensuite, living room, kitchen and external balcony.
(b)On 4 October 2006 the respondent wrote to the applicant's representative, Cross Fishwick & Associates – Designers. The letter outlined a number of variations to the Codes and RDG (Development Requirements); particularly with respect to roof pitch, setbacks, (ground floor and upper floor – east side), overall height and visual privacy setback. The advice also indicated that the clearance for vehicles at 1.9 metres was too low.
(c)On 21 November 2006 the designers responded on the basis of contesting the matters of setbacks and the clearance for vehicles in the undercroft garage. They also argued that the height of the building at 7.556 metres was consistent with already approved and constructed buildings in the area, and the neighbouring property to the west was in excess of 8.6 metres. Also, that there were a number of properties in the West Leederville area with flat, skillion and curved roofs.
(d)On 7 December 2006 the respondent wrote again to the designers reiterating variations to the Codes and the RDG (Development Requirements), with respect to roof pitch, setbacks and overall height. It was pointed out that the roof pitch was only six (6) degrees, the overall height was 8.18 metres and that a so‑called "Maximum Gradients Diagram E S01 04 03" should be used to establish the level of the garage.
(e)On 14 December 2006 the designers advised that they had addressed the finished floor level (FFL) of the garage by way of design modifications which did not alter the height of the building but lessened the gradient of the slope of the driveway from the front boundary to the start of the proposed garage. The response did not address matters of roof pitch, setbacks and overall height.
(f)On 7 February 2007 the respondent advised the designers of three submissions against the development. The nature of the objections were:
•inadequate setbacks at ground and upper floor levels
•excessive height
•potential overshadowing
•bulk of development is unsympathetic to the streetscape
•design should be more in keeping with the character of the more recently surrounding developments
(g)On 7 March 2007 the respondent refused the proposed development.
Legislative and policy provisions
Town Planning Scheme No 1
Under cl 5(3) the general objectives include:
"(a)to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities,
…
(c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which:
(i)recognises the individual character and needs of localities within the Scheme Area …
…
(h) to promote and safeguard the cultural heritage of the Town by:
(i)identifying, conserving and enhancing those places which are of significance to the Town's cultural heritage; … "
Under cl 17 the Scheme Area is divided into Precincts and for each Precinct there is a Precinct Planning Policy. The subject land falls within Precinct 5 (P5 – West Leederville).
Under cl 18 the development of land is to accord with the standards and requirements of the Scheme, Planning Policies and the Codes.
The advertising of applications for planning approval is provided for in cl 37 and, in the case of an "AA" use (such as a grouped dwelling in the residential zone), the Council may give notice to owners likely to be affected by the granting of an approval.
Clause 38(4) states:
"Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:
…
(b)any relevant Planning Policy;
(c)any Statement of Planning Policy of the Western Australian Planning Commission;
…
(e)any submission accompanying or related to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenities of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
There is a provision in the Scheme (cl 39(3)) for Council to grant approval for a non‑complying application but it must be satisfied by an absolute majority that:
"(a)if approval were to be granted, the development would be consistent with:
(i)the orderly and proper planning of the locality;
(ii)the conservation of the amenities of the locality; and
(iii)the statement of intent set out in the relevant Precinct Planning Policy; and
(b)the non compliance would not have any adverse effect on:
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality."
Under Part 5 – Miscellaneous there is provision for the making of Planning Policies which again require Council to have regard to orderly and proper planning and the conservation of the amenity of the locality.
In the view of the Tribunal, although the Scheme acknowledges the aims and aspirations of individual landowners, it also accepts an overriding imperative to grant approvals within a Precinct Policy framework. This point is emphasised in the RDG (Precinct Statements.)
Even in circumstances where it may contemplate approving a non‑complying application, there are still parameters within which the Council must operate; including the effect of the approval on nearby residents.
Residential Design Guidelines – Precinct Statements
The purpose of these guidelines is described in this way:
"The Council accepts that people's expectations change with greater affluence and that residential areas must therefore also adapt to change.
At the same time, however, Council is determined that new developments should not destroy the very qualities of the particular character of each precinct that have attracted people in the first place.
Reconciling those two different and sometimes conflicting needs is a challenge for developers and the Council."
The subject land falls within Precinct Area P5 (West Leederville) and more specifically into sub‑precinct P5 A (Woolwich Street - East). A description of this sub‑precinct advises:
"This is the very earliest part of West Leederville, with houses dating from the early 1890's, including several timber cottages. Most original housing predates 1920, although there is some later inter‑war infill of vacant sites. There has been a gradual process of redevelopment, especially in the post World War II period. More recent development since the 1980's has been more respectful of the predominantly Federation Queen Anne style of the original housing."
The long‑term planning intent for the overall West Leederville Precinct is explained:
"Because most of the original houses are modest in scale and even more so in their appointment, they have been vulnerable to replacement or insensitive alteration. However, in recent years a combination of socio‑economic circumstances – smaller, more affluent households with a greater proportion of occupants in full‑time work and general embracing of heritage values by the community has meant that 'character' houses, often on small lots, have become sought after. Their future is assured now more than ever.
Protection of this character will be the highest priority. Important measures to ensure this will include:
•accommodation of upgrading housing standards with additions to the rear of existing houses rather than their replacement;
•emphasis on rear laneway access to retain existing streetscapes;
•avoidance of high fences or walls at the street alignment; and
•new infill houses to respect the scale, materials and significant forms (such as roof pitches) of existing houses."
It is clear that the respondent places a high value on the overall character of West Leederville, which it hopes to maintain into the future. This will be achieved through internal modifications and additions to existing housing stock, and by way of new developments respecting the basic architectural form of existing housing.
Residential Design Guidelines – Development Requirements
The guidelines adopt a somewhat similar approach to the Codes by specifying Acceptable Development Standards (ADS) and Performance Criteria (PC).
The ADS are "deemed‑to‑comply" provisions which represent a straightforward path to approval. The PC are used to assess a development proposal that does not comply with the ADS.
Under cl 2.1.5(Architectural Character) the guidelines advise:
"Design should have respect for existing character, which can be expressed in either of two ways:
(a)by a genuine application of or reference to the established style, and its common elements; or
(b)by adopting a contemporary style which is still respectful of the established character."
The specific ADS for West Leederville advise under cl 2.1.5 (A1.3):
"Primary roofs of a dwelling that are visible from the street:
•are hipped and/or gabled; and
•have a pitch between 30 degrees and 40 degrees.
The ADS for ″all″ precincts include a provision under cl 2.1.5 (A1.1)
"ii.New grouped dwellings that are compatible in form with any existing house which forms part of the group, including when physically separate, where visible from the street."
The relevant PC are outlined in cl 2.1.5 (P1):
•Buildings which respect the height, massing and roof pitches of existing housing in the street and immediate locality;
•Buildings which respect the architectural styles which characterise the immediate locality; and
•Buildings which relate to the palette of materials and colours are characteristic of housing in the immediate locality."
The matter of ″building height″ is addressed under cl 2.3 with maximum heights specified for West Leederville, Wembley and Floreat under cl 2.3 (A1.1):
" …
(ii)Top of hipped and/or gabled roof that does not exceed 10.0 metres in height.
(iii)Top of a skillion, curved or flat roof that does not exceed 7.0 metres in height."
The relevant PC are outlined in cl 2.3 (P1):
"•Buildings which respect the scale of buildings generally in their vicinity in terms of their height and bulk and remain subservient to the green landscape.
•Buildings which are respectful of the predominant character and style of existing development within the locality.
•Where the front of the building facing the street is broken up, presenting a varied and interesting façade to the street, rather than a continuous wall."
What is clear in the guidelines is the emphasis on the design having respect for the existing character of the locality, and that a hipped or gabled roof is very much an integral part of the West Leederville character.
What is not so clear is that on the matter of "building height" a skillion, curved or flat roof is also contemplated in West Leederville, providing it does not exceed 7.0 metres. Such a provision appears at odds with the design emphasis on hipped or gabled roofs.
Residential Design Codes
On the matter of ″building height″, the Acceptable Development provisions specify height requirements except where stated in a Local Planning Policy or equivalent. That has occurred with the adoption of the RDG (Development Requirements) in the Town of Cambridge.
However, the Performance Criteria (cl 3.7.1) of the Codes are also relevant:
"P1Building heights consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces:
•adequate daylight to major openings to habitable rooms; and
•access to views of significance."
It is clear that the Codes place emphasis on the effects of building development on adjoining properties, and that ″building height″ is a prime consideration.
The matter of orderly and proper planning
In the context of this review, orderly and proper planning will be assessed on how closely the proposal accords with both State and local policy and the relevant statutory provisions.
The position of the respondent is that the proposed development does not accord with building height requirements or the overall policy intent of gabled and/or pitched roofs.
The position of the applicant is to seek a concession on building height and to use "precedent" as a basis for the skillion/flat roof.
The matter of streetscape and neighbourhood character
The Codes deal with streetscape under cl 3.2 (Element 2 – Streetscape).
They explain:
"The maintenance or enhancement of local or neighbourhood character, especially in established residential areas, is an important aim of the Codes.
…
Several factors that are important to streetscape and local character do come within the scope of residential development control, and hence within the Codes. These include the appearance of buildings …"
In the view of the Tribunal, the matter of building design is inexorably linked to neighbourhood character and the streetscape. In the case of West Leederville these matters have been elevated to a level well above that in many residential suburbs in the Perth Metropolitan area.
Conclusions
The application for review was lodged against the decision of the respondent to refuse an application for a proposed two‑storey grouped dwelling with an undercroft garage.
In undertaking this review, the Tribunal has examined the respective arguments of the parties, the background to the development, the relevant legislative and policy provisions and matters of orderly and proper planning and streetscape.
The issue between the parties that can be put to one side is the matter of building setback. Amended plans include the required 1.6 metre side setback at ground level and the required 2.2 metre setback for the upper floor.
The position of the respondent is therefore reduced to an objection to the proposed building height and bulk, and that the design does not respect the character and style of existing buildings in the immediate locality; particularly with regard to the need for a hipped or gabled roof.
The applicant acknowledges that the building height is above the 7.0 metre height limit but seeks an exemption. However, it is argued that the position of the respondent is inconsistent on roof design in that there are residences in West Leederville with skillion, flat and curved roofs.
In examining TPS 1 it is clear that although there is an acknowledgment of the aims and aspirations of individual landowners with their development proposals there is clearly an overriding imperative to grant approvals within the framework of the relevant Precinct Policy.
There is also a strong emphasis on orderly and proper planning, the preservation of the amenity of the locality and the need to take the views of nearby residents into account in reaching a decision.
Of importance are the RDG (Precinct Statements) which emphasise the point that new development should not destroy the character of the area.
This is a particularly important point in the context of this review as the Woolwich Street sub‑precinct, into which the subject land falls, was the first part of West Leederville to be developed. There is, therefore, a historical context built into the planning considerations.
Within the RDG (Development Requirements) there are acceptable Development Standards and Performance Criteria. The ADS for West Leederville specify hipped and/or gabled roofs with a pitch between 30 and 40 degrees, and that generally a new grouped dwelling should be compatible in form with the existing house which forms part of the group.
The proposed development, with its flat/skillion roof and contemporary design, is very much at odds with these provisions and it cannot be said that it conforms to the PC either which seek new buildings that respect the height, massing and roof pitches of existing housing and the architectural styles in the immediate locality.
On this latter point, the respondent advised that in its assessment of housing in Newnham Street and Ruislip Street that: "housing is almost solely characterised by gabled and/or pitched roofs of between 30 to 40 degrees" and that "There are very few examples with a flat or skillion roof".
This statement appears to acknowledge that there are residences in the immediate vicinity with a flat or skillion roof, although no information to this effect was provided to the Tribunal.
In fact, the information that was provided showed flat, skillion and curved roofs within the West Leederville Precinct in Connolly Street, St Vincent's Street, Woolwich Street, Tate Street and St Leonard's Avenue. However, none of these examples fall within the Woolwich Street – East sub‑precinct and a number of them appear to combine a skillion roof in harmony with a hipped or gabled roof. Such a composition is not contemplated in the proposed development.
On the matter of ″building height″ it is common ground between the parties that the proposed development, at its highest point, is in excess of 8.0 metres. This is one of the principal reasons for objections from adjoining neighbours to the east.
The applicant argues that there is a higher residence immediately to the west, but that building does not have a flat, skillion or curved roof and has been assessed under a different height regime in the RDG (Development Requirements).
It is argued by the applicant that because of the downward slope of the site to the north that the building needs to be at the proposed height to accommodate the undercroft garage. This may well be a valid argument, but a 7.0 metre height limit is a "maximum", and this constraint would have been well understood before the design process was commenced.
What is not so clear to the Tribunal is the ambiguity of emphasising the need for hipped or gabled roofs in order to respect the historical architectural style in West Leederville and yet provide for flat, skillion or curved roofs under the building height provisions. This situation is hardly a helpful guide to a landowner/developer.
Nevertheless, the whole emphasis of the Scheme, and associated policies, is to set design guidelines for specific Precincts and sub‑precincts, and in that sense the orderly and proper planning of the Woolwich Street – East sub‑precinct would not be assisted by the type of building contemplated.
Again, the flat/skillion roof is out of harmony with the immediate locality and its overall form is unsympathetic to the neighbourhood character and the streetscape.
The application for review is dismissed.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is dismissed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
0
0
3