DISAN Pty Ltd and City Of South Perth

[2010] WASAT 184

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DISAN PTY LTD and CITY OF SOUTH PERTH [2010] WASAT 184

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   16 NOVEMBER 2010

DELIVERED          :   EDITED REASONS DELIVERED ORALLY ON 16 NOVEMBER 2010

FILE NO/S:   DR 196 of 2010

BETWEEN:   DISAN PTY LTD

SUNLAND PROPERTY DEVELOPMENT PTY LTD
Applicants

AND

CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning ­ Development application ­ Grouped dwellings ­ Visual impact of wall between dwellings ­ Setback of driveway to intersection ­ Visual harmony with existing neighbouring buildings in terms of setback from street ­ Practice and procedure ­ Statement of issues, facts and contentions and draft 'without prejudice' conditions of approval ­ Importance of focusing statement of issues on key, determinative issues and addressing 'issues' capable of resolution by condition in 'without prejudice' conditions in advance of final hearing

Legislation:

City of South Perth Town Planning Scheme No 6, cl 7.5(n)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.5.4, cl 6.5.4 A4.3
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Development application refused

Category:    B

Representation:

Counsel:

Applicants:     Mr I McKellar (Acting as Agent)

Respondent:     Mr A Roberts

Solicitors:

Applicants:     N/A

Respondent:     McLeods

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This case concerned a development application for construction of two grouped dwellings and retention of an existing house as a third grouped dwelling on a site.  The key issue related to a local planning scheme consideration as to whether the proposed buildings would be 'visually in harmony with neighbouring existing buildings within the focus area, in terms of … setbacks from the street … '.

2. Following the hearing, the Tribunal gave an oral decision in which it refused to grant development approval, because one of the two proposed buildings would appear discordant in scale and unusually proximate to the street.

3. The respondent had raised eleven issues for determination in an amended statement of issues, facts and contentions.  During the course of the respondent's opening and in discussion between the Tribunal and the parties, eight of the issues fell away.  A number of 'issues' fell away because it was clear that the 'issues' could be addressed by way of conditions of approval.

4. The Tribunal referred to its practice of requiring the original decision­makers to file and provide to the applicant in advance of the final hearing a set of draft, 'without prejudice' conditions of approval that could be imposed if the Tribunal decides to grant development approval, contrary to the position of the original decision-maker.  The Tribunal explained that the purpose of this practice is to enable issues that are capable of resolution by way of condition to be addressed in that way and to facilitate a one-stop hearing in relation to all aspects of a proposal.

5. The Tribunal noted its expectation that, in future cases, a number of the 'issues' of the type raised in this proceeding will be addressed by respondents by way of condition.  A more focused approach to a statement of issues and the careful formulation of draft, 'without prejudice' conditions that can resolve 'issues' in an acceptable manner will enable the Tribunal and the parties to focus on the real and determinative issues in a proceeding and minimise costs.

6. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

1. This proceeding involves an application for review under s 252(1) of the Planning and Development Act 2005 (WA) of the City of South Perth's (City or Council) decision to refuse development approval for three grouped dwellings at No 414 (Lot 439) Canning Highway, Como (site).

2. The site has three street frontages.  It has a frontage of 20.44 metres to Canning Highway to the west, a frontage of 54.9 metres to Saunders Street to the south, and a frontage of 9.05 metres to a private right of way to the east which provides vehicular access to a number of properties and presents as a public lane or street.  The site is developed with a house addressing Canning Highway and is subject to a Metropolitan Region Scheme primary regional road reservation with a width of 17.5 metres over a portion of the site closest to Canning Highway.  The site is zoned Residential under the City of South Perth Town Planning Scheme No 6 (Scheme) and has a residential density coding of R60 under the Scheme.

3. The development application was refused on 28 May 2010. However, following the commencement of the proceeding, there was some discussion and debate between the parties as to whether the proposed development involved three single houses or three grouped dwellings. On the basis that the application was for three grouped dwellings as confirmed in drawings amended in September 2010, the City was invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA). The City then refused the application on that basis.

4. Although some 11 issues for determination were identified by the City in its amended statement of issues, facts and contentions, during the course of the City's opening and discussion with the parties' representatives, eight of the issues fell away.  A number of issues fell away because it was clear that the issues could be addressed by way of conditions of approval.

5. The Tribunal has a practice of requiring original decision­makers in refusal and deemed refusal cases to file and provide to applicants in advance of the final hearing a set of draft, 'without prejudice' conditions of approval that could be imposed if the Tribunal decides to grant development approval, contrary to the position of the original decision­maker.  The purpose of this practice is to enable issues that are capable of resolution by way of condition to be addressed in that way and to facilitate a one­stop hearing in relation to all aspects of a proposal.

6. The Tribunal expects that, in future cases, a number of the 'issues' of the type raised in this proceeding in the respondent's amended statement of issues, facts and contentions will be addressed by respondents by way of condition, as it was clear during the course of the hearing today that once conditions were proposed, they were readily discussed, amended and agreed to, to solve a number of the so­called 'issues' identified by the City.  A more focused approach to a statement of issues and the careful formulation of draft, 'without prejudice' conditions that can resolve some of the issues in an acceptable manner, and will enable the Tribunal and the parties to focus on the real and determinative issues in a proceeding and minimise costs.

Issues for determination

1. Ultimately, the following three issues require determination in this review:

   1)Would the east­facing garage and storeroom of dwelling 2 have an unacceptable impact on the amenity of the future occupants of dwelling 1 in the use of their outdoor living area?

   2)Does the driveway of dwelling 1 and the crossover of dwelling 1 conform to cl 6.5.4 of the Residential Design Codes of Western Australia (2008) (Codes)?

   3) Are the grouped dwellings visually in harmony with neighbouring existing buildings within the focus area in terms of setbacks from the street?

2. I will address these three issues in turn.

Would the east­facing garage and storeroom of dwelling 2 have an unacceptable impact on the amenity of the future occupants of dwelling 1 in the use of their outdoor living area?

1. The east­facing wall of dwelling 2, which encompasses the garage and store area, has a length of 8.8 metres and a height of 3 metres.  This wall would abut the courtyard of dwelling 1.  The wall would be seen in part from the living room of dwelling 1 and would directly, in part, face the dining room of dwelling 1.

2. The City called evidence from its planning officer, Mr Matthew Stuart, who is the Coordinator, Statutory Planning, at the City.  Mr Stuart expressed the opinion that the visual impact of the wall would be unacceptable for future residents of dwelling 1, because of its size and because of the limited outdoor area of that unit.  He described the wall as 'a little bit too big'.

3. During the course of evidence, Mr Stuart proposed a condition that the section of the wall that encompasses the store area should be reduced to 2.5 metres, rather than 3 metres.  This is an example of the type of condition that ought to have been proposed by the Council in its 'without prejudice' draft conditions.  The applicant, it seems to me, would have accepted that condition in advance of the hearing in light of discussions that occurred during the hearing, and the issue would have been addressed between the parties in that way.

4. The applicants called evidence from Mr Phillip Ker who is a building designer.  Mr Ker considered that the height and bulk of the wall is acceptable in its context, having regard in particular to the R60 coding of the site.  He considered that there is a reasonable expectation of this level of building bulk in that coding.  He also noted that, because the wall is generally oriented in a north­south direction, it would not have any significant adverse impact on daylight or sunlight.

5. The Tribunal considers that the wall would not have an unacceptable impact on amenity.  It would not have an unacceptable impact on visual amenity for four reasons.  Firstly, it is single storey.  Secondly, it does not occupy the whole of the internal boundary between dwelling 1 and dwelling 2.  Thirdly, the wall is not parallel to the façade and living area and veranda of dwelling 1, but rather, projects at an angle, with the width of the outdoor living area of dwelling 1 increasing adjacent to the veranda of dwelling 1.  Fourthly, the site is coded R60 and, as Mr Ker said, there is a reasonable expectation, in my view, of walls of this nature in that coding, at least between one dwelling on land coded R60 and another dwelling on land coded R60, which is the case here.

6. I also consider it relevant that the orientation of the wall will not have any material adverse impact in terms of daylight or sunlight.

7. However, if the visual impact of the wall on the residents of dwelling 1 could be reduced by a simple means, such as that suggested ultimately by Mr Stuart in evidence, then it is better that that should occur, and that could be accommodated by way of a condition of approval.

Does the driveway of dwelling 1 and the crossover of dwelling 1 conform to cl 6.5.4 of the Codes?

1. In relation to the second issue of whether the driveway of dwelling 1 and the crossover of dwelling 1 conform to the Codes, the issue as originally drafted by the City referred to compliance with performance criteria of the Codes in relation to vehicular access; however, in the written evidence and during the course of the oral evidence today, the discussion between the experts and the representatives of the parties was primarily as to whether there was conformity with the acceptable development provision in cl 6.5.4 A4.3 of the Codes, which requires that formed driveways be 'no closer than 6 [metres] to a street corner or the point at which a carriageway begins to deviate'.

2. The applicants called evidence from Mr George Herwig, an engineering consultant with considerable experience in relation to road design and engineering considerations.  Mr Herwig expressed the opinion that the intent of the acceptable development provision is to ensure vehicular safety and that the expression 'street corner or the point at which the carriageway begins to deviate' refers to the point where vehicles would turn from one street into another.  Mr Stuart acknowledged that he did not have expertise in relation to road design, and ultimately deferred to Mr Herwig's opinion.

3. If we accept Mr Herwig's understanding of the intent of the clause, then the setback from the closest point of the driveway and crossover of dwelling 1 to the point at which the carriageway begins to deviate is approximately 7.5 metres.  I accept Mr Herwig's opinion, both because of his experience and also because, clearly, the intent of the clause is to regulate vehicular movements and ensure safety of vehicular movements.  The alternative interpretation proposed by the City, namely, that the 'street corner' refers to the corner of the site adjacent to the intersection, does not appear to have any basis in the Codes and was not supported by the evidence of Mr Stuart.

4. In my view, therefore, the proposed development conforms to cl 6.5.4 of the Codes, because it meets the acceptable development provision in relation to the formed driveway of dwelling 1.

Are the grouped dwellings visually in harmony with neighbouring existing buildings within the focus area in terms of setbacks from the street?

1. The third issue, which clearly was always the key issue in this review and arguably ought to have been identified as such rather than being lost amongst 11 issues in the City's amended statement of issues, facts and contentions, relates to setback and, in particular, to whether the grouped dwellings are visually in harmony with neighbouring existing buildings within the focus area in terms of setbacks.  The basis of this issue is the matter for consideration in cl 7.5(n) of the Scheme, namely, 'the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of … setbacks from the street and side boundaries … '.

2. The expression 'focus area' is defined in the Scheme to mean 'the section of a street extending from one cross­intersection to the next cross­intersection, together with the residential properties fronting both sides of that section of the street'.  In this case, the relevant focus area extends from Canning Highway to the west to Park Street to the east.  The site is located on the northern side of the street and is the north­westernmost property on the street.  The site contains the existing building which is to be retained as part of the development.

3. The existing building has setbacks to Saunders Street ranging from 1.6 metres to 2.6 metres.  At its closest point to the proposed dwelling 2, the setback of the existing building on the site, which is proposed to be dwelling 3 in the development, is 2.2 metres.  The buildings to the east of the site across the laneway on the northern side of Saunders Street appear to increase in setback towards the east.  The closest building, No 24 Saunders Street, ranges in setbacks from 4.3 metres to 7 metres.  The next building at No 26 Saunders Street, ranges in setbacks from 3.8 metres to 8.5 metres.  The building at the north­eastern corner of the focus area comprises three grouped dwellings which have a substantial setback from Saunders Street to accommodate car parking, although with some masonry street walls.  The buildings on the southern side of Saunders Street have setbacks generally in the order of 4.1 metres to 4.4 metres, as noted by Mr Stuart.

4. The setbacks in the proposed development are, in the case of dwelling 2 (which would adjoin dwelling 3), 2.8 metres at its south­eastern corner, reducing to 2.1 metres at the central portico and then increasing to 4.5 metres at the garage and, in dwelling 1, 3.8 metres at the south­western corner, reducing to 1.8 metres at the portico, increasing to 2.5 metres in the central part of the building, then increasing to 4.8 metres at the western end of the garage and reducing to 2.9 metres at the eastern end of the garage.

5. Mr Stuart considered that the proposed development would detract from the streetscape because it contrasts strongly with surrounding built form.  In particular, he noted that predominant setbacks in the focus area are greater than proposed in the development.  In contrast, Mr Ker considered that the development would be visually in harmony with neighbouring existing buildings, particularly if one focused on the north­western part of the street.  He said that, if you took the average of the setback of the existing building that would be dwelling 3 in the proposed development and the setbacks of the adjoining buildings at No 24 and No 26 Saunders Street, then the proposed setbacks of dwelling 2 and dwelling 1 would comply with the intent of the consideration in cl 7.5(n) of the Scheme.

6. On behalf of the applicants, Mr Ian McKellar relied on the evidence of Mr Ker in this respect and also made two further principal submissions.  Firstly, Mr McKellar submitted that there is a gradual increase in the setbacks on the northern side of Saunders Street from the existing building on the site to the three grouped dwellings at the north­eastern end of the focus area.  This observation is, as accepted by Mr Stuart, correct.  Secondly, Mr McKellar submitted that the change in coding within the focus area needs to be taken into account in terms of what is an acceptable setback.  In particular, the site is coded R60, as noted earlier, whereas the properties to the east of the site on the northern side of the street are coded R20/R30, and properties to the south­east of the site on the southern side of the street are coded R30.  However, the property directly across the road from the site is also coded R60 and exhibits considerably greater setbacks than proposed within the development.

7. The term 'neighbouring' is defined in The Macquarie Dictionary (4th ed, 2005) as 'relevantly situated near'.  'In harmony' is relevantly defined as 'agreement, accord, harmonious relations'.  I accept that, as Mr Ker suggested, it is reasonable to primarily focus on the development adjoining the site and adjacent to the site on the northern side of the street.  However, both the definition of 'focus area' and the concept of 'neighbouring' requires consideration of other nearby properties.

8. I am satisfied that dwelling 2 within the development is consistent with the intent of cl 7.5(n); that is to say, that proposed building would be visually in harmony with ­ that is, in agreement, accord or harmonious relations with ­ neighbouring existing buildings within the focus area.  In particular, that building accords with the observation of Mr Ker that it is reasonable to take buildings on either side of a development as a key consideration in terms of setback.  Dwelling 2 has its closest setback to the street in the area that is most proximate to the existing building that would be dwelling 3, but then sets back considerably greater to 4.5 metres for half of its width which is furthest away from dwelling 3.

9. In my view, however, dwelling 1 cannot be said to be visually in harmony with neighbouring existing buildings within the focus area, even having primary regard to the adjoining buildings in the north­western part of the street as referred to by Mr Ker.  I accept that the applicants have attempted to carefully design and articulate dwelling 1; however, the area of dwelling  is the narrowest and most constrained part of the site, narrowing to 9.05 metres at its eastern end.  Even in its western end, the depth of the area of dwelling 1 is no more than 12 or 13 metres.  This constraint no doubt has given rise to the need to locate parts of the building as close as 1.8 metres to the street.

10. Given that the building adjacent to proposed dwelling 1 to the east of the laneway has a minimum setback of 7 metres at its closest point to the site, clearly dwelling 1 would not be visually in harmony with buildings in the locality within the focus area.  Rather, it would appear discordant in scale and unusually proximate to the street.  As noted earlier, I accept the general observation of Mr McKellar that there is a widening of setbacks along the northern side, but that factor also does not assist in this case because dwelling 1, if anything, appears to step closer to the street than dwelling 2 where, according to that trend, it should be set further back.

1. I have given consideration as to whether some amendment by way of condition to dwelling 1 would ameliorate the inconsistency with the intent of cl 7.5(n) of the Scheme in a way that could be accommodated within this proceeding; however, it appears that that is a matter for detailed design.  It may be possible to set a building back that increases the setback relative to dwelling 2 in the case of the area of dwelling 1, but that is not something that was explored in evidence, and given the extremely constrained nature of this part of the site, that would require detailed design.

Conclusion

1. For these reasons, although the proposed development would not warrant refusal on account of the first two issues identified by the Council, it warrants refusal in the exercise of discretion in relation to dwelling 1, because dwelling 1 would be discordant in setback in the context of the focus area.  It would certainly not, in my view, be visually in harmony with neighbouring existing buildings, even focusing on the north­western part of Saunders Street.

Orders

1. For the above reasons I make the following orders:

   1.The application for review is dismissed.

   2.The decision made by the respondent to refuse development approval for grouped dwellings at No 414 (Lot 439) Canning Highway, Como is affirmed.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER