Doan and Anor and City of Bayswater
[2007] WASAT 234
•10 SEPTEMBER 2007
DOAN & ANOR and CITY OF BAYSWATER [2007] WASAT 234
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 234 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:139/2007 | 11 JULY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 10/09/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review was set aside and substituted with a new decision | ||
| B | |||
| PDF Version |
| Parties: | KHANH DOAN MINH LUONG CITY OF BAYSWATER |
Catchwords: | Town planning – Application for approval to commence development – Grouped dwelling – Parapet wall – Performance criteria – Acceptable development provisions – Amenity |
Legislation: | City of Bayswater Town Planning Scheme No 24, cl 1.6, cl 2.6, cl 2.6.6, cl 3.3, cl 3.6, cl 3.6.1, cl 8.5.2, cl 8.5.2.2, Pt 7 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.3.2(A2), cl 3.3.2(P2), Table 2a State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i) |
Case References: | Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 |
Orders | 1. In accordance with s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA):,(a) the decision under review is set aside and substituted with a new condition 13 to read: "the height of the proposed parapet wall to be reduced to 3 metres maximum." |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DOAN & ANOR and CITY OF BAYSWATER [2007] WASAT 234 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 11 JULY 2007 DELIVERED : 10 SEPTEMBER 2007 FILE NO/S : DR 139 of 2007 BETWEEN : KHANH DOAN
- MINH LUONG
Applicants
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning – Application for approval to commence development – Grouped dwelling – Parapet wall – Performance criteria – Acceptable development provisions – Amenity
Legislation:
City of Bayswater Town Planning Scheme No 24, cl 1.6, cl 2.6, cl 2.6.6, cl 3.3, cl 3.6, cl 3.6.1, cl 8.5.2, cl 8.5.2.2, Pt 7
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
(Page 2)
Residential Design Codes of Western Australia (2002), cl 3.3.2, cl 3.3.2(A2), cl 3.3.2(P2), Table 2a
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i)
Result:
The decision under review was set aside and substituted with a new decision
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr D Martin (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : City of Bayswater
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the City of Bayswater to include a condition of approval requiring a garage parapet wall for a grouped dwelling to be set back 1 metre from the eastern side boundary at No 92 Salisbury Street, Bedford.
2 The Tribunal examined the respective arguments of the parties; the background to the matter; the proposed development itself; the legislative and policy provisions; and the substance of an objection against the proposed boundary parapet wall from the adjoining landowner.
3 The Tribunal, having regard to the adjoining property at No 90 Salisbury Street, Bedford being conducted as a medical practice, and the application of the relevant Performance Criteria of the Residential Design Codes of Western Australia (2002), determined that the boundary parapet wall was justified.
4 It was also determined that the height of the proposed boundary parapet wall be reduced to 3 metres maximum.
Introduction
5 The application for review, dated 21 April 2007, was lodged by Dr Khanh Doan and Mrs Minh Luong (applicants) against a decision of the City of Bayswater (City or respondent) on 12 April 2007 to approve an additional grouped dwelling at Lot 21 (No 92) Salisbury Street, Bedford, subject to conditions. One of the conditions (No 13) was unacceptable to the applicants.
6 The application was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
7 The grounds on which a review is sought against the condition requiring the garage parapet wall to be set back 1 metre from a side boundary can be broadly summarised as:
a) the City failed to give objective and proper consideration to the proposed development plan, submitted on 28 December 2006 and amended on 22 February 2007, in accordance with the City's local planning policy; and
(Page 4)
- b) the City failed to provide proper and accountable reasons for its decision to impose condition No 13.
Subject land
8 The subject land is described in the notice of determination issued by the respondent on 12 April 2007 as Lot 21 (No 92) Salisbury Street, Bedford, on Certificate of Title Volume 1351, Folio 825 on Plan/Diagram PO 32266.
9 However, in the various plans lodged by Automated Surveys on behalf of the applicants, the subject land is described as Lot 21 Salisbury Street, Bedford, on Certificate of Title Volume 895, Folio 11 on Plan 32266.
10 Just which description is correct is not clear to the Tribunal but, for the purposes of this review, the important consideration is that both parties at least agree on the street address and lot number.
11 The subject land has a frontage to Salisbury Street of 20.12 metres and a depth of 47.56 metres. It has an area of 956 square metres.
12 There is an existing brick and tile residence towards the front of the lot which faces generally south. The land, which is described as "sandy", has a gentle downward slope to the north.
13 The surrounding land is essentially residential with a medical centre immediately to the east at No 90 Salisbury Street.
The legislative framework
14 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and is zoned "medium density residential" in the City of Bayswater Town Planning Scheme No 24 (Scheme or TPS 24).
15 Of relevance in this matter are:
a) The Residential Design Codes of Western Australia (2002) (Codes) of the Western Australian Planning Commission (Commission).
b) Town Planning Policy TP-P2.13 "Boundary Walls in Residential Areas", September 2003 (TPP).
(Page 5)
Respondent's position
16 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions, dated 30 May 2007. It contends:
"3.1 … that the [proposed] parapet wall [with a zero setback from the side (eastern) boundary] will have a detrimental impact on the amenity of the adjoining landowner."
Applicants' position
17 The position of the applicants is outlined in a response, dated 13 June 2007, to the respondent's Statement of Issues, Facts and Contentions. It contends:
a) The proposed parapet wall satisfies the Performance Criteria of the Codes.
b) The respondent's own Planning Department and Planning Committee supported the proposed parapet wall and found that it "complies with the [TPS 24], Council Policy and the Performance Criteria of the [Codes]."
c) The respondent has approved development plans that included parapet walls with similar height variations above the acceptable average height in the Codes, despite objections from neighbours.
d) The neighbouring property has been used as a medical practice since 1979 and recently underwent redevelopment in 2001. This, together with its location immediately adjacent to a busy commercial area, unequivocally suggests that it is highly unlikely to be redeveloped into residential dwellings in the near future.
e) The Performance Criteria do not have provisions for giving consideration to effects on the future amenity of a property that is not likely to arise.
f) The proposed parapet wall will not have a detrimental impact on the amenity of the adjoining landowner.
Planning issues
18 The principal planning issues are:
(Page 6)
- a) Does the proposed parapet wall accord with existing statutory and policy provisions?
b) Would the proposed parapet wall be likely to affect the amenity of the adjoining landowner?
Assessment of proposal
Background
19 An application for approval to commence development (MRS Form 1) for a "grouped dwelling" was lodged with the City on 28 December 2006 with associated plans. Amended plans showing some minor building variations were lodged on 22 February 2007.
20 A letter, dated 10 March 2007, from Dr Carl Slusarczyk from the Salisbury Medical Group at No 90 Salisbury Street was lodged with the City together with a so-called "Letter of Comment" (objection) signed by Dr Slusarczyk and Dr Stephen Boehm.
21 The matter was considered at the Planning and Development Services Committee on 20 March 2007 with a recommendation to Council for approval subject to 12 standard conditions.
22 The matter was considered at the Ordinary Council Meeting on 27 March 2007 and it was resolved to approve the proposed development subject to condition, which 13 required:
"The garage parapet wall be set back 1.0 metre."
23 The application for review was lodged with the Tribunal on 23 April 2007.
The proposed development
24 The proposed grouped dwelling is the first of three anticipated on the subject land. It is located at the rear on a proposed strata lot of some 292 square metres with access to Salisbury Street via a 4metre wide common property accessway.
25 It is anticipated that in the future the existing brick and tile dwelling towards the front of the property will be demolished to allow for two further strata lots of 270 square metres each.
26 The proposed two storey dwelling will comprise of three bedrooms and study upstairs and a family/dining room, kitchen, laundry and home theatre on the ground floor. There is also a store and double garage with the eastern
(Page 7)
- wall of the garage proposed with zero setback from the common boundary with No 90 Salisbury Street.
27 The total floor area (including the garage) is estimated at some 241 square metres.
Legislative and policy provisions
City of Bayswater Town Planning Scheme No 24
28 The Scheme "objectives" are found at cl 1.6 and include:
"…
b) To secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof;
…
d) To make provisions as to the nature and location of buildings and the size of lots when used for certain purposes …"
29 The provision for planning policies is found at cl 2.6 and includes:
"2.6.6 Policy shall not bind the Council in respect of any application for planning approval but the Council shall have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its decision."
30 There are procedures for the advertising of applications under cl 3.3, and the range of matters to be considered by the local government when determining a planning application are covered by cl 3.6. They include:
"3.6.1 …
c) Any approved statement of planning policy of the Commission;
…
f) Any Local Planning Policy adopted by the local government under Clause 2.6 … ;
…
- n) The preservation of the amenity of the locality;
… "
31 Under Part 7 (Zones) a "grouped dwelling" is allocated a "P" symbol in the "medium density residential" zone. The "P" symbol means:
" … that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme."
32 Development in accordance with the Codes is covered by cl 8.5.2. It includes:
"8.5.2.2 Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Codes] is to conform with the provisions of those Codes."
- Town Planning Policy TP-P2.13
33 The "objective" of the TPP states:
"To provide direction and clarity to Developers and the Community on the application of the Acceptable Development requirements with regard to the Buildings on Boundary pursuant to Clause 3.3.2 (Design Element 3 - Boundary Setback Requirements) of the [Codes]."
34 The "introduction" to the Policy makes the following points:
a) In accordance with cl 3.3.2 of the Codes a boundary wall can be constructed as of right, without neighbour consultation, subject to compliance with certain height and length requirements.
b) The Codes provide for the adoption of a local planning policy to modify the provisions of the Codes.
c) The Policy augments the Codes in that no wall to any type of residential development may be built within 1 metre of a boundary other than in accordance with nominated zero lot lines contained within adopted Estate Guidelines, or with the written approval of the adjoining affected landowner, or Council approval.
(Page 9)
35 The TPP itself includes:
a) Where a proposed development includes a wall closer than 1 metre to a boundary, in accordance with cl 3.3.2 A2 of the Codes the boundary wall shall not be deemed "as of right" under the provisions of cl 3.3.2 of the Codes.
b) The applicant is required, in the first instance, to seek the adjoining landowner's written comments in relation to the proposed boundary wall.
c) An objection must be in writing and detail the reasons for the objection.
d) The boundary wall is deemed to comply where there is no objection and the length and height of the proposed wall is consistent with the provisions of cl 3.3.2 A2 of the Codes.
- Residential Design Codes
36 In Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 the operation of the Codes was expressed in this way:
"19. As the Codes themselves make clear and as this Tribunal has observed on other occasions, the starting point is to have regard to the objective and then the performance criteria. Acceptable Development represents examples which of themselves are deemed to meet the relevant performance criteria."
37 The Codes also explain under 1.1 (Introduction) that:
a) All development must comply with the Performance Criteria.
b) Compliance with the Acceptable Development provisions provides a speedy and certain pathway to approval.
c) Where an applicant chooses not to rely on the Acceptable Development provisions, and bases any aspect of the proposal on the relevant Performance Criteria, the onus will be on the applicant to provide the relevant documentation to the Council to show that the Performance Criteria have been
(Page 10)
- satisfied."
38 Under Element 3 (Boundary Setbacks) of the Codes, the "objectives" behind boundary setbacks include:
"• to moderate the visual impact of building bulk on a neighbouring property;
• to ensure access to daylight and direct sun for adjoining properties; and
• to assist with the protection of privacy between adjoining properties."
39 The "principles" relating to boundary setbacks include:
" …
• walls with no windows, or with windows to non-habitable rooms, are acceptable at a lesser distance than those with windows to habitable rooms or with balconies, etc;
• single storey walls are not usually problematic in terms of impact on adjoining properties;
• walls built up to boundaries are often preferable to walls set back a short distance;
• the acceptance of boundary walls is greater in medium density compared with low density areas;"
40 The boundary setback for walls with no major openings and for a wall height of 3.5 metres or less is set down in Table 2a of the Codes.
41 In the matter under review, the length of the garage wall (with no major opening) is 6.11 metres and at a height of 3.3 metres would, according to Table 2a, require a 1 metre setback from the common boundary.
42 On the matter of buildings built on the boundary, the Codes state (page 57):
"A Council may adopt a Local Planning Policy to vary the provisions in respect of boundary walls to require less or more exacting standards or require consultation with adjoining neighbours as a
(Page 11)
- prerequisite. The application of the performance criteria may lead to greater relaxation of the basic setbacks."
43 The respondent has adopted its TPP in order to vary the provisions of the Codes with respect to buildings built on the boundary.
44 In Design Element 3 (Boundary Setback Requirements) the overall "objective" is:
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties."
45 Under the associated cl 3.3.2 (Buildings on Boundary) the Acceptable Development provisions include, under subclause A2(iii):
"iii. In areas coded R30 and higher, walls not higher than 3.5 [metres] with an average of 3 [metres] for 2/3 the length of the balance of the boundary behind the front setback, to one side boundary;"
46 The Performance Criteria under cl 3.3.2 state:
"P2 Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
• make effective use of space; or
• enhance privacy; or
• otherwise enhance the amenity of the development; and
• not have any significant adverse effect on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
(Page 12)
The matter of objections
48 In the witness statement, dated 27 June 2007, Dr Stephen Boehm, a registered medical practitioner and co-owner of the adjoining property at No 90 Salisbury Street, advised:
"8. As a landowner of the adjacent property, we had submitted a written letter of objection regarding the proposed parapet boundary wall. The basis of the argument was that the proposed wall would be of detriment to the residential amenity of future development on our property and could potentially affect the provision of light and ventilation to future development. We also considered that there was scope for redesign of the proposal to have a lesser impact on our property.
9. In this particular instance, as our support for the boundary wall was not received, Council utilised their discretionary decision-making powers and considered the proposal under the Performance Criteria of the [Codes]. Council resolved, with which we agree, that the parapet boundary wall would have a detrimental impact on the amenity of our property."
49 In the witness statement, dated 27 June 2007, of Marlene Robinson, a Councillor and member of the Planning and Development Committee at Bayswater, she advised in relation to the Performance Criteria:
"11. … It was considered that the wall would pose a significant adverse effect on the amenity of the adjoining property should it be redeveloped for residential purposes in the near future. The wall would have the potential to impact on the amenity of future residential development by the loss of sunlight and ventilation to future dwellings on the adjoining site.
…
13. I consider that the zero-lot wall in the proposed location would affect the amenity of the neighbouring property. I am of the opinion that there was the opportunity for the proposed rear dwelling to be redesigned so the parapet wall would have less impact on the adjoining property. I
- also consider that the parapet wall would reduce the amenity of the neighbouring property as it would be visually intrusive and has no opportunity for softening."
50 It is clear from the two witness statements that both Dr Boehm and Councillor Robinson believe that the respondent's decision was based on an assessment of the matter under the relevant Performance Criteria of the Codes.
Conclusions
51 The application for review was lodged against a decision of the City of Bayswater to include a condition of approval requiring a parapet wall to be set back 1 metre from the eastern side boundary instead of the proposed zero setback.
52 In undertaking this review, the Tribunal examined the respective arguments of the parties; the background to the matter; the proposed development itself; the legislative and policy provisions; and the substance of an objection against the proposed boundary parapet wall from the adjoining landowner.
53 The position of the respondent was that the proposed zero setback would have a detrimental impact on the amenity of the adjoining landowner.
54 The position of the applicant was that the proposed boundary parapet wall satisfies the Performance Criteria of the Codes, that the respondent has approved parapet walls with similar height variations elsewhere despite objections, and that in any event the adjoining medical practice, which underwent redevelopment in 2001, was unlikely to be redeveloped for dwellings in the near future. It was also argued that the Performance Criteria do not consider future amenity but that in any event the proposed parapet wall would not have a detrimental impact on amenity.
55 In answer to a question from Mr D Martin, agent for the respondent, Dr S Boehm responded on a possible compromise:
"If the wall did not exceed the residential maximum of three metres, we would even consider a reduced setback. We are not playing absolute hardball on this one. We feel 3.3 metres, right on the boundary, which exceeds the R-Code maximum, which doesn't have our approval and is voted against by the Council, is really too extreme. … I would have to discuss it with my co-owner, but we would consider
(Page 14)
- a setback of say half a metre if the wall did not exceed a maximum of three metres."
56 It is clear to the Tribunal that what Dr Boehm anticipates is that at some time in the future No 90 Salisbury Road, which is zoned for residential purposes, will be redeveloped in a similar way to the subject land and the proposed parapet wall could, in his view, severely limit options to have a habitable room adjacent to a wall that is 3.3 metres high.
57 However, on that specific point the Officer's report to Council on 27 March 2007 advised to the contrary:
"9. Notwithstanding this, the location of the parapet wall on the boundary would not preclude the ability of the adjoining neighbour to develop habitable rooms adjacent to the subject wall, subject to compliance with the setback provisions of the Codes."
58 In examining the Codes, the matter of boundary setbacks is comprehensively addressed with the prime objectives being to ensure access to daylight and direct sun for adjoining properties and to assist with the protection of privacy between adjoining properties. It is also clear that walls built up to boundaries are preferred to being set back a short distance; particularly in the case of medium density developments such as R30.
59 In order to address the question of Buildings on Boundaries the respondent has evolved a Town Planning Policy, but it is specifically concerned with:
"… the application of the Acceptable Development requirements …"
60 Now in this case, under the Acceptable Development requirements of the Codes (cl 3.3.2(A2)(iii)) for a site coded R30, a garage wall built on the boundary should have an average height of 3 metres for 2/3 the length of the balance of the boundary behind the front setback. At 3.3 metres the height of the wall slightly exceeds this requirement.
61 What the respondent appears to have done is use the Performance Criteria to determine the matter by maintaining the height of the wall at 3.3 metres but require a 1 metre setback in accordance with the provisions of Table 2a.
(Page 15)
62 Before dealing with the Performance Criteria, the position of the applicant needs to be examined with respect to wall height and setback.
63 On the matter of wall height, the applicant argued for the garage to accommodate his Prado 4WD with roof racks, and when asked by Mr Martin on the prospect of lowering the finished floor level of the garage in order to lower the parapet wall he responded in this way:
"Dr Doan: The level of the garage is 200 millimetres above the natural ground level because of a sloping downward gradient on the property towards the rear. So the front of the garage is approximately the same as ground level, so if we were to lower the floor level of the garage that means we would have to lower the ground level of the driveway that leads into the garage. That would increase potential for problems with water build-up around the area of the garage.
Mr Martin: Okay. You acknowledge that it would be possible to drop it, if you could overcome stormwater by way of soak wells and those sort of things.
Dr Doan: It would also have an impact on the appearance of the development should the ground level be lowered substantially below the natural level."
64 On the matter of the effect of a 1 metre setback from the boundary the following exchange took place:
"Mr Graham: Now, if there was a one metre setback for your development, what effect would that have on your building?
Dr Doan: It would mean … because of the various restrictions, Water Corporation easements and Council restrictions like requirement - turning circles, truncation, courtyard, the available land that we could actually use to build the house on is - would be significantly reduced because there is no room to offset that one metre setback. That means that we would have to reduce the floor area of the house and in fact the whole plan would need to be redesigned from scratch.
(Page 16)
- Mr Graham: What do you think of the suggestion about setting it back by 0.5 of a metre as opposed to one metre?
Dr Doan: I haven't had a chance to have a look at the plan but I would think that the plan would still need to me to be redesigned…"
65 In the view of the Tribunal the applicant is, understandably, attempting to maximise development on the site, but it would be a relatively easy exercise to redesign the proposed building (such as relocation or elimination of the storeroom) to achieve the 1 metre setback and lower the parapet wall.
66 The question before the Tribunal is whether such requirements are reasonable in the circumstances of this case, and the Performance Criteria of cl 3.3.2 P2 of the Codes as set out in [46] above need to be examined.
67 In that respect there is little doubt that the proposed development of a grouped dwelling does, and should, "make effective use of space" and in so doing would "enhance the amenity of the development" from the perspective of the applicant.
68 It is also the case that the provision of the parapet wall on the boundary would enhance the privacy of the applicants and the adjoining owners (objectors) in that there can be no overlooking along the length of the wall at ground level.
69 On the matter of a "significant adverse effect on the amenity of the adjoining property", it must be said that no argument has been mounted against the proposal on the basis of overshadowing or loss of views and at the present time the proposed garage would be substantially opposite a large Colorbond shed at the rear of the medical practice. There would, therefore, be no significant adverse effect.
70 On the matter of "ensuring direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted", the situation today is that No 90 Salisbury Street operates as a successful multi-faceted medical practice and no residential habitable rooms or outdoor living areas would be affected by the proposal.
71 It is also the case that if No 90 Salisbury Street was to be redeveloped for residential purposes in the future, that with residences facing towards the nearby park the rear of those residences would be adjacent to an accessway on the subject land. This configuration should ensure direct sun to habitable rooms and outdoor living areas for those
(Page 17)
- residences adjacent to the accessway.
72 Although there is no residential proposal before it for No 90 Salisbury Street at this time, the Tribunal would acknowledge that the land is zoned for residential purposes and could be developed for housing at some future time. Conversely, it may well be that the medical practice continues indefinitely.
73 As such, there is an obligation on the Tribunal to reach a prudent and balanced decision, taking into account the specific circumstances of this case.
74 This can best be achieved by setting the respondent's condition No 13 to one side, but replacing it with a condition to reduce the height of the proposed parapet wall to 3 metres maximum.
75 The Tribunal does not accept the substance of the applicants' arguments to justify an average wall height of 3.3 metres, but does accept the substance of the argument to allow the boundary parapet wall.
Orders
76 For the foregoing reasons, the orders of the Tribunal are as follows:
1. That in accordance with s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA):
a. the decision under review is set aside and substituted with a new condition 13 to read:
"the height of the proposed parapet wall to be reduced to 3 metres maximum."
I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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