DOUGLAS and CITY OF FREMANTLE
[2008] WASAT 2
•4 January 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DOUGLAS and CITY OF FREMANTLE [2008] WASAT 2
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 JANUARY 2008
FILE NO/S: DR 72 of 2007
BETWEEN: WILLIAM DOUGLAS
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development application for installation of air-conditioning unit - Heritage listed building
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 2.3.2, cl 2.6, cl 7.1.1, cl 7.1.7, cl 10.2.1
City of Fremantle Town Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr C Lynch
Solicitors:
Applicant: Self-represented
Respondent: City of Fremantle
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application by the City of Fremantle for the installation of air‑conditioning units at No 25 Parry Street, Fremantle.
It was the City of Fremantle's view that the location of the proposed air‑conditioning units would compromise the built form of the heritage listed terrace and have a negative impact on the Parry Street streetscape.
The applicant argued that past modifications had already impacted the heritage significance of the place and that the proposed location of the units would have a minimal visual impact on the streetscape.
The Tribunal determined that, notwithstanding past modifications, the terrace (and subject site) was substantially intact and had heritage significance in its current state. Further modifications would be likely to adversely affect the built form and the heritage significance of the place.
The application for review was dismissed and the decision of the respondent affirmed.
Introduction
These proceedings involve an application brought by Mr William Douglas (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision made by the City of Fremantle (respondent or Council) on 7 February 2007 to refuse development approval for the installation of air‑conditioning units at No 25 Parry Street, Fremantle (subject land or site).
Site and locality
The subject land is located at No 25 (Lot 8) Parry Street, Fremantle and is described as Lot 8 on Strata Plan 6413 Certificate of Title Volume 2023 Folio 635 and has an area of 228 square metres.
The existing building is one of a terrace of four single storey stone and iron buildings. The terrace, which includes No 25 to No 31 Parry Street, is listed on the City of Fremantle's Municipal Heritage Inventory (MHI) and has a Management Category 1B.
According to heritage advice prepared by Palassis Architects for the Council, "the place is identified as being a fine, substantially intact example of an attached group of stone residences dating from the period of expansion of Fremantle in the late nineteenth and early twentieth centuries".
Two air‑conditioning units have been installed on the front elevation and sit on the roof above the verandah. It is agreed by both the applicant and the respondent that in this location, the units are highly visible and detract from the appearance of the building.
The Tribunal was aided by a site inspection on 24 September 2007.
Planning framework
The subject land is zoned "Central City" under the Metropolitan Region Scheme.
The original development application was assessed under the City of Fremantle Town Planning Scheme No 3 (TPS 3). The respondent has since adopted a new town planning scheme, the City of Fremantle Local Planning Scheme No 4 (LPS 4 or Scheme), which was gazetted on 8 March 2007 and supersedes TPS 3.
Clause 2.3.2 of LPS 4 states that local planning policies do not form part of the Scheme and are not binding with respect to planning approval applications but that "the Council is to have due regard to the provisions of the policy and the objectives which the policy is designed to achieve before making its determination".
Clause 2.6 of LPS 4 refers to local planning policies made in accordance with the provisions of TPS 3. These policies continue to have effect as if made under LPS 4.
Under cl 7.1.1 of LPS 4, the Council is to establish and maintain a heritage list which identifies places of cultural heritage significance and worthy of conservation.
Clause 7.1.7 of LPS 4 states that the MHI established under TPS 3, is to comprise the heritage list under LPS 4. The following note appends to the clause.
"Note: 1. The purpose and intent of the heritage provisions are ‑
(a)to facilitate the conservation of places of heritage value; and
(b)to ensure as far as possible that development occurs with due regard to heritage values."
Clause 10.2.1 of LPS 4 lists matters to be considered by Council and this Tribunal on review, when considering applications for planning approval, and subclause (f) specifically refers to "any planning policy adopted by the Council under [cl] 2.4, and heritage policy statement for any designated heritage area adopted under [cl] 7.2.2 and any other plan, strategy or guideline adopted by the Council under the Scheme".
Relevant planning policies
The following planning policies and guidelines are relevant to this review:
•D.B.H1 Urban Design and Streetscape Guidelines (DBH1)
•D.B.H5 Satellite Dishes, Air Conditioners and Antennas (DBH5)
•D.B.H13 Impact of Development on Heritage Places Policy (DBH13)
•D.G.F1 High, Parry, Holdsworth and Queen Streets Local Area (DGF1)
Proposed development
The proposed development is the installation of two air‑conditioning units on the front facade of the subject land. Each air‑conditioning unit is 570 millimetres wide, 500 millimetres high and 260 millimetres in depth, and is to be mounted under the eaves of the front verandah and fixed to the external wall of the building at a height of 2800 millimetres above the verandah floor level.
Council's decision
The application for planning approval for the installation of air‑conditioning units at the subject land was refused by the Planning Services Committee at its meeting on 7 February 2007 for the following reasons:
"1.The air[-]conditioners are inconsistent with Council policies D.B.H5, D.B.H1 and D.G.F1 as they adversely impact upon the heritage value of the building and the proposal will compromise the existing built form.
2.The air[-]conditioners are incompatible with the existing building in terms of its design, bulk, colour, height and general appearance is considered generally unacceptable."
The Tribunal invited the Council to reconsider its original decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) when the applicant received expert advice from heritage architect Mr Ronald Bodycoat.
The proposal was reconsidered at the Council's Planning Services Committee meeting on 16 May 2007. The application for planning approval was refused for the same reasons as above and included the following resolution:
"3.Require the applicant to relocate the air[-]conditioners to the rear of the premises within 28 days of this decision. Failure to comply with this direction will result in enforcement action being undertaken."
The applicant's case
The applicant agrees that the current location of the air‑conditioning units fixed to the front roof of the subject site detracts from the appearance of the property and that they should be moved.
It is the applicant's proposal to relocate these units under the verandah and as high as possible on the front limestone wall of the subject site. In a letter to the Council, the applicant expressed his opinion that this location would result in "no visual impact whatsoever, because they will be completely invisible from every aspect of the streetscape".
Following refusal of development approval, the applicant sought advice from Mr Bodycoat. In a letter dated 11 April 2007 to the applicant, Mr Bodycoat agreed that the current location of the air‑conditioning units did "detract from the historic character of the terrace and of [the subject site] in particular". He also supported the proposed relocation because "in that location, units will have little if any visual impact on the streetscape and will not be visible unless viewed from a point at the balustrade of the verandah".
In this letter and in his witness statement, Mr Bodycoat lists changes relating to the physical form and fabric of the entire terrace which includes No 25 to No 31. These changes include: air‑conditioning equipment sited to the rear roof and walls of the terrace; additions and alterations to the rear of the houses; new roof sheeting; new balustrading and columns; alterations or removal of some chimneys and parapet walls; concrete verandah floors; surface mounted conduits; and security bars or grilles to some windows.
Specific alterations to the elevation of the subject site are: an addition to the north wall; metal bars to windows; concrete verandah floor; surface mounted electrical cabinet and conduits; and painted modern bricks to windowsills.
Mr Bodycoat is of the opinion that the subject site should be considered within the context of the whole terrace as "the entire building has an impact on the streetscape, including in this case the rear yard and the western roofs and walls of all four houses, clearly visible from Holdsworth Street". He argues that there has been considerable change to all four buildings, the extent of which reduces the cultural heritage significance of the terrace and the proposed location of the air‑conditioning units is therefore in accordance with DBH5. Mr Bodycoat said:
"The relocation:
‑will not have a significant impact on adjoining sites or the general locality[;]
‑will not adversely impact on the visual amenity of the adjoining area[;]
‑will not obstruct significant vistas[;]
‑will not adversely impact upon the heritage value of the building[;]
‑will have minimal visual impact[;]
‑will not negatively impact upon the architectural integrity of any existing building."
The respondent's case
The respondent's first reason for refusal refers to policies DBH5, DBH1 and DGF1, and specifically, the adverse impact of the air‑conditioning units on the heritage value of the building and the existing built form.
The conclusion of the report prepared for the Planning Services Committee meeting on 7 February 2007 was that "the air[-]conditioners will affect the heritage significance of the building and it is recommended that the air[‑]conditioners be installed at the rear of the building or in a location that is not visible from the street so as not to detract from the heritage significance of the building". This conclusion was based on internal heritage advice that "the visibility of the units has a negative impact on the aesthetics of the original form and to the historical value of the terraces … [they] … also have a negative impact on the relatively intact Parry Street streetscape".
Mr Christopher Lynch, council planning officer, assessed the proposal with regard to these policies in his witness statement.
In regard to DBH1, Mr Lynch was of the opinion that "the streetscape of Parry Street in the area from the subject site towards South Terrace has been recognised by Council as being of significant value in its current condition by virtue of the inclusion of the buildings on the City's Heritage list".
In regard to DGF1, he said "the air‑conditioners will compromise the built form of the terraces and will impact on the heritage significance of the building".
In regard to DBH5, he said "Council shall not support proposals that will negatively impact upon the architectural integrity of the building and shall have regard to the visual impact of the air[‑]conditioner on the subject site".
Heritage advice prepared by Palassis Architects for the Council states that the terrace houses forming No 25 to No 31 Parry Street "are highly visible along Parry Street and make a significant contribution to the streetscape by virtue of their distinct building form, prominent siting and nil setbacks from the street".
Tribunal's analysis
In the course of the review the issue of existing use rights was incidentally raised in relation to a 1980s large air‑conditioning unit at the rear of the subject land. This rear existing unit was briefly touched upon in Mr Bodycoat's evidence referred to above. It was the respondent's position that as development approval was required under both the current and any previous town planning scheme, and that there was no such evidence of any such approval, then no existing use rights arose. In any event, such rights, had they existed, may have been confined to certain structures or places at the rear of the subject land.
Dr Douglas was of the view that previous approval was not required and that that was the explanation for a lack of record of any approval. He maintained that the older air‑conditioning unit was "legal and as a result I must also have an existing right to use this roof space for air-conditioning equipment." Dr Douglas could produce no evidence of the precise date of installation of this earlier unit.
In the Tribunal's view there is no material whatsoever to suggest that there are any existing use rights in relation to the earlier unit. In any case, this review is confined to an application in respect of two new air‑conditioning units to be located on the front elevation under the eaves.
The Tribunal agrees with both parties that the current position of the two air‑conditioning units is inappropriate and that they must be removed.
The respondent is of the view that the proposed location to the front elevation is not appropriate and has recommended installation to the rear of the subject site. Mr Bodycoat is of the opinion that the proposed location is appropriate as this reduces the visibility of the units. He also contends that this location does not compromise the cultural heritage significance of the place, particularly given the extent of modifications made to the subject site and the terrace as a whole.
The Tribunal notes the various modifications to the subject site and to the terrace as a whole, and agrees that the entire terrace of buildings is important with regard to both heritage significance and streetscape.
In terms of streetscape, the overall form of the terrace is intact. The building remains single storey; consists of four houses with dividing parapet walls projecting through the roof; has three chimneys remaining; verandahs have a nil street setback; and the facades are aligned and have the original proportioned window and door openings.
All of the facades of the houses (including the subject site) have been modified in some form. These modifications have been mentioned above. They include the addition of surface mounted conduits, security bars and relevantly, an air‑conditioner mounted in the top sash of a window at No 29.
The Tribunal is of the view that these modifications do alter the fabric of the building and in turn affect the heritage significance of the building. That said, the addition of two air‑conditioning units to the front facade of the subject site would result in further despoliation of the building fabric and in turn adversely affect the heritage significance of the building.
The Tribunal favours the opinion of Mr Lynch and agrees that the subject site has been recognised by Council as being of significant value in its current condition by virtue of its inclusion on the MHI. Further, the Palassis report (see above) adds significant weight to this conclusion.
The location of the air‑conditioning units under the front verandah roof fixed high to the front wall means that their visibility is greatly reduced when compared to the current location. Mr Bodycoat is of the opinion that they "will not be visible except from the footpath immediately outside the building". The respondent has requested the location to be to the rear of the subject site below the roof ridge line. The Tribunal is of the view that the units will be visible by both pedestrians and visitors to the subject site if fixed under the eaves.
Clause 2 of DBH5 sets out the criteria for the consideration of applications involving the installation of satellite dishes, air conditioners and antennas as follows:
"2.1Roof mounted satellite dishes, air conditioners and/or antennas will only be permitted in instances where it can be demonstrated that they will not adversely impact on the visual amenity of the adjoining area.
2.2Satellite dishes, air conditioners and/or antennas will not be permitted within the City in instances where they will obstruct significant vistas, or instances where they will adversely impact upon the heritage value of a building.
2.3In considering an application for satellite dishes, air conditioners and/or antennas, the Council and the applicant shall be mindful of the need to appropriately position satellite dishes to ensure their minimal visual impact.
2.4In addition, the Council shall examine the impact of the proposed satellite dish, air conditioner and/or antenna specifically upon the building. To this end, the Council shall not support proposals that will negatively impact upon the architectural integrity of any existing building.
2.5In assessing development applications, the Council shall have particular regard to the visual impact of satellite dishes, air conditioners and/or antennas on the subject site, the street and the general locality in terms of its design, bulk, colour, height and general appearance."
The Tribunal finds that the proposed location of two air‑conditioning units to the front of the subject site does not satisfy cl 2 of DBH5 as it is likely to adversely impact on the visual amenity of the adjoining area, adversely impact upon the heritage value of the subject site and have a negative impact on the architectural integrity of the existing building.
Conclusion
The Tribunal has determined that the proposed installation of air‑conditioning units as described above does not satisfy the respondent's planning policy DBH5. It follows that the application for review should be dismissed and the decision of the respondent to refuse planning approval is affirmed.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 7 February 2007 to refuse planning approval for the installation of air‑conditioning units at No 25 Parry Street, Fremantle is affirmed.
I certify that this and the preceding [51] 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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