DOUGLAS and CITY OF SUBIACO
[2011] WASAT 184
•14 NOVEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DOUGLAS and CITY OF SUBIACO [2011] WASAT 184
MEMBER: MS M CONNOR (MEMBER)
MS R MOORE (MEMBER)
HEARD: 2 AUGUST 2011, FURTHER SUBMISSIONS RECEIVED 31 AUGUST 2011
DELIVERED : 14 NOVEMBER 2011
FILE NO/S: DR 83 of 2011
BETWEEN: NEIL DOUGLAS
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Demolition of existing single storey Federation Bungalow style dwelling and construction of a two storey 'Single House' West Subiaco Precinct Policy Whether dwelling reflects the scale, character, details and material of the Gold Boom and Interwar period building within the locality Streetscape Policy Whether dwelling appears as a predominantly single storey dwelling from Browne Street Maximum floor area of second storey element is not to exceed 15% of the site area Starting point of scheme is that development should be maximum of one storey Discretion to allow second level where 'no undue impact on adjoining residential or the general amenity of the locality'
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 7, cl 27(3), cl 27(4), cl 27(4)(b), cl 27(4(h), cl 30, cl 37, cl 38, cl 39(3), cl 41(2), cl 42, cl 42(1), cl 42(1)(a), cl 42(1)(b), cl 78, cl 78(8)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)
State Administrative Tribunal Act 2005 (WA), s 31
Result:
Application for review allowed
Decision of the respondent is set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr J Skinner
Solicitors:
Applicant: Hardy Bowen
Respondent: Jackson McDonald
Case(s) referred to in decision(s):
Cassidy and City of Subiaco [2011] WASAT 63
Fryer and City of Subiaco [2006] WASAT 199
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Douglas applied to the State Administrative Tribunal for review of the City of Subiaco's decision refusing planning approval for the demolition of an existing dwelling and the construction of a two storey replacement dwelling at No 21 Browne Street, Subiaco.
The principal issue that arose for determination in this matter was whether the proposed dwelling was consistent with orderly and proper planning and the conservation of the amenity of the locality, having regard to:
i)City of Subiaco Town Planning Scheme No 4, in particular cl 27(4)(h), cl 41(2) and cl 42(1);
ii)Residential Design Codes of Western Australia (2010);
iii)City of Subiaco West Subiaco Precinct Policy; and
iv)City of Subiaco Policy 3.1 Streetscape Policy.
As the starting point for development on land zoned Residential R20, which includes the subject land, is effectively a maximum of one storey, the exercise of discretion was required to permit the proposed dwelling as the proposal exceeded both the overall height and wall height requirements specified in cl 42(1)(a) of the City of Subiaco Town Planning Scheme No 4. In order for the Tribunal to exercise the power to vary the maximum height standards prescribed by the City of Subiaco Town Planning Scheme No 4, the Tribunal was required to be satisfied that there was no undue adverse impact on adjoining residential sites or the general amenity of the locality. Further, the Tribunal was required to have regard to two relevant planning policies, which require the Tribunal to be satisfied that the proposed dwelling reflects the scale, character, details and materials of the Gold Boom and Interwar period building within the street block and locality or immediate vicinity, and is consistent with the streetscape and neighbourhood character of the locality.
Although modern in design, the Tribunal was satisfied that in the context of the wider locality, the design of the dwelling was not dissimilar to other dwellings with two storey elements within the locality and would not appear out of character with the pattern of development in the locality or the streetscape of Browne Street. The Tribunal found that the proposed dwelling would not have any significant adverse impact on the amenity of adjoining residential sites or the general amenity of the area. Further, the Tribunal was satisfied that the dwelling was generally reflective of the scale, character, details and materials of the Gold Boom and Interwar period building within the immediate vicinity and that it would appear as a predominantly single storey dwelling when viewed from Browne Street.
The Tribunal determined that discretion should be exercised to allow the dwelling and to grant conditional development approval.
Introduction
Mr Neil Douglas (applicant) made application to the City of Subiaco (respondent or City) on 29 October 2010 for the demolition of the existing dwelling and construction of a new two storey dwelling at No 21 (Lot 44) Browne Street, Subiaco (subject land).
The application was refused by the respondent on 9 March 2011. On 14 March 2011, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
In May 2011, the parties engaged in a mediation process facilitated by a Tribunal member, which resulted in a modified proposal being submitted by the applicant. Consequently, the respondent was invited by the Tribunal to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting of 14 June 2011, the respondent refused the modified dwelling, for the following reasons:
1.The proposed new two storey dwelling does not satisfy clause 28(3) of Town Planning Scheme No 4 as it is not consistent with the orderly and proper planning of the locality and would have an undue adverse impact on the likely future development of the locality.
2.The proposal does not satisfy the requirements of the City's Streetscape Policy in relation to the size of the upper floor.
3.The proposed new two storey dwelling does not satisfy clause 41(2)(f) of Town Planning Scheme No 4 as it does not enhance the amenity of the residential neighbourhood and does not preserve the character of the existing housing stock.
4.The proposed new two storey dwelling is not consistent with the desired future character of the locality specified within the City's West Subiaco Precinct Planning Policy.
It is the modified dwelling (dwelling) that is the subject of the final hearing. The issue of the demolition of the existing dwelling was expressly removed by the respondent and the parties proceeded on the basis that the issue in dispute concerned the replacement dwelling only.
Subject land
The subject land is referred to as No 21 (Lot 44) Browne Street, Subiaco and is 531.164 square metres in area. The lot is rectangular in shape, with a frontage of 13.74 metres and a depth of 38.5 metres, and abuts two 4 metre wide rights of way on the southern and western boundaries. There is currently a single house with ancillary outbuildings on the lot.
The land slopes down slightly from north to south by approximately 0.4 metres and slopes down moderately from east to west by approximately 1.9 metres.
Proposal
The proposed development involves the demolition of a single storey dwelling designed in a Federation Bungalow style and the construction of a single house comprising a two storey rendered brick and tile dwelling with a garage incorporating a loft, accessed from the rear right of way.
The single storey element of the dwelling is set back 5.150 metres and 6.360 metres from the primary street boundary, with a gabled portico to the entry, set back 4.530 metres from the primary street boundary.
The second storey element of the dwelling is 88 square metres in area and located entirely within the middle third of the lot, and is setback 12.78 metres from the primary street boundary. The wall height of the second storey element appears to be 6 metres above natural ground level at its maximum and has a maximum overall height that measures approximately 8.5 metres above natural ground level to the ridge.
The roof form of the dwelling is hipped and gabled, with a gabled portico over the front entry.The pitch of the roof is proposed to be 35 degrees, although an alternative front elevation has been provided showing the pitch of the roof at 32 degrees.
Planning framework
The subject land is zoned Residential with a density coding of R20 under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme).
Clause 7 of the Scheme sets out the 'Objectives and Intentions' of TPS 4. The general objectives of the Scheme that are of particular relevance to this application are:
…
b)to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, … ;
…
f)to coordinate and ensure that development is of a high quality and is completed in an efficient and environmentally responsible manner which:
i)makes optimum use of the City's infrastructure and resources;
ii)promotes an energy-efficient environment; and
iii)respects the natural environment.
g)to promote and safeguard the special character and cultural heritage of the City by:
i)identifying, conserving and enhancing those places which are of significance to the City's cultural heritage;
ii)encouraging development that is in harmony with the cultural heritage value of an area; and
iii)promoting public awareness of cultural heritage generally.
Clause 37 of TPS 4 divides the Scheme area into precincts and notes that for each precinct there is a planning policy contained in the respondent's policy manual. The subject land is located in Precinct 9 'West Subiaco', in the area referred to as 'South of Bagot Road' in the City of Subiaco West Subiaco Precinct Policy (West Subiaco Policy).
Clause 41(2) of the Scheme sets out the aims and objectives of the Residential zone and requires that regard be given to the specified objectives. The respondent contended that the proposal does not meet the following objectives:
…
(c)the protection of residential areas from disproportionate or excessive development by regulating … the finished heights of buildings;
…
(f)to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock[;]
(g)to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping;
…
Clause 38 of the Scheme requires that '[u]nless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Residential [Design] Codes'. In addition, cl 39(3) of TPS 4 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design] Codes is to conform to the provisions of those Codes'.
Clause 42 of TPS 4 sets out provisions for variations to the Residential Design Codes of Western Australia (2010) (Codes) with respect to the residential purposes dealt with by those Codes. Clause 42(1) of TPS 4 is relevant to this matter and provides as follows:
(a)Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height[.]
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
As the proposed development exceeded the overall height and wall heights as specified in cl 42(1)(a) of the Scheme, an exercise of discretion is required to permit the two storey development. This discretion can only be exercised if the decisionmaker is 'satisfied that there is no undue adverse impact on adjoining residential sites or the general amenity of the locality'. TPS 4 defines the term 'amenity' as '… all those factors, which combine to form the character of an area and include the present and likely future amenity'.
Clause 27(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 27(4) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the provisions of the Scheme (subclause (a));
•any relevant planning policy (subclause (b));
•the orderly and proper planning of the locality (subclause (f));
•the conservation of the amenity of the locality (subclause (g); and
•the design, scale and relationship to existing buildings and surroundings of any proposed building or structure (subclause (h)).
Clause 30 of the Scheme specifically relates to the determination of applications for demolition and states:
(1)In considering an application for or involving demolition, the Council is to have regard to the matters listed in clauses 26 [Advertising of Applications for Development Approval] and 27 [Determination of Application: General Provisions] and:
(a)may defer consideration of the application until it has granted development approval for subsequent development of the relevant site.
…
(b)may approve the application, subject to conditions including:
(i)the retention, maintenance, reinstatement or repositioning of any part of the existing building or structure;
(ii)where the development that has been approved has not been substantially commenced within a total period of more than six months, landscaping of or other treatment of the site is to be undertaken to the satisfaction of the Council; or
(c)may refuse the application.
Clause 78 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme. These policies may be applied to all or part of the Scheme area. The planning policy of the respondent that is relevant to this review is Policy 3.1 Streetscape Policy (Streetscape Policy). According to the respondent, this policy has been formulated and adopted by the Council in accordance with the provisions of cl 78 of the Scheme.
Clause 78(8) of the Scheme provides that a planning policy prepared under cl 78 shall be consistent with the Scheme and where any inconsistencies arise, the Scheme prevails. Clause 27(4)(b) of the Scheme requires consideration of planning policy in the determination of an application.
Issues
As noted in [9], the respondent expressly removed the demolition of the existing dwelling as an issue in these proceedings. Although the Tribunal exercises an independent planning review function, it is generally guided in relation to the identification of issues for consideration by the original decisionmaker and, to some extent, by the applicant. However, at the commencement of the hearing, the Tribunal raised the issue of the demolition of the existing dwelling with the parties and was informed by the respondent that, as there was no formal recognition of the heritage value of the property by way of a listing or any inclusion in a specific heritage area, it did not intend to advance the argument or lead evidence in support of refusing demolition of the existing dwelling on heritage grounds. The Tribunal considered the submissions made by the parties in respect to this issue, had the benefit of a view of the site and considered State Planning Policy 3.5 Historic Heritage Conservation, and was satisfied that there was insufficient evidence to lead the Tribunal to itself undertake an inquiry in relation to this issue.
The issues as identified in the statement of issues, facts and contentions of the parties were reframed by the planning experts in their conferral. In essence, the issue to be determined by the Tribunal is:
1)Whether the dwelling is consistent with orderly and proper planning and the conservation of the amenity of the locality, having regard to:
i)TPS 4, in particular cl 27(4)(h), cl 41(2) and cl 42(1);
ii)the Codes;
iii)the West Subiaco Policy; and
iv)the Streetscape Policy.
The respondent contended that the dwelling failed to satisfy the two principal elements contained in the West Subiaco Policy and the Streetscape Policy for the following reasons. Firstly, the dwelling is not characteristic of the Gold Boom and Interwar period buildings in the locality, as it does not reflect the design and character of that aspect of the locality generally and Browne Street in particular. Secondly, the second storey element of the dwelling does not meet the objectives of the Streetscape Policy, as the dwelling will not appear as a predominantly single storey house as viewed from the primary street. Thirdly, the dwelling fails to accord with the 15% limit on the upper floor level as specified in cl 6.4.2 of the Streetscape Policy. Fourthly, the dwelling will be very different to that which appears in the surrounding development and the entire length of Browne Street and as such, will have an overall adverse impact on the character of the locality. The respondent submitted that, for these reasons, the discretion available under cl 42(1)(b) of TPS 4 to permit a variation to the overall height and wall height of a building should not be exercised and the proposed development should not be approved.
Experts called by the parties
In relation to this issue, the Tribunal had the benefit of expert evidence from the following planning witnesses:
•Mr Stephen Allerding, a consultant town planner, who gave evidence for the applicant;
•Mr Ian Hocking, a consultant heritage architect and town planner, who gave evidence for the applicant; and
•Mr Tayne Evershed, a consultant town planner, who gave evidence for the respondent.
Discussion of the case
The experts usefully considered the dwelling in light of each of the planning instruments referred to in [16] [26] and identified, in the joint witness statement of the planning experts (joint statement), matters agreed, matters not agreed and the reasons for any disagreement. The experts also gave evidence concurrently at the hearing. The Tribunal has been greatly assisted by this process.
The Codes
With respect to the Codes, the experts agreed that there are no issues that arise, other than to the extent of Element 6.2.7 Building Design, which refers to the consideration of adopted local planning policies with respect to building design. The local planning policies that may apply under this element were identified as the West Subiaco Policy and the Streetscape Policy and are discussed below.
The West Subiaco Policy
It was agreed that the subject land is located in the identified residential area of 'South of Bagot Road', and that this area is valued for its stock of Gold Boom and Interwar era buildings and relative intact streetscapes. The objective identified for this area is to encourage the consolidation of the existing pattern, character and mix of residential development. It was further agreed that the desired further character for 'South of Bagot Road' is such that any change or redevelopment should reflect the scale, character, details and materials of the Gold Boom and Interwar period buildings within the street block or immediate vicinity.
Mr Hocking, in the joint statement at paras 30 32, described the character of Browne Street and the immediate vicinity as follows:
Browne Street[,] Subiaco is two blocks in length, running between Hamersley Road, at is northern end, and Heytesbury Road, at its southern end. Redfern Street crosses Browne Street at is mid point.
Browne Street slopes from north to south. The streetscape of Browne Street is characterised by mature street trees which strongly frame views to the existing residential building stock. Existing houses are of Gold Boom and Interwar periods in origin[;] however, most have been considerably adapted in character due to the changes in finishes, details, some enclosures and several changes to original front curtilage treatments. Fifteen of the original houses survive, albeit in adapted form, including the subject [land]. One of the original houses has been demolished and is in the process of being replaced with a new, approved part one and two storey residence.
The streetscape of Browne Street is terminated by the Hamersley Road streetscape at its northern end and the streetscape of Heytesbury Road at its southern end. In the near vicinity of Browne Street, that is[,] within the comparable streetblocks of View Street and Hensman Road and the connecting portions of Hamersley and Heytesbury Roads[,] there are 107 existing dwellings of which [28] have part two storey development visible from the street. From within the road reserve of Browne Street it is possible to see [at least 10] residences with part two storey developments. (See Attachment 1)[.] There is considerable variation in the degree to which the part two storey developments present to the street[;] nonetheless[,] part two storey development is quite characteristic of more recent developments in the near vicinity of Browne Street. New development in the near vicinity of Browne Street, which is wholly within the area of the City's West Subiaco Precinct Policy area, is characterised by a more contemporary character, with different finishes and materials than the adapted original residences. …
The Tribunal undertook a view of the subject land and immediate vicinity with the parties and considers Mr Hocking's description to be a fair assessment of the visual character of Browne Street and the immediate vicinity.
The respondent argued that the dwelling is inconsistent with the West Subiaco Policy because it is not characteristic of Gold Boom and Interwar period housing in the street block or in the immediate vicinity. Mr Evershed considered the 'increased height' of the dwelling to be an 'uncharacteristic intrusive element' that did not reflect the scale and character of the existing single storey Gold Boom and Interwar period dwellings in the area. He was also concerned that the design of the dwelling failed to incorporate a key detail of the Gold Boom and Interwar period, namely, a verandah, an element that is common to all dwellings in the street block.
Although modern in appearance, the dwelling is reflective of the character of the Gold Boom and Interwar period in that it is a free standing single dwelling incorporating a number of the design details characteristic of the buildings from these periods, including such elements as terracotta roof, two front rooms and a central streetfacing entry, gable features, and rendered and painted masonry walls. Whilst it is acknowledged that the dwelling does not incorporate a verandah, which is an element that is common to the style of architecture of the identified periods, the Tribunal does not consider this to be fatal to the design as these architectural periods incorporate a wide range of design details and in that context, the portico could be considered a variation of the verandah element.
In terms of scale, the dwelling presents as a single storey building with a hipped roof and a gabled portico to the entrance which is generally reflective of the Gold Boom and Interwar period. The two storey element, although not a common feature in the Gold Boom and Interwar period of housing, is set back a considerable distance from the primary street boundary (12.78 metres), which reduces the impact of the 'increased height of the building' on the streetscape. In addition, the dominant roof form of the single storey element assists in masking the full effect of the second storey element on the streetscape. As pointed out by Mr Hocking, there are 28 dwellings in the immediate vicinity that have part two storey development visible from the street, and at least 10 of these can be seen from within the road reserve of Browne Street. The location and design of the second storey element of the dwelling is not dissimilar to other two storey developments in the immediate vicinity.
The Tribunal is satisfied that the design of the dwelling is generally reflective of the scale, character, details and materials of the Gold Boom and Interwar period buildings within the street block or immediate vicinity.
Streetscape Policy
This policy aims to 'protect and reinforce the existing development patterns identified in different parts of Subiaco through appropriate design whilst also encouraging innovative housing design that meets the needs of a changing community'. A core principle for this policy is 'that development is to be consistent with the streetscape and neighbourhood character of its locality (ie height, front setbacks, side setbacks and bulk)', which is to be determined with reference to 'surrounding development' as defined in the policy. In relation to scale and proportion, new development is to have a comparable scale and proportion to surrounding development as viewed from the street. For 'Houses of Increased Height', such as the proposed development, the policy requires that it be designed 'as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%). This includes a requirement for any two storey development to be located in the middle third of the lot, which is the case in this instance'.
The surrounding development, with the exception of No 17 Browne Street, is identified by the experts as being constructed during the Gold Boom and Interwar period. With the exceptions of No 17 Browne Street, which is identified by the respondent as an 'uncharacteristic' example of building in the surrounding development and therefore not to be considered in the streetscape assessment, and No 8 Browne Street, which has a two storey addition, all of the existing houses are single storey and share common design features such as gables, verandahs, and rendered and painted masonry walls.
The Streetscape Policy also provides that the maximum floor area of the second storey portion of the building of increased height is not to exceed 15% of the site area. It was common ground that the proposed development is 1.57% (or 9 square metres) in excess of the 15% requirement.
The respondent contended that the scale of the dwelling is not consistent with the scale and proportions of the surrounding development. The respondent submitted that the dwelling does not appear as a predominantly single storey dwelling as viewed from Browne Street, as the street elevation contains a significant second storey element that is visually evident from Browne Street.
Mr Evershed considered that, notwithstanding that the sight line as depicted (in plans) shows that, at that point along the front boundary, the second storey of the dwelling is obscured by the view of the single storey element, the second storey is clearly visible from other viewpoints along the front boundary, as well as from other locations in Browne Street. It was his impression that the dwelling was not predominantly single storey and that the second storey element would be clearly visible from a number of locations, including the rights of way either side of the boundaries of No 21 Browne Street and from other locations in Browne Street.
Mr Hocking agreed that parts of the second storey of the dwelling would be visible from the footpath on the same side of the street as the subject land and that the second storey would not be wholly masked by the single storey element. He also agreed that the second storey would be visible from Browne Street at the junction of the rights of way and from the other side of Browne Street outside of No 20 and No 22 Browne Street. However, he argued that the view of the second storey element from further up and down Browne Street would be masked by the street trees, which he described as 'forming such a strong framing element that the streetscape is either a streetscape of street trees or a streetscape of small elements of built form'.
It was common ground that the analysis of the 'surrounding development', as defined in the Streetscape Policy, found that the streetscape and neighbourhood character of the locality consists of predominantly single storey dwellings as viewed from the primary street, with varying front setbacks ranging from 3.8 metres to 7.4 metres.
The Tribunal acknowledges that the preferred policy position is that where there is no two storey development in the 'surrounding development', the second storey element of the development should be contained within the roof space. However, as conceded during the hearing, this is not the case in this instance as, in addition to No 17 Browne Street (cited by the respondent as an uncharacteristic example), the dwelling at No 8 Browne Street incorporates a two storey element that is visible from the primary street. As observed by Mr Allerding, the Streetscape Policy does not require that no part of the second storey element be visible from the primary street, only that the dwelling appear as a predominantly single storey dwelling and that the development is consistent with the streetscape and neighbourhood character of its locality.
The dwelling will appear as a predominantly single storey dwelling from Browne Street with oblique views of the two storey element, which is set back more that 12 metres from the primary street. The roof form of the single storey element is similar to that of other single storey dwellings in the street and assists in ameliorating the potential impacts of the second storey element on the streetscape. The Tribunal is satisfied that the dwelling, when viewed from the primary street, will appear as a predominantly single storey dwelling and will be of a comparable scale and proportion to the surrounding development. However, under cl 6.4 of the Streetscape Policy, the maximum floor area of the second storey element is not to exceed 15% of the site area. The second storey element of the dwelling is marginally in excess of this requirement. Mr Hocking gave evidence that it would be possible to reconfigure the second storey element to comply with the policy requirement but that the reduction would not impact on the streetscape presentation of the subject land, the amenity of the neighbouring properties or the amenity of the locality. All this may be accepted; however, the applicant has not put forward any compelling reason for the increase of the floor area, other than that the differential of 1.57% is 'trivial almost to the point of insignificant'. Accordingly, there is no cogent reason to depart from the prescribed standard under the policy, other than that it appears convenient. Therefore, the Tribunal does not support the proposed variation and, as such, a condition requiring the reconfiguration of the second floor element to meet with the 15% requirement of the Streetscape Policy will be imposed on any approval of the application.
TPS 4
The statutory framework relating to the application for review is not in dispute and there was agreement that TPS 4 contains particular emphasis on the design of new development being compatible with that of the existing streetscape and surroundings. As has been discussed in previous decisions (see Cassidy and City of Subiaco [2011] WASAT 63 and Fryer and City of Subiaco [2006] WASAT 199), the starting point for development on land zoned Residential and coded R15 or R20, including the subject land, is to have a maximum of one storey and the exercise of discretion, which is informed by the Streetscape Policy, is required to permit buildings of increased height. However, in order for the Council, and the Tribunal on review, to exercise the power to vary the maximum height standards as specified in cl 42(1)(b) of TPS 4, it must be satisfied that that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
During the hearing, it was agreed by the experts that 'locality' as referred to in cl 42(1)(b) of TPS 4 was wider than the areas identified in both the West Subiaco Policy and the Streetscape Policy and that the area identified in Attachment 1 would generally define the locality for the purposes of cl 42(1)(b) of the Scheme, although Mr Evershed considered that some greater weight should be given to the dwellings that are located closer to the subject land.
In the context of the wider locality, the Tribunal is satisfied that the dwelling is consistent with the development pattern and characteristics identified in this locality. Attachment 1 shows that within the locality there are at least 28 dwellings that have part two storey development visible from the street and of those, 10 are visible within the road reserve of Browne Street. In this context, the proposed development is not dissimilar to other dwellings with two storey elements within the locality and will not appear out of character with the pattern of development in the locality or the streetscape of Browne Street. Therefore, the Tribunal is satisfied that the proposed development will not have any undue adverse impact on the general amenity of the locality.
In relation to adjoining residential sites, the subject land has a right of way to both the south and west boundaries and therefore the only lot potentially impacted by the proposed development is the lot to the north of the subject land (No 19 Browne Street). The second storey element is located to the south of the adjoining property and therefore there is no overshadowing. Further, there are no privacy issues as window openings to the north comply with the requirements of the Codes. The upper storey element of the dwelling is set back a minimum of 1.5 metres from the northern boundary, which is also compliant with the Codes. The Tribunal is satisfied that the dwelling will not have any undue adverse impact on the adjoining sites.
Conclusion
The Tribunal, guided by the West Subiaco Policy and the Streetscape Policy, considers that in the circumstances of this case, it is appropriate that the discretion available under cl 42(1)(b) of TPS 4 be exercised. The Tribunal is satisfied that there is no undue adverse impact on adjoining residential sites or the general amenity of the locality.
For the above reasons, the Tribunal is satisfied that the proposed dwelling will not prejudice orderly and proper planning of the locality and is consistent with the conservation of the amenity of the locality and as such, planning approval is warranted, subject to conditions.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 14 June 2011 with respect to the development application for the demolition of the existing dwelling and the construction of a new two storey dwelling at No 21 (Lot 44) Browne Street, Subiaco is set aside and a decision is substituted that planning approval is granted for the demolition of the existing dwelling and the construction of a new two storey single house at No 21 (Lot 44) Browne Street, Subiaco subject to the following conditions:
i)Prior to the commencement of demolition, two copies of archival records consisting of the following information are to be submitted to the satisfaction of the Manager Planning Services:
a)A site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished.
b)Photographs of all four elevations of the building, its interior and any special architectural features. These photographs are to be appropriately labelled and are to be provided in plastic archival sleeves.
c)Any available historical information on the building.
ii)The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.
iii)Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.
iv)The development is to be carried out in accordance with the plans and drawings dated 19 May 2011 included with the application for review (DR 83 of 2011), with only minor modifications as the Manager Planning Services approves prior to commencement of the development.
v)The second storey element of the dwelling is to be modified so that the total floor area of the second storey does not exceed 15% of the total area of the site.
vi)The front fence is not to exceed 1.8 metres in height from natural ground level and is to be visually permeable above 0.9 metres in height from natural ground level.
vii)Prior to occupation, brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development. Details of the finishes are to be submitted prior to the commencement of development to the satisfaction of the Manager Planning Services.
viii)All car bay dimensions are to accord with Australian Standard AS 2890.1.
ix)A 1.5 metre by 1.5 metre visual truncation is to be provided at all vehicle access points and is to be maintained at all times. No walls, landscaping or visually impermeable fences greater than 0.75 metres in height above natural ground level are to be located within this truncation.
x)All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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