DUNBAR and CITY OF STIRLING
[2006] WASAT 331
•14 NOVEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DUNBAR and CITY OF STIRLING [2006] WASAT 331
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 7 NOVEMBER 2006
DELIVERED : 14 NOVEMBER 2006
FILE NO/S: CC 1267 of 2006
BETWEEN: GORDON STUART DUNBAR
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - Alterations and three storey addition to single storey Federation house - Excavation of up to 2.0 metres at common property boundary to accommodate driveway and lowest level - Removal of trees to accommodate driveway - Excavation for driveway within 0.5 metre of base of two significant trees on adjoining property - Potential impact on significant trees on adjoining property - Site within heritage protection area - Whether development complies with heritage protection area design guidelines - Visual relationship between retained house and additions - Height and building form - Retention of natural ground level - Loss of mature trees - Fencing - Building height - Whether amenities of adjoining property protected - Bulk and scale - Failure by Council to produce necessary arbori-cultural evidence - Council representative and expert witness originally retained by objector - Perceived conflict of interest - Whether expert evidence should not be admitted - Tribunal able to assess evidence of expert, but retaining of expert/advocate previously retained by objector is generally undesirable and inappropriate - Discussion about inherent tension in combined roles of expert witness and advocate
Legislation:
City of Stirling District Planning Scheme No 2, cl 2.2.3, cl 2.2.3.1, cl 2.2.3.2, cl 2.2.3.2(c), Sch 4
Heritage Protection Areas Mt Lawley, Menora & Inglewood Character Retention Design Guidelines, cl 3.2.2.1, cl 3.6, cl 3.6.1
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374(2)(a)
Metropolitan Regional Scheme
Mt Lawley Heritage Protection Area Design Guidelines, cl 1.2, cl 3.2, cl 3.5, cl 3.6
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.7.1State Administrative Tribunal Act 2004 (WA), s 30
Result:
1. Application for review dismissed
2. Development approval for alterations and additions at No 16 (Lot 105) First Avenue, Mt Lawley refusedCategory: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr I Hocking (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Hocking Planning & Architecture
Case(s) referred to in decision(s):
Moullin and Town of Cottesloe [2002] WATPAT 23
Saunders and City of Nedlands [2005] WASAT 190 at [32]
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1These proceedings involved a development application for alterations and a three storey addition to a single storey Federation bungalow in a heritage protection area. The application proposed significant excavation adjoining the property boundaries.
2The Tribunal determined that the application warranted refusal on heritage grounds. The addition would not respect the scale and proportions of the existing house, because the eaves and ridge heights of the addition would be higher than the eaves and ridge heights of the house and the distinctive symmetrical roof profile would be compromised by asymmetrical elements. Furthermore, the proposal would not retain existing mature trees where possible, natural ground level and the existing low picket fence. In its conclusion, the Tribunal noted that there is opportunity to provide the type of accommodation proposed on the site in a manner which appropriately retains the house and complies with heritage guidelines. The Tribunal set out what would be required for compliance with the guidelines.
3The Tribunal also determined that, unless vegetation located on an adjoining property would not be compromised by the proposed excavation, the development would not be in accordance with performance criteria for building height concerning the need to protect the amenities of the adjoining property in terms of avoidance of excessive bulk and scale.
Introduction
4These proceedings involve an application brought by Mr Gordon Dunbar, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Stirling (City or Council) to refuse approval for a development application for alterations and a three storey addition to a single storey Federation bungalow at No 16 (Lot 105) First Avenue, Mt Lawley (site).
5The site has a regular, rectangular shape, a length of 60.35 metres, a width of 20.12 metres and an area of 1214 square metres. The site falls gently by approximately 4.5 metres from the street frontage to the rear boundary.
6The floor level of the existing house is at approximately 0.3 ‑ 0.4 metre below the level at the street frontage. The house, which was built in approximately 1915, has a symmetrical presentation to the street, with a prominent hipped roof clad in corrugated iron, symmetrical gablets with battened and stuccoed details, and encircling timber verandah to three facades, with turned timber posts and ladder detailed bressemer. The south‑eastern verandah, which is to the right when the house is viewed from the street, has been modified by removal of the timber deck to enable the parking of vehicles below the corrugated iron roof. The walls are constructed of red face brickwork with painted stucco bands and painted carpentry. It appears that the original house comprised four rooms and a rear lean‑to/verandah. A weatherboard extension and verandah has been added to the original brick building in this area. A low, detailed picket fence, with scalloped profile, forms the street boundary of the site. Vehicular access to the site is obtained via a driveway adjoining the south‑eastern boundary which leads to the carport below the corrugated iron roof of the verandah and a second metal carport further to the north adjoining the weatherboard extension.
7The site is zoned "Urban" under the Metropolitan Regional Scheme and "Low Density Residential" or "Residential R12.5" under the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme). The site and surrounding locality is included within the Mt Lawley Heritage Protection Area (Mt Lawley HPA) under cl 2.2.3 and Sch 4 of the Scheme. Clause 2.2.3.1 of the Scheme describes the intent of the heritage protection areas as follows:
"It is the intention of the Council to ensure that any new development within a Heritage Protection Area is in harmony with and reflects:
(a)the character of existing dwellings in the area; and
(b)the local streetscape and existing pattern of development."
8Clause 2.2.3.2 of the Scheme states as follows:
"Development within a Heritage Protection Area shall comply with the following:
(a)the intention of the Council under Clause 2.2.3.1 of the Scheme;
(b)unless otherwise approved by the Council, the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and
(c)the Heritage Protection Area Design Guidelines adopted by the Council."
9In 1999, the Council adopted the Mt Lawley Heritage Protection Area Design Guidelines (1999 Guidelines), in accordance with cl 2.2.3.2(c) of the Scheme. In July 2006, the Council adopted a document entitled Heritage Protection Areas Mt Lawley, Menora & Inglewood Character Retention Design Guidelines (2006 Guidelines). The 2006 Guidelines set out essentially the same character analysis and cover essentially the same subject matters as the 1999 Guidelines, although the 2006 Guidelines also relate to the Menora and Inglewood heritage protection areas. There appear, however, to be some important differences between the two documents, two of which are discussed in these reasons. It is common ground that the 2006 Guidelines have not revoked or replaced the 1999 Guidelines and that the principal assessment in this review is to be made using the 1999 Guidelines.
10The site is within the Mt Lawley (East) area under the 1999 Guidelines. The 1999 Guidelines describe the Mt Lawley (East) area as "an area of considerable significance" and "a good example in Perth of a substantially intact residential area characterised by large and medium‑sized homes from the early 19th [sic‑20th] century and inter‑war period, many of high architectural quality, in established landscaped gardens". It is common ground that, until DPS 2 was amended earlier this year, the site and the adjoining single storey Federation bungalow at No 18 First Avenue to the north‑west were listed as places on the Municipal Inventory of Heritage Places under the Scheme. At that time, the Municipal Inventory was replaced with a Heritage List under the Scheme. The Heritage List presently contains a small number of buildings, whereas a large number of buildings in the Mt Lawley HPA were listed on the former Municipal Inventory. However, the Municipal Inventory remains relevant under the provisions of the 1999 Guidelines, as the guidelines identify as a conservation objective and management strategy for Mt Lawley to "encourage retention of buildings that are listed on the Municipal Inventory".
11The development application proposes the retention and restoration of the brick portion and encircling timber verandah of the existing house and the placement of a two to three level addition to the rear of the existing house. Substantial excavation of up to approximately 2.0‑2.5 metres is proposed in the central part of the site in order to accommodate the lowest level of the proposal which would comprise a workshop, double garage, laundry and games/rumpus room. The second level, which would comprise living areas, would have its floor level 1.08 metres below the floor level of the existing house. The third level, which would contain four bedrooms and a retreat, would have its floor level approximately 150 millimetres below the eaves height of the roof above the verandah of the existing house and approximately 1.0 metre below the eaves height of the principal roof form of the existing house. Although the majority of the proposed addition would not be apparent from the street, because of the existing house and its roof form, the north‑westernmost three storey section, which would have a width of approximately 3.5 metres, would be apparent. Although this section would be set back approximately 20.0 metres from the street, its eaves height would be approximately 2.0 metres above the eaves height of the verandah and approximately 1.3 metres above the principal eaves height of the existing house. In addition, a section of building between the rear of the existing house and the remainder of the addition, which would comprise a stairway, would be apparent from the street and would present with an irregular roof form above the western part of the existing symmetrical roof form. The elevations of the proposal are contained in Attachment A to these reasons.
12The development application proposes excavation along the north‑western boundary adjoining No 18 First Avenue from the street frontage for a distance of approximately 40.0 metres in order to accommodate a driveway to gain access to a substantially excavated double garage. The depth of the proposed excavation along the boundary is up to approximately 2.0 metres. As the excavation would directly adjoin the common property boundary, structural columns and a substantial limestone retaining wall are proposed to retain the adjoining property at No 18 which, in the relevant portion of the site, is at approximately the same level as the site is at present.
13The plans of the proposed development show the removal of all trees presently on the site, other than two trees in the front set back area. Of the trees proposed for removal, a number, including a large Eucalypt, would need to be removed from the area adjacent to the common boundary with No 18 in order to enable excavation for and construction of the proposed driveway. In addition, there is a large and mature Red Flowering Gum located between the front verandah of the house at No 18 and the common boundary and a large and mature Illawarra Flame Tree between the rear deck and entertaining area of the house at No 18 and the common boundary, both of which have their base approximately 0.4‑0.5 metre from the common boundary. Both of these trees have branches extending over the site. The Red Flowering Gum has significance in the streetscape of the immediate portion of the Mt Lawley HPA. As discussed below, the Illawarra Flame Tree is of critical importance in mitigating the visual impact of the proposed addition. Approximately 0.7‑0.8 metre of cut is proposed adjacent to the base of the Red Flowering Gum and approximately 2.0 metres of cut is proposed adjacent to the base of the Illawarra Flame Tree.
14The development application was the subject of considerable discussions between Mr Dunbar and Council's officers. It appears that the officers originally recommended approval, but, in October 2005, changed their recommendation to refusal. Mr Dunbar requested an opportunity to consider the reasons which led to the change in recommendation and, ultimately in May 2006, amended plans were submitted. On 18 July 2006, the Council received a report from its officers recommending approval subject to three conditions. However, the City refused the development application for the following reasons:
"1.The proposal is contrary to the City's Heritage Protection Area Guidelines and the orderly and proper planning of the Mt Lawley heritage precinct.
2.The bulk and scale of the addition is in conflict with the heritage objectives of the locality.
3.The proposal will be injurious to the amenity of the adjoining property at HN18 First Avenue, Mt Lawley."
15Mr Dunbar commenced these proceedings on 21 August 2006, having mistakenly identified the enabling provision as s 374(2)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) and the review as concerning refusal of building plans and specifications. However, it is apparent, and the parties each accept, that the proceedings are in fact for review of the City's decision to refuse the development application. It is common ground that the review is in relation to the amended plans submitted in May 2006.
16In his application, Mr Dunbar also requested the Tribunal to instruct relevant State authorities to advise the City "in relation to the administrative and decision making processes in order to deliver more equitable and efficient service to the ratepayers of the City of Stirling". Mr Dunbar is concerned by the length of time it took the City to process and determine the development application. Although the development application appears to have taken an extraordinarily long period to be assessed and determined, the Tribunal does not have jurisdiction to entertain this aspect of Mr Dunbar's application. It is also noted that Mr Dunbar could have commenced proceedings for review of the deemed refusal of the development application in the first half of 2005.
Issues for determination
17The following two principal issues arise for determination in the review:
1.Whether the proposed development complies with the 1999 Guidelines.
2.Whether the amenities of the adjoining property at No 18 First Avenue are protected in terms of visual bulk and scale.
18The Tribunal will address each of these issues in turn, after considering a preliminary matter which was raised by Mr Dunbar in the proceedings.
Servant of two masters?
19The City retained Mr Ian Hocking, an architect and town planner, to both represent it as its advocate and to give expert evidence on its behalf in these proceedings. There is an inherent tension in a person acting as both expert witness and advocate in Tribunal proceedings. An expert witness' primary duty is to assist the Tribunal to arrive at the correct and preferable decision, irrespective of the position of the party who called the expert to give evidence. Although it is common for experts to express and debate professional disagreement with one another in order to assist the Tribunal, the expert's function is not to advocate one party's position over another's. In contrast, the advocate's role is to persuade the Tribunal as to the correctness of his or her client's position in the proceedings. (See Saunders and City of Nedlands [2005] WASAT 190 at [32]).
20Notwithstanding this tension, the Tribunal has to date adopted the practice of former adjudicators it has replaced of permitting a person to act both as expert witness and advocate in planning review proceedings, particularly where they relate to relatively minor developments, in order to allow parties to minimise costs. In such cases, the Tribunal has adopted the pragmatic approach that, as an expert planning tribunal, it can distinguish between when a person is applying professional expertise to assist it and when a person is advocating a cause, and can determine the appropriate weight to give to evidence of an expert/advocate.
21However, this case involves a further and quite troubling dimension which compounds the inherent tension within the combined roles of expert witness and advocate. Before he was retained as expert witness/advocate by the City, Mr Hocking was retained as expert/advocate by the principal objectors to the proposed development, Mr and Mrs Cohen, who reside at No 18 First Avenue. Indeed, Mr Hocking's statement of evidence in these proceedings is a submission which he provided to the City on behalf of Mr and Mrs Cohen in May 2006 in opposition to the development application.
22Prior to and at the first directions hearing, Mr Dunbar raised significant concerns about a perceived conflict of interest in Mr Hocking's role as expert witness/advocate on behalf of the City when he was formerly expert/advocate on behalf of Mr and Mrs Cohen. At the directions hearing, the Tribunal noted the concern and invited the parties to consider their respective positions. Mr Hocking raised the issue with the City, but the City instructed him to continue to act as its expert witness/advocate.
23At the final hearing, Mr Dunbar maintained his objection to Mr Hocking acting as expert witness/advocate on behalf of the City. Mr Hocking indicated that his arrangements with Mr and Mrs Cohen had ceased by the time the Council approached him to act on its behalf. Ultimately, the Tribunal determined that it is able to hear and evaluate the expert evidence of Mr Hocking, notwithstanding his previous engagement by Mr and Mrs Cohen. Mr Hocking is a qualified and experienced architect and planner. The Tribunal, as an expert planning tribunal, is able to evaluate his evidence and give it appropriate weight in the context of the evidence otherwise available and the plans of the proposal, bearing in mind the concerns raised by Mr Dunbar.
24However, it is generally undesirable and inappropriate for a local government authority defending its planning decision in the Tribunal to retain as its expert witness/advocate a person, no matter how well qualified and experienced, who was previously retained in relation to the same application by an objector. Although Mr Hocking provided thoughtful and intelligent evidence, which the Tribunal has accepted in material respects, and was fair in making appropriate concessions and suggestions to Mr Dunbar, there remains, certainly in Mr Dunbar's mind, a perceived conflict of interest. A local government authority's position in advancing the public interest and an objector's position in advancing his or her private interest may correspond, and in this case they probably do, but this will not always be the case. It is in the interests of administrative justice and proper public administration generally that the Tribunal and applicants seeking review before it are not put into the position which occurred in this review. The Tribunal expects that this situation will not occur again.
Does the development comply with the Heritage Protection Area Design Guidelines?
25Neither party called evidence from a heritage architect or heritage planner. The Tribunal is aware of two opinions from heritage consultants which were made available to the City, one in favour of approval and one against. The City's heritage consultant advised the Council as follows:
"The amended proposal shows that the architectural style of the proposed residential development has been modified significantly, and now responds more appropriately to the requirements of the Character Retention Guidelines for the Mt Lawley Heritage Protection Area. Although the scale of the proposal and other minor issues remain unchanged from the original proposal, the amended proposal is more respectful and responsive to the heritage character of the existing residence and will have limited impact on the streetscape, and for those reasons, I support the amended proposed development."
26In contrast, a heritage consultant, who reviewed the original plans on behalf of the City and was subsequently retained to review the amended plans on behalf of Mr and Mrs Cohen, provided the following analysis:
"In my opinion, the proposed development for 16 First Avenue is not appropriate within a Heritage Protection Area. The bulk and scale of the proposed building is incompatible with the general form of development within the area. The development will be visually intrusive when viewed from the street as the new building will extend out on either side of the existing building which will appear dwarfed by comparison. There is no street elevation with the set of drawings provided, however it is clear that the new building will visually overwhelm the original building, and that the new and the old are not well integrated or resolved in a design sense."
27The Tribunal is unable to give any weight to either of these opinions, as they are diametrically opposed and could not be tested.
28Mr Hocking has qualifications and experience which enable him to assist the Tribunal to determine whether the development complies with aspects of the 1999 Guidelines. Mr Dunbar did not call any expert evidence, other than in the form of an email from Mr Edward Drewett, Senior Development Assessment Officer of the City, in which Mr Drewett confirmed the opinion which he expressed in his report to the Council in July 2006 that, based on the City's heritage consultant's advice, the design of the proposed addition generally responds appropriately to the requirements of the Mt Lawley HPA.
29As noted earlier, the conservation objectives and management strategies in the 1999 Guidelines for Mt Lawley include to encourage retention of buildings that are listed on the Municipal Inventory, including the building on the site. The retention of the existing building within the redevelopment of the site is, therefore, appropriate. Furthermore, as Mr Hocking observed, the placement of the proposed addition generally to the rear of the existing building and the removal of car parking from the frontage are also appropriate responses to the Mt Lawley HPA.
30However, the Tribunal considers that the proposed development does not comply with the 1999 Guidelines in four material respects.
31First, cl 1.2 of the 1999 Guidelines states that new buildings "do not need to be designed in the same style as the existing heritage buildings, but should respect the scale and proportions of the existing buildings". The design guidelines for additions to existing buildings in cl 3.2 specifically state that "the ridge height of the addition should match the existing or fall within the sightline from the front boundary". Both the eaves and ridgeline of the proposal would be higher, and would be perceived from the street to be higher, than the eaves and ridgeline of the existing building, in the western part of the site. The Tribunal accepts the evidence of Mr Hocking that:
"The geometry of the proposed rear addition does not relate well to the geometry of the [existing] house. The consequence of this is shown on the proposed elevation of the front (street‑facing) façade. The extension would be readily apparent above the western hip of the original house roof and its distinctive symmetrical bungalow roof profile would be compromised in its presentation to the streetscape."
32The Tribunal also accepts Mr Hocking's opinion that the staircase portion of the addition and its roof form would be an intrusive element which would change the profile of the existing house, although it would sit behind the existing roof form. While the setback of the addition (approximately 18.0 metres to the staircase portion and approximately 20.0 metres to the remainder) would mitigate the impact of the proposal to some extent, the Tribunal considers that the visual relationship between the existing house and the proposed addition requires a more sensitive approach in which the eaves and ridge of the addition which would be visible within the streetscape do not visually project above the existing roof form and the symmetry of the existing building and its roof form is not compromised. The proposed visual relationship between the existing house and the addition is not an inevitable consequence of reasonable redevelopment of the site so as to create a dwelling with a level of accommodation consistent with modern expectations.
33Mr Dunbar pointed to a number of dwellings in the locality, including in the Mt Lawley (Estates 1 and 2) area, which is identified as "an area of exceptional significance" in the 1999 Guidelines, which have considerably greater bulk and scale to the street than the proposed addition. Mr Dunbar pointed in particular to an elevated two storey building presently under construction diagonally across from the site and a recent approval granted by the City in relation to a single storey Federation cottage on a property a short distance to the south which would enable its conversion into a two storey Federation Queen Anne style house incorporating only 60% of the existing façade. However, these properties are each corner sites which might well give rise to special considerations. More fundamentally, the proposed development appropriately retains and restores the existing house, consistently with the 1999 Guidelines. The retention of the house requires a sensitive design approach to the addition which would arguably result in less bulk and scale to the street than could otherwise be accommodated on the site. However, the location of the house near the front of the block, the size of the site and the fall in topography provide opportunities to accommodate a significantly sized addition without compromising the streetscape presentation of the existing house.
34Second, the 1999 Guidelines require the retention of existing mature trees where possible. As noted earlier, a number of trees along the north‑western boundary would need to be removed to accommodate the proposed driveway. Although the loss of these trees is inevitable if the driveway is placed on the north‑western side, it is possible to retain the trees if the driveway were to remain in its current position. Clause 3.5 of the 1999 Guidelines states as an objective for carports and garages "reduce the impact of vehicle access and parking on the existing streetscape by encouraging development to the rear and side of the property where possible". In this case, it would be possible to retain and formalise, in the form of a double tandem parking garage, the car parking arrangements to the south‑east and north‑east of the house, without necessitating the removal of trees within the site or requiring considerable excavation which could potentially affect the viability of trees on the adjoining property.
35Third, cl 3.2 of the 1999 Guidelines states "retain the natural ground level on the site". The proposal is clearly inconsistent with this policy. As Mr Hocking observed, the excavation of up to 1.2 metres adjacent to the existing house would result in the house being raised on an uncharacteristic plinth which would be apparent from the street. Furthermore, although Mr Dunbar pointed to other excavations in the locality to accommodate car parking, and although Mr Hocking conceded that it is consistent practice in the area to excavate in order to have car parking, none of the other examples were of the scale or proximity to an adjoining property as is proposed in this case. The excavation by up to approximately 2.0 metres immediately adjacent to the common boundary with No 18 and by up to 2.5 metres immediately adjacent to No 14, and the hard engineering solutions which would be necessitated to retain the adjoining properties, are fundamentally inconsistent with the retention of natural ground levels contemplated by the 1999 Guidelines for the Mt Lawley HPA.
36Fourth, cl 3.6 of the 1999 Guidelines states that "fences to the front garden are important to the look of the street" and "low masonry or open picket fences are traditionally found in the area". An objective is "encourage the retention and conservation of traditional fences where these occur". The policies state that open picket fences may be constructed to 1.2 metres and that solid fences should be a maximum height of 750 millimetres. Mr Dunbar noted that the proposed fencing, which comprises limestone blocks 700 millimetres high with 10 limestone piers 1.8 metres high and iron infill up to a maximum height of 1.56 metres, is consistent with fencing in a number of properties in the locality. The Tribunal accepts that the proposed fencing is consistent with fencing particularly in newer developments in the locality and would be of high quality. However, it is inconsistent with the objective to encourage the retention and conservation of traditional fences, such as exists on the site at present. Although the proposed fencing may be appropriate for a new building, it is not appropriate under the 1999 Guidelines in the context of a retained Federation bungalow. The proposed fencing is of a different character to the fencing which is characteristic of the locality and found on the site. The proposed fencing is also higher than the fencing contemplated by the 1999 Guidelines (1.8 metre high piers and 1.56 metre high infill as opposed to 1.2 metre high picket fences). However, it is noted that the 2006 Guidelines state in cl 3.6.1 that "the height of any open‑style fencing may be increased to a maximum of 1800 millimetres above natural ground level, but only where the fencing is constructed in high quality materials, such as wrought‑iron infill (rather than timber picket infill)". Nevertheless, the fencing is also contrary to the 2006 Guidelines, because cl 3.6 states as an objective "ensure the retention and conservation of traditional fences where these occur". However, the City should clarify whether the 2006 Guidelines have been adopted for the purpose of cl 2.2.3.2(c) of the Scheme and, if so, how inconsistencies between the 2006 Guidelines and the 1999 Guidelines are to be resolved.
37As noted earlier, cl 1.2 of the 1999 Guidelines states that new buildings "do not need to be designed in the same style as the existing heritage buildings". This provision is consistent with article 22 of the Burra Charter which states that "new works should be readily identifiable as such". In contrast, cl 3.2.2.1 of the 2006 Guidelines states that "additions shall reflect the architectural style (eg Federation Bungalow or Federation Queen Anne), form, colour and materials of the original dwelling". The style of the proposed addition is consistent with the 1999 Guidelines and is considered, therefore, to be acceptable. However, the inconsistency between the 2006 Guidelines and the 1999 Guidelines and article 22 of the Burra Charter should be addressed by the City.
38As the proposed development does not comply with the 1999 Guidelines in material respects, the development application warrants refusal under cl 2.2.3.2 of the Scheme. Moreover, in light of the Tribunal's findings, the proposal is not in harmony with the character of the existing dwelling and the local streetscape, contrary to the intention of the Council under cl 2.2.3.1 of the Scheme.
39Finally, the Tribunal notes that Mr Dunbar relied on the decision of the former Town Planning Appeal Tribunal in Moullin and Town of Cottesloe [2002] WATPAT 23. However, that decision is distinguishable, because DPS 2 specifically requires compliance with the intention of the Council under cl 2.2.3.1 and the 1999 Guidelines. As Mr Hocking pointed out, the City has been at the forefront of heritage conservation in this State with the guidelines for the Mt Lawley HPA and its predecessor documents the first of their kind in Western Australia. The 1999 Guidelines contain orderly and specific provisions to protect the cultural heritage character of the Mt Lawley HPA. This case is, therefore, quite different to the case relied on by Mr Dunbar.
Are the amenities of the area properly protected?
40It is common ground that, measured in accordance with the City's Residential Building Height Policy, the proposed building height exceeds the relevant maximum of 6.0 metres by 1.2 metres and the proposed roof height exceeds the maximum of 9.0 metres by 0.2 metre. The corresponding performance criteria in cl 3.7.1 of the Residential Design Codes of Western Australia (2002) (Codes) is in the following terms:
"Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
•adequate direct sun to buildings and appurtenant open spaces;
•adequate daylight to major openings to habitable rooms;
•access to views of significance."
41Mr Hocking considers that, if the viability of the Illawarra Flame Tree adjacent to the rear deck and entertaining area of the house at No 18 First Avenue is compromised as a result of the cut and excavation proposed immediately adjoining the common boundary, the development would not protect the amenities of the adjoining property, because the residents of the property would be visually overwhelmed by a two to three storey section of the proposed addition. The City's assessing officer considered that the performance criteria were satisfied, because adequate sun and daylight would be retained and no views of significance are affected. The officer did not, however, consider the visual impact of the proposed addition on the adjoining property or the potential loss of vegetation on the adjoining property.
42Although the performance criteria in cl 3.7.1 of the Codes expressly refer to three particular aspects of amenity, the consideration is not restricted to these aspects. Adverse visual impact from excessive bulk and scale of built form would detrimentally affect the amenities of adjoining properties.
43Significantly, although the three storey façade on the north‑west elevation of the proposal would be set back 2.45 metres from the common boundary with No 18 First Avenue, the southern two thirds of this section of wall is incapable of being screened within the site, because the proposed driveway and retaining structures would immediately adjoin the common boundary. Furthermore, although landscaping might be incorporated within the 2.45 metre setback area between the northern third of the wall and the common boundary, the wall is a full three storey height in this location and could not be readily screened by landscaping of sufficient scale in the setback. It follows that, absent the retention of sufficient landscaping on the adjoining property, the residential amenity of the adjoining property would be significantly and detrimentally affected by the proposed development in consequence of a two to three storey section of wall in a setting presently characterised by large, mature trees in expansive rear gardens.
44As a matter of planning principle, a proposed development should generally mitigate or accommodate its impacts on site. It is not, therefore, generally appropriate for a development to rely on landscaping on adjoining properties to mitigate the impacts of proposed excessive bulk and scale. However, the reality when the site is presently viewed from No 18 First Avenue is that, if the Illawarra Flame Tree and other dense landscaping along the common boundary were retained, the visual impact of the proposal would be significantly mitigated so as to be acceptable. Mrs Cohen said in evidence that, if the retention of the trees were guaranteed notwithstanding the significant cut proposed, she would have no objection to the development.
45Although Mr Hocking raised an obvious concern about the impact of cut of up to 2.0 metres within 0.5 metre of the base of the Illawarra Flame Tree (and the impact of cut of approximately 0.8 metre within 0.5 metre of the base of the Red Flowering Gum), the City failed to call arboricultural evidence in relation to the likely effect of the development on the health and the viability of these trees. Mrs Cohen said in evidence that she had recently obtained an opinion from an arboriculturalist. The Tribunal did not allow the opinion to be expressed by Mrs Cohen, as it would have been an inappropriate way to relate expert evidence and unfair to Mr Dunbar.
46Had the application been otherwise acceptable, the Tribunal would have required the City to provide it with evidence from an appropriately qualified expert and would have given an opportunity to Mr Dunbar to respond to this evidence. Given that the potential impact of the excavation on two significant trees was an issue identified by the City, the City should have assisted the Tribunal by presenting it with evidence on this issue without being required to do so by the Tribunal: see State Administrative Tribunal Act 2004 (WA) s 30.
Conclusion
47The development application warrants refusal because the proposed development does not comply with the intention of the Council to ensure that development within the Mt Lawley HPA is in harmony with and reflects the character of the existing dwelling and the local streetscape and does not comply with the 1999 Heritage Protection Area Design Guidelines in material respects. In particular, the proposal does not comply with the guidelines, because:
•the addition would not respect the scale and proportions of the existing building, because both the eaves and the ridge height would be higher in the streetscape than the original building and the distinctive symmetrical bungalow roof profile would be compromised by the introduction of asymmetrical elements;
•the proposal does not retain existing mature trees where possible, because an alternative car parking arrangement using the existing driveway would not require the removal of any trees and would not give rise to potential impacts on two significant trees on the adjoining property;
•the proposal does not retain the natural ground level on the site and the significant change in natural ground level proposed in the western part of the site would result in an uncharacteristic presentation of the existing house on a plinth; and
•the proposed fencing, while consistent with some new developments in the locality and of a high quality, would replace a traditional fence which the guidelines contemplate should be retained and conserved, and the height of the fence is, in any case, excessive under the 1999 Guidelines.
48Consistently with the 1999 Guidelines, the development application appropriately proposes retention of the existing house. However, the retention of the existing house means that the design approach to the addition must be more sensitive than the present proposal. Although it is acknowledged that amendments were made as a result of discussions with Council officers, and that Council's heritage consultant ultimately supported the amended proposal, the Tribunal considers that the proposed development does not comply with the 1999 Guidelines in important respects. However, in consequence of the location of the existing house close to the street and the size and topography of the site, there is opportunity to design and locate a house containing the type of accommodation proposed in this application in a manner which appropriately retains the house and complies with heritage guidelines.
49In order to comply with the 1999 and 2006 Guidelines, development of the site should:
•retain and restore the existing front fence, house (other than the weatherboard extension) and verandah;
•retain vehicle access using the existing driveway and either formalise the car parking arrangements to the south‑east and north‑east of the house by creating a double tandem garage/carport with any garage door set back a minimum of 4.0 metres from the brick façade of the building or incorporate a double garage at the rear of the site accessed via a driveway at substantially existing ground levels along the south‑eastern boundary;
•generally maintain existing ground levels adjacent to the property boundaries;
•set the lowest and middle levels of the addition at or below the floor level of the existing house; the lowest level may be excavated, but the excavation should be set back from the side boundaries according to the advice of a qualified and experienced arborist to the extent necessary to ensure the health and viability of trees on adjoining properties; the middle level should be the highest level outside the prolongation of the side walls of the existing house and the eaves height of the middle level should be no higher than the eaves height of the roof above the existing verandah; and
•place the third level of the addition wholly behind the brick portion of the existing house and wholly within a symmetrical pitched roof form in the street elevation with the ridge no higher than the ridge of the existing house.
50The Tribunal has also determined that, unless the Illawarra Flame Tree, which is located on No 18 First Avenue, would be able to be retained, the development would not meet the performance criteria in the Codes in relation to building height concerning the need to protect the amenities of the adjoining property in terms of avoidance of excessive bulk and scale. If the Flame Tree is unlikely to survive the proposed works, the application must be refused under cl 2.3.1 of DPS 2, which requires residential development to be in accordance with the Codes. Although the Council appropriately raised concern about the potential impact of the development on the viability of the Illawarra Flame Tree and a large and mature Red Flowering Gum which has streetscape significance, it did not present necessary arboricultural evidence to assist the Tribunal. Had the application been otherwise acceptable, the Tribunal would have required the City to obtain evidence from an arborist.
51It follows that the application for review should be dismissed and the decision of the City to refuse development approval should be affirmed.
Orders
52The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the City of Stirling to refuse development approval for alterations and additions at No 16 (Lot 105) First Avenue, Mt Lawley is affirmed.
Attachment A
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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