EVANS and CITY OF SUBIACO
[2012] WASAT 172
•20 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: EVANS and CITY OF SUBIACO [2012] WASAT 172
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 20 AUGUST 2012
FILE NO/S: DR 113 of 2012
DR 211 of 2012
BETWEEN: DAVID EVANS
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
DR 113 of 2012: Town planning - Development - Refusal - Application for retrospective development approval - Roofed alfresco area attached to living room extension at rear of single dwelling - Whether development approval required - Set back from side boundary - Impact on amenity of neighbour
DR 211 of 2012: Town planning - Development - Roofed alfresco area not completed in accordance with development approval - Notice - Direction to remove unauthorised development and restore land to condition immediately before development
Legislation:
R 113 of 20121. Application for review allowed
2. Retrospective development approval granted for amendments to design of approved roofed alfresco area
DR 211 of 2012
1. Application for review allowed
2. Decision to issue notice requiring removal of alfresco addition at the rear of the house set aside and decision substituted in place that no direction be issuedOrder>
Category: B
Representation:
Counsel:
Applicant: Mr S Allerding
Respondent: Mr A Stewart
Solicitors:
Applicant: Allerding & Associates (Planning Consultants)
Respondent: Greg Rowe & Associates (Town Planners)
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Morgan and City of Albany [2008] WASAT 2011
Taddi v City of Stirling [2004] WATPAT 85
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved two applications for review of decisions made by the City of Subiaco in respect of development at the rear of a house in Park Street, Subiaco.
The first application was for review of the refusal by the City of Subiaco to grant retrospective development approval for the roof design of an alfresco area attached to the rear of a new living area built at the rear of the house. The second application for review was in respect of a notice issued by the City of Subiaco requiring that the applicant demolish the roofed alfresco area and restore the land as nearly as practicable to its condition immediately before the development occurred. An issue raised was whether a roofed alfresco area required planning approval when development standards were met.
The Tribunal found that development approval was required because the development applied for was an amendment to a development approval granted in July 2011 for the additions at the rear of the house.
The Tribunal found that the only impact the amended design had on the amenity of the neighbour to the west was limited and not sufficient to warrant refusal of the application. The Tribunal granted retrospective development approval for the amended alfresco roof design.
The Tribunal further determined that the notice directing that the alfresco area roof be demolished be set aside and a decision substituted in its place that no direction be given.
Introduction
Mr David Evans (applicant) filed with the Tribunal applications for review of two decisions made by the City of Subiaco (City or respondent) in respect of development at No 100 Park Street, Subiaco (site). The two applications were:
1)DR 113 of 2012: brought by the applicant pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the respondent to refuse an application for retrospective development approval of a roofed 'alfresco' addition attached to a living room extension approved at the rear of the house on the site; and
2)DR 211 of 2012: brought by the applicant pursuant to s 255(1) of the PD Act for review of the direction in the notice issued by the respondent pursuant to s 214(3) of the PD Act. The direction required the applicant to 'remove the alfresco addition and restore the land as nearly as practicable to its condition immediately before the development occurred'.
Site and immediate locality
The site is a rectangular lot, 10.06 metres wide and 36.73 metres deep, with an area of 369 square metres. The site has frontage to Park Street at the southern end and to a right of way at the northern end. The single house on the site has a parapet wall on the eastern boundary and a setback of 0.7 metres from the western boundary. The house is single storey at the street frontage with a two storey addition toward the rear.
Adjoining to the west is a terrace of four single storey houses, each with a 5 metre frontage to Park Street. The immediate neighbour to the west of the house on the site has a parapet wall on the common boundary. The rear of the house on the neighbouring lot to the west, is set back about 16 metres from the rear boundary. The recently constructed single storey living room addition at the rear of the house on the site is set back 11.8 metres from the rear boundary. The single storey extension at the rear of the house on the site and its backyard are not visible from Park Street.
The Tribunal viewed the site on 8 August 2012 accompanied by the applicant, his planning consultant, a representative of the respondent and its planning consultant.
Background and the February 2012 application
In December 2010, as required by cl 22(1) of the City of Subiaco Town Planning Scheme No 4 (TPS 4), the applicant applied to the City for development approval for a single storey addition to the rear of the existing house on the site. The plans originally lodged were amended in May 2011 and the development applied for then showed that the rear wall of the dwelling would be removed and a new living room extension added with two sets of French windows opening onto a roofed alfresco area. The dimensions of the roof shown for the alfresco area were 6.1 metres wide and 2.9 metres deep with a setback of 2.004 metres from the western boundary. The development was approved by the City in July 2011 (July 2011 development) subject to conditions pursuant to cl 27(3)(b) of TPS 4. Condition 1 required the development to be carried out in accordance with the May 2011 plans.
The development was completed with an alfresco area with a roof of a design and dimensions different from the approved May 2011 drawings.
The respondent was alerted to the variations from the approved development in November 2011 and it then brought the matter to the applicant's attention. In February 2012, the applicant lodged with the respondent, an application for retrospective planning approval for the alfresco area as built (February 2012 application).
At its meeting of 3 April 2012, the respondent passed a resolution that included:
1)refusal of the February 2012 application; and
2)authorisation for the Chief Executive Officer to issue a direction notice directing the owner of the site 'to remove the alfresco addition or to reinstate the alfresco addition in accordance with the planning approval dated 15 July 2011 …'.
The Tribunal notes that the notice subsequently issued by the respondent pursuant to s 214 of the PD Act, directed only that the applicant remove the alfresco addition and 'restore the land as nearly as practicable to its condition, immediately before the development occurred'.
Is development approval required?
The parties agreed that an issue in this matter was whether the alfresco area applied for requires development approval pursuant to cl 23(1)(b)(i) of TPS 4, which reads:
23EXEMPTION FROM DEVELOPMENT APPROVAL
(1)The development approval of the Council is not required for the following development of land:
….
(b)additions or extensions to a single house which do not enlarge it by more than on half of its gross floor area, except where:
(i)the proposal requires the exercise of discretion by the Council under the Scheme to vary the provisions of the Residential Planning Codes or the Scheme; or
…
It was common ground between the parties that the alfresco addition:
i)complied with the maximum 3.6 metre wall height specified at cl 42(1)(a) of TPS 4:
ii)was set back 1 metre from the western boundary of the site and therefore satisfies acceptable development criteria A1(i) and (ii) of cl 6.3.1 of the Residential Design Codes of Western Australia (2008) (Codes); and
iii)included a floor level not elevated more than 0.5 metres above natural ground level and was therefore not subject to the acceptable development standards at A1(i) of cl 6.8.1 of the Codes. This clause provides that the Codes become applicable only if the elevation above natural ground level is more than 0.5 metres.
The Tribunal could find no reason to disagree with the parties on these points following its examination of the documents and the viewing of the site.
Mr Stephen Allerding, a planner making submissions on behalf of the applicant, was of the view that as the alfresco area complied with the above planning controls, the exercise of discretion was not required for its approval. Mr Allerding said it was unnecessary to assess the alfresco area in light of the exemption provided at cl 23 of TPS 4. Mr Alan Stewart, a planner making submissions on behalf of the respondent, pointed out that the development as constructed was different from the approved July 2011 development.
The Tribunal notes that if there had simply been an application for approval of the alfresco area, with no temporal and design association with any other development application, then the development would be exempt from the need for a planning approval pursuant to cl 23(1)(b) of TPS 4.
The Tribunal, however, in examining the documents, is drawn to the conclusion that a development approval was granted for a specific form of development, the July 2011 development, contemporaneously providing for the living room extension to the existing house and an associated roofed alfresco area of a design with interrelated structural and use elements. The development was completed, but not in the approved form. An application for Retrospective Development approval was therefore required for the variation from the July 2011 development.
The Tribunal has approached this matter on the basis that it is determining whether there are planning reasons why the proposed change to the July 2011 development, as proposed in the February 2012 application, can be allowed having regard to the matters required to be considered at cl 27(4) of TPS 4. The matters to be considered include:
(a)the provisions of the Scheme …
(b)any relevant planning policies;
(c)a statement of planning policy of the Western Australian Planning Commission;
…
(e)any submission accompanying or relating to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure;
…
Application for retrospective approval
Clause 24(1) of TPS 4 provides that an application may be made for development approval for an unauthorised existing development. The principles for considering an application for such retrospective planning approval were set out by the Tribunal in Burnett and Town of Cambridge [2006] WASAT 29 (Burnett) at [20] - [22]. In Burnett, the decision by the former Town Planning Appeal Tribunal in Taddi v City of Stirling [2004] WATPAT 85 was cited. In summary, the following points are made:
1)The town planning scheme under consideration must give the power to approve development notwithstanding the fact that the development has already been carried out and to allow for an approval to be issued where the application conforms to the scheme.
2)In determining an application for development approval, the requirement is to test the application against the legislative and policy framework in order to determine whether approval should be given. It is not for the Tribunal to take into consideration the lawfulness or otherwise of the developer's actions in constructing the building.
3)The fundamental position remains that a development application under the town planning scheme is an application for planning approval and the only considerations relevant to that are planning considerations which relate to the development being appropriate to the locality and in accordance with the objects of the town planning scheme and the Codes.
4)The onerousness of an applicant being required to alter the existing development to comply with a relevant planning control is irrelevant.
The Tribunal has approached the development applied for in this matter in light of these principles.
Discussion
It was noted above that the proposed variation to the alfresco area satisfies the acceptable setback standards at cl 6.3.1 and the visual privacy requirements at cl 6.8.1 of the Codes. The variation to the development would also satisfy the wall height standard at cl 42(1)(a) of TPS 4.
Compliance with the Codes and a development standard in a town planning scheme does not, however, mandate planning approval where there is in the town planning scheme a residual discretion to refuse a residential development, taking into consideration specified matters. In TPS 4 specified matters required to be considered, including those set out above, are listed in cl 27(4). It must be added that significant in relation to a required matter for consideration, is the fact that the development does conform to the Codes: Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 at [90]; Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15 at [59].
The Tribunal agrees with the submissions from the parties that the proposed variation to the alfresco area would not have an impact on the amenity of the locality in general. This conclusion is drawn from the examination of the plans and the viewing of the site which revealed that the development at the rear of the house was not visible from the street. The issue then is the effect of the change to the alfresco addition on the site on the amenity of the neighbour to the west.
Examination of the plans of the July 2011 development and the February 2012 application reveal that the completed development includes an alfresco roof which is reduced from 2.9 metres deep to 1.8 metres deep at the eastern side and increased by 1.1 metres to 4 metres deep at the western side. The alfresco roof setback has been reduced from 2.004 metres to 1.040 metres from the western side boundary. The July 2011 development had a roof pitch of 3 degrees while the built roof has a pitch of 10 degrees and is pitched from a point about 300 millimetres lower off the northern wall of the house. Both designs have a western elevation to the roof of about 200 millimetres featuring a bargeboard. The alfresco roof in the July 2011 development was fully lined with a timber panel ceiling whereas the February 2012 proposal shows the eastern section featuring translucent sheeting.
The material differences between the July 2011 development and the proposed February 2012 variation are that on the western elevation the alfresco roof is 1 metre longer and 1 metre closer to the side boundary.
Mr Stewart referred to comments made by the neighbour to the west of the site at a Council meeting on 3 April 2012. That neighbour referred to the impact she believed the development has on her amenity and referred to a loss of 'sun, air, light and space'.
Mr Allerding's submission on behalf of the applicant was that the relevant test for assessing amenity was that provided in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 which can be summarised as requiring a consideration of the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact of the proposal on that amenity.
The Tribunal has recognised, in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48], that in undertaking an objective inquiry as to the state of the amenity, the Tribunal is assisted not only by the expertise of town planners but also by the views of residents as they are often well placed to identify the particular qualities and characteristics that contribute to their residential amenity. The Tribunal accepts that the concerns of the neighbour are sincerely held, but it remains necessary to consider the objective evidence of what impact the development might have and whether that impact would warrant the development being refused: Morgan and City of Albany [2008] WASAT 2011.
In addressing access to sunlight, significant is the northsouth orientation of the site and the neighbouring lots, with each having a north facing rear yard. The proposed development satisfies the acceptable development standard at cl 6.9.1 A1 of the Codes because the shadow cast by the development on the lot to the west at midday on 21 June would be less than 25% of the adjourning site area. The orientation of the lots would ensure that there would be no overshadowing at that time on that day.
The proposed alfresco roof would shade the immediate adjacent backyard in the early morning, including the clothesline which abuts the boundary. The shadow would reduce during the apparent march of the sun across the sky during the morning. It was noted that during the viewing of the site at 10.15 am on 8 August 2012, the rear wall and windows of the house on the neighbouring lot, the clothesline and much of the rear yard not shaded by vegetation had access to sunlight. The lot to the west would be unaffected by shadow from the alfresco roof for much of the day.
The Tribunal has formed the view that the impact from the February 2012 proposal on access of the neighbouring lot to sunlight, is not sufficient to be fatal to the application.
In respect to the impact of the amended development on access of the neighbouring lot to air, the Tribunal finds no evidence that such access would be adversely affected. The alfresco area has no walls and the roof is a skillion design. In addition, it is to the east of the neighbouring lot and so would not have any impact on any cooling summer breezes from the southwest that might reach the locality.
The neighbour also mentioned access to light as a concern. To the extent this is related to overshadowing, having regard to the comments above, the impact is considered by the Tribunal to be limited in time and extent to the beginning of the day. The Tribunal further considers that the profile of the roof structure, sitting immediately above the 1.6 metre high wall on the boundary, would only intrude into the view of sky to a limited extent.
The reference to the 'loss of space' in the concerns expressed about the February 2012 development were not explained. To the extent that the alfresco roof would occupy additional space and so in turn impact on access to sun, air and light, the conclusions on these impacts are set out above.
Conclusion on DR 113 of 2012
In considering the merit of the February 2012 proposal, the Tribunal has had regard to the relevant planning controls, the submissions received and the impact of the structure applied for on the amenity of the neighbour, as required under cl 27(4) of TPS 4. The Tribunal has found that the alfresco roof, as now proposed, would be clearly visible to the neighbour to the west. The Tribunal has formed the view, however, as set out above, that the impact on the amenity of the neighbour to the west would be so limited as to have limited impact. The Tribunal has concluded that there is a planning basis for granting development approval to the proposed February 2012 amendment to the alfresco area design for the site.
The respondent, without prejudice to its position, submitted that should the matter be allowed, a condition be imposed that requires that the development comply with the drawings dated 9 February 2012. This condition is considered to be appropriate in the circumstances as that is the design the applicant put before the Tribunal.
Conclusion in DR 211 of 2012
Section 214 of the PD Act provides that a notice can be served by the local government where development is carried out otherwise than in accordance with the planning scheme. That is the circumstance in this matter, as the development did not comply with the conditions of the approval issued for the development under TPS 4 in July 2011. The Tribunal does not consider it would be orderly and proper planning to separate the approved development into discrete elements and treat those elements separate from the approved development as a whole. The Tribunal has formed the view that it was open to the respondent to serve the s 214 notice.
As set out above, the Tribunal has examined the planning merit of the proposed amendment of the July 2011 development. Having concluded that there is a planning basis for allowing the application for retrospective approval for the alfresco roof as now developed, the Tribunal has concluded that the requirement for the s 214 notice for the removal of the development falls away.
Orders
The Tribunal makes the following orders:
In the proceeding DR 113 of 2012 -
1.The application for review is allowed.
2.The decision of the City of Subiaco to refuse the application for development approval issued 17 April 2012 is set aside and development approval is granted to the proposed amendments to the design of the alfresco area of the addition to the rear of the house at No 100 Park Street, Subiaco, subject to compliance with the following condition:
(1)The development is to be carried out in accordance with the plans and drawings dated 9 February 2012 included with the application for retrospective development approval.
In the proceeding DR 211 of 2012
1.The application for review is allowed.
2.The decision of the City of Subiaco to issue a s 214 of the Planning and Development Act 2005 (WA) notice dated 17 April 2012, requiring removal of the alfresco addition at the rear of the dwelling at No 100 Park Street, Subiaco, is set aside and a decision is substituted in its place that no direction be given.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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