EVANS and TOWN OF CAMBRIDGE
[2006] WASAT 120
•15 MAY 2006
EVANS and TOWN OF CAMBRIDGE [2006] WASAT 120
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 120 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:639/2005 | 15 FEBRUARY 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 15/05/06 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEOFFREY WILLIAM EVANS TOWN OF CAMBRIDGE |
Catchwords: | Streetscape – Orderly and proper planning – Building height – Wall height – Overlooking – Overshadowing – Acceptable development standards – Performance criteria – Flat roof – Pitched roof – Home office |
Legislation: | Metropolitan Region Scheme Residential Design Codes of Western Australia 2002, cl 1.1.2, cl 1.1.3, cl 3.6.1(P1) Residential Planning Codes (1991) Town of Cambridge's Residential Design Guidelines (Development Requirements) 2005, cl 1.1, cl 2.3, cl 2.3(p1), cl 2.3(A1.2) Town of Cambridge Town Planning Scheme No 1, cl 17, cl 19(3), cl 20(1), cl 38(4), cl 48, cl 48(1) Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) |
Case References: | Claude Neon Ltd v City of Perth (Unreported; Appeal No 38 of 1986) Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 Kaard v City of Nedlands [2004] WATPAT 96 Nil |
Orders | 1. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : EVANS and TOWN OF CAMBRIDGE [2006] WASAT 120 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 15 FEBRUARY 2006 DELIVERED : 15 MAY 2006 FILE NO/S : DR 639 of 2005 BETWEEN : GEOFFREY WILLIAM EVANS
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Streetscape – Orderly and proper planning – Building height – Wall height – Overlooking – Overshadowing – Acceptable development standards – Performance criteria – Flat roof – Pitched roof – Home office
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002, cl 1.1.2, cl 1.1.3, cl 3.6.1(P1)
Residential Planning Codes (1991)
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Town of Cambridge's Residential Design Guidelines (Development Requirements) 2005, cl 1.1, cl 2.3, cl 2.3(p1), cl 2.3(A1.2)
Town of Cambridge Town Planning Scheme No 1, cl 17, cl 19(3), cl 20(1), cl 38(4), cl 48, cl 48(1)
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr P Webb (Agent)
Respondent : Mr P Fitzgerald
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Claude Neon Ltd v City of Perth (Unreported; Appeal No 38 of 1986)
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Kaard v City of Nedlands [2004] WATPAT 96
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The application for review by Mr GW Evans arose from a decision of the Town of Cambridge to refuse an application to construct a three-storey dwelling with undercroft, at 63 Branksome Gardens, City Beach.
2 The review required an analysis of the proposal together with the respondent's Town Planning Scheme No 1, its Residential Design Guidelines (Development Requirements) 2005 and the Residential Guidelines of Western Australia 2002. In effect, this meant an assessment of the proposal against the relevant acceptable development provisions and standards, and performance criteria, as well as the likely effect the proposal would have on the streetscape, and the orderly and proper planning of the locality.
3 In the view of the Tribunal, the applicant failed to provide the necessary information to allow a comprehensive assessment of the matter, but, based on the information before it from the parties, the Tribunal could find no valid planning reason why the proposal should proceed.
4 Accordingly, the application for review was dismissed.
Introduction
5 The application for review by Mr GW Evans (applicant) on 18 November 2005, results from a decision of the Town of Cambridge (respondent) on 25 October 2005, to refuse an application to construct a three level dwelling with undercroft at 63 Branksome Gardens, City Beach (subject land).
6 The reasons for refusal were contained in the respondent's letter to the applicant's builder, Zups Construction Pty Ltd, on 26 October 2005:
"That in accordance with the provisions of Part 4 of the Town of Cambridge Town Planning Scheme No 1 and matters required to be considered under this Scheme generally, and in particular, as the proposal would be contrary to the orderly and proper planning of the locality, the Council REFUSES the application submitted by Zups Construction Pty Ltd for a three level dwelling with undercroft as shown on the amended plans dated 30 September 2005 at Lot 93 (No 63) Branksome Gardens, City Beach, for the following reasons:-
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- (i) non-compliance with wall height requirements as prescribed in the. Town's Residential Guidelines;
(ii) non-compliance with the side setback requirements as prescribed in the R Codes of Western Australia;
(iii) non-compliance with retaining wall height requirements as prescribed in the R Codes of Western Australia;
(iv) non-compliance with overshadowing requirements as prescribed in the R Codes of Western Australia;
(v) non-compliance with visual privacy requirements (Bedroom 2 North) as prescribed in the R Codes of Western Australia."
Subject land
7 The subject land is described on Certificate of Title Volume 110, Folio 17A, as being a portion of Swan Location 1911 and being Lot 93 on Plan 5705. It has an area of 599 square metres.
8 The subject land is one of seven in Branksome Gardens on the east side of the road between Dartmouth Avenue and Falmouth Avenue. It faces west towards the ocean.
9 The land is vacant with a previous dwelling having been demolished. The natural ground level is approximately 2.7 metres to 3 metres above the road verge.
Legislative framework
10 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential" in the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
11 The matter is covered under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) which provides for Statements of Planning Policy. The Tribunal is required "to have due regard" to such statements under s 61(1)(a).
12 The specific policies relevant to this matter are Statement of Planning Policy 3.1 and the Residential Design Codes of Western Australia 2002 (Codes). The subject land has an R12.5 coding under TPS 1.
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13 A provision is made in TPS 1 under cl 48 for the making of planning policies. The Residential Design Guidelines – Development Requirements (RDG's) of June 2005 have been adopted as a planning policy, and both the Council and developers are obliged to take them fully into account.
14 Variations and departures from the RDG's are possible, but need to be justified by both the developer and the Council.
Respondent's position
15 The position of the respondent is outlined in the Statement of Issues, Facts and Contentions dated 16 December 2005. It argues:
a) TPS 1, the Codes and the RDG's combine to provide an effective and reasonable measure of orderly and proper planning.
The variations sought to these documents generally fail to satisfy the relevant performance criteria, which is required in order for the development to be approved.
On the basis of such non-compliance with the relevant performance criteria, the proposal is considered to be inconsistent with the orderly and proper planning of the area.
b) The proposed height of the building does not respect the bulk and height of buildings in the vicinity.
The proposal would have an adverse impact on the streetscape and amenity of adjoining properties through overshadowing.
c) The proposal does not satisfy the performance criteria relating to the provision and protection of direct sun into adjoining properties.
The reduced setbacks, in combination with the height variations, fail to satisfy the performance criteria relating to building bulk.
The proposal does not ameliorate the impacts of building bulk and overshadowing on adjoining property.
e) The proposal does not demonstrably have regard for solar access for neighbouring properties and cannot be considered to optimise comfortable living and facilitate ecologically sustainable development.
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- f) The applicant has not sufficiently demonstrated how direct overlooking would be avoided with particular regard to the positioning of the window and the provision of screening.
The proposal does not ensure a reasonable level of visual and acoustic privacy for adjoining residents.
16 The position of the applicant is outlined in his Statement of Issues, Facts and Contentions dated 30 December 2005. It argues:
a) The minor variations sought to the respondent's RDG's and the Codes were supported by the respondent's administration in its report to the Council Meeting of 25 October 2005 (professional report or report).
The principal issue of contention is the third level home office, but this was recognised in the report as:
"[A] relatively small footprint on the third level and is centrally located."
It will not be visually prominent from the adjoining properties and the streetscape.
The issue of non-compliance is not considered particularly material and will not of itself prejudice the orderly and proper planning of the locality.
b) The proposed building height is not dissimilar to other new residential development in the immediate locality.
As the variations/concessions being sought are relatively minor, and as no objections have been received by Council from the immediately adjoining/affected neighbours, it appears that the respondent formed an unreasonable impression that the proposal might be of excessive height.
c) The area of shadow cast on the adjoining property is 4.8% (27.5 square metres) greater than prescribed in the Codes, but most of this falls over the roof of the existing house and there has been no objection from that neighbour.
The respondent's administration, in their report, acknowledged that the overshadowing excess:
- "is a relatively minor variation, particularly as most of the shadow falls onto the roof of the adjoining single storey dwelling."
- The respondent's administration acknowledges that the:
"width of the neighbouring southern property (15.23 metres) makes it difficult to design even a two storey dwelling with a pitched roof within the overshadowing parameters."
The relatively minor setback concessions being sought would not materially impact on this overshadowing.
The design of the glazing in both side elevations, including the use of opaque glass and window sills to a minimum height of 1629 millimetres above floor level, protect the neighbour's privacy from potential overlooking.
- d) The applicant's proposal, in consultation with the respondent's administration, to "step" the front retaining wall (because of the natural level of the site) does meet the relevant performance criteria.
e) The proposal does demonstrably have regard for solar access for neighbouring properties as the majority of the relatively minor overshadowing, beyond that prescribed by the acceptable development standards, falls across the roof of the adjoining residential property. Accordingly, the proposal would not compromise the comfortable living environment of the adjoining property.
f) The applicant believes that the proposal will not prejudicially impact on the amenity of the adjoining neighbours. It is understood the neighbours have viewed the plans and have no objection.
g) Being set back from the external walls of the proposed dwelling, the home office will not be visually prominent from the adjoining properties or from the street. It will be screened to some extent by the parapet external walls of the floors below.
Planning issues
17 The principal planning issues relate to the merits or otherwise of the proposal when assessed against the provisions of TPS 1, the RDG's and
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- the Codes, and whether the development, if approved, would be contrary to the orderly and proper planning of the locality.
Town Planning Scheme No 1
"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."
19 The Codes automatically replaced the 1991 Residential Planning Codes in town planning schemes throughout the State.
20 Under cl 20(1) of TPS 1, it states:
"Notwithstanding the provisions of the … Codes, the following special applications of the … Codes apply:-
(a) street boundary setbacks within the City Beach Precinct (P1) shall be a minimum of 7.5 metres from the primary street … "
21 Under cl 38(4), it states with respect to the determination of applications for planning approval:
"Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:-
…
(b) any relevant Planning Policy;
…
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
22 Under cl 48(1), the Council may make planning policies which must have regard to a number of matters, including the orderly and proper
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- planning of the locality, and the conservation of the amenities of the locality.
23 It is clear to the Tribunal that TPS 1 adopts the Codes as a foundation for residential development in the Town, but with the prospect of variations via a planning policy such as the RDG's. Also, an approved development should be consistent with the broad based objective of orderly and proper planning, and the conservation of the amenities of the locality.
Residential Design Guidelines
24 The RDG's state under cl 1.1:
"… [T]he Council has adopted the Residential Design Guidelines, with two main aims in mind. The first is to ensure that new development results in high standards of amenity for both new and existing properties. The second is to ensure that new development does not damage – and hopefully enhances – the particular character of the street and precinct in which it occurs."
25 Of most relevance are the provisions of cl 2.3 (Building Height), which provides under the acceptable development standards of subclause A1.2:
"iii. Top of a skillion, curved or flat roof that does not exceed 7.5 metres in height."
26 The corresponding performance criteria under cl 2.3(P1) for building height state:
"New development should meet these criteria:
P1 •Buildings which respect the scale of buildings generally in their vicinity, in terms of their height and bulk and remain subservient to the green streetscape;
• Buildings which are respectful of the predominant character and style of existing development within the locality;
• Where the front of the building facing the street is broken up, presenting a varied and interesting
- façade to the street, rather than a continuous wall; and
- • 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; and
• access to views of significance."
28 At that location, an undercroft garage is proposed, and it is above this point that the wall height extends to 9.3 metres.
29 The overall conclusion is that, based on the acceptable development standards alone, the maximum height of the building clearly exceeds the 7.5 metre upper limit specified under cl 2.3 (A1.2).
Residential Design Codes
30 Some background to the Codes is important in order to properly assess the proposal. For instance, the foreword to the document states:
"The new R-Codes respond to community concern that residential development should be designed to promote attractive streetscapes, safer streets, and to minimize the extent of overlooking and overshadowing of neighbouring property. There is also an increased focus on sustainability provisions …"
31 The way in which the Codes operate is by way of design elements, such as building height, for which an overall "objective" is stated. Second, a set of "performance criteria" is provided which must be satisfied if the objective is to be met. Thirdly, a set of "acceptable
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- development provisions" related to the "performance criteria" is established.
32 As the Codes explain under cl 1.1.2:
"The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed-to-comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
33 In Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, the operation of the Codes is expressed in this way:
"19. As the Codes themselves make clear and as this Tribunal has observed on other occasions, the starting point is to have regard to the objective and then the performance criteria. Acceptable development represents examples which of themselves are deemed to meet the relevant performance criteria."
34 Again, under cl 1.1.3 of the Codes, it states:
"When an applicant chooses not to rely upon the Acceptable Development provisions and bases any aspect of a proposal on the relevant Performance Criteria, the onus will be on the applicant to provide the relevant documentation to show, to the Council's satisfaction, that the Performance Criteria have been satisfied ..."
35 In its consideration of the proposed development, the respondent had before it a professional report which highlighted the variations between what was proposed and what was required by the acceptable development provisions of the Codes and the acceptable development standards of the RDG's. The variations are outlined in Table 1:
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South (R-Codes) |
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North (R-Codes) |
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North (R-Codes) |
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Front Boundary (R-Codes) |
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(R-Codes) Bedroom 2 Window (north) |
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36 In the professional report, the matter was assessed in this way:
"In this particular case, all of the variations, with the exception of wall height and front retaining wall, can be approved under
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- delegated authority as the affected neighbours have indicated no objection to these variations. The variations are considered acceptable and will not have any significant impact on the amenity of the neighbouring properties, particularly as the visual privacy variations are predominantly overlooking the roofs of adjoining dwellings or non-essential outdoor areas."
37 On the question of building height, the report explains:
"The applicant seeks Council's discretionary approval pursuant to Clause 2.3(A1.2) Performance Criteria under the provisions of Building Height and Bulk contained in Clause 2.3(P1) of the Residential Design Guidelines … "
38 It was concluded that:
"Overall, the wall height variations are considered to meet the relevant performance criteria in that:-
• the size and scale of the development is compatible in the context of the existing built form in the street and neighbourhood;
• the front of the dwelling facing the street is varied and broken up so as not to present a continuous wall; and
• the building height allows sunlight to neighbouring properties and does not substantially block views from neighbouring properties."
39 On the matter of site work requirements, the report advises that the proposed development would meet the relevant performance criteria of the Codes (cl 3.6.1(P1)) which state:
"P1 Development that retains the visual impression of the natural level of a site, as seen from the street or other public place, or from an adjoining property."
40 The professional report concludes that:
"Due to the height of the retaining walls in relation to street level, the applicant has proposed to bench the retaining so that effectively a step 1.5 metres wide will be provided. This will provide some relief to the streetscape and provide an opportunity for landscaping to break up the appearance of the
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- retaining wall and will retain to some degree the visual impression of the natural ground level of the site. On this basis, the proposed retaining at the front of the property, within 3.0 metres of the front boundary, can be supported."
41 It is clear to the Tribunal from Table 1 that there are variations being sought from the applicant covering matters relating to ground floor side setbacks, upper floor side setbacks, retaining walls, overshadowing, wall height and visual privacy. However, despite the arguments presented in the professional report, the respondent was not prepared to countenance the number of non-compliances being sought.
Assessment of proposal
The locality
42 City Beach is located within Precinct P1 of TPS 1 (cl 17) and the subject land falls within sub-precinct P 1A (City Beach Proper). It is described in the relevant precinct statement:
"The subdivision pattern is largely informal, with a high proportion of irregular shaped lots, significant variation in lot sizes and many original and introduced trees. This has resulted in informal streetscapes and great variety of housing. The natural topography of coastal dunes has strongly influenced the layout of streets."
43 The development trend is also described:
"Development of houses accelerated in the 1960's, as it did elsewhere in Perth, and was substantially completed by the end of the 1980's. The last two decades have seen an increasing demand for upgrading and replacement of original houses, especially with larger two-storeyed houses. This is gradually causing the original dominance of trees and vegetation over houses to become diluted … The larger houses are often accompanied, too, by filling and retaining walls, increasing the bulk of development."
44 It is common ground between the parties that the locality is one of "transition" and that the high value of property will inevitably lead to existing homes being demolished and replaced by much larger residences.
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Background
45 The background to the proposal is best explained in the witness statement of Mario Tascone (building designer) dated 30 January 2006.
a) The original plans, dated June 2005, were lodged with the respondent on 15 June 2005.
b) A letter dated 24 June 2005 from the respondent listing variations to the acceptable development requirements of both Codes and the RDG's was forwarded to the builder, Zups Construction Pty Ltd, in connection with the June 2005 plans.
c) Subsequent discussions between Mr Tascone and the respondent led to extensively modified plans dated 22 July 2005. Changes included:
• the front setback of the building was increased by 1.74 metres from the original 6.8 metres to 8.54 metres;
• the rear setback was increased from 3.3 metres to 9.462 metres;
• in order to lessen the impact of the retaining wall on the streetscape, the top portion was stepped back by about 1.5 metres;
• by modifying the design of the building, the extent of overshadowing was reduced from 37.5% to 30%.
d) In correspondence dated 1 September 2005, the respondent advised the builder that the draft report being prepared recommended that the third floor home office be deleted and the retaining wall at the front be lowered by 0.50 metres and the finished floor level be lowered by 0.26 metres. This was to provide a reasonably flat driveway from the road to the undercroft garage whilst also bringing the wall height of the dwelling down.
e) With the exception of deleting the home office, the retaining wall was stepped and sloped to lessen the impact, and the whole building was lowered 0.261 metres.
f) A final set of plans, dated 30 September 2005, was lodged. These included the addition of stairs to provide alternative
- access to the home office and the incorporation of obscure glazing to protect the privacy of adjoining neighbours.
46 What appears to have happened in this case, is that rather than lodge the original plans together with a comprehensive argument to justify the variations to both the acceptable development provisions of the Codes and the acceptable development standards of the RDG's, the applicant has relied on his building designer to "negotiate" over time with the respondent's professional staff.
47 This alternative approach has led to a somewhat superficial assessment of variations, excluding wall height and front retaining wall, as exemplified in the report to Council of 25 October 2005:
"In this particular case, all of the variations, with the exception of wall height and front retaining wall, can be approved under delegated authority as the affected neighbours have indicated no objection to these variations. The variations are considered acceptable and will not have any significant impact on the amenity of the neighbouring properties, particularly as the visual privacy variations are predominantly overlooking the roofs of adjoining dwellings or non-essential outdoor areas."
48 The Tribunal takes little comfort from a situation where the onus to prove the case in favour of the applicant has fallen on the respondent's professional staff, and constant reference to the professional report to Council was made to this effect by the applicant in submissions at the hearing. As explained in Claude Neon Ltd v City of Perth (Unreported; Appeal No 38 of 1986), the onus is on the applicant to establish that the proposal should be approved.
49 Again, in Kaard v City of Nedlands [2004] WATPAT 96, the approach that should be taken by the applicant, as outlined in [34] above was explained in this way:
164 … [N]o comprehensive or substantive argument was presented to the Tribunal that would allow the matter to be tested against the Performance Criteria to determine whether there was compliance with those Criteria."
50 On the question of building height in relation to the home office, the applicant's arguments were contained in the report to the Council:
"... the owner anticipates and intends to occupy this space [Home Office] for extended hours as part of his work situation
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- (as a stockbroker) and this element of the dwelling is quite crucial to his decision to build. This space needs to be secure and relatively isolated from the rest of the house and other spaces within it because of the nature of this business. Establishing it on a different level, achieves that objective (as well as clearly, benefiting the owner by virtue of the views being able to be achieved).
It occurs that in this particular instance, with the Home Office being located on top of, and centrally within the building, it will have minimal (if any) impact on surrounding residents and more particularly, on people passing by along Branksome Gardens ... this Home Office element still generally falls within the maximum allowable height provided in the Town's revised Residential Guidelines (June 2005) and as the spirit of the Guidelines is being met, then we would respectfully seek your support for this proposed Home Office element, which is considered so crucial to the design of this dwelling by the owners ... We are of course aware of the Town's concern about possible precedent however, it appears that this Home Office element might be able to be contained within a relatively shallow 'pyramid' on the top of this dwelling and it might be on that basis that the Town feels able to support that element in this instance."
51 In the report to Council, the conclusion was reached that:
"… Although considered reasonable, the home office is supported with some degree of reservation in terms of the wall height."
52 However, the report did not reach a conclusion as to whether building height was consistent with the desired height of buildings in the locality.
The desired height of building
53 This matter was addressed by Peter Fitzgerald, a senior planner with Allerding Burgess, town planning consultants for the respondent. He argues in his witness statement dated 1 February 2006:
a) Prior to June 2005, the maximum wall height in the precinct was 6.5 metres.
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- b) At the time applications were being made for flat roofed dwellings on the basis that the overall building envelope for a higher flat roofed dwelling would not be that far removed from a pitched roof building allowed to a total building height of 10 to 11 metres.
c) In response to these applications the updated Design Guidelines 2005 increased the wall height for flat roofed dwellings to 7.5 metres.
d) The proposal under review exceeds the maximum wall height of 7.5 metres.
54 In his submissions at the hearing Peter Webb, a consultant town planner, drew to the attention of the Tribunal the proposed building plans but with a 30 degree pitch roof line superimposed on the second floor of the building. This hypothetical situation contained in Exhibit 3 and, as argued by Mr Webb, completely enclosed (with the exception of minor protrusions) the proposed home office.
55 The point that was being made by Mr Webb was that if the proposal on the subject land was for a two-storey dwelling with a pitched roof it would be automatically approved, and yet its consequential effects on the neighbouring property and the local environment would be greater than the current proposal.
56 In the view of the Tribunal although these submissions do highlight an apparent inconsistency in the allowable building height between flat roofed dwellings and pitched dwellings the argument is still hypothetical in relation to the subject land. For instance, the extent of overshadowing of a pitched roof dwelling on the adjacent property to the south may, of itself, have been a sufficient reason for the respondent to refuse such a proposal.
57 What is clear, is that the revised development requirements contained in the 2005 RDG's specifically state under the acceptable development standards for building height 2.3(A1.2):
"Development which complies with the following is deemed to meet the relevant Performance Criteria:
iii. Top of a skillion, curved or flat roof that does not exceed 7.5 metres in height."
58 In the view of the Tribunal, the clear intent of the RDG's is that for a flat roofed dwelling, the desired height is 7.5 metres and there are no
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- comprehensive submissions from the applicant to the Tribunal arguing the case for a higher building height based on all of the relevant performance criteria.
Home office
59 In his submissions to the Tribunal, Mr Webb argues that the footprint of the home office on the top of the second floor is no more than 15% of that area and would not have the same impact if a third floor extended to the perimeter or peripheral walls.
60 Again, he argues that with the home office set back up to 7.5 metres from the peripheral wall, a passer-by could not see the home office from the street, and would have to be 30 metres away to do so.
61 On the other hand, Mr Fitzgerald argues that because the width of the home office is approximately 50% of the width of the proposed building, it is a significant visual component of the structure.
62 Although the Tribunal has no reason to doubt the submissions of Mr Webb, it has no information before it as to how the proposed dwelling would appear from properties directly opposite, or from elsewhere in the street, in order to judge its likely effect on the streetscape.
63 What is clear, is that the subject land is located on a high point in the street with natural ground level somewhere between 2.3 metres to 3.0 metres above the level of the road. To superimpose a three level structure, together with undercroft garage, would present to the street at various points along it as a four level structure.
64 As explained by Mr Fitzgerald in his witness statement:
50 … [I]t may be considered that the 3rd storey office sought in this instance would add a new element to the predominant character of the locality. It also introduces an element (a distinct 3rd storey in addition to an undercroft and beyond the maximum specified wall height) that is not anticipated or encouraged by Council's recently adopted Design Guidelines."
Conclusions
65 The application for review concerns the merits or otherwise of a proposed three level residence with undercroft on the east side of Branksome Gardens with views to the west. What the Tribunal is
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- required to do is to properly assess the proposal against the provisions of TPS 1, the RDG's and the Codes and to decide whether there would be a risk to the orderly and proper planning of the locality if the proposal was to proceed.
66 The position taken by the applicant was summarised in the closing statements of Mr Webb. He emphasised the extensive liaison with Council staff which led to their support by way of a professional report to the Council meeting of 25 October 2005.
67 Mr Webb argued that the variations being sought were minor and would not compromise the integrity of the statutory documents, and that the important elements of the performance criteria such as overlooking, privacy, overshadowing and protection of sunlight into the relevant spaces of the adjoining property had been achieved. He emphasised that as the home office would be some 6 metres to 7.5 metres back from the peripheral second-storey wall, it would not be an obvious element from the street.
68 In his closing statements for the respondent, Mr Fitzgerald argued that the onus is on the applicant to prove the case and this has not been done. Although acknowledging the existence of other three-storey dwellings in the locality, he claimed that these were few in number, isolated and unrepresentative of the predominant built form, and that in any event, the wall height proposed for a flat roofed dwelling exceeded what the respondent considered reasonable and would not be consistent with current or desired built form.
69 Mr Fitzgerald also argued that there was insufficient evidence on the likely visual impact of the proposal on residents opposite, and to approve the proposal would be inconsistent with orderly and proper planning.
70 The difficulty the Tribunal has with the approach by the applicant is that rather than lodge plans for an estimated $600 000 building, accompanied by a comprehensive argument to justify the variations being sought from the statutory documents, the applicant has chosen to negotiate over time with the professional staff of the respondent. This resulted in a professional report to the Council which dealt with the variations on a somewhat superficial basis and its assessment and conclusions were rejected.
71 In making these comments, it is not the intention of the Tribunal to do anything other than to emphasise that the onus is on the applicant to
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- prove the case as outlined in [34] above, and not to rely on Council officers to promote the case on their behalf.
72 The problem the Tribunal finds itself in, is that there are no comprehensive or substantive arguments available to it from the applicant's side to allow it to assess the variations proposed against the relevant performance criteria in particular, and whether there has been compliance with those criteria or not.
73 Again, the lack of information as to how the development would appear when viewed from the opposite side of the road or from other critical points in Branksome Gardens in particular, makes it highly difficult to assess the proposal on the streetscape or on the orderly and proper planning of the locality.
74 However, what can be concluded from the information before the Tribunal is that the proposed building would be on a high point in Branksome Gardens and would appear as an elevated four level structure that does not accord with the height requirements of the respondent's RDG's. It would, therefore, not accord with the desired height requirements for the locality as specified in the RDG's.
75 The argument by the applicant that if the proposed building had a pitched roof to a height of 10 to 11 metres, it would have been approved by the respondent has not been given great weight by the Tribunal. The argument is hypothetical and would probably not be advanced by the applicant as a genuine alternative to the current proposal. Again, such a proposal would have to be considered on its merits against the relevant criteria or standards.
76 The Tribunal finds that, based on the information before it, it can find no valid planning reason why the proposal should be approved.
Orders
77 For the foregoing reasons, the Orders of the Tribunal are as follows:
1. The application for review is dismissed.
- I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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