FORSYTH and CITY OF FREMANTLE
[2006] WASAT 361
•12 DECEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FORSYTH and CITY OF FREMANTLE [2006] WASAT 361
MEMBER: MS J HAWKINS (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 12 DECEMBER 2006
FILE NO/S: DR 263 of 2006
BETWEEN: PAUL FORSYTH
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Development - Two storey single house - Height - Local planning policies - Impact on locality
Legislation:
City of Fremantle Town Planning Scheme No 3, cl 14, cl 16, cl 77, cl 83
Hilton Local Area Planning Policy D.G.H3, cl 3, cl 5, cl 5.1.2, cl 5.4.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2(A)(2)(ii)
Result:
Application for review allowed
Planning approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Paul Forsyth applied to the State Administrative Tribunal for review of the decision of the City of Fremantle refusing planning approval for the construction of a two storey dwelling at Lot 1016 (Strata Lot 2) 92A Rennie Crescent, Hilton. The proposed development had been refused by the Council of the City of Fremantle as it considered that it did not comply with the Hilton Local Area Planning Policy D.G.H3.
The Tribunal determined that a variation to D.G.H3 was warranted in accordance with the orderly and proper planning of the locality. The application for review was therefore allowed and planning approval granted subject to conditions.
Introduction
This is an application by Paul Forsyth (applicant) for review of a decision of the City of Fremantle (respondent) to refuse development approval for the construction of a two storey dwelling at Lot 1016 Rennie Crescent, Hilton, being Lot 2 on Strata Plan 44685 (subject land). The application is made pursuant to s 252(1) of the Planning and Development Act 2005 (WA).
The subject land
The subject land is a rear, battleaxe lot of 495 square metres. It was created by the survey strata subdivision of a triangular shaped block at the corner of Rennie Crescent and Carrington Street, Hilton. The subject land has vehicular access to Rennie Crescent via a 23.6 metre long access leg along the north‑eastern boundary.
The site plan, submitted as part of the application, shows that the developable area of the subject land has a common boundary with the front Lot 1 which, together with the width of the access leg, measures approximately 19.83 metres. The rear boundary is 4.26 metres. The north‑eastern boundary is 33 metres and the south‑western boundary measures 36.18 metres.
To the rear and both sides are battleaxe lots. The lots to the rear and one side have on them two storey dwellings and to the other side, two storey style, loft dwellings. Lot 1 to the front has on it the original single storey dwelling.
The nature of the proposal
The proposal involves the construction of a two storey dwelling which consists of lounge, kitchen, study/guestroom, laundry, toilet and garage and upstairs two bedrooms and two bathrooms.
The garage would have an 8.51 metre long parapet wall on the north‑eastern boundary. The overall height to the apex of the roof would be 8.4 metres.
Planning framework
The subject land is zoned Urban under the Metropolitan Region Scheme (MRS) and residential development is an appropriate use in the Urban zone.
Development of the subject land is also governed by the City of Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme). The subject land is zoned Residence R20 under TPS 3 and a private residence is a "P" or permitted use. Clause 14 requires that the consent of the respondent is required for any development. Clause 16 requires that when determining any application the Council must have regard to the following:
1.the purpose for which land is zoned or reserved under the Scheme;
2.the orderly and proper planning of the locality;
3.to the preservation of amenities of the locality and to the matters in cl 77 and shall have regard to any planning policy statement adopted by Council relating to specific areas;
4.use classes or building type;
5.may refuse its consent or grant it subject to any conditions it deems fit.
The development proposed for the subject land was refused at a Council meeting held on 28 June 2006 on the basis of non‑compliance with the Hilton Local Area Planning Policy D.G.H3 (D.G.H3). Clause 3 sets out the Objectives referred to in D.G.H3 as follows:
"•Encourage the conservation, interpretation and enhancement of the garden suburb features of the precinct as identified in the above statement of significance;
•Ensure all new residential development is compatible with the character and scale of the built environment, streetscapes, traditional garden settings and urban spaces;
•Retain mature trees, gardens and areas of indigenous vegetation;
•Encourage the retention and restoration of the traditional buildings; and
•Ensure the garden suburb character is enhanced with additional tree planting."
Clause 5 of D.G.H3 sets out the Development Requirements. Clause 5.4.1 states that for infill developments such as the proposed development:
"With the exception of the height requirements outlined above, infill development shall be in accordance with the requirements of the RD Codes".
Clause 5.1.2 sets the height requirement for new developments. It states that the maximum external wall height is 3.5 metres (equivalent to single storey and a loft) and the maximum roof ridge height is 6.5 metres. It goes on to state that loft additions for new dwellings shall be designed to be located at the rear of the building to maintain a single storey front facade appearance.
Figure 5 of D.G.H3 depicts the requirements for new developments. Figure 5 states that:
•new houses will be single storey or loft type two storeys;
•maximum height at the front face of the building for loft type houses is 3.5 metres;
•maximum total height (including loft type) of new dwellings is 6.5 metres ground floor to ridge level.
The RD Codes referred to are the Residential Design Codes of Western Australia (2002) (Codes).
The respondent's planning officers, as part of their assessment of the proposal, prepared a table to relate the proposed development to the development requirements. The table is reproduced as follows:
| Requirement | Proposed | Comments |
| Setbacks | ||
| Front | N/a | Rear lot – N/a |
| Rear | 12.2m | Complies |
| Side East | Nil; 1.8m | Subject to reduction in height of parapet wall, setbacks comply with RD Codes |
| Side West | 1.6m | 4.5m required with major opening as proposed; 1.5m required with obscured/relocated window – condition recommended |
| Roof height | 8.4m | Policy DGH3 indicates 6.5m max roof height |
| Wall height | 3.0m; 5.6m | Complies with RD Codes; variation from policy |
| Open Space* | >50% | Complies |
| Parking | 2 | Complies |
Development refusal
The development application was refused by the respondent for the following reasons:
"... non‑compliance with Council's Hilton Local Area Policy (D.B.H3) [sic]. Council encourages the applicant to submit a modified design to achieve a loft style development which complies with policy".
Respondent's statement of issues
The respondent listed the following as issues in respect to the proposed development:
•that it does not comply with D.G.H3;
•that it was incompatible with the surrounding area;
•that it would have an adverse impact on the amenity of the adjoining residential properties;
•the residents of the other dwellings would have an expectation that the development would comply with D.G.H3.
Applicant's submissions
Many of the submissions made by the applicant rely on the comments and recommendations made by the respondent's planning officer at the application stage. However, the planning officer's report and recommendation is simply that, a report and recommendation. The State Administrative Tribunal (Tribunal) accepts that it is for the respondent to give whatever weight it wishes to the report from the planning officer, but ultimately the decision on the development application must be that of the Council.
Having said that, the Tribunal notes that the recommendations of the planning officers are those of professionally trained employees and, when exercising judgment in a matter, their views are of assistance to the Tribunal: Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 [par 36].
The applicant did however provide submissions that were his own. The applicant submitted that the surrounding area was occupied by existing houses, some of which were of larger and bulkier proportions than the proposed development. Photographs were provided to show the houses on neighbouring lots.
The applicant also noted that the Councillors were given information which suggested that the roof height of the proposed development was 8.4 metres. The applicant argued that the average height of the sloping ridge should be taken into account and, if this was done, the height would be 7.9 metres.
The applicant suggests that when he purchased the subject land he was supplied with sketch plans of a semi‑two storey dwelling similar to that which approval was sought. He argues that these plans were required by Council before the subdivision to a battleaxe lot was approved. He suggests that these plans were not provided to the Council when considering the proposed development.
In addition, the applicant states "Planning Policy 3" was adopted after he purchased the subject land. It is presumed that the applicant is referring to D.G.H3 when he refers to Planning Policy 3.
Finally, the applicant also argues that the subject land is on the fringe of the relevant policy precinct, implying that for this reason it should be treated differently from more centrally located proposals.
Respondent's submissions in response
The respondent submits that simply because the subject land was not specifically depicted on Figure 1 of D.G.H3 or the Scheme map of TPS 3 does not render either the policy or the Scheme invalid. The respondent says the Council was aware of the actual layout and dimensions of the subject land when it determined whether to grant planning approval.
The respondent relies on cl 16 of TPS 3 which states that the Council is required to have due regard to any planning policy statement adopted by Council in respect to specific areas. The respondent suggests that D.G.H3 constitutes a planning policy statement adopted by Council. Figure 1 of D.G.H3 depicts the area to which D.G.H3 applies being the entire area of Hilton and includes the subject land.
The respondent also relies on cl 5.1.2 of D.G.H3, which recommends a maximum external wall height of 3.5 metres (equivalent to a single storey and a loft) together with a roof ridge height of 6.5 metres. It is the respondent's submission that cl 5.1.2 stipulates that loft additions for new dwellings shall be designed to be located at the rear of the building to maintain a single storey facade. The respondent argues that this policy applies to infill development as a result of cl 5.4.1 of D.G.H3.
It is submitted therefore that the proposed development does not comply with cl 5.1.2 of D.G.H3 as it is a proposed two storey dwelling with a maximum roof height of 8.4 metres and a wall height of 5.6 metres. It is also argued that the front elevation of the proposed development presents as a two storey facade. The respondent argues the sloping of the roof ridge is irrelevant as D.G.H3 stipulates a maximum rather than an average roof ridge height. Further, even the average roof height of 7.9 metres exceeds the maximum height as recommended in D.G.H3.
As to the surrounding houses, although the respondent accepts that some of them include two storey developments, it is contended that those houses would have received planning approval prior to the introduction of D.G.H3.
Further, the respondent suggests the fact the proposed development will not have a street frontage does not render the height requirements in D.G.H3 inapplicable. It argues that the proposed dwelling is still likely to be visible to a limited extent from the street.
As to the plan provided with the original approval for the battleaxe subdivision, the respondent submits that the approval does not constitute an endorsement of the planning merits or otherwise of that plan.
Finally, the respondent points out that the Council was required under cl 83 of TPS 3 to have regard to public comment. Three public submissions were received, all of whom objected to the proposed height of the development.
Consideration
The proposed development is upon land that is zoned Residence R20 under TPS 3 and a private residence as proposed is a "P" or permitted use.
The principal planning issue identified in this application relates to the proposed development not being in accordance with D.G.H3. The proposed development is a two storey development rather than a loft style development. Further, the proposed development exceeds the maximum roof and wall heights set by D.G.H3.
However, the subject land is a rear battleaxe lot and is accessed along a 23.6 metre long access leg. The proposed development on the subject land will be behind the original single storey dwelling on Lot 1, to the front. Accordingly, there will be limited visibility of the proposed development from the street frontage and so it is considered, it will have limited impact on the surrounding streetscape.
The photographs provided to the Tribunal show the surrounding developments. To the rear and both sides are battleaxe lots. The lots to the rear and one side have on them two storey dwellings and, to the other side, two storey style loft dwellings.
Accordingly, in close proximity, and certainly visible from the subject land, are two storey dwellings upon battleaxe lots. Therefore, within close proximity of the subject land, the Council has approved two storey developments. Although the Tribunal accepts that these developments may have been approved prior to D.G.H3 being applied by the Council, those developments still impact on the visual amenity of the locality.
In considering this application, the Tribunal must, under cl 16 of TPS 3, have regard to how the proposed development will impact on the visual amenity of the immediate locality, notwithstanding the objectives of D.G.H3. Due to the close proximity of similar developments which are also located on battleaxe lots, the Tribunal considers that the proposed development will be consistent with the character and therefore the amenity of the locality.
Further, the proposed development is configured on the subject land in a north‑eastern direction. There is no evidence to support that the proposed development would cause any overshadowing outside the parameters set by the Codes.
So, although the height requirements of D.G.H3 are not complied with by the proposed development, given the above findings, the Tribunal considers that a variation to planning policy D.G.H3 would be in accordance with the orderly and proper planning of the locality. A variation can therefore be supported in respect to the proposed development.
Conditions of approval
As directed by the Tribunal, the respondent provided a schedule of conditions it would want imposed should the Tribunal be inclined to allow the application. The applicant has advised that he has no objection to the recommended conditions. Apart from conditions 4 and 6, the Tribunal considers that those proposed by the respondent are appropriate for the proposed development, given the requirements of the Codes. This is a battleaxe lot development. The Tribunal has issue with suggested condition 6 which is concerned with the proposed parapet wall of the garage. To make the condition more certain, the Tribunal considers that it should make direct reference to the relevant development standards clause of the Codes.
In respect to condition 4, the Tribunal considers that it should be made clear that both sides of the boundary wall should be properly finished. To make the condition more certain, the Tribunal considers that it should read as follows:
"4.The external face of the side of the proposed parapet boundary wall facing the neighbour shall be finished with face brick work or two coat sand render or otherwise to the satisfaction of the Director of Urban Management."
Orders
1.The application for review is allowed.
2.Planning approval is granted for the construction of a two storey residence as detailed in a series of plans received by the City of Fremantle on 15 February 2006 on Lot 1016 (Strata Lot 2) Rennie Crescent, Hilton, subject to the following conditions:
1.For residential development, the manoeuvring areas for car bays/ carports, garages shall be designed to allow vehicles to turn in a single turning movement at a radius of not less than 5.5 metres and exit in forward gear.
2.All stormwater shall be contained and disposed of on‑site.
3.The development shall be connected to the reticulated sewerage system prior to occupancy and thereafter.
4.The external face of the side of the proposed parapet boundary wall facing the neighbour shall be finished with face brick work or two coat sand render or otherwise to the satisfaction of the Director of Urban Management.
5.Details of colours and external materials shall be submitted prior to any development taking place on site to the satisfaction of the Director urban Management.
6.The height of the proposed parapet boundary wall shall be reduced to comply with the Acceptable Development provisions referred to in cl 3.3.2(A)(2)(ii) of the Residential Design Codes of Western Australia.
7.The proposed upper level bedroom window shall be relocated to the southern (rear) elevation and set back to comply with overlooking provisions of the Residential Design Codes of Western Australia.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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