| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FORTE and TOWN OF CLAREMONT [2013] WASAT 35 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 27 NOVEMBER AND 20 DECEMBER 2012 DELIVERED : 6 MARCH 2013 FILE NO/S : DR 155 of 2012 BETWEEN : DANNE FORTE Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords: Town planning - Development application - Height controls in residential areas - Large three level residence proposed - Earlier decision of Tribunal holding that town planning scheme effectively limited development to two storeys - Earlier decision of Tribunal nevertheless permitting development nearby where development of a three level residence presented as two storeys with use of loft - Present proposal on more prominent site with large rooftype structure covering third level - Extent to which earlier decision created controlling precedent - Written local policy aimed at controlling excessive bulk and scale particularly in relation to two storey developments - Policy not in existence when earlier decision made - Whether proposed development would be inconsistent with the
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current planning framework which effectively prohibited three storey developments - Whether policy inconsistent with width of planning discretion given under scheme - Whether policy undermined by examples of imposing residences built nearby - Relationship of scheme and policy to height controls found in Residential Design Codes - Tribunal finding proposed development was three storey development - Tribunal finding proposed development inconsistent with scheme and policy - Application for review dismissed Words and phrases: 'storey' Legislation: Residential Design Codes of Western Australia 2010, cl 6.7
Town of Claremont Town Planning Scheme No 3, cl 26(3), cl 40, cl 46, cl 76, cl 77 Result: Review dismissed
Summary of Tribunal's decision: The applicant sought planning approval for a large three level residence proposed to be built on the corner of Victoria Avenue and Bay Road in the Town of Claremont. This reasonably prominent development would replace an existing two storey 'modern' residence built on the site. The proposed third level of the development presented as a sizeable roof-like structure.
The Tribunal found that the proposed development would be inconsistent with the current planning framework which effectively prohibited three storey developments. A previous decision of the Tribunal (decided by a Deputy President) had reached that conclusion in its interpretation of a clause of the Town Planning Scheme which regulated maximum building height in residential areas. In that earlier decision, the Tribunal had gone on to allow a three level development to be built on the opposite (the Swan River) side of Victoria Avenue, but one that 'presented' to Victoria Avenue as a two storey development, and which took advantage of the roof space as a loft.
Since that earlier decision, the Town of Claremont had published a written local policy, the specific aim of which was to limit height, bulk and scale, particularly as regards two storey and related residential development in the Town.
In this review, the Tribunal discussed planning law cases on the meaning of 'storey' and determined that the proposed development was in fact to be regarded as three storeys high. The Tribunal distinguished the approval given in
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the earlier case as context specific but applied the effective prohibition on three storeys found in the planning scheme. In the Tribunal's view, this finding alone may well have been sufficient to warrant refusal of the proposed development.
In any case, approval of the development would be inconsistent with the valid aims and intent of the policy, notwithstanding that there were some examples of imposing residences scattered around the immediate vicinity. Such examples could influence, but not ultimately control, the characterisation of the desired neighbourhood character.
The Tribunal found it unnecessary to go on to consider the respondent's further arguments concerning the interrelationship between height controls in the scheme and the height controls found in the Residential Design Codes. The Tribunal expressed doubt that such controls could in any way assist the applicant's position. Rather, they should be read as complementing a planning framework intent on limiting height, bulk and scale, particularly as regards two storey and higher residential buildings in the Township.
The application for review was dismissed and the decision under review was affirmed.
Category: B
Representation: Counsel:
Applicant : Ms Moharich
Respondent : Mr Slarke
Solicitors:
Applicant : Flint Moharich
Respondent : McLeods
Case(s) referred to in decision(s):
Archetype Design Studios and Town of Claremont [2006] WASAT 181
Ferella v Otvosi [2005] NSWSC 962; (2005) 64 NSWLR 101
Hawkins and City of Joondalup [2008] WASAT 64
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Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266
Kominos & Ors v Boroondara CC [2011] VCAT 982
Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29
Piva v Stonnington CC [2009] VCAT 1089
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is a review of a deemed refusal of the Town of Claremont (Town or Council) arising out of a development application made on 10 February 2012 in connection with a proposed development at Lot 50 (No 59) Victoria Avenue, Claremont (subject land or site). 2 The proposed development may be described generally as a new, large, multilevel residence to be built on a corner site with accommodation spread over three levels. The details of the development are given below. 3 It is unnecessary to discuss at any length the evolution of the design of the proposed development, except to note at this point that the original iteration was for a three level building 'based on the fact that the third level could have been contained within a conventional pitched roof' (Joint Witness Statement of the Planning Experts, at [12]). The extent to which this matter of history is relevant, if at all, is an issue to which we will return below.
Issues 4 The two main issues before the Tribunal are: 5 For convenience of reference we will refer to these two interrelated issues respectively as the 'Building height' issue and the 'Character, bulk and scale' issue. 6 The Tribunal has determined, for the reasons that follow, that the answers to both of these questions is 'No'.
The site and its planning context 7 The subject land and its context are conveniently summarised by the respondent as follows: (Page 6)
... The Site: (a) Is located at the northwest corner of the intersection between Victoria Avenue and Bay Road [in the Town of Claremont]; (b) Has an area of approximately 740 square metres; (c) Has [currently] on it a [modern] two storey dwelling; (d) Is zoned 'Urban' under the Metropolitan Region Scheme; and (e) Is zoned 'Residential R15-R20' under TPS 3. 8 These matters are common ground between the parties. 9 The Tribunal had the benefit of a site visit (including visiting streets in the immediate vicinity of the subject land) accompanied by the parties, their counsel and the experts.
The detail of the proposed development 10 The proposed development is primarily orientated towards Victoria Avenue to the south, with a three car garage accessed from Bay Road (to the east). The overall height of the proposed development will be about 9.2 metres. The ground floor level accommodation includes two bedrooms, two bathrooms and a kitchen/dining/living area which opens onto a covered outdoor area and pool (to the north) and to another covered outdoor area (to the south). The second level contains a guest suite and a playroom, a home theatre/gym and a further bedroom, ensuite and associated balconies. There is a large void over the ground floor dining/living area. Finally, the third level contains a master bedroom with dressing room and ensuite, a study and a sitting room with kitchenette and associated terraces. There is lift access to all three levels. 11 The third level is set behind a metal-clad structure which is set back some 6 metres from the Victoria Avenue boundary and extends over the second level balconies. The perimeter 1.2 to 1.5 metres of this structure is pitched at 60 degrees. It starts at a height of approximately 6 metres above the ground floor level and rises to approximately 8.7 metres where it adjoins a flat section of roof. This flat section is approximately 20 metres by 12.3 metres in area. The pitched section of roofing is interrupted by four large 'dormer' openings ('reverse dormer windows'). The external wall, primarily glazed, to the upper level accommodation is set back approximately 3 to 4.5 metres behind these openings. (Page 7)
12 Certain screening to the western elevation (to prevent overlooking) was agreed between the parties, if the development were to be approved, and this matter is no longer in issue.
Planning framework 13 The low density residential zoning under TPS 3 ('Residential R15R20') has already been referred to. See above under 'The site and its planning context'. 14 Also relevant are the following provisions from TPS 3: cl 26(3) (compliance with the Residential Design Codes of Western Australia 2010 (R Codes)); cl 40 (building height, reproduced below); cl 46 (objectives of the Residential zone); cl 76 (design controls); and cl 77 (protection of townscape). 15 Clause 40 of TPS 3 is central to this review. So far as is relevant, cl 40 provides as follows: HEIGHT OF BUILDINGS: (1) … a building shall not be erected or added to so as to exceed the height prescribed or determined in accordance with this Clause. (2) For the purpose of this Clause the height of a building shall be the vertical distance between the top of the eaves, parapet or flat roof, whichever is the highest, and the natural ground level. Natural ground level shall be determined by connecting a point on the front boundary to a corresponding point on the rear boundary. Points are deemed to correspond when a line connecting such points is parallel to the nearest side boundary. … (3) … in the Residential Zone a building shall not exceed 6.6m in height. 16 So far as is relevant, the R Codes provide as follows: (Page 8)
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iv Applies to roof pitches up to 25 degrees. In some localities steeper pitches may be required and greater height permitted in accordance with the provisions of the scheme or local planning policy.
Local planning policy: residential character 17 Under TPS 3 the Town has adopted a local planning policy, namely, Local Planning Policy No 107 Retention of Residential Character (LPP 107). That Policy is relevant to the review. The respondent drew our focus to the following passages which outline the purposes of the Policy: Most complaints and objections to new development have centred around the form of two storey single dwellings, both new and additions to existing dwellings. While two storey dwellings are not objected to per se, concern has been regularly expressed about the excessive bulk of two storey developments, especially as viewed from the street, and the distribution of that building bulk at the upper level. Large, slabsided two storey developments, with the bulk of the second floor thrust forward on the lot, are regarded as out of character with Claremont's existing and traditional housing forms. In addition, roof forms play a significant role in the urban character of a streetscape. Within the Town of Claremont traditional roof forms predominate in single dwelling development, where there is a strong representation of similar housing styles and roof forms. The Council will encourage traditional roof forms in the older residential areas where these predominate. The protection and enhancement of streetscapes and residential character are corner stones of TPS3. The purpose of this Policy, therefore, is to provide added protection for the established residential character of the areas within the Town of Claremont which are set aside for single residential development. 18 The respondent went on to make the following submissions about the alleged intent of LPP 107. It was submitted that the policy: (a) requires a new development to be comparable in scale and proportion to surrounding development in the immediate locality (which is defined as the five properties on either side of the proposed development on both sides of the street); (b) requires building bulk to be distributed to ensure that a proposed two storey dwelling will not have an overpowering impact on neighbours and the streetscape; (c) requires new two storey development to be designed so as to appear to be predominantly a single storey house when viewed (Page 10)
from the street, including a requirement for any two storey development to be located in the middle third of the lot, where the surrounding development in the immediate locality is predominantly single storey; (d) limits the maximum floor area of the second storey of a new single dwelling to 50% of the footprint of the ground floor, where surrounding development is predominantly single storey; (e) encourages traditional roof forms such as hipped and gable roofs for those parts of a single dwelling which contribute to the immediate streetscape; [and] (f) encourages roof pitches between 25 degrees and 35 degrees. 19 On the other hand, the applicant's position is that LPP 107 is fairly generalised (as appears to some degree from the passages reproduced above) and should, in any case, be given little weight when read against the discretion given to any decisionmaker under TPS 3, particularly having regard to some of the approved surrounding developments. We will return to this debate below.
Archetype Design Studios case 20 However, before proceeding to the parties' respective cases on the two issues, it is necessary to note some observations about the decision of Judge Chaney (as his Honour then was) in Archetype Design Studios and Town of Claremont [2006] WASAT 181 (Archetype). The applicant, in particular, relies heavily on the conclusions reached in that review. 21 His Honour was there dealing with two grouped dwellings proposed for Lot 18 (No 56) Victoria Avenue, immediately to the southwest of the subject land. The issues in that review are broadly similar to the issues before the Tribunal in this review. His Honour found, at [18] and [19]: In my view, it is not possible to construe cl 40 [of TPS 3] as being designed to limit building to two storeys, without any capacity to use roof space above the two storeys. That is what [the design in the case] does. It does allow for a substantial use of the roof space, though in my view, it is nevertheless properly construed as a use of roof space, rather than as an additional storey. Critical to this issue is the presentation of the development to Victoria Avenue, which has been the focus of the evidence at the hearing, and is the focus of the concerns expressed by the respondent and by its witnesses. It is accepted, quite properly, that the presentation to Victoria Avenue is of a two-storey building with a loft, the dormer windows on that side of the building being somewhat less substantial than (Page 11)
on the river side view of the building. In my view, there is clear scope for that type of development within the parameters found within [TPS 3], when read with the [R Codes]. 22 Importantly, his Honour also noted in Archetype,at [8], that the effect of the relevant clauses of TPS 3 was as follows: The effect of those provisions is to limit in practical terms the height of buildings to two storeys, but the provisions of [TPS 3] are otherwise silent as to the absolute height of a building, taking into account its roof. 23 See also his Honour's discussion at [18] of Archetype, set out above. 24 It should be noted that this site (No 56), unlike the subject land (No 59), is on the southern side of Victoria Avenue and on a site which historically slopes steeply down to the Swan River. Further, grouped dwellings were proposed for the site and a substantial setback (approximately 14 metres) was envisaged from Victoria Avenue; there also existed a substantial retaining wall. 25 It is also convenient to note at this point that in our view the site (No 56) was clearly to be construed in the context of a proposed development that was seen as compatible with other substantial residential developments on that side of Victoria Avenue, especially when viewed from the Swan River. We note also that a different structure exists on the site now, as opposed to what was originally approved by his Honour in that review. In addition, LPP 107 was not in existence when that decision was made. 26 We turn to discuss the parties' respective positions regarding the first issue of 'Building height'.
Building height: respondent's contentions 27 In summary, the respondent contends as follows: 1) The proposed development differs substantially from the development approved in Archetype because: a) the development the subject of this review was originally conceived as a three storey development (see, for example, the earlier plans filed in the review dated 17 January 2012, prepared by Zuideveld Hur Architects); (Page 12)
2) The proposed pitched roof neither presents as, nor functions as, a roof. The pitched element (that is, the perimeter) 'mimics' a roof. This is because the roof is substantially open on two elevations; will need a drainage system on the 'balcony' areas behind the openings; and these openings are not themselves recessed dormer windows. 3) Further, the perimeter form could be described as a 'metal shroud' imitating a roof element. In any case, this structure does not substantially conceal the existence of a third storey behind it. 4) The pitched element in effect 'hides' a flat roof and the height measurement under cl 40 of TPS 3 from either the top of the eaves or the flat roof itself exceeds 6.6 metres. This height limitation cannot be varied under TPS 3. 5) If it were necessary to assess the proposed development against the R Codes then this development would be probably regarded as a 'concealed roof' within the meaning of Table 3, Category B, and therefore exceed the maximum building height. In any event, the rationale for the restriction of height for concealed or flat roofs is to prevent excessive bulk. 6) Likewise, the R Codes' performance-based objectives could not be met because of the bulk and scale created by the roof form. 28 The evidence given by Mr A Pawluk, an expert town planner called by the respondent, is generally consistent with these contentions and those below on character bulk and scale. (Page 13)
Building height: applicant's contentions 29 The applicant responded as follows: 1) Relying upon Archetype, at [8] (reproduced above), there is no absolute maximum building height prescribed under TPS 3. 2) When assessing any proposal the Tribunal must look at cl 6.7 and Table 3, Category B of the R Codes to establish the maximum building height, namely 9 metres for a 'pitched roof', which is applicable here. 3) The Tribunal should also apply the concept of a mansard roof as appears at [15] and [16] of Archetype: The expression 'flat roof' is not defined either in the [TPS 3] or in the [R Codes]. Clause 9 of the [TPS 3] provides that words and expressions used in [TPS 3], but not defined in Part 1 of [TPS 3], elsewhere in the [TPS 3], or in the [R Codes], shall have their normal and common meanings. In my view, applying that test it cannot be said that the proposed roof can be properly described as a flat roof, notwithstanding that an element of it is, in effect, flat. Rather I think that it is, if one needs a label, far closer to describe the roof as similar to a mansard roof. [The Tribunal] was provided during the course of closings with a glossary of building terms published jointly by the National Committee on Rationalised Building and Standards Australia. That document is of some assistance in giving substance to the ordinary or common meaning of these expressions. A review of that document supports the conclusion which I have reached, that this roof form cannot be properly described for the purposes of the [TPS 3] as a flat roof. There is unmistakably a visible portion of roof above the wall of the upper or first floor level, which, to an external viewer and in terms of function, in my view, can only be described as a visible roof or a roof element. 4) Further, the internal recessed dormer openings proposed are consistent with the conceptual notion of a mansard roof and provide light and ventilation to the rooms within the roof space. 5) On the question of whether the proposed development's roof functions as a roof, the applicant submits as follows: (Page 14)
… The pitch of this roof is the same as in the Archetype decision at 60 per cent. In the Archetype decision the area of the angled roof area, that is the nonhabitable space, was roughly half the area of the floor plate below, meaning that the habitable spaces [were] also approximately half and this is what is proposed in this case, as set out in … Mr Zuideveld's [witness] statement. (T:7; 20.12.12) 6) The applicant submits that it is not open to the Tribunal to take previous iterations of the design of the proposed development into account. The applicant's counsel says: [We submit] that [that] kind of design process goes on in all development, sometimes before the [T]ribunal and sometimes prior to lodgement but those [previous] proposals aren't before the [T]ribunal now and it is only the application and the plans that are now before the [T]ribunal that are to be assessed. (T:8; 20.12.12) 7) On the question of whether the structure looks like a roof, the applicant submits that the situation is again similar to Archetype. The applicant relies on Archetype, at [16]: There is unmistakably a visible portion of roof above the wall of the upper or first floor level, which, to an external viewer and in terms of function, in my view, can only be described as a visible roof or a roof element. The applicant also draws attention to Archetype, at [25]: In my view, that leads to the conclusion that the pitched portion of the roof functions as a roof, and that is how the building would appear from the street, or indeed from the river. The sloping of the element of the roof is, I think, unmistakably roof and is not concealed. 8) On the question of whether the roof space can or should be characterised as a loft, the applicant says: We do not accept that there is a need for this roof space to be characterised as a loft for it to be approvable. In Archetype, the roof space included the master bedroom and en suite. They could not be considered incidental rooms in a house, obviously, and the area, whist smaller than what is proposed in this circumstance, was still quite substantial. It's about 70 square metres. (T:9; 20.12.12) (Page 15)
9) The applicant points out that there are many houses constructed with a roof pitch greater than 25 degrees in the locality. In fact, the property immediately to the north has a roof pitch greater than 25 degrees. 30 The evidence given by Mr Caddy, an expert planner called by the applicant, is generally consistent with these contentions and those below on character bulk and scale. 31 We now turn to the second related issue which is an assessment of the character, bulk and scale of the proposed development.
Character, bulk and scale: respondent's contentions 32 The respondent submits as follows: 1) There is an overarching connection between overall height and roof pitch. The respondent contends that the relevant provisions of the planning framework cannot be met and, in any case, do not contemplate a roof design of this type. 2) Much of the roof of the proposed development is concealed, 'spreading its bulk out'. The element which is not concealed has an 'extremely high' roof pitch. This tends to maximise the bulk. 3) Therefore the 'inevitable and undesirable' effect of these factors 'is to maximise the bulk and impact of the third level'. 4) Where, as here, even if a minimum setback is achieved, nevertheless the upper level begins 6 metres from Victoria Avenue and reduces down to approximately 2 metres, at the corner of Bay Road. 5) Here, there has been 'no attempt to push the upper level back', as occurred in Archetype and therefore the proposed development's impact is 'quite different' from that which was approved in Archetype. 6) To the extent that the performance criteria of the R Codes are relevant, that task 'requires consideration of whether the building height is consistent with the desired height in a locality'. To determine what is the desired scale and (Page 16)
height, the Tribunal must look at both TPS 3 and LPP 107. Accordingly, Mr Slarke contended that: While a 9.2 metre height to the top of a traditional pitched roof could be acceptable in this location, it's manifestly unacceptable where the majority of the roof structure is in fact flat and concealed and the external pitched element serves to spread out that building bulk. The desired height of a building with this type of design would be closer to the seven metre standard, which the [R Codes] have for concealed rooves or even the 6.6 metres for a flat roof contemplated by [TPS 2]. [This position] is reinforced by [LPP 107] which encourages traditional roof design, gabled or hipped rooves are mentioned expressly, with roof pitches between 25 and 35 degrees. [LPP 107] also encourages second storeys of buildings to be located in the middle third of the lot because that has an impact on the bulk as well. (T:26; 20.12.12) 7) Thus, neighbouring properties, for example, No 42 Bay Road and No 56 Victoria Avenue, are not relevantly comparable with the subject lot.
Character, bulk and scale: applicant's contentions 33 The applicant contended that, in effect, if LPP 107 were applicable to the extent that the respondent suggested then there would be four relevant elements that might have to be addressed. The elements identified were: 34 On the first element the applicant submits that there are a number of larger two storey residences in the immediate locality except for the neighbouring properties to the west which are all single storey. On the second element, the applicant says that the house approved at No 42 Bay Road is of a similar scale to the proposed development and suggests that the Town accepts 'that this is an appropriate level of bulk and scale for this locality'. Further, the proposed development is more consistent with the alleged policy intent as, when compared to No 42, (Page 17)
there are more architectural features (for example, the 'verandahs') which diminish bulk and scale. 35 On the third element, dealing with front setbacks, the applicant submits that there is less impact here given the corner location and impact on only one neighbour (to the west). As to the final element of roof form, the applicant submits that whilst the development does not achieve a 'traditional' roof-form, this mansard roof-type could be considered as 'innovative'. 36 On the weight to be given to LPP 107, the applicant notes that the policy is not area-specific and covers the whole Town. The applicant reiterates that any 'character of the area' must be assessed in light of previous approvals, including No 42 Bay Road and No 56 Victoria Avenue (with its height and steep roof pitch) and matters such as street vegetation, variation of building stock, proximity to the Swan River and consequent redevelopment cycles.
Analysis and discussion of the case 37 With respect to Ms Moharich, counsel for the applicant, we do not accept the central tenet of her case. In our view, the proposed development, when assessed objectively from a planning and design perspective, is plainly, and presents plainly as, a large three storey building. 38 If this is correct then the applicant faces an immediate and perhaps insurmountable hurdle, as it will be recalled that in Archetype his Honour said, at [8], that the effect of the relevant clauses of TPS 3 'is to limit in practical terms the height of buildings to two storeys' even if the provisions of TPS 3 'are otherwise silent as to the absolute height of a building, taking into account its roof'. 39 We commence by noting another decision of Judge Chaney (as his Honour then was) which dealt with the concept of a 'storey' in planning law: Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266 (Health Resorts). In that case, and insofar as is relevant, his Honour observed, at [45] [48]: There are several definitions of 'storey' in … legislative instruments. The Building Codes [sic] of Australia (BCA) defines storey as follows: (Page 18)
Storey means the space within a building which is situated between one floor level and the floor level next above or if there is not floor above the ceiling or roof […] The applicant also observes that the City of Mandurah Local Planning Policy No 12 entitled 'Development Height Policy' provides that 'use of the room space as a room(s) shall not be considered to constitute ''a storey'' providing that height standards applicable to the site are not exceeded'. The term storey is defined in s 7 of the State Planning Policy 2.6 'State Coastal Planning Policy' (SPP 2.6) to mean: In this Policy, unless the context otherwise requires: … '[S]torey' when used in relation to a development that if for residential purposes has the same meaning as in the Residential Design Codes, when used in relation to other development means a space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above […] The definition contained in SPP 2.6 raises the question of whether or not a development is one which is for 'residential purposes', in which case the definition the Residential Design Codes of Western Australia (2002) (the Codes) applies, or is some other development. The definition of storey in the Codes is 'that part of a building between floor levels. If there is no floor above, it is the part between the floor level and the ceiling'. The effective difference between the Codes' definition and the definitions under both the BCA and SPP 2.6 in relation to 'other developments' is that the latter two exclude a 'mezzanine' from being a storey. 40 In Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29, Glass JA said, at 35: The word storey, it seems, is always used to denote a structural feature of a building … [One] determines the number of floors or storeys in a building not by counting the number of different levels in it but by counting the number of levels of approximately similar floor area ranged above the ground floor in a vertical plane and incorporated in its structure and then adding one. 41 Justice Hamilton wrote in Ferella v Otvosi [2005] NSWSC 962; (2005) 64 NSWLR 101 (Ferella), at [18] [20]: There are not a lot of decisions on whether a building contains more than x storeys or is more than x storeys in height. A storey is conveniently defined as 'each of the stages or portions one above the other of which a (Page 19)
building consists': Shorter Oxford English Dictionary (5th ed, 2002); Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 per Samuels JA at 37. In the Daniel Callaghan case, the NSW Court of Appeal held that a building 'contained' more than three storeys, where it had seven storeys, but nowhere were there more than three storeys superimposed on each other, because the building was stepped back progressively on a sloping site. This was followed in a similar context by Crispin J in the Supreme Court of the ACT in Hughes v ACT Planning and Land Authority [2004] ACTSC 132; (2004) 136 LGERA 420. See also the decision of Bignold J in the Land and Environment Court in Druitts Developments Pty Ltd v Gosford City Council [2001] NSWLEC 96; (2001) 114 LGERA 61. However, provisions that a building not exceed x storeys in height have a rather different incidence. In a number of US cases expressions in terms of x storeys in height have been found ambiguous and uncertain … But the expression 'not more than one storey ... high' did not occasion difficulty for Bryson J in Kirby v Esplin NSWSC 26 May 1989 unreported. His Honour took that expression to refer to a building that was one storey high above ground level at the site of the building. This concept was encompassed by the description in the Daniel Callaghan case by Glass JA at 33 of a building 'no part of ... which rose from the ground in the vertical plane for a distance of more than three storeys' (although the Daniel Callaghan case, as already noted, dealt with a provision which required a building to contain no more than x storeys). 42 Here, the task of 'counting the number of levels of approximately similar floor area ranged above the ground floor in a vertical plane and incorporated in its structure' (per Glass JA) must, of course, be modified to meet the case where the next level to be counted contains only part of a habitable area with associated sheltered living areas so as to make it a floor. So modified, a count results in three storeys. In any event, applying the current R Codes' definition (which is the same as that which appears above in Health Resorts) namely '[t]hat part of a building between floor levels[;] [i]f there is no floor above, it is the part between the floor level and the ceiling' produces, when read purposively, the same result. So too, applying the ordinary dictionary meaning of the word 'storey' (see, for example, the dictionary definition found in Ferella, above: '[E]ach of the stages or portions one above the other of which a building consists'). 43 Merely 'disguising' a final storey with a large roof-type structure or purporting to use the structure as 'roof space' (in any form and no matter how creatively, 'minimally' or ingeniously done) cannot defeat the admonition to count and observe the true number of storeys. Any attempt (Page 20)
to use the 'roof space', as eventually succeeded in Archetype, must bear in mind that His Honour only permitted the proposed development there because it was '[c]ritical' how in fact the development 'presented' to Victoria Avenue. His Honour found that it was 'accepted, quite properly, that the presentation to Victoria Avenue is of a two-storey building with a loft, the dormer windows on that side of the building being somewhat less substantial than on the river side view of the building' (at [19]). That is a far cry from the case here where in form the proposed development presents as three storeys placed, we note, on a more prominent corner site on the other side of Victoria Avenue. 44 In our view, the history of the proposed development is also relevant to this question of the characterisation of the number of storeys. As we are a Tribunal 'not bound by the rules of evidence' that can 'inform itself on any matter as it sees fit', we are entitled to consider that history if it is 'logically probative' of the issue to be determined. Plainly, the history referred to above points also to an evolution from and based upon addressing three storeys. 45 On these grounds alone refusal of the development would seem to be warranted. 46 In any case, the respondent's relevant policy (LPP 107), when read fairly and allowing for its level of aspirational generality, if applied, would also create hurdles for the applicant. Of course, in planning law and practice the validity of the use of such policies to guide the exercise of discretion is trite. The disquiet expressed in LPP 107 about two storey developments (for example, 'concern has been regularly expressed about the excessive bulk of two storey developments, especially as viewed from the street, and the distribution of that building bulk at the upper level') necessarily implies that three storey developments will be problematic per se, a position entirely consistent with his Honour's views in Archetype a case, we note, which was decided before that policy was ever in existence. 47 We also accept the respondent's related arguments to the effect that sufficient textual indications can be found in LPP 107 to support the argument that the proposed development, if approved, would defeat the central premise of the policy, that is the minimising of bulk and scale for two storey and related development to preserve the 'character [of] Claremont's existing and traditional housing forms'. Whilst it is true that generally to the east there are a number of imposing residences scattered about, immediately to the west on Victoria Avenue (and on the same side (Page 21)
as the subject land) there are a number of single storey residences or developments, some with 'traditional' roof forms. 48 In addition, the upper third level of the proposed development which extends over the lower floor balconies, has a maximum setback of 6 metres to Victoria Avenue, reducing down at the corner of Bay Road to only a 2 metre setback. In contrast, the third level of the proposal approved in Archetype had a setback of approximately 14 metres to Victoria Avenue. 49 Whether or not the respondent has approved other development over the years 'in error' we are not bound to follow that lead, although we acknowledge that such results must influence (but not control) judgments to be made as to the surrounding character of the immediate neighbourhood. However, whether any proposed development 'makes the situation worse' is often relevant to the exercise of discretion in planning matters (cf, for example, Piva v Stonnington CC [2009] VCAT 1089 at [36]; Kominos & Ors v Boroondara CC [2011] VCAT 982 at [35]). And, in Hawkins and City of Joondalup [2008] WASAT 64 the Tribunal noted, at [66] - [67]: … [A]s the Tribunal said in Hopkin v Shire of Serpentine-Jarrahdale (2006) 46 SR (WA) 84 (at 91): [51] Even if examples could be provided of departure by the respondent Shire from its policies such cases would not justify a further departure. In Smart v Barossa Council [1999] SAERDC 29 (cited with approval in this Tribunal in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232, at [40] and Sweeney v Shire of Busselton [2006] WASAT 277 at [39]) the court said, at [9]: Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions. Further, the Tribunal has emphasised that it can be a proper regulatory response to 'hold the line' against further inroads to a planning standard (if there be any): see Tooth v City of Subiaco (2005) 41 SR (WA) 198. 50 In this review, given the policy's obvious relevance and intent (and the validity of its planning objectives), we would apply LPP 107 to refuse the applicant's proposed three storey development on the grounds of its excessive height, bulk and scale particularly having regard to the (Page 22)
proposed development's location on a prominent corner site. We accept counsel for the respondent (Mr Slarke's) contentions on this point. 51 In such circumstances, it is unnecessary for us to go on to explore the proposed development's consistency, if any, with the R Codes, read with cl 40 of TPS 3 (particularly the injunction that 'in the Residential Zone a building shall not exceed 6.6 [metres] in height'), having regard also to the related issue of the proper characterisation of the proposed development's roof form. However, we very much doubt that these additional regulatory standards can be invoked in aid of the applicant's position. They are clearly intended to complement and not contradict a planning framework which we have found is plainly designed to limit and otherwise regulate height, bulk and scale in the Town of Claremont. 52 We would therefore refuse the applicant's development proposal and dismiss the review.
Orders 53 For these reasons we make the following orders: |