Freeman and City Of Subiaco
[2008] WASAT 303
•30 DECEMBER 2008
FREEMAN and CITY OF SUBIACO [2008] WASAT 303
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 303 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:365/2008 | 21 NOVEMBER 2008 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 29/12/08 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | IAIN ROBERT FREEMAN VIVIANA FREEMAN CITY OF SUBIACO |
Catchwords: | Town planning Development application Condition of development approval Requirement for proposed twostorey development to be converted to a loft Streetscape policy Locality generally contains houses with singlestorey appearance when viewed from the street Proposal retains existing character house Presumption of singlestorey residential Twostorey development restricted to 20% of site area Twostorey development does not include loft development Preference for twostorey development to be in the middle third of the site Backyards Wall height Overall height Adjacent Adjoin Bulk Scale Overshadowing Solar access Daylight Privacy Noncomplying proposals Clause 42A of TPS 4 A proposal that falls within discretion allowed by the Scheme is not noncomplying Undue adverse impact Amenity |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 12(4), cl 22, cl 23, cl 27, cl 27(4), cl 27(4)(h), cl 28, cl 28(3), cl 28(3)(a), cl 28(3)(b), cl 37, cl 39(3), cl 41(2), cl 41(2)(f), cl 41(2)(g), cl 42A, cl 42(1), cl 42(1)(a), cl 42(1)(b), cl 45(3), cl 45(4) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) |
Case References: | Aspen Pty Ltd v State Planning Commission (unreported, WATPAT, No 13 of 1988, 21 October 1988) Camberwell Corporation v Waldmann (1945) 72 CLR 250 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Dumbleton and Town of Bassendean [2005] WASAT 145 Fryer and City of Subiaco [2006] WASAT 199 Geneff v Shire of Perth [1967] WAR 124 Goldin v Minster for Transport (2002) 121 LGERA 101 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Mayor, Councillors and Citizens of the City of Wellington v Mayor Councillors and Burgesses of the Borough of Lower Hutt [1904] AC 773 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 Tooth and City of Subiaco [2005] WASAT 317 TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 11 September 2008 to grant conditional development approval for additions to an existing dwelling at No 207 Heytesbury Road, Subiaco is affirmed. |
Summary | The applicants had applied to build additions to a residence in Heytesbury Road, Subiaco. The City of Subiaco approved the application but imposed a condition requiring the two-storey addition to be converted into a loft style development with a maximum wall height of 3.6 metres. That condition was the subject of this review.,The City of Subiaco's principle argument was that its Town Planning Scheme No 4 is based on presumption of single-storey residential development and a requirement within Planning Policy 3.1 'Streetscape' that any two-storey development be restricted to the middle third of the lot. The proposed two-storey element of the addition was wholly contained within the rear third of the lot.,An issue concerning Planning Policy 3.1 'Streetscape' was the meaning of the word 'adjacent', with the City of Subiaco arguing that it meant 'adjoining'. The Tribunal found that 'adjacent' included nearby lots, and because of that finding, Planning Policy 3.1 'Streetscape' enabled the consideration of development outside the middle third.,The Tribunal found that the proposal complied with Planning Policy 3.1 'Streetscape'. A key element in the reasons was the lack of clarity concerning the middle third requirement of Planning Policy 3.1 'Streetscape' which appeared to be related to the need to maintain an attractive streetscape with an emphasis on the view from the street. Thus, there were indications within Planning Policy 3.1 'Streetscape' for preferring the middle third to the front third, but there were no details to explain a preference for the middle third against the rear third. Measured against some of the objectives of the Planning Policy 3.1 'Streetscape', the particular orientation of this site and the high quality of the proposed design, there were indications that the rear third may be preferable to the middle third. Therefore, the Tribunal decided the proposal complied with Planning Policy 3.1 'Streetscape' while noting that the policy did not cover all matters dealing with amenity.,Another issue concerned an argument that the proposal met exemptions under the non-complying provisions of the City of Subiaco's Town Planning Scheme No 4. After initially arguing against the wrong non-complying clause (28(3)) in the City of Subiaco's Town Planning Scheme No 4, the City of Subiaco based its argument on cl 42A of the City of Subiaco's Town Planning Scheme No 4. The Tribunal found that, if the proposal was non-complying, the application must fail because it did not meet one of the standards required in cl 42A of the City of Subiaco's Town Planning Scheme No 4. However, the Tribunal found that the proposal was not non-complying. The City of Subiaco's Town Planning Scheme No 4 provides for maximum heights and then provides for a concession to maximum heights up to a limit. The proposal was in the discretionary range and would only have been non-complying if it exceeded the maximum discretionary heights.,Ultimately, the application for review was unsuccessful because it failed a combination of two clauses within the City of Subiaco's Town Planning Scheme No 4. Clause 27(4)(h) of the City of Subiaco's Town Planning Scheme No 4 required the consideration of the scale and relationship of the proposal to existing buildings and surroundings. Clause 42(1) of the City of Subiaco's Town Planning Scheme No 4 required proposals to comply with maximum heights and then provided discretion to approve up to a new maximum height subject to no undue adverse impact on adjoining residential sites.,The Tribunal determined that discretion could not be exercised to allow the increased wall heights because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining lot. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FREEMAN and CITY OF SUBIACO [2008] WASAT 303 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 21 NOVEMBER 2008 DELIVERED : 30 DECEMBER 2008 FILE NO/S : DR 365 of 2008 BETWEEN : IAIN ROBERT FREEMAN
- VIVIANA FREEMAN
Applicants
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Condition of development approval Requirement for proposed twostorey development to be converted to a loft Streetscape policy Locality generally contains houses with singlestorey appearance when viewed from the street Proposal retains existing character house Presumption of singlestorey residential Twostorey development restricted to 20% of site area Twostorey development does not include loft development Preference for twostorey development to be in the middle third of the site Backyards Wall height Overall height Adjacent Adjoin Bulk Scale Overshadowing Solar access Daylight Privacy Noncomplying proposals Clause 42A of TPS 4 A proposal that falls within discretion allowed by the Scheme is not noncomplying Undue adverse impact Amenity
(Page 2)
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 12(4), cl 22, cl 23, cl 27, cl 27(4), cl 27(4)(h), cl 28, cl 28(3), cl 28(3)(a), cl 28(3)(b), cl 37, cl 39(3), cl 41(2), cl 41(2)(f), cl 41(2)(g), cl 42A, cl 42(1), cl 42(1)(a), cl 42(1)(b), cl 45(3), cl 45(4)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Mr ML Bennett
Respondent : Mr S Allerding (as agent)
Solicitors:
Applicants : Lavan Legal
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, WATPAT, No 13 of 1988, 21 October 1988)
Camberwell Corporation v Waldmann (1945) 72 CLR 250
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Dumbleton and Town of Bassendean [2005] WASAT 145
Fryer and City of Subiaco [2006] WASAT 199
Geneff v Shire of Perth [1967] WAR 124
Goldin v Minster for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
(Page 3)
Mayor, Councillors and Citizens of the City of Wellington v Mayor Councillors and Burgesses of the Borough of Lower Hutt [1904] AC 773
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tooth and City of Subiaco [2005] WASAT 317
TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200
(Page 4)
Summary of Tribunal's decision
1 The applicants had applied to build additions to a residence in Heytesbury Road, Subiaco. The City of Subiaco approved the application but imposed a condition requiring the two-storey addition to be converted into a loft style development with a maximum wall height of 3.6 metres. That condition was the subject of this review.
2 The City of Subiaco's principal argument was that its Town Planning Scheme No 4 is based on presumption of single-storey residential development and a requirement within Planning Policy 3.1 'Streetscape' that any two-storey development be restricted to the middle third of the lot. The proposed two-storey element of the addition was wholly contained within the rear third of the lot.
3 An issue concerning Planning Policy 3.1 'Streetscape' was the meaning of the word 'adjacent', with the City of Subiaco arguing that it meant 'adjoining'. The Tribunal found that 'adjacent' included nearby lots, and because of that finding, Planning Policy 3.1 'Streetscape' enabled the consideration of development outside the middle third.
4 The Tribunal found that the proposal complied with Planning Policy 3.1 'Streetscape'. A key element in the reasons was the lack of clarity concerning the middle third requirement of Planning Policy 3.1 'Streetscape' which appeared to be related to the need to maintain an attractive streetscape with an emphasis on the view from the street. Thus, there were indications within Planning Policy 3.1 'Streetscape' for preferring the middle third to the front third, but there were no details to explain a preference for the middle third against the rear third. Measured against some of the objectives of the Planning Policy 3.1 'Streetscape', the particular orientation of this site and the high quality of the proposed design, there were indications that the rear third may be preferable to the middle third. Therefore, the Tribunal decided the proposal complied with Planning Policy 3.1 'Streetscape' while noting that the policy did not cover all matters dealing with amenity.
5 Another issue concerned an argument that the proposal met exemptions under the non-complying provisions of the City of Subiaco's Town Planning Scheme No 4. After initially arguing against the wrong non-complying clause (cl 28(3)) in the City of Subiaco's Town Planning Scheme No 4, the City of Subiaco based its argument on cl 42A of the City of Subiaco's Town Planning Scheme No 4. The Tribunal found that, if the proposal was non-complying,
(Page 5)
- the application must fail because it did not meet one of the standards required in cl 42A of the City of Subiaco's Town Planning Scheme No 4. However, the Tribunal found that the proposal was not non-complying. The City of Subiaco's Town Planning Scheme No 4 provides for maximum heights and then provides for a concession to maximum heights up to a limit. The proposal was in the discretionary range and would only have been non-complying if it exceeded the maximum discretionary heights.
6 Ultimately, the application for review was unsuccessful because it failed a combination of two clauses within the City of Subiaco's Town Planning Scheme No 4. Clause 27(4)(h) of the City of Subiaco's Town Planning Scheme No 4 required the consideration of the scale and relationship of the proposal to existing buildings and surroundings. Clause 42(1) of the City of Subiaco's Town Planning Scheme No 4 required proposals to comply with maximum heights and then provided discretion to approve up to a new maximum height subject to no undue adverse impact on adjoining residential sites.
7 The Tribunal determined that discretion could not be exercised to allow the increased wall heights because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining lot.
Introduction
8 These proceedings involve an application brought by Ian and Viviana Freeman (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Subiaco (City or Council) made on 11 September 2008 under delegated authority to grant conditional development approval for additions to a residence at No 207 (Lot 5) Heytesbury Road, Subiaco (site or subject land).
9 The initial application was lodged on 16 April 2008 by the applicants' architect, Armstrong Parkin Pty Ltd. The City wrote to the architect on 4 June 2008 advising that the proposal was likely to be refused unless various alterations were made to the proposal.
10 After discussions with Council planners, the plans were modified and a revised proposal was lodged on 1 July 2008.
(Page 6)
Site and locality
11 The site has a rectangular shape with a street frontage of 12.19 metres, a length of 42.18 metres and an area of 514 square metres. There is a small fall of approximately 800 millimetres from the front of the site to the rear.
12 The site is located in an area of Subiaco characterised by generally single-storey residences, although some of the houses have second storeys clearly visible from the street. The Tribunal notes that some or all of these may technically be described as lofts within the context of the planning framework, and the relevance of this observation will be discussed later in these reasons together with descriptions of relevant properties. Another characteristic of the locality is that car parking generally occurs at the rear of the site when access is available from rear right of ways.
13 The site currently accommodates an existing dwelling with a 9 metre setback from the street and a garage which is accessed from a rear paved right of way. The parties accept that the existing house, possibly built in the 1920s, is a character house that contributes to the streetscape.
14 The Tribunal had the benefit of a viewing of the site and the locality in the company of the parties.
Planning framework
15 The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS). The site is zoned 'Residential' and has a residential density coding of 'R20' under the City of Subiaco's Town Planning Scheme No 4 (TPS 4 or Scheme). The site is located within the West Subiaco Planning Precinct for the purposes of cl 37 of TPS 4. The proposed development is classified as 'dwelling: single' under TPS 4 and is a permitted use in the zone. Clause 22 of TPS 4 requires development approval from the Council. The exemptions under cl 23 of TPS 4 do not apply because the proposal requires the exercise of discretion by the Council.
16 Clause 27(4) of the Scheme requires the City to have regard to various matters, which are discussed in greater detail later in these reasons.
17 Clause 39(3) of the Scheme provides as follows:
(Page 7)
- Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes.
18 The current and correct reference that will be used throughout these reasons is to the Residential Design Codes of Western Australia (2008) (Codes).
19 Clause 41(2) of the Scheme deals with the aims and objectives of the residential zone. Subclause (f) and subclause (g) were identified as matters to consider in the review, and the detailed provisions are discussed later in these reasons.
20 Clause 42(1) of the Scheme provides for a special application of the Codes, and in subclause (a), sets height limits, and in subclause (b), provides for a limited variation to the standards set in cl 42(1)(a). These clauses are central to the outcome of this review and are discussed in greater detail later in these reasons.
21 In initial submissions to the Tribunal, the respondent argued for the relevance of cl 28 'Determination of Non-complying Applications for Development' of TPS 4. Just before the hearing, the respondent dropped the argument on cl 28 of the Scheme and instead argued for the relevance of cl 42A of TPS 4 'Determination of Application where Wall/overall Height is Non Compliant'. The relevance of cl 42A of TPS 4 is discussed later in these reasons.
22 A significant element of the planning framework in this review is the City's Planning Policy 3.1'Streetscape' (Streetscape Policy). It must be noted that application of the Streetscape Policy extends beyond streetscape issues and relevantly deals with height and the location of bulk: requiring the bulk associated with second storeys be in the middle third of the site and not the rear third. This policy is discussed in detail later in these reasons.
23 Although it received limited attention in the evidence, also relevant is Policy 8.9 West Subiaco Precinct (Precinct Policy). This policy states that the desired future character of the area includes the following:
The retention and renovation of the Gold Boom and Inter-war period housing stock should be encouraged to preserve the heritage character of the Precinct …
Any change or redevelopment should reflect the scale, character, detail and materials of the Gold Boom and Inter-war period buildings within the street block or immediate vicinity, including front and side setbacks, verandahs, fencing and vehicular access.
(Page 8)
24 The relevance of the Precinct Policy is that it reinforces the importance of the retention and protection of the existing streetscape character.
Proposed development
25 The proposed development retains and refurbishes the existing single-storey dwelling (circa 1920s) and in the process removes a 1970s addition. Significantly, the existing setback of 9 metres on a 42.8 metre deep lot means the front third of the lot (14.27 metres) contains the front setback together with the front porch and the lounge room. The remainder of the retained dwelling extends approximately to the halfway point of the site.
26 The new development comprises a mix of single-storey and two-storey additions. The single-storey component of the addition is approximately 10 metres long (including part of the hallway), is located to the immediate rear of the dwelling and extends from the halfway point of the lot to a point approximately 3 metres into the rear third of the lot. The two-storey component is wholly contained within the rear third of the lot.
27 The architect for the proposal, Mr Colin Armstrong (Mr Armstrong or architect), appeared as a witness for the applicants. He stated that the proposal was deliberately designed to minimise the visual impact on Heytesbury Road, with the upper floor volume located as far as possible from the street, which also enabled the use of the natural fall in the site to reduce the overall height of the additions. The floor level of the rear additions is 690 millimetres below the floor level of the existing dwelling.
28 Mr Armstrong also stated that the proposal was designed to minimise overlooking and overshadowing, such that overlooking occurs onto neighbouring roofs and the overshadowing as defined in the Codes occurs over the rear right of way.
29 Finally, in describing the development, the applicants in their contentions stated that the proposal had been designed to accord with solar and environmental principals. Later evidence referred to the primary use of north/south windows and solar access to a central courtyard.
(Page 9)
Council's decision
30 The Council advertised the development application and received two submissions expressing concern about the proposal referring to visual privacy, wall height, overshadowing, location of the upper floor development outside the middle third, amenity and setbacks. The City wrote to the architect on 4 June 2008 detailing various concerns. The design was revised, and in a covering letter from the architect to the City dated 1 July 2008, the architect addressed the issues raised in the Council's 4 June 2008 letter. The revised proposal was not re-advertised.
31 The revised proposal was reassessed and approved under delegated authority subject to condition (a) to condition (s).
32 The applicants seek a review of condition (a) which requires:
The proposed upper floor above the garage is to be modified such that it is a loft configuration which has a wall height of no more than 3.6m and an overall height of 6.5m as defined by the Scheme.
The issues
33 The following seven issues (partially summarised) were presented by the respondent for determination in this review:
1. Is the location and scale of the proposed upper floor development consistent with the City's Streetscape Policy?
2. Is there evidence of existing development of a similar nature on adjacent properties?
3. Is the proposed upper floor development consistent with the proper and orderly planning of the locality, amenity of the locality and consistency in scale of design of the existing buildings in the surrounding area? Therefore, does the proposed upper floor development comply with cl 27(4) of TPS 4?
4. Does the proposal conform to the requirements of cl 28(3)(a) of TPS 4?
5. Does the proposal conform to the requirements of cl 28(3)(b) of TPS 4?
(Page 10)
- 6. Does the proposal conform to the requirements of cl 41(2)(f) and cl 41(2)(g) of the Scheme? As such, would the proposed development set an undesirable precedent which would adversely affect the likely future development of the locality?
7. Does the proposal conform to cl 42(1)(a) and cl 42(1)(b) of the Scheme? Would approval of the proposed development result in undue adverse impact on adjoining residential sites or the general amenity of the locality?
34 The applicants objected to issue 4 and issue 5. Clause 28(3) of TPS 4 describes non-complying applications. The respondent dropped these issues, but at the hearing raised another issue of non-compliance - cl 42A of the Scheme - which deals with noncompliant heights.
35 The Tribunal will consider issue 1 and issue 2 together, as the question of adjacent properties has most relevance to the Streetscape Policy. Issue 4 and issue 5 are dropped, but need to be replaced with an issue dealing with cl 42A of the Scheme. The matter of precedence is a broader issue and should be separated from issue 6.
36 Therefore, the Tribunal will consider the following issues:
1. Whether the location and scale of the proposed upper floor development is consistent with the City's Streetscape Policy.
2. Whether the proposal complies with cl 27(4) of TPS 4.
3. Whether the proposal complies with cl 41(2)(f) and cl 41(2)(g) of TPS 4.
4. Whether the proposal complies with cl 42(1)(a) and cl 42(1)(b) of TPS 4.
5. Whether cl 42A of TPS 4 is relevant and if so whether the proposal complies with cl 28(3)(b) of TPS 4.
6. Whether approval of the proposal would set an undesirable precedent which would adversely affect the likely future development of the locality.
37 The Tribunal will address each issue in turn.
(Page 11)
Whether the location and scale of the proposed upper floor development is consistent with the City's Streetscape Policy
38 The objectives of the Streetscape Policy are:
1: To ensure that new development is consistent with the character and in particular the scale of existing residential development;
2: To ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances;
3: To encourage creative and quality design solutions that meet the standards of this policy and enhance the character of the existing residential area; and
4: To protect the amenity for adjacent properties, with reference particularly to solar access, day-lighting and privacy.
39 Clause 6.2 'Development Standards for Houses of Increased Height' of the Streetscape Policy provides as follows:
The Scheme imposes height limits on development in the R15 and R20 zones but provides the Council the ability to approve development of increased height where it is satisfied that 'there will be no adverse impact on adjoining residential sites or the general amenity of the locality'. The requirements of the Scheme may only be satisfied subject to meeting the standards contained within part 6 of this policy.
40 Clause 6.4 'Houses of Increased Height: Design Standards' of the Streetscape Policy prescribes design standards in relation to maximum height, upper floor area, and overshadowing of adjoining properties.
41 The maximum height standard states 'wall heights of up to 6 metres and overall height of up to 9 metres'. This standard restates the absolute maximum height prescribed by cl 42(1)(b) of the Scheme. This standard is clarified by a footnote which requires development to 'have a comparable scale and proportion to surrounding development as viewed from the street' (Tribunal's emphasis).
42 The upper floor area standard states:
Maximum floor area of the footprint of the portion of the building of increased height is not to exceed 20 per cent of the site area.
43 The standard then states the floor area contained within a 'loft development' or development wholly within the roof space will not be included in the maximum upper floor area.
(Page 12)
44 The overshadowing of adjoining properties standard states:
(i) Development is to not overshadow greater than 50% of an adjoining outdoor living area of a neighbouring dwelling at midday on 21[st] June.
(ii) Development is to not overshadow glazed openings to habitable rooms of neighbouring dwellings at midday on 21st June.
45 It was common ground (after cross-examination of the experts - see below) that the standards specified in cl 6.4 of the Streetscape Policy are met. The exception is that the respondent did not agree that the proposal had a comparable 'scale and proportion to surrounding development', but when the parameter of 'when viewed from the street' is added, this cannot be seriously contested because the existing single-storey dwelling (proposed for refurbishment) will be the most visible element of the dwelling, with the two-storey section as far as physically possible from the view from the street.
46 Up until this stage, and with the exception noted above, the parties were in general agreement about the Streetscape Policy and its application to the proposal.
47 Ms Natalie Goode, a planner employed by the City, appeared as a witness for the respondent. The central thrust of her assessment was that the proposal failed cl 6.3 of the Streetscape Policy 'Houses of Increased Height: Streetscape Standards for R15 and R20 Zones'.
In order to fulfil the requirements of this policy the City will require a building of increased height to be designed so as to appear predominantly single-storey when viewed from the primary street … This includes a requirement for any two-storey development to be located in the middle third of the lot.
It is acknowledged that there are circumstances where the site may not permit two-storey development to be located in the middle third of the lot (i.e. lots of reduced length). The primary concern of the City is to maintain an attractive streetscape. As such the City may permit two-storey development outside the middle third of the lot in the following circumstances:
• where there is evidence of existing developments of a similar nature on adjacent properties;
• where sections of buildings of increased height are appropriately set back from the street façade in accordance with the diagram below; and
(Page 13)
- • where the proposal meets the standards set out for maximum upper floor footprint area as per section 6.2 of this Policy.
It is preferred that second level development should be contained within the roof space where there is no two-storey development in the surrounding development. The City is unlikely to support a second storey element where the proposal is considered to impact on the amenity of adjoining properties.
48 Whereas the parties agreed that the second and third bullet points were met, they disagreed on the first bullet point and the matter of impact on amenity.
Meaning of adjacent
49 It is necessary to digress from the assessment of the proposal in terms of the Streetscape Policy and deal with the meaning of the word 'adjacent'.
50 Ms Goode argued that the City could not vary the middle third requirement of cl 6.3 of the Streetscape Policy because there were no developments of a similar nature on adjacent properties. In her witness statement, Ms Goode stated and confirmed during the hearing that 'the City has consistently interpreted that the intended meaning of the word adjacent to be adjoining or lying next to.'
51 It was common ground that the two immediately adjoining neighbours did not have two-storey developments outside the middle third of their lots. The applicants referred specifically to a dwelling at No 211 Heytesbury Road, Subiaco separated from the subject land by one lot. It was agreed by the parties that the rear additions at No 211 Heytesbury Road, Subiaco were two-storey additions outside the middle third.
52 Ms Goode argued that the dwelling at No 211 Heytesbury Road, Subiaco did not enable the first bullet point of cl 6.3 of the Streetscape Policy to be met because the dwelling was not adjacent.
53 The applicants argued that, because the word 'adjacent' is not defined in the Codes, the Streetscape Policy or TPS 4, the word must be given its normal and common meaning in accordance with cl 12(4) of TPS 4.
54 The applicants argued that the meaning of the word 'adjacent' had been considered in various legal cases, and referred to a decision by the Privy Council in Mayor, Councillors and Citizens of the City of
(Page 14)
- Wellington v Mayor Councillors and Burgesses of the Borough of Lower Hutt [1904] AC 773 where it stated, at 775:
'Adjacent' is not a word to which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining and includes places close to or near.
No doubt 'adjacent' has a wider meaning than 'adjoining' … It would include a street nearby or close to: see the definition in the Oxford Dictionary and the reference to the same word by Sir Arthur Wilson delivered in the judgement of the Privy Council Mayor of Wellington v Mayor of Lower Hutt [1904] AC 773 at 775.
56 In closing, the respondent argued that word 'adjacent' was vague but did acknowledge that:
that which adjoins is adjacent but that which is adjacent may not adjoin. So it is accepted that it is possible that it does not have to be a property that is immediately next door in terms of the material provided in these other decisions.
57 However, the respondent further argued that, in the cases cited, 'adjacent' has only ever applied to public land, creeks and roads.
58 Mr Kenneth Adam, an expert planner appearing for the applicants, noted that the applicants had argued that 'adjacent' is not synonymous with 'adjoining' and has a wider application. He stated:
'I concur and would add that from a planning perspective … there is no justification for adopting the narrow definition, and good justification, in relation to the amenity of the locality, for taking a wider view. In my view orderly and proper planning is also better served by considering more than the adjoining two properties. Confining the geographic scope of the criterion so tightly could lead to incongruous, even absurd, outcomes in planning and visual amenity terms.
59 The Tribunal agrees with the applicants that 'adjacent', as used in cl 6.3 of the Streetscape Policy, should not be limited to immediately adjoining lots. Such a finding is consistent with the Streetscape Policy. Clause 5.0 of the Streetscape Policy 'Streetscape Standards for All Residential Zones' states:
(Page 15)
- For the purposes of this Policy streetscape and neighbourhood character is determined with reference to 'surrounding development' as defined above.
60 The Streetscape Policy definition for 'surrounding development' means 'the five properties on either side of the proposed development on both sides of the street ... that the dwelling is orientated towards.'
61 Therefore, on the basis of the discussion above, the Streetscape Policy clearly intends that development can be approved outside the middle third in this particular instance because the requirements of all three bullet points of cl 6.3 of the Streetscape Policy are fulfilled.
62 The question remains that, although a two-storey development may be approved outside the middle third, should it be approved outside the middle third?
The middle third requirement
63 Ms Goode stated during the hearing that, although the Streetscape Policy was adopted on 27 November 2007, it was substantially similar to the previous Streetscape Policy that was originally adopted in 2001. The current version of the Streetscape Policy included two significant changes: one was the reduction in the permitted floor area of second floor development from 25% to 20%, and the other was the requirement that second floor development should be in the middle third.
64 This issue of the middle third is significant because in her witness statement at [34], Ms Goode provided an assessment of the proposal against the planning framework and described the variation from the Streetscape Policy as '[l]ocation of upper floor development outside the middle third of the lot with a total of 84 [square metres] of upper floor development proposed in the rear third of the lot.'
65 The Tribunal asked Ms Goode whether the Streetscape Policy explained why the changes were made and what objectives the changes fulfilled. Ms Goode explained that there was no specific reference in the Streetscape Policy as to why the changes were made other than being another requirement to protect character and amenity.
66 Mr Adam expressed concern about the middle third requirements of the Streetscape Policy:
It is not explained in the Policy why a second storey or 'increased height element' should be required to be located in the middle third of the lot nor
(Page 16)
- is there any obvious rationale for preferring the middle third to the rear third.
67 The Tribunal shares Mr Adam's concerns. There is some planning logic (not specifically expressed in the Streetscape Policy) for preferring the middle third rather than the front third. The preference for the middle third over the front third is implied by the constant reference in the Streetscape Policy to the streetscape view by terms such as: 'protection of neighbourhood and streetscape character'; 'the protection and enhancement of streetscape and neighbourhood character are key initiatives of TPS 4'; all of s 5; 'the city will require a building … to appear predominantly as a single-storey house as viewed from the primary street'; and, significantly, in cl 6.3 of the Streetscape Policy dealing with the middle third, '[t]he primary concern of the City is to maintain an attractive streetscape'.
68 It is clear from the above comments that second-storey development be preferred in the middle third and not the front third, because any second-storey development in the front third is likely to compromise the streetscape and the expressed preference for a single-storey appearance when viewed from the street.
69 Therefore, following the above logic, the further the development from the front third, the better the streetscape outcomes. This logic is demonstrated in the particular application subject of this review. In fact, placing the second-storey development within the middle third in this particular case would compromise the streetscape because the second-storey element would inevitably be more visible from the street than the current proposal. The existing dwelling is set back 9 metres from the street and the middle third commences just behind the front room. Although it might be possible to contain the second-storey development within the middle third and set is as far back within the middle third as possible, it is inevitable that at least some of the development must occur over the existing dwelling, resulting in either or both a change to the roof form and the visibility of the second-storey addition from the street.
70 A further problem for the respondent in terms of the application of the Streetscape Policy in this particular application is that, after defining the three circumstances that must be met for the City to consider two-storey development located outside the middle third, the Streetscape Policy does not describe criteria to assess two-storey development in the rear third. As mentioned above, 'impact on streetscape' is an obvious
(Page 17)
- factor that can be applied to assess two-storey developments in the front third.
71 Ms Goode in her witness statement expressed the opinion that:
The middle third provision was incorporated specifically to address concerns relating to the increase in bulk and scale within the 'backyard' areas and rear outdoor living areas on properties within the City.
72 The applicants challenged this assertion, arguing that there was no text in the Streetscape Policy to support Ms Goode's opinion. In reviewing the Streetscape Policy, the Tribunal observes that, although there is reference to bulk and scale in the Streetscape Policy, the reference is nearly always in relationship to the streetscape and never in the context of the middle third. Due to the lack of any explanatory text concerning the middle third, the Tribunal will place limited weight on matters of bulk and scale in the context of the middle third requirement of the Streetscape Policy but will consider bulk and scale later when dealing with the amenity provisions of TPS 4.
73 During the hearing, the middle third requirement was discussed in the context of the objectives of the Streetscape Policy, especially those items listed in objective 4: solar access, daylighting and privacy.
74 Ms Goode stated that solar access is not related to the provisions of the Codes dealing with overshadowing. She argued that the second floor development located in the rear third would restrict solar access at certain times in the adjoining neighbours' backyards and would therefore impact on their amenity. Although solar access is not defined in the Scheme or Streetscape Policy, the Tribunal believes it may extend further than the backyard and include elements of architectural design: solar hot water systems, solar cells, solar penetration of windows to heat building mass during winter and so on.
75 Mr Adam stated during the hearing:
I find it difficult to see how you could believe that solar access in any meaningful way was compromised by the second-storey addition.
76 He continued by explaining how, in his opinion, that solar access would be improved by locating the second-storey in the rear third.
77 The Tribunal agreed with Mr Adam's opinion and agrees that, in terms of solar access, it is preferable to locate the second storey in the rear third. Mr Adam's argument was based on sound science and on the orientation of the lot.
(Page 18)
- There is no shortage of solar access in summer when the sun is high in the sky, and the development will have minimal effect. However, in winter when solar access is needed, the sun moves to the north and is lower in the sky. Therefore, to improve solar access when needed in winter, development should be to the south. In this case, the two-storey development is located in the most southern third of the lot and will cast shadows over the right of way and garages and fences on the opposite side of the right of way. However, the two adjoining neighbours will have better solar access to their backyards and solar penetration of windows because there will be no two-storey bulk in the middle third, that is, north of the adjoining backyards.
78 During the hearing, Ms Goode was asked 'What is daylighting?' She replied:
Daylighting is very similar to solar access. It's not relating to the overshadowing provisions of the Codes; it relates to any access to sunlight.
79 It followed that the arguments relating to daylight were similar to the arguments relating to solar access but without the need to protect solar panels and other devices.
80 Once again, following the same principles discussed in solar access, because of the particular orientation of this lot, there are clear advantages to locating the second storey bulk to the south (rear) of the lot rather than the middle third.
81 There was initial disagreement between the experts on privacy, but towards the conclusion of the expert evidence, there was consensus that the proposal complied with the performance criteria of the Codes with reference to privacy. Ms Goode agreed with Mr Adam that the screen provided to the balcony of bedroom 1 would limit overlooking to the roof and side setback area of the adjoining residence to the west. Initially, Ms Goode was concerned about loss of privacy from the rear of the second storey looking out across the right of way to properties on the other side of the right of way, arguing that, although the cones of vision may meet the performance criteria of the Codes, there was still a loss of privacy. However, after an examination of the cross-section through the site and rear garage, Ms Goode conceded that privacy was acceptable.
82 Privacy is another matter where an argument can be made that it is better to locate the development in the rear third, subject to protection of the privacy of rear neighbours across the right of way. If the two-story development is fully contained within the middle third, any second-storey windows will look out across the backyard, and inevitably
(Page 19)
- the backyards to the east and west adjoining neighbours, even though cone of vision requirements of the Codes may be satisfied. This is because there is inevitably angular vision into adjoining backyards.
83 This Tribunal has consistently given significant weight to planning policies adopted under town planning schemes. The Streetscape Policy is given significant weight in this matter and the evidence is that it has been consistently applied. In particular, this policy informs on the appropriate application of discretion available in cl 42(1)(b) of TPS 4.
84 The respondent argued that the application of the Streetscape Policy was fundamental to the determination of this review that the Tribunal has previously found in Tooth and City of Subiaco[2005] WASAT 317 (Tooth) that the Tribunal should not undermine the regulatory regime of the City, including its policies.
85 These findings in Tooth were consistent with the principles explained by Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 where, at [24], it as stated:
If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
86 The Tribunal finds that, in this particular case, the middle third requirement had been inflexibly applied, regardless of the merits of the proposed design. This may have resulted from the Council's assumption that the proposal did not meet all three bullet points of cl 6.3 of the Streetscape Policy to enable Council to consider development outside the middle third. The particular problem was the Council's assumption that 'adjacent' meant 'immediately adjoining lots'. The Tribunal has determined that 'adjacent' may include 'nearby lots'. Therefore, the application met all three of the requirements that enabled the Council to permit development outside the middle third.
87 Apart from listing a requirement for a two-storey development to be located in the middle third of the lot and then listing three requirements that must be met to enable the Council to consider development outside the middle third, the
(Page 20)
- Streetscape Policy does not explain why development should be in the middle third. In terms of streetscape, the Tribunal finds that there was planning logic to prefer the rear third rather than the front third. In terms of bulk and scale, the Tribunal finds that the Streetscape Policy generally dealt with these matters in the context of streetscape and did not refer to any nexus between bulk and scale and the middle third requirement. Furthermore, it was common ground that the proposal met the Streetscape Policy requirement limiting bulk by restricting the second floor area to 20% of the lot.
88 The matters of daylight, solar access and privacy were assessed. The Tribunal finds that the proposal protected the amenity of adjoining properties, with reference particularly to solar access, daylighting and privacy. Furthermore, when these matters were considered with particular reference to the middle third requirement, the Tribunal agrees with Mr Adam that these amenity factors were better protected by locating the second-storey development in the rear third.
89 Finally, when considering streetscape - one of the identified key requirements of the Streetscape Policy - the proposal clearly met the requirements of the policy. The experts were agreed on this. Also the Tribunal finds that location of the second-storey development in the rear third was probably preferable to locating the additional height and bulk in the middle third, where it may impact on the streetscape in this particular situation, because the majority of the existing single-storey dwelling was already located in the middle third, and to meet the middle third requirement, at least some of the second floor would have to go above the existing dwelling, increasing the potential for impact on the streetscape.
90 Therefore, the Tribunal finds that the proposal complies with the Streetscape Policy. This finding does not undermine the planning principles behind the policy or the continued consistent application of the Streetscape Policy by the Council. For the reasons described above, the Tribunal finds that, in this particular case, the proposal complied with the planning principles expressed in the policy, while noting that the middle third requirement was poorly expressed as a planning principle. It must be noted that compliance with the Streetscape Policy does not necessarily imply compliance with all the amenity requirements of TPS 4.
Whether the proposal complies with cl 27(4) of TPS 4
91 In the respondent's statement of issues, facts and contentions, it was proposed that the Tribunal should answer the question of whether the 'proposed upper floor development was consistent with the proper and orderly planning
(Page 21)
- of the locality, amenity of the locality and consistency in scale of design of the existing buildings in the surrounding area. Therefore[,] does the [proposal] conform to the requirements of clause[s] 27(4)(a)[,] (b)[,] (f)[,] (g) [and] (h) of [TPS 4]'.
92 Clause 27(4) of TPS 4 requires the Council to consider various matters when determining a development application. The matters include:
(a) the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policies;
…
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
93 Matter (a) and matter (b) are discussed elsewhere in these reasons. There is no matter of orderly and proper planning that arises out this application that is not addressed elsewhere in these reasons. Matter (e) is discussed below in dealing with this issue, but first the Tribunal will deal with matter (g) - the conservation of the amenity of the locality.
94 In broad terms, the matter of the amenity of the locality has been addressed when considering the application in terms of the Streetscape Policy. The amenity of the locality is different to the amenity issues that may impact on adjoining and adjacent neighbours where consideration must be given to issues such as privacy, overshadowing and solar access (dealt with elsewhere in these reasons) and bulk (dealt with below when dealing with matter (h)). The impact of the proposal in terms of the amenity of the locality is therefore the amenity that is experienced from the street and right of way. During the hearing, the parties agreed that the right of way is not a street in terms of the application of the Streetscape Policy to streetscape. In view of the findings in consideration of the Streetscape Policy, there is no credible case that the respondent can present that suggests the proposal does not comply with the streetscape elements of the Streetscape Policy.
(Page 22)
95 Nevertheless, with broad reference to the amenity of the locality, the respondent argues that a characteristic of the locality is the preservation of backyards. However, the existence or non-existence of preserved backyards cannot be experienced from the street, and is more appropriately dealt with as an amenity issue impacting on adjoining and adjacent neighbours. The Tribunal finds that the proposal conserves the amenity of the locality.
96 The final matter to consider in this issue is matter (h), the relationship of the proposed structure to existing structures. Here it is appropriate to consider the backyards created by the position of the existing structures as well as any relevant submissions which, in this case, included evidence from an objecting adjoining neighbour.
97 It must be understood that the respondent's principal objection is to the location of the excess scale and bulk because it is in the rear of the property rather than in the central part of the site where dwellings are traditionally located. There was an objection from the eastern adjoining neighbour, Mr Loney. The Council's position becomes clearer when the location of the excess bulk and scale is viewed in the context of this neighbour. Mr Loney's house is two storeys. Whether it is two storeys as defined in the Scheme, or a loft, or a combination of both is irrelevant. What is significant is that the second storey is contained within the central part of the site. Mr Loney's neighbour on his eastern side also has a two-storey house where most of the bulk is contained within the middle third. Therefore, Mr Loney's situation is consistent with the character of the locality described by the Council - that is, a pattern where any second level development is generally contained within the middle or central portion of the site and the rear portion is generally free for backyard space, sheds or other similar single-storey structures such as garages.
98 Mr Loney appeared as a witness. The Tribunal has some concerns with his evidence, because his witness statement was based on the original plans, and he was not shown the revised plans until half an hour before he appeared as a witness. After being cross-examined on whether he fully understood that the wall height had been reduced from 7.1 metres to 5.8 metres and that the length had been reduced by over 10% so that it was now less than 9 metres, and that the setback had been increased, Mr Loney concluded he understood that changes were made by the applicants but that 'it is still a pretty huge brick wall'.
99 It was agreed by the expert witnesses that the proposed side setback met the performance criteria of the Codes. It was also apparent that a 3.6 metre high boundary wall that forms part of the applicants' existing garage will be
(Page 23)
- removed and set back by 1 metre. The proposal, in terms of bulk and scale, meets the performance requirements of the Codes. However, as the Tribunal determined in Dumbleton and Town of Bassendean [2005] WASAT 145, at [22] - [23], compliance with the Codes does not mandate approval of an application under a town planning scheme such as TPS 4.
100 The question remains whether the proposed location of the bulk associated with the excess height meets the amenity expectations of TPS 4. 'Amenity' is defined in TPS 4 as 'all those factors which combine to form the character of an area and include the current and likely future amenity'.
101 In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74, the President, Barker J, discussed at [21] - [22] the principles of amenity, and found that assessment of amenity should not only include the opinions of experts but also the subjective views of residents, and that the assessment should consider the present and likely future amenity.
102 In terms of bulk and scale, the subjective view of Mr Loney reflects the view of the City that the expectations that backyards will be free of excess height, bulk and scale. Apart from the reference to a middle third preference in the Streetscape Policy, the City's planning framework does not specifically exclude development from the rear third or 'backyard', but it does have a general presumption of single-storey development.
103 As this Tribunal found in Fryer and City of Subiaco [2006] WASAT 199 at [80]:
While in other local government areas which do not have the equivalent of cl 42(1) in their applicable schemes, the extent of impact on Mr Prudence's backyard in terms of loss of aspect of sky and trees and the consequential bulk and scale, might not be an undue adverse impact, in the particular planning context of cl 42(1), the Tribunal finds that it is.
104 The circumstances are different: for example, there is no loss of trees involved, but the principles are the same. There is a perceived loss of amenity resulting from apparent bulk and scale which, in turn, arise from the emphasis on height restrictions as outlined in cl 42(1) of TPS 4.
105 Therefore, the Tribunal finds that the proposal has a problem arising out of cl 27(4)(h) of TPS 4 which will result in a failure to comply with cl 42(1)(b) of TPS 4.
(Page 24)
106 In reaching this finding, the Tribunal was aware that the City has approved the proposal subject to condition (a):
The proposed upper floor above the garage is to be modified such that it is a loft configuration which has a wall height of no more than 3.6m and an overall height of 6.5m as defined by the Scheme.
107 Mr Armstrong and Mr Adam both submitted evidence that this condition would result in more bulk and reduced amenity outcomes considering matters such as solar access and possibly privacy. Although the Tribunal appreciates the logic of the opinion expressed by both of the witnesses, it is not convinced that there was not a range of solutions that would meet the requirements of the applicants and the City's planning framework.
Whether the proposal complies with cl 41(2)(f) and cl 41(2)(g) of TPS 4
108 Clause 41(2) of TPS 4 provides that, when considering an application in the residential zone, the Council shall have regard to various objectives including:
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the existing housing stock.
(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping.
109 This is a curious issue and received limited attention by the respondent. It was listed by the respondent, and the questions which the respondent suggested needed answers were:
Is the proposed development consistent with the preservation of the character of the existing housing stock and is the proposal consistent with the established street setback in the area.
110 Ms Goode in her witness statement listed cl 41(2)(f) and cl 41(2)(g) of TPS 4 as one of the statutory circumstances related to the review site. There is no further reference to these clauses in her witness statement, except possibly at [54], where she states:
The proposal does not ensure the preservation of the character of the existing housing stock and is not compatible with the established streetscape as discussed previously in the report.
(Page 25)
111 In that statement, Ms Goode added 'character of' to the more limited 'preservation of housing stock' as defined in cl 41(2)(f) of TPS 4 and expanded on the more narrow questions originally identified in the respondent's issues.
112 On the narrow questions originally defined by the respondent, the Tribunal finds in favour of the applicants. A fundamental characteristic of the proposal is the retention of the existing circa 1920s dwelling complete with existing setbacks. Also, as previously found by the Tribunal, the proposal is compatible with the established streetscape. Furthermore, the proposal should enhance the streetscape by the quality of the proposed refurbishment of the existing dwelling and ensuring that a single-storey presentation is made to the street.
113 Most of the remaining broader issues have been dealt with earlier in these reasons. However, there are some new details within cl 41(2)(f) and cl 41(2)(g) of TPS 4. In cl 41(2)(g) of TPS 4, compatible roof pitch is mentioned. The roof pitch of the additions is acceptable because it will have no impact on the streetscape and because the design follows the well established architectural and heritage principle of defining the new work separately from the existing work.
114 Another new detail within cl 41(2)(f) of TPS 4 is the objective to adhere to solar and environmentally sound design principles. This matter is a positive element of the proposal for the applicants. Earlier in this reasons, it was found that it was preferable to locate the development in the rear third of the site based on improved solar access. Also earlier in these reasons it was found that the Council's condition (a) and a loft style development was likely to result in reduced environmental outcomes for the applicants. Furthermore, the architect argued the design provided solar access to the internal rooms of the applicants and a central outdoor living with solar access for the applicants. He further observed that if the two-storey development was required to be in the middle third, the garage would still need to be in the back third (access from right of way required by the Council), and the resultant outdoor living area near the garage would be in shade because of the orientation of the site - that is, the two-storey section would be north of the outdoor living area.
115 The Tribunal finds that the proposal complies with cl 41(2)(f) and cl 41(2)(g) of TPS 4.
Whether the proposal complies with cl 42(1)(a) and cl 42(1)(b) of TPS 4
116 Clause 42(1) of the Scheme provides as follows:
(Page 26)
- (a) Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b) The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height, and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
117 The maximum overall height of the proposed additions is approximately 7.12 metres. (This is based on the following calculation: ridge height of the skillion roof 28.88 metres less a right of way level of 21.76 metres). The roof height at the low point of the skillion is 5.65 metres. (This is based on the following calculation: minimum roof height 27.65 metres less natural ground level in the vicinity of the low point at 22 metres). The maximum height of the skillion roof exceeds the maximum overall height of 6.5 metres prescribed by cl 42(1)(a) of TPS 4 by 450 millimetres. However, it is significantly less than the discretionary height of 9 metres permitted by cl 42(1)(b) of the Scheme.
118 There was some uncertainty as to the precise levels. In opening, the respondent argued the roof varied from a maximum height of 6.88 metres down to 6.5 metres above natural ground levels. The Tribunal is not clear what figures the respondent was using, and the precise details are to some extent irrelevant, because the summary position is that the overall height is marginally above maximum 'as a right' height but significantly below the maximum discretionary height.
119 The maximum wall height of the proposed building is stated as 5.8 metres, which exceeds the standard of 3.6 metres by 2.2 metres. Nevertheless, it is below the discretionary maximum of 6 metres permitted by cl 42(1)(b) of TPS 4.
120 The application cannot, therefore, be approved unless the Tribunal is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
121 For reasons discussed elsewhere in this decision, the Tribunal finds there is no adverse impact on the general amenity of the locality.
122 However, the Tribunal is not satisfied that there will be no undue adverse impact on adjoining residential sites. The adverse impact will arise out of the location of the over height walls. Therefore, the Tribunal finds that the
(Page 27)
- proposal does not comply with cl 42(1)(b) of TPS 4.
Whether cl 42A is relevant and if so whether the proposal complies with cl 42A of TPS 4
123 The respondent argued that, even if the proposal was found acceptable in terms of the planning framework discussed earlier in these reasons, the application for review must fail because, under the provisions of cl 42A of TPS 4, the Council does not have discretion approve the proposal. The applicants argued that cl 42A of TPS 4 was not applicable and was therefore irrelevant to this review.
124 From one point of view, this issue is straightforward. The Tribunal finds that if cl 42A of TPS 4 applies, then the application for reviews fails. It fails for the following reasons.
125 Clause 42A of TPS 4 permits the Council to exercise discretion to approve a non-complying development, but only if the conditions of cl 42A1(a) and cl 42A1(b) of TPS 4 are met.
126 Clause 42A1(a) of TPS 4 describes merit-based conditions which have been discussed elsewhere in these reasons. However, cl 42A(1)(b) of TPS 4 describes conditions that the applicants cannot meet. Clause 42A of the Scheme provides that:
(1) If a development is the subject of an application for planning approval and does not comply with the maximum overall height or maximum wall height referred to in clause 42, then, despite the non compliance, the Council may approve the application where:
(a) The Council is satisfied that:
(i) the non compliance will have no undue adverse effect on any adjoining residential land or the amenity of the locality; and
(ii) the wall or overall height which is non compliant is compatible with the wall and overall heights of surrounding developments that are designed for residential purposes and are considered by the Council to enhance the streetscape;
(b) the wall/overall height which is non-compliant:
(i) meets the acceptable development standards of the Residential Design Codes in relation to setbacks; or
- (ii) is necessitated by a sloping site and would be unlikely to have occurred if the site had been level; or
(iii) is the result of an irregular roof design and is unlikely to have occurred if the proposed development had a conventional shaped roof.
127 If cl 42A of TPS 4 applies, it is not necessary to test cl 42A(1)(a) of TPS 4 because that application fails cl 42A(1)(b) of TPS 4, even though there are three opportunities to meet the requirements of cl 42A(1)(b) of TPS 4.
128 The provisions of cl 42A(1)(b)(ii) of TPS 4 do not apply because, in this case, the levels of the site assist the reduction of the overall height. The site levels could not be considered to be the cause of the non-compliance - if there is non-compliance.
129 Similarly, the provisions of cl 42A(1)(b)(iii) of TPS 4 do not apply because, in this case, the roof design could not be considered to be the cause of the non-compliance - if there is non-compliance.
130 Therefore, the application, if non-compliant, must pass cl 42A(1)(b)(i) of TPS 4, and it cannot. Although earlier in the reasons the Tribunal has found that the proposal's setbacks comply with the performance criteria of the Codes, the non-compliance clause (cl 42A) reasonably sets a higher standard and requires compliance with the acceptable development standards of the Codes.
131 It is common ground that the proposal does not meet the acceptable development standards for setbacks. Therefore, because of the provisions of cl 42A(1)(b) of the Scheme, the Council (and the Tribunal) cannot approve the proposed heights if they are non-complying heights.
132 However, the above conclusion applies only if the development proposal is non-complying in terms of wall and/or overall height.
133 The Tribunal agrees with the applicants and finds that cl 42A of TPS 4 does not apply for the following reasons.
134 Clause 42A of TPS 4 specifically refers back to cl 42 of the Scheme where:
• in subclause 1(a), heights approved as a right are an overall height of 6.5 metres and a wall height of 3.6 metres; and
(Page 29)
- • in subclause 1(b), Council has discretion to approve an overall height of up to 9 metres and a wall height of 6 metres.
135 The discretionary heights, if approved, are complying heights. Non-complying heights would be an overall height exceeding 9 metres and/or a wall height exceeding 6 metres. The proposal falls within the discretionary heights permitted by cl 42(1)(b) of the Scheme.
136 This finding is consistent with the Tribunal's finding in TTH 28 Pty Ltd and City of Subiaco[2008] WASAT 200 where the applicants sought approval for a noncomplying height. The Tribunal observed at [68]:
the applicant is seeking a concession under clause 28 on the concession already available under clause 45(4)(b).
137 Clause 45(4) of TPS 4 is similar to cl 42(1) and deals with height limits in the commercial residential zone. Clause 45(4)(a) of the Scheme sets the maximum 'as a right' heights, and cl 45(4)(b) of the Scheme sets the discretionary heights referred to as a concession. As observed in [68], the applicant sought approval for a height that exceeded the discretion available in cl 45(4)(b) of TPS 4, and therefore sought approval for a non-complying height - that is, a height that exceeds the height that the Council may approve.
138 In the matter the subject of this review, the applicants seek approval for a height that is provided for in cl 41(1)(b) of TPS 4, and therefore it is not noncomplying. Clause 42A of TPS 4 would only apply if the heights exceed the limits provided for in 42(1)(b) of TPS 4.
Whether approval of the proposal would set an undesirable precedent which would adversely affect the likely future development of the locality
139 The respondent argued that the proposal 'would set a highly undesirable precedent whereby additions to upper floor development would be permitted in the rear third of the lot.'
140 In explaining the significance of the risk, the respondent referred to the disagreement over the meaning of the word 'adjacent', arguing that if 'adjacent' meant nearby lots and this application was approved, it would create a new adjacent lot with development in the rear third that could be used by future applicants to argue for approval under cl 6.3 of the Streetscape Policy.
(Page 30)
141 The applicants argued that precedent would not open a floodgate for development outside the middle third because the subject land (No 207) was located between two properties at No 211 and No 201, where there was already development outside the middle third. (It is significant to note that No 201 is a double block and covers No 203 and No 201.) Between No 201 and No 211 are only three houses, with one being the review site. Therefore, there is no creation of a precedent. The immediate neighbour to the west (No 209) already adjoins No 211, with development outside the middle third. The immediate neighbour to the east (No 205) already adjoins No 201, with development outside the middle third.
142 Hence, approval of the proposal does not create a precedent for the two adjoining lots because they already have an exemption under cl 6.3 of the Streetscape Policy. Also, approval of the proposal does not create a precedent for nearby or adjacent lots, because they already have development outside the middle third or are closer to lots with development outside the middle third than the review site.
143 While the respondent's and applicants' arguments on precedent were thorough, they did not create a situation where it is necessary to depart from the Tribunal's principles in dealing with precedent.
144 Precedent was considered by the Tribunal in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (unreported, WATPAT, No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 and Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls) at [71] - [75]. In Nicholls, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin v Minster for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
(1) that the proposed development or subdivision is not in itself unobjectionable; and
(2) that there is more than a mere chance or possibility that there may be later undistinguishable applications.
145 For precedent to be a relevant factor, both tests must be satisfied. In this instance, for reasons discussed earlier, the proposal is unobjectionable. Therefore, the first test is not satisfied and hence it does not create a precedent.
(Page 31)
Conclusion
146 The Council raised the prospect that the proposal was non-conforming and did not meet the exemptions for non-conforming development. Logically, the standards for non-conforming development are set higher than for conforming development. If the proposal was non-complying, it must fail because it would not meet the higher standards. However, the Tribunal finds that the respondent has misinterpreted the meaning of 'non-complying'. In essence, there are three types of proposals: those that comply with the 'as a right' provisions of the Scheme; those that are covered by the discretionary provisions of the Scheme; and those that are non-complying. The Tribunal finds that the proposal was in the second category - that is, it falls within the discretionary provisions of the Scheme.
147 The principal arguments in the review were about the excess height of the proposal and the location of the excess height on the site. In addition to relying on the provisions of TPS 4, the respondent argued that the proposal did not comply with the Streetscape Policy, with particular emphasis on the middle third requirement of the Streetscape Policy.
148 The respondent partially relies on an argument that the proposal does not meet the exemption requirements of the Streetscape Policy because there is no development outside the middle third on adjacent lots. There were two problems with this position. First, the Council is applying cl 6.3 of the Streetscape Policy as an absolute rule with no discretion, even though the policy is meant to guide the application of discretion within the Scheme. The second problem is that the Council misinterprets the meaning of the word 'adjacent' within its Streetscape Policy.
149 The Streetscape Policy lacks detail on the middle third requirement, but it does place an emphasis on the view from the street. There are indications within the policy for preferring the middle third to the front third, but there are no details to explain a preference for the middle third against the rear third. Measured against some of the objectives of the policy, the particular orientation of this site and the high quality of the proposed design, there are indications that the rear third may be preferable to the middle third. Therefore, the Tribunal finds that the proposal complies with the Streetscape Policy while noting that the policy does not cover all matters dealing with amenity.
150 The Tribunal finds the proposal complies with the Precinct Policy and several areas of the Scheme raised by the parties. However, ultimately the proposal fails within the context of cl 27(4)(h) and cl 42(1)(b) of TPS 4.
(Page 32)
- Clause 27(4)(h) of the Scheme requires the consideration of the scale and relationship of the proposal to existing buildings and surroundings. Clause 42(1)(b) of TPS 4 permits approval of additional height beyond the limits specified in cl 42(1)(a) of TPS 4, provided there are no undue adverse impacts on adjoining residential sites.
151 Amenity is a complex interrelationship of many factors where sometimes the factors work against each other. Nevertheless, the City's planning framework places an unusually strong emphasis on height. Therefore, in this case, the Tribunal determines that discretion cannot be exercised to allow the increased wall heights, because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining lot.
152 It follows that the application for review against the imposition of condition (a) should be dismissed.
153 Finally, there was some discussion on whether the condition was an effective refusal. Ms Goode expressed the opinion that similar conditions in the past had not presented unnecessarily difficult barriers. At the very least, the condition represents a willingness on the part of the respondent to work with the applicants in finding a solution.
Orders
154 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 11 September 2008 to grant conditional development approval for additions to an existing dwelling at No 207 Heytesbury Road, Subiaco is affirmed.
I certify that this and the preceding [154] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
3
8
3