HAMZAH and CITY OF FREMANTLE - [2009] WASAT 110

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HAMZAH and CITY OF FREMANTLE [2009] WASAT 110

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 27 MARCH 2009

DELIVERED : 5 JUNE 2009

FILE NO/S: DR 25 of 2009

BETWEEN: JOAN HAMZAH
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development application - Residential Design Codes of Western Australia (2008) - Boundary walls - Privacy - Overshadowing - Loss of sunlight - Bulk - Height - Local Planning Policies - Streetscape - Heritage - Character of the locality - Amenity - Significant adverse impact on amenity - Adverse impact on amenity - Adjoining property - Lot Ancillary accommodation

Legislation:

City of Fremantle Town Planning Scheme No 3
City of Fremantle Local Planning Scheme No 4, cl 1.6, Pt 2, cl 2.2, cl 2.3.1, cl 2.3.2, cl 2.6, cl 4.2.1, cl 4.2.1(a), Pt 5, cl 5.1, cl 5.2, cl 5.2.2, cl 5.3, Pt 6, cl 6.1, cl 6.3, Pt 7, cl 7.1, cl 7.2, cl 7.5, cl 10.2.1, Sch 1, Sch 11, Sch 12, Sch 13
Metropolitan Region Scheme
Planning and Development Act (2005) WA, s 252(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008), cl 1.3, Pt 2, cl 2.1, cl 2.4, cl 2.5, cl 2.5.4, Pt 4, Pt 5, cl 5.1, cl 5.3.1, cl 5.3.1(b), Pt 6, cl 6.2, cl 6.3, cl 6.3.2, cl 6.3.2 P2, cl 6.7, cl 6.8, cl 6.9, cl 6.9.1, cl 6.9.2 A1, cl 7.1.1, Appendix 1, Table 1, Table 2, Table 3, Fig 1, Fig 2, Fig 3

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant: Mr Aaron Lohman
Respondent: Mr Murray Casselton

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: TPG Town Planning & Urban Design (Town Planners)

Case(s) referred to in decision(s):

Adam and City of Fremantle [2008] WASAT 226
Dumbleton and Town of Bassendean [2005] WASAT 145
Fryer and City of Subiaco [2006] WASAT 199
Robert Baccala and City of Fremantle [2005] WASAT 55
Sunbay Developments and Shire of Kalamunda [2006] WASAT 74
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a second storey development over an existing garage to a dwelling at No 446B (Lot 104) South Terrace, South Fremantle. The lot had a dual frontage with the existing garage facing a rear street: Hickory Street.
The proposed development was on a long narrow eastwest orientated lot in an R40 coded residential zone.
The proposal adjoined three historic cottages on a single lot. The City of Fremantle Council refused the proposal on the grounds that it would have an adverse impact on the amenity of the southern adjoining property in terms of:
a)restricted solar access; and
b)increased building bulk and scale.
The issues were:
• Whether the proposed development met the requirements of the Residential Design Codes of Western Australia (2008);
• Whether the proposed development met the requirements of Local Planning Policy 2.4 - Boundary Walls in Residential Development;
•Whether the proposed development would have an unacceptable adverse impact on the amenity of the neighbouring property; and
•Whether discretion available under the planning framework should be used to approve the proposal.
The Tribunal found that the proposal complied with the requirements of the Residential Design Codes of Western Australia (2008) and the requirements of Local Planning Policy 2.4. In reaching that conclusion, the Tribunal recognised that compliance with the boundary wall provisions of the Residential Design Codes of Western Australia (2008) could be not be determined without reference to a broader consideration of amenity. On the issue of amenity, the Tribunal concluded that, on the merit of evidence in the review, the proposal would have an impact on the amenity of the neighbour but the impact was not sufficiently adverse to refuse the proposal.
The Tribunal found that the matter of the use of discretion in relationship to amenity was quite complex and that the City of Fremantle Local Planning Scheme No 4 required that some weight be given to streetscape and character of the area when assessing the impact of a proposed development on the amenity of an adjoining lot. On balance, the Tribunal found it was reasonable and appropriate to exercise discretion and approve the proposed development.
The application for review was allowed and planning consent was granted subject to conditions.

Introduction

These proceedings involve an application brought by Joan Hamzah (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Fremantle (City, Council or respondent) made on 17 December 2008 to refuse development approval for a second storey addition over an existing garage (proposed development) at No 446B (Lot 104) South Terrace, South Fremantle (site or subject land).

Site and locality

The site has two street frontages and contains an existing two storey dwelling and a garage. The main dwelling faces South Terrace and the garage faces Hickory Street. The site is orientated east‑west with South Terrace on the west and Hickory Street on the east. The site approximates a rectangular shape with an area of 259 square metres with a frontage of 7.56 metres to South Terrace and a frontage of 7.54 metres to Hickory Street. The north side boundary is 34.68 metres and the south side boundary is 34.16 metres.
The dwelling is built up to the northern side boundary with a setback to the southern side boundary. A site plan attached to the witness statement of Mr Alan Stewart, an expert planner appearing for the applicant, shows a setback of approximately 1 metre at the rear of the dwelling and possibly 1.5 metres at the front of the dwelling. The garage is built from side boundary to side boundary.
The garage and dwelling are separated by an internal courtyard. This courtyard lines up with a similar courtyard on the property to the north and open space on the property to the south.
The site and the dwelling are not listed on the City's heritage list but they are within the South Fremantle heritage area. The adjoining site to the south is on the City's heritage list and contains three cottages which front South Terrace. The cottages have been identified as being of cultural heritage significance for their contribution to the streetscape of South Terrace, the South Fremantle local area and Fremantle as a whole. The proposed additions on the applicant's site will not be visible from South Terrace and have no impact on the South Terrace heritage streetscape value of the cottages.
The adjoining lot to the north, No 446A (Lot 103) South Terrace, is similar in development pattern to the review site. It contains a two storey dwelling facing South Terrace (with a nil setback to the common boundary with the review site; a central courtyard; and a garage built from side boundary to side boundary facing Hickory Street). A significant difference is that the garage building on Lot 103 is two storeys and contains habitable room(s) above the garage. This garage was advertised for public comment and approved in 2003.
The adjoining lot to the south is Lot 18 South Terrace and contains three heritage listed cottages. Each is self-contained with separate street addresses, No 448, No 450 and No 452. Nevertheless, it remains one relatively large lot of 507 square metres. Each of the cottages faces South Terrace and each has a private courtyard/garden at the rear. The overall lot was owned by Ms Bobby Wilson, who resides at No 448 South Terrace. Ms Wilson gifted the lot to a Trust and is now one of the Trustees.
Ms Wilson is a strong objector and appeared before the Tribunal as a witness. The cottage on No 448 South Terrace is built with a nil setback to the common boundary of the review site. The rear garden/courtyard commences at approximately the same position as the central courtyard on the review site. The open space continues to the rear of the site where there is a vegetable garden and meditation space adjoining the boundary wall of the applicant's site and facing Hickory Street.
Number 450 South Terrace has a private courtyard immediately at the rear of the cottage, roughly in line with courtyards to the north. At the rear of No 450, on the Hickory Street frontage, is an outbuilding used as a meditation centre by Ms Wilson and her colleagues. Number 452 is similar to the other two cottages except it has a toilet and storeroom at the rear (Hickory Street end) of the site.
The three cottages on Lot 18 are part of an original group of six cottages. The adjoining site to the south of Lot 18 is split into Lot 1, Lot 2 and Lot 3 on Strata Plan No 38637 and contains three more heritage listed cottages facing South Terrace with street addresses of No 454, No 456 and No 458. The six cottages were built c 1903/04. The sites containing the cottages at No 454, No 456 and No 458 have been developed in a way consistent with the review site (No 446B), the primary dwelling facing South Terrace, the garage facing Hickory Street and habitable space built over the garage to form a second storey.
Hickory Street is generally characterised by dwellings with front gardens on the eastern side of the street and the garages of South Terrace dwellings on the western side of the street. Most of the garages in the vicinity of the review site are two storeys. In addition to the properties already described, the two garages immediately north of No 446A are single storey; the next three are two storey.
In the company of the parties, the Tribunal had the benefit of a viewing of the site, the objecting neighbour's site and the streetscapes of South Terrace and Hickory Street in the vicinity of the review site.

Planning framework

The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS); and zoned 'Residential' with a residential density coding of 'R40' under the City of Fremantle's Local Planning Scheme No 4 (LPS 4 or Scheme).
The Tribunal has given due regard to LPS 4, especially the following parts and clauses in consideration of this review:
•Clause 1.6 - describing the aims of LPS 4;
•Clause 4.2.1(a) - describing the objectives of the residential zone;
•Part 2: Local Planning Policy 2.4 (LPP 2.4) Framework - especially cl 2.2, cl 2.3.1 and cl 2.3.2 which deal with local planning policies;
•Part 5: General Development Requirements - especially:
•Clause 5.1 - Compliance with Development Standards and Requirements;
•Clause 5.2 - Residential Design Codes; and
•Clause 5.3 - Special Application of Residential Design Codes.
•Part 6: Special Control Areas - particularly:
•Clause 6.1 - (which lists various types of control areas shown on the Scheme map and included in Sch 11 - Sch 13 of the Scheme); and
•Clause 6.3 - (which contains provisions for Local Planning Areas);
•Part 7: Heritage and Conservation Protection - particularly:
•Clause 7.1 - Heritage List;
•Clause 7.2 - Designation of a Heritage Area; and
•Clause 7.5 - Variations to Scheme Provisions;
•Clause 10.2.1 - which describes matters to be considered when determining development applications;
•Schedule 1 - which contains definitions of amenity and streetscape; and
•Schedule 12 - generally dealing with height limits for local planning areas with the review site being within LPS 4 - South Fremantle.
Clause 5.2.2 of LPS 4 requires that:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes.
The Tribunal has given due regard to the Residential Design Codes of Western Australia (2008) (2008 Codes), especially the following parts and clauses in consideration of this review:
•Clause 1.3 - General objectives of the 2008 Codes;
•Part 2 - Codes approval process - especially:
•Clause 2.1 - Planning Approval;
•Clause 2.4 - Discretionary decisions; and
•Clause 2.5 - Exercise of discretion.
•Part 4 - Neighbour consultation;
•Part 5 - Local planning policies;
•Part 6 - Specifically clauses:
•Clause 6.2 - Streetscape requirements;
•Clause 6.3 - Boundary setback requirements;
•Clause 6.7 - Building height requirements;
•Clause 6.8 - Privacy requirements; and
•Clause 6.9 - Design for climate requirements.
•Clause 7.1.1 - Ancillary accommodation;
•Appendix 1 - definitions;
•Table 1;
•Table 2; and
•Table 3.
•Figure 1,
•Figure 2; and
•Figure 3.
The Tribunal has given due regard to the following two policies:
•LPP 2.4 - Boundary Walls in Residential Development (LPP 2.4) which has been adopted in accordance with the provisions of Part 2 of LPS 4; and
•South Terrace, Douro and Oceans Roads and Hickory Street Local Area (South Terrace Local Area Policy) which was adopted under the previous City of Fremantle Town Planning Scheme No 3 (TPS 3). Pursuant to cl 2.6 of LPS 4 this policy continues to have effect as if it were a local planning policy under LPS 4.
The planning framework as summarised above is complex and lengthy. It is unnecessary to reproduce the text except where directly relevant to reasons that follow.

Proposed development

The proposed development is a second storey addition over the existing double garage. The additions of approximately 49 square metres comprise primarily of a living room, a kitchenette and a bathroom. The proposal includes windows to the eastern and western sides with boundary walls on the north and south sides. The boundary wall on the north side is shown 5.375 metres high and on the southern boundary (adjoining the objecting neighbour) it is shown as 5.09 metres high.
The windows on the west are screened and it is common ground that with the screening, privacy/overlooking is not an issue.
The existing southern boundary wall is 6.51 metres long and approximately 3 metres high. The proposal increases the height to 5.09 metres.

Council's decision

The Council advertised the development application and received four submissions with one supporting the application and three objecting to the application.
The development application was the subject of a report by the Council's planning officers to the Planning Services Committee (Committee) and was considered under the delegated authority provisions of the City. The recommendation to the Committee was for approval. The Committee voted 4:3 in favour of approving the proposal. The delegated authority provisions require at least five members of the Committee to vote in favour in order to exercise the delegation. The proposal failed to obtain the necessary votes for approval under delegation; hence it was presented to the full Council meeting, which on 17 December 2008 voted 9:4 to refuse the application for the following reason:
The proposed development will have an adverse impact on the amenity of the southern adjoining property in terms of:
a)Restricted solar access; and
b)Increased building bulk and scale.

The issues

The following four issues arise for determination in this review:
1.Whether the proposed development meets the requirements of the 2008 Codes;
2.Whether the proposed development meets the requirements of LPP 2.4 - Boundary Walls in Residential Development;
3.Whether the proposed development will have an unacceptable adverse impact on the amenity of the neighbouring property; and
4.Whether discretion available under the planning framework should be used to approve the proposal.
The Tribunal will address each issue in turn.

Whether the proposed development meets the requirements of the 2008 Codes

Mr Stewart appearing for the applicant argued that assessment of the development needs to be considered against a broad range of clauses within the 2008 Codes. However, Ms Clair Murray, an expert planner appearing for the respondent, argued that consideration of cl 6.2, cl 6.7 and cl 6.8 of the 2008 Codes are of limited significance. Ms Murray stated that the streetscape and building height are not issues being contested by the respondent and that the issue of privacy had been dealt with by the provision of screening.
The Tribunal mostly agrees with Ms Murray and accepts that the parties agree the proposal meets the provisions dealing with building height and privacy.
Before turning to the significant cl 6.3 and cl 6.9 of the 2008 Codes, the matter of streetscape warrants further consideration.

Streetscape

Mr Stewart argued with particular reference to Hickory Street that LPS 4 requires significant weight to be given to the effects of development on the streetscape, character, amenity and heritage of an area. He observed that the Scheme definition of amenity relates to existing and future character of an area and the objectives in cl 4.2.1 of LPS 4 emphasise the need to ensure that development is sympathetic to the character, streetscape and heritage of an area.
Ms Murray argued that this is not an issue because the respondent has accepted the nil front setback and has not refused the proposal for any implied negative impact on streetscape.
The Tribunal understood Mr Stewart's argument to be that the proposal should be considered in terms of a positive contribution to streetscape rather than the neutral position that the Council has not identified a negative impact on streetscape.
Mr Stewart proposed that the second storey addition is consistent with the streetscape pattern on the west side of Hickory Street and that the proposed addition improves streetscape by providing visual interest and adding interaction with the street because the second storey additions with associated windows is preferable to a row of single storey garages with blank walls and garage doors.
The Tribunal supports the principle of the applicant's argument and notes it is directly relevant because one of the problems the respondent has with the proposal is the bulk and the height of the wall arising directly from the second storey addition. The support for the principle of the positive impact on streetscape does not necessarily lead to support for the proposal in its current form. However, it does involve consideration of weight when compared to the question of negative impact on the adjoining neighbour.

Ancillary accommodation

Before turning to the major 2008 Codes issues of the boundary wall and overshadowing, a curious question of ancillary accommodation arose. Although this was not mentioned in the respondent's reasons for refusal, it was raised by one of the objectors who complained the proposed addition was independent accommodation for short term holiday accommodation.
Ms Murray referred to the definition of ancillary accommodation in the 2008 Codes, which uses the following definition:
Self-contained living accommodation on the same lot as a single house that may be attached or detached from the single house occupied by members of the same family as the occupiers of the main dwelling.
Ms Murray argued that the proposal is ancillary accommodation because it is self-sufficient and therefore it must be assessed against the requirements of cl 7.1.1 of the 2008 Codes. She then argued that the proposal fails the acceptable development standards of the 2008 Codes because the lot area is less than 450 square metres. Failure to meet the acceptable development standards means the proposal must be assessed against the performance criteria which at cl 7.1.1(P1) of the 2008 Codes require:
Ancillary dwellings that accommodate the needs of large or extended families without compromising the amenity of adjoining properties.

Ms Murray argued that the proposal results in a loss of amenity for the adjoining neighbour because of the height of the boundary wall and the impact of overshadowing. Therefore, the proposed ancillary accommodation fails the performance criteria of the 2008 Codes and should not be approved.
Mr Stewart argued that the proposal is intended to expand the range of accommodation and living spaces available to the occupant of the existing house. He further argued that although it has a bathroom and kitchenette, it does not provide for independent living; it does not have a laundry, additional car bay or separate outdoor living space. The proposal is an extension to the existing dwelling, not ancillary accommodation.
Although this is an interesting argument between the experts, it does not have an impact on the determination of the application. Even if the proposal is defined as ancillary accommodation it needs to pass the test of 'not compromising the amenity of adjoining properties'. The respondent has not produced any credible arguments of potential amenity loss arising out of the use of the proposal. The argument is that the loss of amenity results from the form (shape/height/location) of the building. If it is found that the height and/or overshadowing of the proposal has an adverse impact (leaving aside, at this stage, the question of 'significant adverse impact' versus 'no adverse impact'), then the proposal fails and the question of ancillary accommodation becomes irrelevant.
The Tribunal finds there are no concerns about the use. Furthermore, the Tribunal finds that although it may be unusual, there is no requirement for an addition to be physically attached to the main dwelling. The Tribunal does not support the respondent's argument that the proposal is ancillary accommodation as defined in the 2008 Codes.

Design for Climate requirements

It is appropriate to assess overshadowing before considering boundary walls because the restriction of direct sunlight is a criterion for assessing boundary walls. The requirements are described in cl 6.9 of the 2008 Codes.
The acceptable development standard is described in A1 of cl 6.9.1 - Solar access for adjoining sites - as follows:
Notwithstanding the boundary setbacks in design element 6.3, development in climatic zones 4, 5 and 6 of the state [includes the development proposal] shall be so designed that its shadow only cast at midday 21 June onto any adjoining property does not exceed the following limits:
…
•on adjoining properties coded R30 to R40 inclusive - 35 per cent of the site area …
The applicant argues the proposal complies with the acceptable development standards and is therefore deemed to comply with the requirement. The respondent disagrees and the source of the disagreement is a difference of opinion on the meaning of adjoining property and site area.
This is significant because the overshadowing of Lot 18 (containing house No 448, No 450 and No 452) is less than 35% and therefore compliant with acceptable development standards. However, the overshadowing on the adjoining dwelling (group dwelling) is greater than 35% and therefore requires assessment under the performance criteria P1 of cl 6.9.1 of the 2008 Codes which reads:
Development designed to protect solar access for neighbouring properties taking account the potential to overshadow:
•outdoor living areas;
•major openings to habitable rooms;
•solar collectors; or
•balconies or verandahs.
Ms Murray argues that the terms 'adjoining lot' and 'adjoining property' are used interchangeably in the 2008 Codes and that the manner 'in which the three heritage listed row houses [No 448, No 450 and No 452] are used in practice, is synonymous with the intent of the 2008 Codes where it refers to adjoining lot'. She further argued that:
Although not formalised in a strata subdivision, No. 448 South Terrace is the adjoining property to the Review Site since each of the heritage row houses on Lot 18 (No. 448, No. 450, No. 452) are in practice separate dwellings with independent garden and courtyard areas and individual access to Hickory Street and South Terrace.
Ms Murray supported her argument by reference to definitions within the 2008 Codes noting that in cl 6.9.2(A1) it is noted that the site area refers to 'the surface of the adjoining lot and is measured without regard to any building on it but taking into account its natural ground levels'. However, she also noted that the 2008 Codes also define a 'site' as, in the case of a grouped dwelling, 'the area occupied by the dwelling together with any area allocated (whether by way of strata title or otherwise) for the exclusive use or benefit of that dwelling'.
This definition does not necessarily help the respondent because it was argued elsewhere in the evidence that the vegetable garden and associated meditation area are communal and therefore not for the exclusive use of No 448.
Leaving that possible complication aside, the key point is that the three adjoining heritage cottages are presented as an historical anomaly. They are effectively individual lots.
Mr Stewart argued that the respondent's arguments are invalid and that whether they are strata titled or working as individual lots as if they were strata titled, they are nevertheless parts of a parent lot, Lot 18, and the 2008 Codes refer to a parent lot not a group dwelling, not a strata lot and not an effective independent dwelling. The test is the parent lot. Mr Stewart supports his argument by reference to definitions within the 2008 Codes for 'adjoining property' and 'lot'. He noted that the definition in cl 6.9.1 A1 (quoted above) used the term 'adjoining lot'.
Appendix 1 of the 2008 Codes defines 'Adjoining property' as:
Any lot:
•on which any dwelling for which provision is made in the codes be constructed under the scheme; and
•which shares a boundary or portion of a boundary with a lot on which there is a proposed residential development site ...
Also, Appendix 1 of the 2008 Codes defines 'Lot' as:
For single houses, a lot as defined under the Planning and Development Act 2005, and therefore for multiple or grouped dwellings, the parent lot, inclusive of common areas, on which the strata scheme relates as defined under the Planning and Development Act 2005.
Mr Stewart stated (not challenged by the respondent) that:
The adjoining property is known as Lot 18, contains three dwellings, and is not the subject of either a Survey Strata Plan or a Strata Plan.
Pursuant to the minimum and average site area requirements of the applicable R40 dwelling density code, Lot 18 is not of sufficient size to be subdivided into three freehold title (single house) lots or three survey strata lots.
…
Regardless of whether there is common property, and regardless of whether Lot 18 becomes the subject of a conventional Strata Plan, the adjoining dwellings on Lot 18 can only be described as falling within the definition of 'grouped dwelling' under the RD Codes [2008 Codes] which is a "dwelling that is one of a group of two or more dwellings on the same lot…". [original emphasis]…
The significance of this argument becomes apparent when Mr Stewart concludes:
The definition of a "lot" under the RD Codes [2008 Codes], in the case of "group dwellings", means the "parent lot". The parent lot is Lot 18, comprising a total area of 507 square metres.
The total area of shadow cast by the existing and proposed buildings on the review site only at midday 21st June 2008 is 162 square metres, which is equivalent to 32% of the total area of the parent lot, Lot 18.
The respondent disagrees with the figures presented by Mr Stewart and suggests the overshadowing figure according to their analysis is 33%. Nevertheless, it is less than 35%. Therefore, if Mr Stewart's argument on the definition of adjoining property is correct, the proposal complies with the acceptable development standard in cl 6.9.1 A2.
The significance of that compliance is apparent by reference to cl 2.5.4 of the 2008 Codes.
A council shall not refuse to grant approval to an application in respect of any matter where the application complies with the relevant acceptable development provision and the relevant provisions of the council's planning scheme or a local planning policy.
This Tribunal has previously considered this matter in Adam and City of Fremantle [2008] WASAT 226 (Adam) where a question arose as to whether Strata Lot 4 and Lot 5 constitute 'adjoining properties' within the meaning of the 2008 Codes and whether the provisions of the 2008 Codes are applicable to those strata lots.
The Tribunal found in Adam at [30] that:
Therefore, in relation to this matter any reference to 'lot' in the provisions of the Codes is referring to the 'parent lot' and not individual strata lots.
It further found at [31]:
Given the above, it is important in applying the specific Elements of the Codes to give particular attention to the wording of provisions and the context in which they apply. For instance, the issue of 'adjoining property' has been raised in these proceedings in respect to Element 6.3 - Building set-back requirements (Element 6.3) and whether Strata Lots 4 and 5 are 'adjoining property' for the purpose of meeting the Performance Criteria …
After referring to the 2008 Codes definition for 'Adjoining property', the Tribunal continued at [32]:
In consequence of these definitions, it is determined that Strata Lot 3, 4 and 5 are not 'adjoining property' and therefore, the performance criteria set out in cl 6.3.1 P1 and cl 6.3.2 P2 of the Codes are not strictly applicable to this matter …
The same principle applies in this review to the acceptable development standards. The adjoining property is the whole of Lot 18 and in consequence the proposal, with the associated overshadowing, complies with cl 6.9.1 of the 2008 Codes.
However, even if overshadowing was the only issue, compliance with cl 6.9.1 of the 2008 Codes does not necessarily result in approval of the application. The proposal is still required to comply with the LPS 4. This Tribunal found in Dumbleton and Town of Bassendean [2005] WASAT 145 (Dumbleton) at [19] - [22] that the respondent and the Tribunal retained a discretion under the TPS 3 to refuse an application for residential development which conformed to all relevant provisions of the Residential Design Codes of Western Australia (2002).
In Dumbleton at [23], the Tribunal determined that the correct approach and principle was that stated by the Tribunal in Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 at [42] as follows:
In most planning assessments, the fact that a development conforms to a relevant provision of the R-Codes is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration.
See also Robert Baccala and City of Fremantle [2005] WASAT 55 at [24].

Boundary walls

There are two boundary walls associated with the proposal; northern and southern walls. There is a minor disagreement between the parties concerning the technical compliance of the northern wall, with the applicant arguing it complies with the acceptable development standards (cl 6.3.2 A2 of the 2008 Codes), while Ms Murray argues the proposal fails the acceptable development standards of LPP 2.4. Clause 6.3.2 A2 provides for a choice in meeting acceptable development. One of the choices, subject to no overshadowing, is 'where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension'.
In this instance, the northern wall of the proposed development will adjoin a similar existing wall on the property immediately north of the proposed development. The Tribunal finds this wall complies with the 2008 Codes.
The southern boundary wall is the source of the dispute. The experts agree, as does the Tribunal, that the southern boundary wall does not comply with the acceptable development standards. That is not necessarily a problem, because the acceptable development standards are merely one example of compliance with the performance criteria. The proposal must comply with the performance criteria as described in cl 6.3.2 P2 of the 2008 Codes.
Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
To meet the performance criteria the proposal must comply with at least one of the first three bullet points and both of bullet points 4 and 5.
Ms Murray argues that these performance criteria are supplemented by the requirements of LPP 2.4. This argument is disputed by Mr Stewart. Rather than resolve this problem at this stage, the Tribunal will first consider compliance with the performance criteria as described in the 2008 Codes. The modifying influence, if any, of LPP 2.4 will be considered as a separate issue.
The experts agree that the proposal meets at least two of the first three bullet points. Therefore, it has passed the first hurdle. However, there is complete disagreement between the planning experts on the required compliance with the last two bullet points of cl 6.3.2 P2 of the 2008 Codes.
The fifth bullet point requires that the proposal not restrict direct sun to specified areas of the adjoining property. This requirement to some extent mirrors the design for climate requirements of cl 6.9 of the 2008 Codes. The distinction between the two clauses is not clear. The explanatory text accompanying the 2008 Codes only provides a hint as to the meaning of 'restrict' in the context of the performance criteria. The introduction in the explanatory text to cl 6.3 of the 2008 Codes indicates the objectives of boundary setbacks include ensuring 'access to daylight and direct sun for adjoining properties'.
Ms Murray argues that the increased height of the wall will restrict solar access throughout the morning hours of the winter solstice to the windows of a bedroom, an outdoor courtyard, a vegetable garden and adjoining external meditation space with a consequent negative impact on the amenity and use of those spaces.
Mr Stewart argues that the proposal does not to any significant extent restrict direct access to sunlight especially when consideration is given to existing available sunlight due to restrictions of the existing two storey dwelling, the single storey garage and trees.
The Tribunal observes that by reference to the respondent's overshadowing diagrams that it is not clear how much of the overshadowing or restriction on direct sunlight is associated with the proposed wall and how much is associated with the roof. The section provided indicates that at the point of the section, the roof and wall are providing the same shadow.
Clause 6.3.2 P2 of the 2008 Codes does not provide any base standard such as at 21 June 2008. It is clear that any impact of the increased wall height is restricted to morning and just after noon. After that time, the shadow moves towards Hickory Street.
The Tribunal finds that the proposed form of the development, with additions at the rear of the site, is a reasonable design solution because it leaves the central area of the review site free from built structures thus creating an area for direct solar access to the adjoining property where it has the greatest potential to provide sunlight; that is, a corridor for morning, midday and afternoon sun. There is no question that the proposal will reduce the amount of sunlight compared to the existing situation. However, the Tribunal finds that the reduction is not so significant that it restricts direct sun to major openings to habitable rooms and outdoor living areas of the adjoining property.
This finding is made in the narrow context of this clause and restriction of sunlight. It leaves aside the question of impact on amenity.
The fourth bullet point concerns significant adverse impact on the adjoining property. This question is quite complex and a separate issue in itself. Apart from the issues of sunlight and overshadowing, the respondent has identified concerns with bulk and scale. To avoid unnecessary repetition, the Tribunal will deal with amenity in the context of this clause within the broader context of the overall impact on amenity later in these reasons.

Whether the proposed development meets the requirements of Local Planning Policy 2.4 - Boundary Walls in Residential Development

It is now appropriate to consider LPP 2.4, especially since this policy contains words indicating a higher standard of amenity for boundary walls than exists in the 2008 Codes. Before considering the policy's amenity requirements, the balance of the policy warrants attention. It modifies the acceptable development standards as permitted by cl 5.3.1 of the 2008 Codes. The proposal does not comply with the policy's revised standards. However, the varied standards have limited relevance because the parties have agreed that the proposal does not meet the acceptable development standards of the 2008 Codes and that the proposal must be assessed against the performance criteria.
The policy requires that:
Compliance with this Local Planning Policy is required in addition to any other requirement, contained within Local Planning Scheme 4, the provisions of the Residential Design Codes and other Local Planning Policy.
The respondent does not suggest that the above requirement needs compliance with the acceptable development standards. However, Ms Murray argued that compliance is required with the provisions of the clause described under the heading 'Application of Performance Criteria' of LPP 2.4. The provisions of the clause are:
In considering any application under the performance criteria in clause 6.3.2 P2 of the Residential Design Codes, the Council will have particular regard to comments made by neighbouring owners / occupiers of adjoining properties, and will only consider the criteria to be met where it is satisfied that no adverse impacts on amenity of the neighbouring property will occur.
As described above, the amenity test in the 2008 Codes for boundary walls is that they should 'not have any significant adverse effect on the amenity of the adjoining property'. However, the effect of the above clause in LPP 2.4 is to modify the fourth bullet point of the 2008 Codes performance criteria in cl 6.3.2 P2 by removing the qualifier of 'significant'. When read with the other clause quoted from LPP 2.4, the test for amenity is 'any adverse effect' rather than 'any significant adverse effect'.
Ms Murray argued that LPP 2.4 is valid because cl 5.3.1(b) of the 2008 Codes permits the 2008 Codes to be augmented by providing additional performance criteria. She further noted the explanatory guidelines of the 2008 Codes relating to Pt 5 state:
… that in regard to boundary walls, local planning policies may be prepared providing alternative requirements for the:
(a)dimensions of boundary walls; and
(b)need for boundary walls to be considered against the performance criteria following neighbour consultation.
Ms Murray argued the performance criteria clause in LPP 2.4 is augmented because it deals with neighbour consultation which is not provided for in cl 6.3.2 of the 2008 Codes.
Mr Stewart argued that the performance criteria requirements in LPP 2.4 are invalid because they vary the performance criteria of the 2008 Codes and/or add additional performance criteria when the 2008 Codes do not permit such changes to the performance criteria.
Relevantly, Mr Stewart referred to cl 5.3.1(b) of the 2008 Codes:
Local planning policies may contain provisions that:
…
(b) augment the codes by providing additional performance criteria and acceptable development provisions for any aspect of residential development that is not provided for in the codes.

Mr Stewart argued, correctly in the Tribunal's opinion, that the augmentation is only permitted for aspects of residential development not provided for in the 2008 Codes. The 2008 Codes provide for both:
(a)performance criteria for boundary walls (cl 6.3.2 P2); and
(b)consultation with neighbours (all of part 4).
Furthermore, the Tribunal observes that cl 5.1 of the 2008 Codes requires that:
Subject to 5.3, a local planning policy that affects residential development shall be consistent with the provisions of the codes and may not provide for greater or lesser requirements than the codes unless expressly permitted under the codes.
In summary, the Tribunal finds that the correct test for amenity in the context of this particular boundary wall is that it 'not have any significant adverse effect on the amenity of the adjoining property' (bullet point 2 of the 2008 Codes performance criteria 6.3.2 P2).
The Tribunal does not support the respondent's submission that LPP 2.4 does not permit Council (and therefore the Tribunal) to approve this particular boundary wall unless it is satisfied that 'no adverse impacts on amenity of the neighbouring property will occur'. This finding results from any of the following reasons:
(a) the performance criteria clause in LPP 2.4 conflicts with cl 5.3.1(b) of the 2008 Codes because it augments the codes by providing additional performance criteria for an aspect of residential development that is already provided for in the 2008 Codes; and/or
(b) the performance criteria clause in LPP 2.4 conflicts with cl 5.1 of the 2008 Codes because it provides for a greater requirement than provided for in the codes (by deleting the qualifier 'significant') without being expressly permitted in the codes; and/or
(c) the performance criteria clause in LPP 2.4 conflicts with cl 5.1 of the 2008 Codes because the amenity test in LPP 2.4 is inconsistent with the provisions of the codes; and/or
(d) the standard of 'no adverse impact' is inconsistent with orderly and proper planning because a literal interpretation would result in a standard that would be impractically difficult to meet. For example, it could be argued that any change would result in an adverse impact no matter how trivial. Orderly and proper planning requires that the test be no significant adverse impact.
These findings are consistent with the various provisions of LPS 4 relating to amenity as discussed later in these reasons.

Whether the proposed development will have an unacceptable adverse impact on the amenity of the neighbouring property

In considering the impact on the amenity of the adjoining property, the Tribunal had the benefit of a witness statement from the adjoining owner (as a trustee), Ms Wilson. Ms Wilson is also an occupier of the dwelling immediately adjoining the review site. The Tribunal had the benefit of Ms Wilson's appearance as a witness at the Tribunal and furthermore the benefit of a viewing of her property.
The Tribunal was left in no doubt, both from Ms Wilson's very detailed witness statement and her responses at the hearing, that she believes the proposal will have a significant and adverse impact on her amenity. This was summarised in her witness statement as follows:
The amenity of my property will be directly and adversely affected by the proposed development on the Subject Land because of the increased overshadowing, bulk and scale, and limited access to sunlight and ventilation. I believe the incremental redevelopment of No. 446B South Terrace [review site] has been progressively eroding the quality of my living space especially my important outdoor areas and that this application will have a cumulative impact that is now excessive and unreasonable.
Ms Wilson then detailed the particular impacts associated with loss of direct access to sunlight and ventilation: overshadowing; concern of the uses associated with the additions; loss of privacy; concern about the impact on the streetscape, and the negative impact of additional noise and light. Ms Wilson then referred to her loss of enjoyment associated with the existing and the proposed development:
(i)My garden is my living room, my office, my haven, my joy, my sustenance, my health, my delight, my way of warming up in winter and cooling down in summer. It is my meeting place, my quiet retreat, my solace. In a very small house with only a small living space and sharing, I tend to live in my bedroom and the garden.
(ii)Losing morning and vegetable garden sunlight, with further loss of privacy with the intimidation of the huge walls, the increased light at night, the extra noise, the hassles of significant parking issues in our end of the street, on top of all that I have already lost in the last ten years is unbearable.
Ms Murray added her opinion as an expert planner to support the loss of amenity arguments. She observed:
There is an existing substantial difference in the nature of the built form on the Subject Land and at No. 448 South Terrace which does not contribute to preserving the traditional setting or the unique heritage character of the dwellings on Lot 18. [A reference to some of the aims of cl 1.6.1 in LPS 4] There is a marked contrast in bulk and scale between the existing double storey residential townhouse built boundary to boundary on the subject land and the single storey, workers cottage of No. 448 South Terrace, which leads to the physical domination of the built form on the Subject Land.
Ms Murray argued that the proposal adds to the bulk, making the existing situation worse. The clear impression of Ms Murray's case is that the existing bulk has an unacceptable amenity impact on the cottages but even if the existing amenity impact is just acceptable, the additional bulk is unacceptable. She argued that the location of the additional bulk is also a problem. The existing bulk is primarily adjoining the cottage and even though there is single storey bulk at the rear of the site it is low and provides a view of the sky and at least some sense of openness. The proposal will result in two storey bulk at both ends of the site and closing in the sense of space at the rear of the adjoining neighbour's property. The rear garage on the adjoining site, while contributing to bulk, does not dominate the neighbour's outside living spaces. The proposed addition, the boundary wall and the bulk associated with the whole structure will dominate the private courtyard, the associated garden, the vegetable garden and the associated external mediation space.
Finally, it was argued that even if the proposal meets the 2008 Codes requirements for overshadowing and even if the boundary wall is considered acceptable in terms of impact or loss of sunlight, the overshadowing and loss of sunlight become unacceptable when combined with the unacceptable impact of the bulk.
Ms Murray concluded:
I believe that the proposed development would cause an adverse impact on the existing amenity of the adjoining properties, mainly No. 448 South Terrace, in terms of excessive building bulk and scale, access to sunlight and ventilation, and overshadowing. I recognise that the existing amenity has been progressively impacted over time by the redevelopment of No. 446B South Terrace but the cumulative impact that would be caused by the current proposal is clearly inappropriate.
Mr Stewart's arguments were primarily that LPS 4 focuses on the amenity of the locality and that the proposal is consistent with the amenity, streetscape and character of the west side of Hickory Street which is characterised by two storey developments with nil side setbacks. He argued that the proposal complies with the height requirements of the 2008 Codes, LPS 4 and the South Terrace Local Area Policy; concluding that the 'bulk and scale of two storey development is considered to be appropriate in this locality and reflective of the desired future character and amenity of the locality'. Although focussing on amenity of the locality, Mr Stewart argued that the reasonable amenity expectations of individual lots is that neighbouring properties could be developed as two storey buildings with the associated bulk. He supported this argument by reference to the R40 zoning density of the locality which is a medium density with an associated impact on the amenity expectations for building bulk.
Mr Stewart's arguments on overshadowing and loss of sunlight considerations have been presented earlier in these reasons. His conclusion after assessing the overshadowing diagrams and the impact on loss of sunlight was, 'I do not believe the proposed development will restrict to any significant extent direct sunlight to major openings to habitable rooms and outdoor living areas' adding 'I do not consider the proposed addition, with a nil setback to the southern side boundary, will have a significant adverse effect on the amenity of the adjacent property.'
Although constantly referring to amenity, the 2008 Codes do not define amenity. However, 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'.
In Sunbay Developments and Shire of Kalamunda [2006] WASAT 74 (Sunbay), 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.
Although the definition in LPS 4 refers to the locality it is appropriate to pay particular attention to the amenity of the adjoining lot. In Sunbay at [2], Barker J observed:
The member was required to consider the impact of the development on the likely future amenity of the locality and, provided that he took into account the whole of the locality - which he did - it was open to him to focus attention on a particular part, namely the adjoining land.
In this review, Mr Stewart is correct to refer to the amenity of the locality and conclude that the proposal is consistent with the amenity of the locality and the expected future amenity. However, Ms Murray is also correct to focus on the amenity impacts on the neighbour. Consistent with the findings in Sunbay, this Tribunal has considered not only the opinions of the experts but also the subjective view of the neighbour. It has also considered amenity in the context of the locality and the affected adjoining lot.
Having carefully considered the expert opinions, the well informed, well argued and subjective view of the neighbour, and the planning framework, the Tribunal concludes that on the merit of evidence in this review, the proposal will have an impact on the amenity of the neighbour but the impact is not sufficiently adverse to refuse the proposal. Ms Wilson has refined amenity expectations but these expectations are not consistent with the R40 zoning of the locality and the unfortunate shape and orientation of the lots.
Small, long, narrow east-west facing lots in an R40 coded residential zone cannot provide the level of access to sunlight, openness and lack of bulk expected by Ms Wilson. The additional bulk, the overshadowing and the loss of direct sunlight associated with the proposal and the two storey high boundary wall will increase the impact on what is already unacceptable to Ms Wilson but the increase is entirely within the range of reasonable expectations of development on the adjoining R40 lot.
The Tribunal observes that these findings are consistent with the recommendations of the Council's planning officers and the Council's Committee. The Tribunal's findings are also consistent with several recent approvals for two storey, boundary to boundary developments over garages on the west side of Hickory Street in the immediate vicinity of the review site. Although none of those sites adjoin heritage cottages with back gardens extending to Hickory Street, the Tribunal's findings are consistent with the comparable decision of the Council to approve two storey additions with a two storey boundary wall at the rear of the lot adjoining the southern boundary of Lot 18 (the lot containing the historical cottages of the objecting neighbour).

Whether discretion available under the planning framework should be used to approve the proposal

Although the Tribunal has found the proposal meets the requirements on the 2008 Codes and LPP 2.4, and that it does not have an unacceptable adverse impact on the amenity of the adjoining neighbour, it is still necessary to assess whether discretion available under the planning framework should be used to approve the proposal.
Although in its considerations leading to the findings of the review the Tribunal has had due regard to the provisions of LPS 4, particular reference should be made to some provisions. In cl 10.2.1(k) of LPS 4, 'Matters to be Considered by the Council', the Council is to have due regard to 'the cultural significance of any place or area affected by the development'. During the hearing and in part of Ms Murray's evidence, there was a suggestion that the proposal should not be approved because it would have negative impact on the heritage value of the adjoining cottages and their curtilage. However, this argument was not advanced and lacked expert evidence to enable the matter to receive any informed consideration.
In closing, the respondent referred to various findings in Fryer and City of Subiaco [2006] WASAT 199 (Fryer) particularly:
The Tribunal determined that discretion could not be exercised to allow the proposed second levels, as there would be undue adverse impact on an adjoining residential site, in terms of apparent bulk and scale, and on the general amenity of the locality, in terms of the predominantly single storey character of the streetscape [4].
…
The floor space of the proposed buildings which exceeds 25% of the site area would also have a detrimental impact on the residential amenity of Mr Prudence's backyard in terms of apparent bulk and scale and loss of aspect of sky and trees [71].
…
Mr Prudence gave evidence that the development would remove a view of sky and street trees in Campbell Street, and replace that amenity with a sense of enclosure by built form. Having viewed the site from Mr Prudence's backyard, I accept his characterisation of the effect of the development [73].
The respondent argued that these findings supported the respondent's case that the height and bulk of the proposal was unacceptable. However, the findings of the Tribunal in Fryer need to be considered in the context of:
Moreover, as Mr Allerding observes, cl 42(1) of the Scheme reflects a conscious judgment by the City not to rely on the Codes in relation to building height. As Mr Read conceded, cl 42(1) is a fairly unusual provision in a town planning scheme in the metropolitan area. The presumption of single storey development, and the conferral of a discretion guided by the Height Policy to permit second storey elements, is consistent with the established single storey character of the locality [79].
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 [80].
LPS 4 does not contain the equivalent and special provisions of the City of Subiaco Town Planning Scheme No 3 as referred to in Fryer above.
Schedule 12 of LPS 4 states all height limitations for 'Local Planning Area 4 - South Fremantle', shall be as per the 2008 Codes. Table 3 of the 2008 Codes states that the heights described in category B shall apply unless otherwise required by a local planning policy. There is no local planning policy varying the requirements from category B which are 9 metres to the top of a pitched roof and a maximum wall height of 7 metres for a concealed roof or 6 metres where there is a roof above the wall. The proposal meets these requirements. The significance is not the compliance but to note that the particular findings mentioned by the respondent in Fryer do not have direct relevance in this review because of the different planning framework.
Moreover, cl 5.3.3.1 of LPS 4 indicates a preparedness of Council to vary the 2008 Codes requirement in order to maintain 'amenity, traditional built forms or streetscape'.
The Council adopted, under a previous town planning scheme, the South Terrace Local Area Policy (STLA Policy) where the objective in part 'is to allow for residential redevelopment … that … conform with the existing scale and character of Hickory Street …'.
The STLA Policy provisions at (2) allow for reduced setbacks in Hickory Street and, at (3), a maximum height of two storeys.
The Scheme makes reference to matters such as the character of the area, amenity of locality and streetscape. That is not to say that LPS 4 reduces the expectation of protecting amenity of an adjoining lot but rather to indicate that streetscape and character of the area are to receive some weight when assessing a residential development application. This finding is consistent with having due regard to all 36 matters to be considered by Council in cl 10.2.1 of LPS 4 when determining an application for planning approval.
For all the reasons mentioned above the Tribunal finds it is reasonable and appropriate to use discretion under the planning framework to approve the development proposal.

Conditions

As required by the Tribunal, the respondent prepared 'without prejudice' conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. The respondent proposed four conditions. The applicant disputed condition 2 of the proposed draft conditions. During the hearing, it was agreed that condition 2, as proposed, was unnecessary and inaccurate and should be deleted. It was also agreed that the reference to a grouped dwelling in the introduction to the conditions should be deleted and that condition 1 should refer to 'drawings', not 'approved plans'.

Conclusion

The Tribunal has determined that the proposal complies with the requirements of the 2008 Codes and the requirements of LPP 2.4. In reaching that conclusion, the Tribunal recognised that compliance with the boundary wall provisions of the 2008 Codes could not be determined without reference to a broader consideration of amenity. On the issue of amenity, the Tribunal concluded that, on the merit of evidence in the review, the proposal will have an impact on the amenity of the neighbour but the impact is not sufficiently adverse to refuse the proposal.
The Tribunal found that the matter of the use of discretion in relationship to amenity was quite complex and that LPS 4 required that some weight be given to streetscape and character of the area when assessing the impact of a proposed development on the amenity of an adjoining lot. On balance, the Tribunal found it was reasonable and appropriate to exercise discretion and approve the proposed development.
It follows that the application for review should be allowed and the decision of the Council to refuse development approval should be set aside.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 17 December 2008 to refuse development approval for a second storey addition over an existing garage at No 446B (Lot 104) South Terrace, South Fremantle be set aside and a decision is substituted that development approval is granted subject to the following conditions:
(1)The development must be carried out in accordance with the drawings dated 7 November 2008.
(2)All storm water discharge shall be contained and disposed of on-site.
(3)Details of the proposed upper level louvre treatment on the western façade of the proposed addition shall be submitted for approval by the Chief Executive Officer, City of Fremantle.

I certify that this and the preceding [129] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER