HANSEN and CITY OF SWAN
[2021] WASAT 46
•24 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HANSEN and CITY OF SWAN [2021] WASAT 46
MEMBER: MS M CONNOR, MEMBER
HEARD: 22 AND 23 DECEMBER 2020
DELIVERED : 24 MARCH 2021
FILE NO/S: DR 116 of 2020
BETWEEN: MARK HANSEN
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development - Installation of six pole mounted security cameras and associated infrastructure around perimeter of subject land - Guildford Historic Town and Guildford Conservation Precinct - Abuts flood plain of Swan River, reserved Parks and Recreation in the Metropolitan Region Scheme - Located in Middle Swan Precinct of Swan Canning River System and abuts land within SwanCanning Development Control Area - Assessment of visual impact - Compatibility with residential and riverine settings - Impact of amenity on adjoining properties
Legislation:
City of Swan Local Planning Scheme No 17, cl 1.4, cl 4.2.7, cl 4.2.7(c), cl 5.1.1, cl 5.2.2, cl 10.2
Heritage Act 2008 (WA)
Metropolitan Region Scheme, cl 30A(b)(i), cl 30A(7)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 66, cl 67(2), cl 67(2)(g)
Planning and Development Act 2005 (WA), 77(2), s 241(1), s 252(1), s 257B, s 257B(3)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(2), s 29(3), s 31, s 31(2)(b), s 31(2)(c)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.4.4, cl 7.3.1(a)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124.
Woolworths Ltd and City of Joondalup [2009] WASAT 41
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Dynamic Planning and Developments Pty Ltd on behalf of Michelle Hansen and Mark Hansen made an application to the City of Swan (respondent, Council or City) in January 2020 (original development application) for retrospective development approval, in part, to install six pole mounted security cameras and associated infrastructure around the perimeter of Lot 206 (No 136) Swan Street, Guildford (subject land or site). At the time of making the application for development approval with the City, the poles had been erected but had not been fitted with any of the fixtures applied for.
The Council, at its meeting of 6 May 2020, resolved to refuse to grant development approval for six security poles and associated infrastructure on the subject land for the following reasons:
1.The proposed security poles are considered to have an adverse visual impact on the streetscape of Swan Street and on the riverine landscape of the abutting foreshore of the Swan River.
2.The proposed security infrastructure that are the purpose for the erection of the poles - being the lighting, audio devices and cameras – are considered to present an adverse impact on the amenity of the adjoining properties.
3.Department of Biodiversity, Conservation and Attractions (DBCA) is unable to support the location or height of security Poles 4 - 6 as they do not meet the general objective of Policy No. 42 - Planning for land use, development and permitting affecting the Swan Canning development control area and Policy No. 48 - Planning for development setback requirements affecting the Swan Canning development control area. Permitting.[1]
[1] Respondent's s 24 bundle of documents, dated 23 October 2020, (Exhibit 1) page18 and Exhibit 16.
Mr Hansen (applicant), on 22 May 2020, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and a decision substituted granting development approval (retrospective in part) to the proposed development.
As part of the proceedings in this matter the parties engaged in mediation, which resulted in a revised proposal being provided to the respondent (revised proposal). The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised proposal. Amongst other modifications, the revised proposal sought a time limited approval for the installation of the security system for a 24 month period whilst the dwelling construction is completed.
The revised proposal was recommended for approval by the administration of the City, and was considered by the Council at its meeting meetings held on 23 September 2020 and 30 September 2020. Motions to approve the development, to refuse the development, and to approve a further amended form of the development, were lost. Consequently, the Council made no varied or substitute decision under s 31(2)(b) or s 31(2)(c) of the SAT Act.
The matter proceeded to final hearing for adjudication by the Tribunal. The applicant, at the commencement of the final hearing, identified that the plans behind Tab 7 of the respondent's s 24 bundle of documents were the plans that the applicant sought approval for.[2] The applicant also confirmed that development approval is sought on a permanent basis, rather than for the limited period of 24 months proposed to the respondent on reconsideration. It is clear from the respondent's Statement of Issues, Fact and Contentions (SIFC) that the matter proceeded to final hearing on this premise. Consequently, the Tribunal grants leave to amend the application for review accordingly.
[2] The development for which the applicant seeks approval is in the form considered by the Council at its meetings of 23 and 20 September 2020.
By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. The Tribunal is to review the decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it. The Tribunal is not limited to the material before the Council as the original decision-maker, but may consider new material. The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities. Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
The Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject land and surrounds, including the section of Swan Street between Meadow and Johnson Streets, Stirling Square, No 132 Swan Street, Guildford (No 132 or adjoining property) and the foreshore area of the Swan River.
The Tribunal heard expert evidence from Mr Eton Chad Brown, who holds a Bachelor of Science and is a licensed provider of security systems under the Security and Related Activities (Control) Act, with Agent, Consultant and Installer Security Licenses, Mr Malcolm Mackay who holds a BSc (Honours) in Architecture (1st Class) from the Robert Gordon Institute of Technology, Aberdeen (UK), and a Diploma in Advanced Architectural Studies with extensive experience in urban design, and Mr Hideyuki Shigeyoshi, a town planning consultant, called on behalf of the applicant; and Mr David Bruce Kaesehagen who holds a BSc (Biology/Environment Science) Honours from Murdoch University with extensive experience in visual landscape assessment, and Mr Ray Haeren, a town planning consultant, called on behalf of the respondent.
Subject land and surrounds
The subject land is more particularly described as Lot 206 on Deposited Plan 410227 being the whole of the land contained in Certificate of Title Volume 2693 Folio 121 and is 3,222 m2 in area.[3] The lot is rectangle in shape, with a frontage of 38.83 metres to Swan Street, and a depth of 77.01 metres.
[3] Witness Statement of Hideyuki Shigeyoshi dated 9 December 2020 (Exhibit 14) paras 10 and 11.
Development approval for a split-level two storey single house was granted by the Council in 2012. There is no dispute that the development appears generally in accordance with that approval and has been mostly constructed.
Mr Shigeyoshi, in his witness statement, described the area surrounding the subject land as follows:
… The area surrounding the Land comprises a range of residential, nonresidential and public open spaces. Specifically, this includes:
(a)The Swan River and large expanse of foreshore reserve to the north which consists of grass, variety of mature trees and some informal walking tracks;
(b)A number of single storey and double storey character residential dwellings along Swan Street and Johnson Street to the west;
(c)To the south is Stirling Square which contains a parish church building and associated structures at its centre and public parkland;
(d)To the east are a number of character residential dwelling west of Meadow Street and a range of non-residential uses east of Meadow Street including a Cellarbrations liquor store, Swan Valley visitor centre, Swan Guildford Historical Society Colonial Gaol & Taylors Cottage, and Guildford Village Potters.[4]
The proposal
[4] Witness Statement of Hideyuki Shigyoshi dated 9 December 2020 (Exhibit 14) at para 13.
Development approval is sought for the installation of six pole mounted security cameras with speaker and light attachments (security system) around the perimeter of the subject land. The security system is 'designed to include coverage over the whole of the [subject land] and provide a technologically advanced deterrent to intruders and reduce the likelihood of theft and encounters with violent trespassers.'[5]
[5] Witness statement of Elton Chad Brown dated 9 December 2020 (Exhibit 12).
The security system comprises two components:
•a sophisticated internal alarm/access control system that monitors damage or intrusion to the house itself by monitoring an array of shock sensors, reed switches and PIR motion sensors; and
•a thermal/optical based camera system that provides first detection of intruders and an excellent video record for identification.
A site plan prepared by Wallace McLeod Design illustrates the location of the poles and direction of the field of view of each camera (Attachment 1).[6] A Landscape/Pole Layout plan prepared by Wallace McLeod Design and a Planting Plan - Trees plan prepared by Phillip Withers Landscape Design form part of the material accompanying the development application.[7]
[6] Respondent's s 24 bundle of documents dated 23 October 2020 (Exhibit 2) Tab 7 page 120.
[7] Respondent's s 24 bundle of documents dated 23 October 2020 (Exhibit 2) Tab 7 pages 121 and 121A.
Mr Shigeyoshi prepared the following table detailing the pole heights, setbacks and the equipment to be installed on each pole:
| Setbacks | Pole Height | Camera Type | Speaker | Security Light | |
| Pole 1 | 2.0m to east 7.1m to south (primary st)[8] | [4].0m[9] | 1 x PTZ 1 x FT | 1 | 2 |
| Pole 2 | 1.0m to west 15.1 from south (primary st) | 4.0m | 1 x PTZ 2 x FT | 1 | 2 |
| Pole 3 | 1.0m to west 27.1m to south (primary st) | 3.0m | 1 x TC | 1 | [1][10] |
| Pole 4 | 1.0m to west 17.5m to north (rear) | 8.0m | 1 x PTZ 1 x FT | 1 | 2 |
| Pole 5 | 1.0m to west 1.08m to north (rear) | 8.0m | 1 x PTZ 1 x FT | 1 | 2 |
| Pole 6 | 6.7m to east 1.0m to north (rear) | 8.0m | 1 x PTZ 1 x FT | 1 | 2 |
| PTZ – Pivot, tilt and zoom camera FT – Fixed Thermal camera TC – Turret camera | |||||
[8] There is some uncertainty regarding the setback of Pole 1 to the primary street as Mr Shigeyoshi's table indicates the setback to be 7.1 metres, however, the plans contained in the respondent's s 24 bundle of documents dated 23 October 2020 (Exhibit 2) Tab 7 at pages 120 and 121 show the setback to be 6.29 metres.
[9] Mr Shigeyoshi gave oral evidence confirming that the height of Pole 1 is 4 metres – ts 34, 22 December 2021.
[10] Amended to accord with details included on pages 120 and 121 of respondent's s 24 bundle of documents (Exhibit 2 - Tab 7).
Table 1: Proposal Summary
The security cameras and lights will be attached to each pole via a spigot mount that sits on top of the pole adding a further 600 millimetres to the 'Pole Height' specified in the table above.
Mr Brown was engaged by the applicant to take over the design and installation of the security system on the subject land in early 2019. Mr Brown, in his witness statement, gave the following evidence detailing the design and operational arrangements of the security system.
The Poles have been utilised on this site to provide the camera's sufficient elevation to allow an early detection and unobstructed field of view to the opposing boundary, including over the top of the landscaping, which in some areas consist of mature trees. The poles at the rear of the property are higher to compensate for the drop in elevation between the front and back of the block. The location and spacing of the poles is such that all of the main boundaries from which an intrusion may come, as well as potential entry points to the building, will have camera coverage.
The system has been designed with equal emphasis to provide both early warning and an early deterrent to prevent theft or damage to possessions external to the building and to prevent forced entry into the building. It will provide the detection of an intruder as soon as they cross the boundary.
…
The system functions by the detection of human intruders by thermal camera very soon after they cross the boundary of the property. The targeted lighting and auditory response then provides and effective deterrent to the intruder from stealing or damaging exterior assets and progressing on to break into the home.
… The thermal cameras inform the internal security system of the intrusion as well as the optical PTZ camera of the location of the target so that they can zoom in and track the target as it moves.
…
The use of PTZ cameras with 24 x optical zoom … allows a detailed video record of an intruder to be captured at a longer range for better police identification … Similarly the thermal cameras have a high resolution to enable them to be accurate over the longer distances.
As the cameras have a reduce ability to resolve detail in colour at very low light levels, the lights mounted on the camera poles serve to illuminate a potential intruder in the vicinity of the pole, allowing a more detailed image to be captured in colour instead of black and white[.]
… privacy masking will be applied to all optical cameras where their field of view extends beyond the boundary to make the images of everything beyond the boundary. This function is enabled in the camera itself and applies to both live and recorded video from the camera.
The Security System's link to the automation system informs the inhabitants … that there is an intruder and of the intruder's location, using the multi-room audio system and touch panels inside the home. … Concurrently with this, the Security System signals the automation system to trigger the lighting and an audible warning announcement on the pole with the camera that registered the intruder.
…
The external and internal sirens linked to the Security System will only be triggered by a first detection and identification by one or more thermal cameras and also then followed by a second detection via the triggering of an alarm senor with in the building when the Security System is in an armed state. This is an additional/escalated response to the audible response from a camera pole triggered after a first detection by a thermal camera[.]
If this deterrent does not discourage the intruder and the intruder proceeds to approach the building and attempt to forcibly enter, internal detection by the Security System will then initiate an alarm siren and strobe, as well as notifying the security monitoring centre. Depending on the circumstance, the monitoring centre will then get the police to attend[.]
Planning framework
State
The subject land is zoned 'Urban' in the Metropolitan Region Scheme (MRS) and is located in the Middle Swan precinct described in State Planning Policy 2.10 - Swan-Canning River System (SPP 2.10).
The objectives of this policy are to:
•provide a regional framework for the preparation of precinct plans based on the precincts identified in the Swan River System Landscape Description;
•provide a context for consistent and integrated planning and decision-making in relation to the river; and
•ensure that activities, land use and development maintain and enhance the health, amenity and landscape values of the river, including its recreational and scenic values.[11]
[11] Clause 4 of State Planning Policy 2.10 - Swan-Canning River System.
The subject land abuts the floodplain of the Swan River, which is reserved for Parks and Recreation in the MRS and is approximately 170 metres from the Swan River itself. In addition, the subject land abuts land within the Swan-Canning Development Control Area (DCA).[12]
[12] The DCA corresponds to the land reserved Parks and Recreation in the Metropolitan Region Scheme.
Pursuant to cl 30A(2)(b)(i) of the MRS an application for approval that relates to land that abuts the Swan DCA the Swan River Trust is to be given full particulars of the application. The original development application was referred to the Department of Biodiversity, Conservation and Attractions (DBCA) for comment. In accordance with cl 30A(3) of the MRS, DBCA provided the following advice:
…
… DBCA cannot support the location or height of security Poles 4 to 6 as these do not meet:
1.the general objectives of Policy No. 42 - Planning for land use, development and permitting affecting the Swan Canning DCA related to visual impact and amenity of the DCA; and
2.the objectives of Policy No. 48 - Planning for development setback requirements affecting the Swan Canning Development Control Area.
Policy 48 requires that where a land parcel has more than one boundary abutting the DCA, a minimum side setback(s) of 10m or 20 per cent of the average distance, whichever is the lesser, from the DCA to the opposite boundary is required.
The calculated setback for security Poles 4 to 6 is 10m, placing these poles amongst existing or proposed infrastructure on the property. DBCA recognises this is not practicable and recommends that security system be attached to existing (or other approved) structure (for example the dwelling) within the Lot.
If the security infrastructure is located away from the DCA boundary this will also address the objectives of Policy 42[.][13]
[13] Respondent's s 24 bundle of documents dated 23 October 2020 (Exhibit 2) Tab 2.
Pursuant to cl 30A(7) of the MRS the Western Australian Planning Commission (WAPC) (and the Tribunal on review) is to have regard to the advice of the Swan River Trust when determining an application referred to in subclause (2)(b) but is not required to make a determination that is consistent with that advice.
The subject land is also within the Guildford Historic Town and located opposite the Meadow Street precinct (Stirling Square), both of which are included on the State Register of Heritage Places kept pursuant to the Heritage Act 2008 (WA). The original development application was referred to the State Heritage Office for comment. The State Heritage Office had no objection to the proposed development and considered the poles will not have an adverse impact on the cultural heritage significance of Guildford Historic Town.
Local
The subject land is zoned 'Residential' with a density coding of R5 under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) and is located in the Guildford Conservation Precinct.
LPS 17 is comprised of the Scheme Text, Scheme Maps, and supplementary maps illustrating Special Control Areas.[14] Further, Schedule 2 -– Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) have effect as part of LPS 17 due to the operation of s 257B of the PD Act. Further, to the extent of any inconsistency between a deemed provision with another provision of LPS 17, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[15]
[14] Clause 1.4 of LPS 17.
[15] Section 257B(3) of the Planning and Development Act 2005 (WA).
Clause 4.2.7 of LPS 17 specifies the objectives of the Residential Zone. The pertinent objective in this case is subclause c), which states:
c)preserve and enhance those characteristics which contribute towards residential amenity, and to avoid those forms of development which have the potential to prejudice the development of a safe and attractive residential environment[.]
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combined to form the character of an area and include the present and likely future amenity'.
Clause 5.1.1 of LPS 17 requires that any development of land is to comply with provisions of the Scheme and have due regard for any relevant planning policies effective under the Scheme.
Clause 5.2.2 of LPS 17 provides:
[u]nless otherwise provided for in the Scheme, development of land for any residential purposes dealt with by the Residential Design Codes is to conform with the provision of those Codes. The Codes are to have effect in the Scheme as contemplated by section 77(2) of the Planning and Development Act, 2005.
Section 77(2) of the PD Act provides as follows:
Where a scheme includes a provision referred to in subsection (1)(b)
(a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and
(b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.
The applicable Residential Design Codes in this instance is State Planning Policy 7.3 Residential Design Codes Volume 1 (R Codes), specifically design element 5.4 - Building design (Design Element 5.4) cl 5.4.4 External fixtures, utilities and facilities.
Clause 7.3.1(a) of the R-Codes provides that local planning policies may contain provisions that amend or replace certain specified deemedto-comply provisions of the R-Codes, contingent on the amendments or replacements being consistent with the relevant design principle. Relevantly, the deemed-to-comply provisions relating to external fixtures (cl 5.4.4) is identified in cl 7.3.1(a) of the R-Codes as provisions that may be amended or replaced.
The City has adopted Pol-C-106 Local Planning Policy - Guildford Conservation Precinct (LPP 106), which the parties accept, contains provisions that amend the deemed-to-comply provisions of the R-Codes relating to external fixtures. There is no dispute between the parties that the proposed development does not meet the relevant requirements of the LPP 106 and therefore is to be assessed against the corresponding design principle of the R-Codes, and ultimately, the objectives of Design Element 5.4.
Clause 10.2 of LPS 17 which specifies the matters to be considered in determining an application for development approval, has been effectively replaced by cl 67(2) of the deemed provisions.[16] The relevant matters in cl 67(2) of the deemed provisions to which the Tribunal is to have due regard to in determining this application are:
[16] Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47].
•the aims and provisions of the scheme (subclause (a));
•the requirements for orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c)) (SPP 2.10);
•any policy of the State (subclause (f));
•any local planning policy for the Scheme area (subclause (g));
•the built heritage conservation of any place that is of cultural significance (subclause (k));
•the effect of the proposal on the cultural heritage significance of the area in which the development is located (subclause (l));
•the compatibility of the development within its setting including the compatibility of the development with the desire future character of its setting and the relationship of the development to development on adjoining land or on other land in the locality (subclause (m));
•the amenity of the locality (subclause (n));
•any submissions received on the application (subclause (y)) - the original development application was advertised and a total of two submissions of objections were received. The revised proposal was advertised and a total of 11 submissions were received, 10 of which addressed concerns regarding the proposal;
•the comments or submissions received from any authority consulted under cl 66 (subclause za)) – submissions from DCBA and the State Heritage Office.
Pursuant to subclause 67(2)(g) of the deemed provisions, the parties agree that LPP 106 is a relevant local planning policy to be considered in the determination of this matter. The objectives of LPP 106 are:
(a)To conserve and protect the cultural significance of the Guildford Conservation Precinct (the Precinct) associated with the postcolonial settlement of Perth[;]
(b)To ensure that development (new buildings additions and adaptations) and subdivision (in accordance with the designed residential density coding under [LPS 17]) can be accommodated within the Precinct without adversely affecting its cultural significance associated with the post-colonial settlement of Perth; and
(c)To provide improved certainty to landowners and the community about what is considered to be appropriate development within the Precinct and the associated planning processes[.]
With regard to external fixtures, cl 5.3.2(j) of Appendix 1 of LPP 106 identifies the acceptable development provision[17] for the siting of external fixtures as:
External fixtures … shall be sited so that they are not visible from a public street or place[.]
[17] The use of the terminology 'acceptable development' in LPP 106 is reflective of the terminology used at the date of its adoption by the respondent and has not been updated to reflect contemporary language used in the Codes.
The performance criteria[18] for siting of external fixtures is provided at cl 5.3.1(d) of Appendix 1 of LPP 106, which provides:
External fixtures shall be sited so as to minimize the adverse visual impact from the street and public place[.]
Issue
[18] The use of the terminology 'performance criteria' in LPP 106 is reflective of the terminology used at the date of its adoption by the respondent and has not been updated to reflect contemporary language used in the Codes.
The parties identified the following four issues for determination in relation to this matter:
1)Is the development compatible with its residential setting?
2)Does the development conform to the applicable provision for external fixtures contained within the RCodes and LPP 106?
3)Is the development compatible with its riverine setting?
4)Will the development have an unacceptable impact on the amenity of neighbouring properties?
The Tribunal will address each issue in turn.
Is the development compatible with its residential setting?
The respondent contends that the Poles 1 and 2 and to a lesser extent, Poles 3, 4 and 5 are incompatible with the heritage character of the locality and the residential setting into which they will be located. The respondent submits that while it is not contended that the development will have a material adverse effect on the heritage value of the residential setting, the streetscape character of Swan Street is derived in large part from the historic development forms. The respondent highlights that the subject land is not only within the Guildford Conservation Precinct, but is situated across the road from Stirling Square, and is located on a designated heritage walk, between two heritage listed properties that have plaques erected in front of them to explain their heritage significance. The respondent asserts that the poles and their attachments do not respect the heritage context and character of the residential setting.
The applicant contends that the poles and their attachments are part of the development of the dwelling that has been approved on the subject land and that when considered in totality, the proposed development will not adversely affect the heritage characteristics of the residential setting. The applicant submits that the poles and their attachments are modest and unobtrusive and the degree to which the poles will be visible from Swan Street and Stirling Square, when considered in the context of the overall development of the subject land, will not compromise the visual amenity of the residential setting.
To address issues 1 and 3, visual impact assessments were undertaken by Mr Kaesehagen and Mr Mackay (visual experts). Mr Kaesehagen's visual analysis is based on the methodology as set out in the WAPC's Visual Landscape Planning in Western Australia: a Manual for evaluation, assessment, siting and design (2007) (VLP Manual) and involves a visual landscape evaluation and a visual impact assessment. Mr Mackay, in the joint statement, acknowledges that his visual analysis is based broadly on the methodology contained within the VLP Manual but tailored to suit the specific scale and location of the matter. Although Mr Mackay's visual assessment did not identify a visual management objective (VMO) or the level of significance of the area, Mr Kaesehagen considers 'there [to be] a lot of similarity in [their] approach'.[19] Mr Mackay in oral evidence agrees that the appropriate VMO as identified in the VLP Manual, and used by Mr Kaesehagen in his assessment, is the 'protection and maintenance' of visual landscape character, and that in this location there is a heighten sensitivity in terms of the view experience.
[19] ts 137, 23 December 2020.
Mr Kaesehagen identifies the residential setting, being the subject land, surrounding residential lots and Stirling Square, as an 'urban' landscape character unit.[20] He describes the urban character as:
… [consisting] of 'tree lined streetscape, houses built in different eras reflecting the period architecture of that time. The urban framework incorporates Stirling Square, a heritage listed area of public open space, which contains tall Sugar Gums, green lawns and formal arrangement of pathways, and park furniture and a centrally located church building reflecting the heritage architecture consistent with many of the surrounding houses. There are consistent themes of rooflines and roof materials as well as fencing styles and garden elements. Together they represent an urban heritage character. Stirling Square contains a number of vertical elements including light poles, bollards, service poles for irrigation, and rotundas which reflect the passive open space use.
Building forms consist of period buildings of various architectural styles with the unifying element of large gardens. The gardens contain mature trees and shrubs exhibiting a variety of plant species consistent with traditional plantings.[21]
[20] Refer to Witness Statement of David Bruce Kaesehagen filed 7 December 2020 (Exhibit 4) Annexure DBK 2 Appendix One, Map 2.
[21] Witness Statement of David Bruce Kaesehagen filed 7 December 2020 (Exhibit 4) Annexure DBK 2 para 49.
Mr Mackay's analysis of the residential setting is 'fine grained' and describes a series of landscape character units and streetscapes, eight in total. The landscape character units that corresponds with the study area as defined by Mr Kaesehagen in his assessment, include areas A1, E, F, and G1, which are described as follows:
Area A1: Characterised by one-to-two storey houses - either period houses or, in the case of the subject site, a new house with a street address that is sympathetic to the local character, set on relatively large lots with landscaped setbacks to varying degrees and front yards enclosed by visually permeable low fencing (both existing and proposed). This landscape character has the capacity to visually absorb secondary built elements within it, especially in the case of Lots (sic) 132 and 136 Swan Street (subject site), which have relatively large setbacks.
…
Area E: Characterised by large rear gardens with degrees of landscape intensity that range from open to largely wooded. This landscape character unit has merit insofar as it provides for a reasonable transition from the suburban landscape qualities of the residential development that addresses the street to the more rural landscape qualities of the riverine environment. The size of the rear gardens, and the fact that the topography slopes down from the developed portion of these lots ensures that they have a relatively high level of visual absorbency. The degree of this visual absorbency increases with the intensity of landscaping within these gardens.
Area F: Stirling Square has a landscape quality that can be traced back to the romantic gardens of England, where a large swathe of manicured grass is peppered with individual and small stands of trees, and standalone architectural structures of interest. Whilst this form of landscape has limited ability to visually absorb unwanted elements given the wide-open spaces between trees, it is relatively tolerant of visual impacts from surrounding development because such a landscape is selfreferencing. In other words, it creates its own visual interest and sense of place. For this reason, it is well suited to parkland because it is significantly different from surrounding development and does not require integration with its surrounds. It provides, in the words of Gordon Cullen (a leading 20th century UK urban design commentator) a sense of 'here and there'. This sense of 'here and there' is further accentuated by the relatively consistent rows of street trees that surround the edges of the park and help to mark where the 'here' stops and the 'there' starts[.][22]
[22] Witness Statement of Malcolm Alexander MacKay dated 9 December 2020 (Exhibit 13).
'How the landscape is viewed is of critical importance in understanding changes in the landscape and how people perceive them'[23]. Both visual experts agreed that the primary viewing locations within the residential setting are along Swan Street and Stirling Square and that it is not just buildings that contribute to the character and history of the place but gardens too. Mr Kaesehagen, in his visual impact assessment, classifies the level of significance for both Swan Street and Stirling Square as Sensitivity Level 1, because both are part of designated tourist routes.[24] Mr Mackay acknowledges that 'there are certainly some elements of the locality that are of significance' and agrees that 'the heritage character of Guildford is a valuable cultural feature' that informs the sensitivity level of assessment.[25]
[23] Landscape Planning in Western Australia: a Manual for evaluation, assessment, siting and design (2007) page 28.
[24] The heritage trails that pass the subject land are The River Ramble, The Stirling Square Circuit and The Pilgrim Trail.
[25] ts 76, 22 December 2020.
Further, in the joint statement prepared by the visual experts, it is agreed, and the Tribunal concurs, that the issue 'is not one of whether an object can be seen or not, but how prominent it is in the field of view and how the prominence impacts on the perception of any observer'. It was further agreed, and the Tribunal accepts, that there is a reasonable expectation of miscellaneous structures within a garden, especially if they are functional elements that relate to the use of the garden or dwelling.[26] However, as agreed by the planning experts in oral evidence, the nature and scale of the security system would not typically be found in a residential context but more likely in a commercial and industrial setting.
[26] Joint statement of Design Experts dated 16 December 2020 (Exhibit 7) para 13.
The visual experts also agreed that the greatest visual impact on the view experience will be in close proximity to No 132 and No 138A Swan Street, Guildford (No 138A) from the footpath, Swan Street and parts of Stirling Square, and that Poles 1 and 2 will be the most prominent from Swan Street. Mr Kaesehagen also considers that Poles 3, 4 and 5 will have a compounding visual effect, as he explained in oral evidence that when walking along the heritage walk in a western direction, coming from the east:
… the first instance, you're likely to see pole 1, and then you could see pole 2, and then you would be drawn to it, and you would probably continue walking along because there's a [heritage] sign that you could read on the western boundary [of the subject land]. And once you got to that boundary, you're more likely to look down, and you might be able to see other poles, and then you would see them all in concert[.][27]
[27] ts 81 22 December 2020.
Mr Mackay agreed that a person walking along the heritage walk is more likely to notice Pole 1, because it would be relatively close to them and at an inevitable point Pole 2 will become prominent because it will become the pole closest to them. He did not consider Poles 3, 4 and 5 to be of concern as in his view, unless the person was actually specifically looking for further poles, they would be unlikely to look down the drive and notice the poles. However, he did concede that there is probably a 'sweet spot' where all five poles could be seen in 'one hit'.[28]
[28] ts 82, 22 December 2020.
In the joint statement, the visual experts agreed that a dark colour is a more effective means of reducing the prominence of a structure in the landscape. However, in oral evidence, it was accepted that for a length of the path in Stirling Square, Pole 1 will be viewed against the light coloured roof of the dwelling and that painting the pole a dark colour will not assist in reducing its impact against that background.[29]
[29] ts 91-92, 22 December 2020.
Mr Kaesehagen holds the view that 'the scale and number of the proposed poles is at variance to the existing visual landscape character and will be an anomaly within a heritage precinct'. He contends that the poles and their attachments bear no visual relevance to the garden setting nor do they function as a typical garden element. He does not accept that the landscaping as proposed will ameliorate the visual impact of the poles and their attachments and considers Pole 1 in particular, but Poles 1, 2, 3, 4 and 5 collectively, to be at variance with the VMO for the visual landscape, which is to protect and maintain areas of valued character. In his opinion, due to the 'oddity' of the poles, the eye of the observer will be drawn to them through curiosity, increasing their visual prominence. In his assessment he concludes that Pole 1 in particular, but Poles 1, 2, 3, 4 and 5 collectively, will detract significantly from the sensitivity requirements of the heritage precinct, and as such, the proposed development does not protect the heritage values and visual landscape character of the residential setting.
Mr Mackay does not consider the poles and their attachments to be visually intrusive as in his opinion, 'they will sit within relatively large landscaped grounds and in an environment where poles of various purposes are already prevalent in both the public and private realms'.[30] Mr Mackay, based on his visual assessment, concludes that from the viewing points he selected in Stirling Square (where up to five poles can be seen in the view (viewing point 4.3))[31] the poles will not diminish the quality of the experience from Stirling Square as the poles are barely discernible given the distance of the viewing points, and he asserts that once the poles are painted they will significantly recede into the landscape behind and their impact may (depending on the viewing point) be further reduced once the new landscaping is established.
[30] Witness Statement of Malcolm Alexander MacKay dated 9 December 2020 (Exhibit 13).
[31] The viewing points identified by Mr Mackay are found in Annexure MAM2.2 of the Witness Statement of Malcolm Alexander MacKay dated 9 December 2020 (Exhibit 13).
Mr Mackay considers the viewing point from the footpath adjacent to No 132 (viewing point 5.2), to be the one where the security measures will be most visible. From this viewing point, he deduces that Pole 1 is distinctly visible and Pole 2 is less visible given the distance away. He expects Pole 1 will be partially obscured and Pole 2 largely obscured from view once the landscaping is established. He considers that it is not unreasonable to expect to see ancillary elements in the landscape and concludes that whilst Pole 1 is relatively prominent it will not unreasonable diminish the quality of experience from this viewing point. Similarly, Mr Mackay observes that Pole 1 is visible but, in his opinion, not visually intrusive from the viewing point adjacent to No 138A (viewing point 5.1).
From Mr Mackay's assessment it is difficult to ascertain whether there is any objective assessment of the visual impact of the poles on the heritage context of the residential setting. Clearly, Pole 1 is prominent and visually obtrusive in the field of view in the area immediately adjacent to No 132 and will be clearly visible to a user of the heritage walk. Due to the heightened sensitivity of the setting, the 'oddity' of the structure in this location will detract from the visual character of the landscape. Further, Pole 1 with its attachments will be discernible against the light colour roof of the dwelling on the subject land from viewing points in Stirling Square. The Tribunal accepts that the approved front fence and the proposed landscaping, together with painting the poles and attachments a dark colour, will to some degree reduce the visual impacts of Poles 1 and 2 within the residential setting and that there are other pole-like structures within the locality, but the Tribunal does not accept that Pole 1 will have 'minimal visual impact' and rejects Mr Mackay's conclusion that the proposed poles and their attachments will have no detrimental impact on the residential setting. The poles and their attachments will be visually intrusive and at variance with the VMO to protect and maintain the heritage values and visual character of the residential setting.
On the evidence, the Tribunal finds that the proposed development is incompatible with its residential setting because the location, scale and unusualness of the poles and their attachments will draw the eye towards a 'least preferred' feature,[32] materialising as discordant elements in the landscape detracting to unacceptable degree from the visual experience of a valued heritage precinct. Furthermore, the visually compounding effect due to the number of poles and their linear arrangements on the western boundary of the subject land, at a point where there is a heritage signpost, will further detract from the visual character of the residential setting. The proposed development is inappropriate in a landscape that is highly valued for its existing visual character.
Does the development conform to the applicable provision for external fixtures contained within the R-Codes and LPP 106?
[32] Landscape Planning in Western Australia: a Manual for evaluation, assessment, siting and design (2007) Appendix 7.
The parties agree that the proposed development does not satisfy the deemed-to-comply requirements and as such, is to be assessed against design principle cl 5.4.4 P4.1, which states:
P4.1… external fixtures integrated into the design of the building to not be visually obtrusive when viewed from the street and to protect the visual amenity of surrounding properties.
Further, the respondent asserts, and that Tribunal agrees, that the 'performance criteria' set out in LPP 106, which relates to the location of external fixtures, remains relevant because while the local planning policy cannot amended the R-Code design principles, the policy itself independently remains a relevant consideration. Clause 5.3.1(d) of Appendix 1 of LPP 106 states:
External fixtures shall be sited so as to minimise the adverse visual impact from the street and public place[.]
The applicant admits that Poles 1 and 2 are visible from Swan Street and Poles 4, 5 and 6 will be visible from the foreshore reserve, at least in some places. However, the applicant argues that the test is not whether the poles are visible from those locations but whether they are visually obtrusive and whether the poles impact on the amenity of the surrounding areas. This is correct when considering the R-Code design principle, however, the Tribunal also considers cl 5.3.1(d) of Appendix 1 of LPP 106 to be a relevant consideration and therefore includes an assessment of whether the poles have been sited to minimise the adverse visual impact from Swan Street and the foreshore reserve.
For the reasons expressed at [54] - [55], [71] - [72], [85] - [87] and [93] [94] the Tribunal finds that the proposed development does not demonstrate compliance with cl 5.4.4 P4.1 of the R-Codes or cl 5.3.1(d) of Appendix 1 of LPP 106.
Is the development compatible with its riverine setting?
Under s 241(1) of the PD Act, in determining a planning review proceeding, the Tribunal is required to have 'due regard to relevant planning considerations including … any State planning policy which may affect the subject matter of the application …'. SPP 2.10 is a State planning policy which affects the subject matter of the application in this review. SPP 2.10 is a high order policy which, amongst other things, seeks to ensure that activities, land use and development maintain and enhance the landscape values of the Swan-Canning river system, including its recreational and scenic values. One of the guiding principles of SPP 2.10 is to ensure that '[d]evelopment proposal should avoid restricting or negatively impacting on public views to or from the river, particularly from vantage points'.[33] This principle is reinforced in the 'Middle Swan' precinct, where planning decisions should, amongst other considerations, protect and enhance views to and from the river and its landscape setting.
[33] Clause 7.1.4 of SPP 2.10.
Mr Kaesehagen identified the area between the rear fences of the houses and the river as a 'natural landscape character' unit and describes the character of the area as follows:
The area … has a natural character. It is comprised of the Swan River and fringing vegetation consisting of Flooded Gums and Casuarina species with a native rush understorey. An expansive open space consisting of grassy understorey and scattered Eucalypts, primarily Flooded Gum, and much of the area between the fringing river vegetation and the rear fences of the urban lots. This gives the natural landscape a parkland type character rather than a bushland. The trees are tall and angular, often clumped with course bark at the base of trees and smooth in upper limbs.[34]
[34] Witness statement of David Bruce Kaesehagen filed 7 December 2020 (Exhibit 4) Annexure DBK2 para 50.
Mr Mackay identified the following two landscape character units within the riverine setting:
•a relatively large grouping of trees (located within the MRS Parks and Recreation reserve) on the northern side of Swan Street (not including Lot 200), which provides a visual bridge between Stirling Square and the Swan River flood plain; and
•the flood plain of the river, which is characterised by 'wide open swathes of roughly cut grass punctuated by individual and small strands of trees. The northern edge of this area has a relatively consistent line of trees along the riverbank, where there is also an informal un-made pathway. This is the only recognisable pedestrian path in this landscape character unit'.
He describes the visual character of the flood plain area as follows:
… The openness of this landscape gives it a relatively low capacity to visually absorb elements within it, other than the 'hit and miss' impact on sightlines by the stands of trees. However, the width of the floodplain (in the order of 160m opposite the subject site) enables the visual impact of elements within the adjacent lots to be significantly reduced through distance alone, especially given that the only footpath is along the riverbank.
According to Mr Kaesehagen, the view experience from the natural landscape character unit consists of views:
•to the Swan River and waterbody including fringing vegetation and embankment;
•a more open view where the sky forms a significant part of the view;
•a parkland setting comprised of tree clumps and grass understorey; and
•views into the private domain, include open areas with trees and manicured lawns along with outbuildings and garden furniture.
Both visual experts agreed that Poles 4, 5 and 6 will be the more prominent ones from the riverine setting and that, once established, the proposed landscape will help mitigate their prominence. Further, both visual experts agree that the foreshore path is likely to be the more commonly frequented area within the riverine setting, but not exclusively.
Mr Kaesehagen considers the poles to be visually evident from the natural landscape unit and different to other vertical elements in the landscape. He expects the eye to be drawn to the 'sentinel like structures which will attract further attention with the addition of the spigot containing the cameras, lights and speaker'. He holds the view that the proposed poles do not sit within the natural landscape character and the view experience from the natural landscape character unit will be impacted and that generally, views of the poles will be more pronounced when in close proximity to the boundary of Lot 200.[35]
[35] Lot 200 (No 138B Swan Street) is part of the MRS Park and Recreation reserve and is located at the rear of No 138A Swan Street and immediately to the east of the rear portion of the subject land. See aerial plan located at Tab 3 - page 19 of the respondent's s 24 bundle of documents dated 23 October 2020. (Exhibit 2).
On his assessment, the poles are visually evident from the riverine setting and will detract from the visual experience from the natural landscape environment because it is inconsistent with the view experience from the natural landscape. He holds the view that the new landscaping as proposed will do little to ameliorate the impact on the view from the immediate area in front of Lot 200 as the tree stock will not be of a sufficient height to screen the poles and therefore the prominence of the poles would remain. He concludes that this is at variance with the VMO of protection and maintenance of the natural landscape character unit and therefore is not compatible with its natural (riverine) setting.
In order to assess the visual impact of the proposed development from the riverine setting, Mr Mackay identified a series of viewing points (approximately 10 metres apart) along the path at the edge of the river and one viewing point within the flood plain area, roughly perpendicular to the mid-point of rear boundary of the subject land.
Mr Mackay submits that from all but one of viewing points along the path at the edge of the river (the exception being that none of the poles are visible), Poles 5 and 6, are barely discernible given the distance of the viewing point and will visually recede further into the landscape behind when painted a darker colour. He concludes that the visual impact of the proposed development on the river environment will be negligible and the experience from these viewing points will not diminish.
Mr Kaesehagen in oral evidence agreed that from the path, once the poles are painted 'it will be difficult to notice them … [y]ou will probably think there's some sort of power pole, something like that'.[36] Notwithstanding, he and Mr Haeren are concerned that Poles 4 and 5, which will be 8.6 metres high, are located 1 metre from the MRS Parks and Recreation reserve and will be visually prominent from this area of the regional open space, and given their setback to the reserve there is limited ability to ameliorate their visual impact.
[36] ts 168, 23 December 2020.
The visual experts agree that views to the river will not be impacted by the proposed development and that the poles do not remove any existing features from the view from the river. The respondent accepts that Poles 4, 5 and 6 will be easier to disguise by painting them a dark colour so that they blend with the existing vegetation and the degree of impact is reduced the further the viewer moves away from the subject land towards the river. As illustrated in Mr Mackay's series of photographs[37] and as observed on the view, from the path along the river there are areas where one or other of the poles, and sometime both of the poles, are obscured by trees that are between the pathway and the boundary, and there are also viewing points where a viewer can see either one or both of the poles and where they are observed, their visual intrusion is mitigated by distance and there is visual absorption capacity for the poles, if painted a dark colour, to blend with the existing landscape.
[37] Witness Statement of Mr Malcom Alexander Mackay dated 9 December 2020 (Exhibit 13) Annexure MAM 6.
However, as the respondent submits, it is possible for users of the foreshore reserve to stand within 1 metre of Poles 4, 5 and 6, which are 8.6 metres in height, as the poles are erected on the perimeter of the subject land. From close range, the poles will present as visually obtrusive elements in the landscape setting and as a consequence they will draw the attention of the viewer to them. It is accepted that at present the frequency of users within the close range view will be limited due to the management of the foreshore reserve, however this could change in the future and access is available to all users of the foreshore reserve if they choose to do so. From this outlook, Poles 4, 5 and 6 are not considered to be compatible with the landscape setting and are therefore, at odds with the guiding principles set out in SPP 2.10.
Will the development have an unacceptable impact on the amenity of neighbouring properties?
The respondent contends that Poles 1, 4, 5 and 6 will, individually and cumulatively, adversely affect the amenity of No 132, to the east of the subject land. The respondent asserts that those poles will be visible from various locations on the adjoining property and will introduce an unwelcome and inappropriate visual element. Further, the respondent says that the security system has the potential to adversely affect the amenity of the adjoining property through the emissions of noise and light from the security infrastructure to be installed on the poles, and through the potential for the security cameras to reduce the privacy of the adjoining property.
In addition, the respondent contends that the location of Poles 2, 3, 4 and 5 near the common boundary with No 138A will have an adverse impact on the amenity of that property through the visual prominence of the poles and the potential of the security system to emit noise, light and reduce privacy.
Mr Robert Richard Cayton Stone, who resides at No 132, gave evidence as to his concerns relating to Poles 1, 4, 5 and 6.
Mr Stone is concerned that there is a direct line of sight from his front door and verandah area, main lounge and front yard to Pole 1. This area is the main access and egress to the dwelling and the northern verandah and lounge is use for social activities with views towards the front yard rose garden and Stirling Square. Mr Stone is concerned that Pole 1 will degrade the view from the front of his property toward Stirling Square.
According to Mr Stone, and as observed on the view, Pole 4 is visible via a direct line of sight from the northern verandah and bbq/dining area on No 132 and is visible through the western window of the kitchen/dining area. Mr Stone told the Tribunal that the northern verandah and bbq/dining area is extensively used for private use, and for entertaining of guests. He objects to having camera and lights pointing in the direction of No 132, particularly given that these areas are used for regularly during the course of daily activities.
According to Mr Stone, and as observed on the view, there is a direct line of sight from the western verandah of No 132. Mr Stone told the Tribunal that this verandah is used for entertaining guests and social meetings. He objects to having cameras and lights pointing in the direction of No 132.
Mr Stone told the Tribunal that Pole 6 is visually prominent from the northern verandah, bbq and swimming pool area on No 132 and considers this pole to have the most substantial impact on his visual amenity. Mr Stone identified the view impacted mostly by Pole 6 was the view towards the Swan River across the flood plain and in particular, the swimming pool area as Pole 6 and its associated infrastructure will be in the centre of vision of the outlook towards the Swan River. He is also concerned Pole 6 will be centre of vision whenever entering the property by car as the primary vehicular access to No 132 is at the rear of the lot.
Further, Mr Stone is concerned about the cumulative impact of the poles as he maintains that from the north end of the pool area both Pole 5 and 6 will be clearly visible and from the northern garden area Poles 4, 5, and 6 will visible.
Mr Stone is generally concerned about light spill from Poles 1, 4, 5, and 6 onto No 132, but is particularly concerned about the direction of the lights on Poles 4 and 5 and submits that if the lights are not pointed directly downward he 'will have a direct line of sight to the elevated bright lights on poles 4 and 5'.
Visibility of the poles
The respondent maintains that Pole 1 will be highly visible from Mr Stone's front yard, and more particularly, the front door of No 132 (front area). Mr Kaesehagan considers Pole 1 to be visually evident from the front area as it is in the view field and in contrast to other objects due to its scale and proximity to the boundary.
Mr Mackay agrees that Pole 1, depending on where a person is standing, is relatively prominent from the front area. He considers Pole 1 to be more vivid than it would be if it were in its painted form and with the landscaping in place.
The applicant argues that the view from the front area of No 132 towards Stirling Square is attained across the front garden of the subject land and is obscured by two very large sugar gums located on the north side of Swan Street. This is correct, however, due to the orientation of the entrance to the dwelling on No 132, the line of sight from the front door is directly towards Pole 1 and as such, Pole 1 is in full view.
The landscaping plans appear to indicate a paved area between Pole 1 and the boundary of No 132 and as such, any landscaping provided would provide a back drop to the pole. The Tribunal accepts that painting the pole a dark colour will assist in reducing the visual prominence of the pole to some degree, that is, to the extent that it will visually recede somewhat into the new landscaping to be provided and the street trees located on Swan Street. However, the attachment of the security system equipment to the pole will, in the words of Mr Mackay, 'add to the visual richness of the pole' with the inevitable consequence of the structure being more noticeable.
The Tribunal acknowledges that there are other examples of poletype structures, such as flag poles and lampposts, within the front setback area of lots in Swan Street, as well as, utility poles in the road reserve, but as agreed by the planning experts, the proposed infrastructure would not typically be found in a residential context but more likely in a commercial and industrial setting. Pole 1, in its current location, will be visually prominent from the front area of No 132 and as such, will adversely affect the visual amenity of No 132.
Mr Haeren in his oral evidence, suggested that the relocation of Pole 1, 2 or 3 metres further back behind the existing tree on No 132, so that it would not be visible from the front door of No 132 would have a substantial reduction of visual impact on the adjoining property. The Tribunal concurs that from this aspect the visual impact of the pole would be significantly reduced, however, the Tribunal is unable to indicate whether this is an acceptable outcome as no assessment has been undertaken on the visual impact on the remaining areas of No 132 if Pole 1 was relocated. It may very well improve the visual amenity of one area to the detriment of another.
Although Poles 4 and 5 are visible from the areas described by Mr Stone, their visual impact on No 132 is tolerable as they are in the far field of his view ameliorated by the existing vegetation on the foreshore reserve, which will be further improved if Pole 5 is painted a dark colour and the new landscaping established.
Pole 6 is adjacent to a number of outdoor living areas and the pool of No 132. The applicant accepts that Pole 6 is visually prominent at present and that some landscaping is required in order to address its visual prominence.[38] In order to mitigate the visual impact, the applicant intends to densely vegetate the area between the pole and the common boundary between the subject land and No 132, and painting the pole a dark colour so that it will blend with the landscape.
[38] ts 236, 23 December 2020.
The visual experts agree that Pole 6 as it currently stands is visually evident from the adjacent outdoor living areas and pool of No 132 and also impacts the view from No 132 towards the Swan River across the flood plain. Although the Tribunal appreciates that the view to the northeast to the foreshore reserve is an important and valued aspect of Mr Stone's amenity, this vistas it is obtained across the subject land.
Mr Kaesehagen is of the view that painting the pole a dark colour will 'help with the visual absorption capacity because it's not so vivid' but he is still of the opinion that 'the structures on the top are always going to be an anomaly - inconsistent with other elements in the landscape'.[39] He considered the visual impact of Pole 6 on the outdoor amenity of No 132 to be significant, particularly the spigot attachment, when viewed against the blue sky. In oral evidence, he indicated that there will be views from Mr Stone's outdoor areas where the spigot attachment will sit above the exiting vegetation, but could not be more specific as that assessment had not been undertaken as part of his visual assessment impact.
[39] ts 93, 22 December 2020.
Mr Mackay is of the view that if the pole is painted its visual prominence will recede significantly. He acknowledges that when the pole is viewed against the sky a dark colour would not assist, but he maintains that 'the bulk of the pole is actually viewed against the landscape that is below the blue sky'.[40]
[40] ts 89, 22 December 2020.
There is no contest that Pole 6 is visually prominent in its present setting. The Tribunal accepts that the painting the pole a dark colour will assist in the visual absorption capacity against a vegetated background and that the proposed landscaping will go some way to ameliorating the visual impact of Pole 6. Although landscaping treatments may be an effective amelioratory measure, as the respondent was a pains to point out, the effectiveness of the landscaping proposed in this location, based on the trees species selected in the Wallace McLeod plan[41], is diminished as it will fail to screen the uppermost section of the pole and spigot attachment as at maturity the heights of the trees will reach between 3 and 6 metres, which is significantly lower than the height of Pole 6 at 8.6 metres. Further, no evidence was adduced as to the likely time period it would take for the trees to reach their full growth to provide the screening advocated by the applicant. It is evident that this will take some considerable time. In the meantime, Pole 6 will be a visually dominant element in the adjacent outdoor living areas and the pool of No 132 and will detract significantly from the individual's view.
[41] Respondent's s 24 Bundle of Documents dated 23 October 2020 (Exhibit 2 Tab 7).
The Tribunal, for the reasons expressed above, finds the visual impact of Poles 1 and 6 on the amenity of No 132 to be unacceptable.
The Tribunal makes no finding in respect to the visibility of poles on No 138A as no evidence was adduced to support the respondent's assertion that the location of Poles 2, 3, 4 and 5 near the eastern boundary of No 138A will have an adverse impact on the amenity of that property through the visual prominence of the poles and the potential of the security system to emit noise, light and reduce privacy.
Light and noise
Mr Stone, in principle, did not have a concern with lights and sounds triggering if a security system actually detected an intruder. However, he was concerned about the occurrences of false alarms and the nuisance impacts arising from such instances.
Mr Brown explained that the detection of a human intruder on the subject land by the thermal cameras would trigger a targeted lighting and auditory response from the pole where the detection has occurred. If this response did not deter the intruder and there was an attack on the building then a second detection system will activate the security alarm, strobe and monitoring service. Mr Brown holds the view that the rate of false alarms would be low due to the two stages of detection built into the security system, particularly given the use of thermal cameras, which have the ability to 'determine that a potential target is human with great accuracy due to the heat signature of the target and its size'.
The respondent did not challenge the security lighting calculations undertaken by Alti Lighting.[42] Mr Brown, in oral evidence, told the Tribunal that the security cameras are optimised for low light levels and that the lighting arrangement had been designed to achieve a light level of two lux at the boundary of the subject land. He pointed out that the light arrangements exceed the minimum requirement under the Australian Standards of two lux at a window of an adjoining property. He also confirmed that the lights were positioned above the cameras on the pole and that the direction of the light will be focused downward and within the confines of the property.
[42] Respondent's s 24 Bundle of Documents (Exhibit 2 Tab 7 Attachment 5) pages 132 - 156.
Mr Brown told the Tribunal that the speakers will be mounted 2.5 metres above ground level and that the volume level will be tailored so that the verbal audible warning emitted from the speaker will be 'intelligible from the target positions for a detection within the property boundary'.[43] Under crossexamination, Mr Brown indicated that as a 'rough rule of thumb' the auditory response for Pole 6 would have to be audible more than halfway towards Pole 5. According to Mr Brown, adjustments can be made to the lighting and noise levels if required, based on the experience on site when the infrastructure is fitted.
[43] ts 29, 22 December 2020.
The Tribunal, accepts the evidence of Mr Brown and is satisfied on the evidence that the impact on the amenity of No 132 through the emission of noise and light from the security system to be installed on the poles will be minimal.
Privacy and overlooking
Mr Brown explained to the Tribunal that privacy masking is typically used to mask objects that should not be subject to surveillance and that the mask area appears blacked out, with nothing visible at all through the masking. He told the Tribunal that privacy masking is a feature found in all of the optical cameras used in the design of this system and applies to both live and recorded video from the camera.
According to Mr Brown this function will be enabled in all optical cameras where their field of view extends beyond the boundary of the subject land, which will ensure that there will be no visual footage beyond the boundary of the subject land. Similarly, the 'zone of detection' for the thermal cameras will be set so that movement will only be detected within the boundaries of the subject land. Mr Brown assured the Tribunal that the settings within the camera can only be overridden by himself, as security agent.
Notwithstanding Mr Brown's evidence, the respondent contends that there is a legitimate amenity concern arising from the perception of overlooking and loss of privacy associated with security cameras pointing in the direction of both No 132 and 138A. The respondent argues that perception is important in relation to Crime Prevention through Environmental Design (CPTED) principles as many of the design solutions are influenced by the perception of safety and security.[44]
[44] There are four main principles of CPTED - natural surveillance, access control, territorial reinforcement and space management.
The applicant argues that the Tribunal must be satisfied that there is a factual or realistic basis to those fears in order to conclude that it will result in the amenity impacts that are alleged.[45] The applicant accepts that there is clearly a perception of overlooking from the cameras but submits that the reality is that there will not be any overlooking or reduced privacy due to the sophistication of the security system, which will limit any surveillance to within the confines of the subject land.
[45] Woolworths Ltd and City of Joondalup [2009] WASAT 41 which cites Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124.
The Tribunal accepts the evidence of Mr Brown that the security system has the capacity to limit the surveillance of the cameras to the confines of the property and that as part of the installation and maintenance of the system it will be programmed so where the field of view of any camera extends beyond the boundary it will be masked or the zone of detection enabled.
The visual prominence of the security infrastructure from the front area, outdoor living areas and pool of No 132 heightens the intrusiveness of the technology. In this instance, because of the sophistication of the security system there are no physical barriers required to prevent overlooking of adjoining properties and as such, Mr Stone's concerns are understandable. He has no certainty that the security system has been configured, and continues to be configured, to mask the field of view of any camera beyond the confines of the subject land.
If the Tribunal were minded to approve this application it would have imposed a condition requiring initial, and then periodic, certification by a suitable qualified person confirming that the security system have been installed and maintained so that the field of view of any camera does not extends beyond the boundary of the subject land. Without such certification there is no certainty that the security system has been configured to ensure the privacy of the adjoining property.
Conclusion
Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval, retrospective in part, to the proposed development.
The Tribunal, in considering the substantial merits of this particular case, considers the proposed development to be incompatible with both its residential and riverine setting, does not demonstrate compliance with cl 5.4.4 P4.1 of the R-Codes or cl 5.3.1(d) of Appendix 1 of LPP 106 and will have an unacceptable visual impact on the amenity of No 132. Therefore, for the reasons expressed above, the Tribunal declines to exercise discretion to approve the proposed development. Consequently, in the circumstances of this case, the proposed development warrants refusal.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
24 MARCH 2021
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