Hartree and Town Of Cottesloe
[2006] WASAT 347
•1 DECEMBER 2006
HARTREE and TOWN OF COTTESLOE [2006] WASAT 347
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 347 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:247/2006 | 7 NOVEMBER 2006 | |
| Coram: | MR J ADDERLEY (SESSIONAL MEMBER) | 1/12/06 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and the decision of the respondent affirmed. | ||
| B | |||
| PDF Version |
| Parties: | DAVID HARTREE TOWN OF COTTESLOE |
Catchwords: | Development application Two storey dwelling Roof deck swimming pool Condition requiring deletion or relocation of roof deck Noise transmission Overlooking Screening Town Planning Scheme Residential Design Codes Setbacks Privacy Height Whether discretion available under Town Planning Scheme? Whether conditional approval is reasonable? |
Legislation: | Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia, s 3.3.1, s 3.3.1 A1(ii), s 3.7.1, s 3.8.1 Town of Cottesloe Town Planning Scheme No 2, s 3.4.1(a), s 5.1.1(a), s 5.1.1(b)(ii), s 5.1.1(c), s 5.1.3 |
Case References: | Aitken and Town of Cottesloe [2005] WASAT 331 Bailey and City of South Perth [2006] WASAT 235 Newman and Town of Cottesloe [2005] WASAT 154 Newman and Town of Cottesloe [2006] WASAT 83 Saunders and City of Nedlands [2005] WASAT 190 Nil |
Orders | 1. The application for review is dismissed,2. The decision of the respondent to impose a condition upon its planning consent for the construction of a two storey dwelling at Lot 47 John Street expressed as "deletion of the roof top pool and outdoor area as proposed and revised plans to either leave out those components or relocate them at ground or first floor levels to the satisfaction of the Manager Development Services and subject to any other relevant conditions" is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HARTREE and TOWN OF COTTESLOE [2006] WASAT 347 MEMBER : MR J ADDERLEY (SESSIONAL MEMBER) HEARD : 7 NOVEMBER 2006 DELIVERED : 1 DECEMBER 2006 FILE NO/S : DR 247 of 2006 BETWEEN : DAVID HARTREE
- Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Development application - Two storey dwelling - Roof deck swimming pool - Condition requiring deletion or relocation of roof deck - Noise transmission - Overlooking - Screening - Town Planning Scheme - Residential Design Codes - Setbacks - Privacy - Height - Whether discretion available under Town Planning Scheme? - Whether conditional approval is reasonable?
Legislation:
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia, s 3.3.1, s 3.3.1 A1(ii), s 3.7.1, s 3.8.1
Town of Cottesloe Town Planning Scheme No 2, s 3.4.1(a), s 5.1.1(a), s 5.1.1(b)(ii), s 5.1.1(c), s 5.1.3
(Page 2)
Result:
Application for review dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Mr J Skinner
Solicitors:
Applicant : Hardy Bowen
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
Aitken and Town of Cottesloe [2005] WASAT 331
Bailey and City of South Perth [2006] WASAT 235
Newman and Town of Cottesloe [2005] WASAT 154
Newman and Town of Cottesloe [2006] WASAT 83
Saunders and City of Nedlands [2005] WASAT 190
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant, Mr D Hartree, sought a review of the decision of the respondent, the Town of Cottesloe, to impose a condition upon its planning consent for a two storey dwelling in Cottesloe, requiring that a proposed roof top swimming pool and outdoor area should be either deleted from the approved plans, or the plans be modified to relocate the pool area to a ground floor or first floor location.
2 The Tribunal found that although the proposal could be modified in such a way as to overcome many of the original concerns expressed by the respondent in relation to anticipated impacts on the amenity of neighbouring properties, nevertheless, the proposed roof deck, pool and perimeter wall, inclusive of screening, would be situated at a resultant level well above the permissible wall height limits prescribed by the respondent's Town Planning Scheme No 2. In the absence of a relevant discretion to exceed the wall height, and the uncertain consequence of imposing a condition to the effect of reducing the overall height of the building, the Tribunal concluded that the application for review should be dismissed and that the condition imposed by the respondent should be affirmed.
Introduction
3 This is an application for review of the decision of the respondent to impose a condition upon its planning consent for the construction of a two storey dwelling at Lot 47 (No 17) John Street Cottesloe, requiring deletion of a proposed roof top swimming pool and outdoor area and the submission of revised plans to the effect of removal of those components or alternatively relocating them at ground or first floor level of the dwelling.
4 An application for planning consent for the two storey dwelling on Lot 47 John Street was submitted by the applicant to the respondent on 13 April 2006.
5 Subsequent to modification of the application to reflect certain requirements of the Residential Design Codes of Western Australia (the Codes), the application was advertised in accordance with the requirements of the Town of Cottesloe Town Planning Scheme No 2 (TPS2 or Scheme) and the Codes.
(Page 4)
6 Five objections from neighbouring landowners relating to the impact of the proposed roof top swimming pool and outdoor living area were received by the respondent.
7 On 26 June 2006, the respondent resolved to grant planning consent to the application subject to a number of conditions, including a condition requiring deletion of the roof top swimming pool and outdoor area and requiring the submission of revised plans either leaving out those components or illustrating them at either the ground floor or first floor level of the dwelling.
8 On 20 July 2006, the applicant lodged with the State Administrative Tribunal an application for review of the respondent's decision to impose the condition requiring the deletion of the proposed roof top swimming pool and outdoor area, as previously described, on grounds that there is no, or no proper, planning rationale to impose such a condition, as the location of the pool and outdoor area is consistent with the principles of orderly and proper planning.
The proposed development and its locale
9 The proposed development on Lot 47 John Street, Cottesloe (the lot) subject of this application for review, can be described as a two storey dwelling with a basement store room under, and a recreation deck and swimming pool located on the rear portion of the roof.
10 The design of the dwelling is contemporary in character and complementary to a previously approved two storey dwelling, yet to be erected, on the adjoining vacant Lot 48 John Street immediately to the east. The eastern wall of the proposed dwelling on Lot 47 is intended to abut the western wall of the previously approved dwelling on Lot 48 along the common boundary between the two lots.
11 Lot 47 is a narrow lot with a width of 7.55 metres and a length of 42.25 metres. The lot is 319 square metres in area.
12 The lot fronts John Street to the north and is serviced by a mid-block right of way at the rear southern boundary which provides access for car parking to lots fronting John Street and Forrest Street to the south.
13 Lot 47 John Street is located in a beachside, residential area characterised by substantial homes and low-rise apartment buildings. Cottesloe Beach is approximately 250 metres west of the proposed development site. The landform of the locality rises from west to east and
(Page 5)
- from south to north, affording some opportunity to engage distant views to the ocean, west and south-west, over roof tops from an elevated location.
14 The immediate neighbouring dwelling to the west of Lot 47 is a substantial older home configured of two storeys at the John Street frontage and a single storey at the rear. To the south, across the right of way are a number of newer homes with frontage to Forrest Street although some are also reliant on carparking access from the mid-block right of way running parallel to John and Forrest Street.
The roof deck and pool
15 The roof deck is located on the roof of the second storey at the southern end, or rear, of the proposed dwelling. The floor level of the roof deck is proposed at RL 23.5 metres, 6.75 metres above the natural ground level of RL 16.75 metres at the centre of the site. The perimeter wall surrounding the deck will project 1.1 metres above the floor level of the deck.
16 The rectangular swimming pool is to be located in the south-east corner of the deck with a water surface level 0.8 metres above the deck.
17 An obscure glass screen of 1.65 metres height above floor level will form a balustrade around the southern edge and portion of the western edge of the roof deck. The balance of the western edge of the deck will be occupied by a long barbeque bench about 1.1 metres high and about 1.0 metres wide, situated behind the perimeter wall. The eastern edge of the deck and the pool will abut the parapet wall on the boundary of the adjoining Lot 48.
18 The finished height of the building, inclusive of the 1.65 metre glass screen balustrade, will be RL 25.15 metres, representing an overall height of 8.4 metres above the natural ground level.
Town Planning Scheme provisions
19 The Town of Cottesloe Town Planning Scheme No 2 and the Residential Design Codes of Western Australia apply to the proposal as the relevant instruments of land use and development control.
20 TPS2 identifies that Lot 47 is zoned Residential and density coded R20 in accordance with the Codes. A single dwelling is a permitted use in the Residential zone.
(Page 6)
21 Sub clause 3.4.1(a) of TPS2 provides that:
"The purpose and intent of the Residential Zone is to promote a residential environment in any particular locality compatible with the maximum residential density permissible in that locality and with the desire of the inhabitants for Cottesloe to retain its quiet residential character. Development will be guided and controlled by the Development Guide Plan, the Residential Design Codes and the variations thereto as well as the amenity provisions contained in Part V - General Provisions of the Scheme."
22 Sub clause 5.1.1(a) within the General Provisions of the Scheme provides that:
"Council's general policy for development within the district favours low rise development of no more than two storeys to maintain privacy, views and general amenity notwithstanding that Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme. In exercising height control policies Council will not regard as a storey undercroft space designed and used for a lift shaft, stairway, meter room, bathroom, shower room, laundry, water closet, other sanitary compartments, cellar, corridor, hallway, lobby, the parking of vehicles or any storeroom without windows or any worshop [sic] appurtenant to a car parking area where that space is not higher than 1 metre above the footpath level measured at the centre of the site along the boundary to which the space has frontage or where that space is below the natural ground level measured at the centre of the site as determined by Council."
23 Sub clause 5.1.1(b)(ii) refers to building height in the following terms:
"Residential Zone - The maximum building height shall be two storeys except that Council may permit a third storey to be located within the roof space of a dwelling provided that the development complies with the maximum wall and roof height provisions stipulated at paragraph (c) of this clause and also provided that in, Council's opinion, the dwelling will retain the appearance of a two storey dwelling and will not adversely affect local amenity."
(Page 7)
24 Measurement of building height is explained in sub clause 5.1.1(c) as follows:
"For the purposes of measuring 'storey' and hence 'building height' Council shall generally follow the following formula, except in particular cases where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished.
The maximum building height shall be measured from the natural ground level at the centre of the site as determined by Council to the crown of the roof and shall be -
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25 Sub clause 5.1.3 addresses privacy in the following terms:
"In considering a proposed development, Council shall have regard to likely impact on privacy enjoyed by neighbouring developments and shall impose conditions requiring that windows overlooking backyards or neighbouring private spaces shall have a sill height of 75 cms and that balconies similarly overlooking backyards and private spaces shall have closed ballustrading which cannot be seen through. Council may also place conditions on the location of large viewing windows above ground floor levels and balconies in order to further protect the privacy enjoyed on neighbouring properties."
Residential Design Code provisions
26 The Codes, in relation to the Design Element - Building Height Requirements, set an objective:
(Page 8)
- "To ensure that the height of buildings is consistent with the desired scale in a given locality."
27 In order to achieve this objective, new development should meet the following Performance Criteria:
"3.7.1 Building Height
P1 Building height consistent with the desired height of buildings in the locality, and to recognise the need to protect the amenities of adjoining properties, including, where appropriate:
• adequate direct sun to buildings and appurtenant open spaces;
• adequate daylight to major openings to habitable rooms; and
• access to views of significance."
29 The Codes describe the objective of Element 3 - Boundary Setback Requirements in terms of seeking "to ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties". The relevant Performance Criteria, 3.3.1 Buildings Set Back from the Boundary, sets out the objective in more detail which is unnecessary to record here because it is simply an elaboration of the objective already described.
30 The pertinent Acceptable Development standard necessary to meet the Boundary Setback Performance Criteria is described as follows:
"A1
i. Buildings set back in accordance with Table 1, Table 2 (for all heights 10m and less) and Figure 2 and Figure 3 (for wall heights in excess of 10m)
- ii. Unenclosed balconies, terraces, verandahs and other areas accessible for use as outdoor living areas, whether roofed or not, if elevated 0.5m or more above natural ground level, set back as though they were major openings to habitable rooms with a wall height of 2.4m above their floor level."
31 Privacy Requirements are addressed by the Codes at 3.8.1 Visual Privacy, requiring that new development should:
"P1 Avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential properties taking account of:
• the positioning of windows to habitable rooms on the development site and the adjoining property;
• the provision of effective screening; and
• the lesser need to prevent the overlooking of extensive back gardens, front gardens or areas visible from the street."
"A1
(i) are set back, in direct line of sight within the cone of vision, from the boundary a minimum of:
• 4.5 metres in the case of bedrooms;
• 6.0 metres in the case of habitable rooms other than bedrooms; and
• 7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandahs and the like; or
- (ii) are provided with permanent vertical screening to restrict views within the cone of vision from any major opening of an active habitable space ...
33 Reference to the specification and illustration of the cones of vision for privacy requirements is to be found on pages 77 and 78 of the Codes.
The decision of the respondent
34 The respondent resolved to grant planning consent to the application for approval of a two storey dwelling at Lot 47 (No 17) John Street Cottesloe subject to various conditions including condition 1(a), which is the subject of this application for review.
35 Condition 1(a) of the planning consent requires:
"Deletion of the roof top pool and outdoor area as proposed and revised plans to either leave out those components or relocate them at ground or first floor levels to the satisfaction of the Manager Development Services and subject to any other relevant conditions."
The respondent's argument
36 The respondent's argument, as set out in its original statement of facts, issues and contentions, comprised of three principal contentions:
• firstly, that the proposed roof deck outdoor area will generate an unreasonable degree of noise impacting upon adjoining properties contrary to the interest of the preservation of amenities of the locality;
• secondly, that the setback of the proposed roof deck does not comply with the setback requirements of the Codes; and
• thirdly, that the proposed roof deck outdoor area will result in an unreasonable sense or perception of loss of privacy for adjoining properties.
37 It will be seen that in the course of the hearing, the respondent's argument evolved, having regard to the evidence of witnesses called to testify on the contentions originally posed.
38 On the issue of potential noise nuisance, Mr T Reynolds, an experienced acoustical engineer, gave evidence on behalf of the
(Page 11)
- respondent jointly with Mr K Hearne, a specialist in architectural and environmental acoustics, appearing as a witness for the applicant.
39 Mr Reynolds provided his opinion that the height of screens around the roof deck shown on the architectural drawings may not provide sufficient acoustical barrier to the residential properties to the south or west.
40 Mr Reynolds advised that he had reviewed the objections of residents to the south and agreed that unless screening is taller than a person standing next to the screen, the screen will not provide any noise reduction.
41 Mr Reynolds was of the opinion that if the pool and barbeque area were at ground level it would be possible to gain additional noise reduction to the ground level of neighbouring premises by increasing the height of the boundary fence. Similarly, installing a higher balustrading at a first floor balcony of a neighbouring residence would provide additional noise reduction at that premises compared with noise received from a roof top facility.
42 Ms S Pyvis, of 14A Forrest Street, Cottesloe and Mr K Campbell of 14B Forrest Street, Cottesloe, both residents of properties in close proximity to the proposed dwelling on Lot 47 John Street, provided evidence on behalf of the respondent. Their properties are located next door to each other, south west of Lot 47 across the right of way.
43 Ms Pyvis stated that the nearest corner of the proposed swimming pool was 4.5 metres from the boundary of her property. The edge of the deck would be 6.4 metres from her boundary. Mr Campbell indicated that the proposed deck would be about 13 metres from his balcony.
44 Both Ms Pyvis and Mr Campbell referred to photographs taken from a point coincident with an eye level view (about 8.5 metres above natural ground level) from the south western corner of the proposed roof deck which illustrated a clear overlooking view of the rear windows and balcony of 14A and 14B Forrest Street.
45 Ms Pyvis and Mr Campbell both stated that unless screening around the deck is higher than the average person it will not prevent overlooking of their rear windows and balcony space. Neither Ms Pyvis or Mr Campbell believe that screening will prevent overlooking or overcome the perception of being overlooked and the consequent loss of privacy which they presently enjoy.
(Page 12)
46 Mr Campbell drew the State Administrative Tribunal's (Tribunal) attention to a photograph included in his witness statement illustrating the view towards the proposed dwelling on Lot 47 John Street from the bedroom window at 14B Forrest Street. The photograph has been amended to show a superimposed perspective of the height and bulk of the proposed dwelling and outlines the features of the roof deck including the pool, barbeque area and balustrade.
47 Ms Pyvis and Mr Campbell stated that they believed if the barbeque and pool were alternatively located at ground level, noise and light would be much reduced and they would be able to devise means to control nuisance from within their own properties.
48 On examination, Ms Pyvis explained that the notion of privacy would be compromised because roof deck activity would be able to be detected from shadows of figures visible through the glass balustrade and the potential visibility of tops of heads, sun-shades and awnings.
49 Mr K Adam, a qualified and experienced architect and town planner with an extensive background and involvement with the Codes, appeared as a witness for the respondent.
50 Mr Adam presented his evidence to the Tribunal jointly with Mr A Stewart, a qualified and experienced town planner appearing as a witness for the applicant.
51 Mr Adam and Mr Stewart restated the issues to be examined in this application in the following terms:
1) whether the proposed setbacks of the roof deck and pool from the southern and western boundaries of the subject property are acceptable.
2) whether the proposed development of the roof deck and pool is acceptable in terms of potential impacts on visual privacy of adjoining and nearby residents.
3) whether the proposed height of the proposed roof deck and pool is acceptable in terms of TPS2 and the Codes.
4) whether the proposed development is acceptable in terms of other aspects of the amenities of nearby and adjoining residents or the locality generally.
5) whether approval of the proposed development would be consistent with orderly and proper planning generally.
(Page 13)
- 6) whether the proposed development would be acceptable in terms of noise impacts on adjoining and nearby residences, or the locality generally.
52 On the matter of building setbacks, Mr Adam was of the view that the proposed southern boundary setback was acceptable on the assumption that it was not possible to stand adjacent to the pool at the southern end or stand in the pool and look over the balustrade.
53 Both Mr Adam and Mr Stewart agreed that where the roof deck area remains unscreened:
• application of provision 3.3.1 A1(ii) of the Codes would stipulate a deemed wall height of approximately 9 metres in the case of the west facing wall.
• consequently Table 2b would set a required Acceptable Development setback of 4.3 metres in the case of the western wall.
• as the proposed setback of 1.5 metres is considerably less than 4.3 metres it requires assessment under the Performance Criteria 3.3.1 P1.
54 Mr Adam acknowledged that if the roof deck was screened to an acceptable height, which in his opinion should be at least 1.8 metres above the deck to avoid visual evidence of activity such as heads and umbrellas coming into view, then it would be reasonable to determine the required setback based on the estimation of the wall height being about 9 metres. In such circumstances the Acceptable Development setback would be 1.4 metres and thus the proposed setback of 1.5 metres for the western wall would be in compliance with the Code requirements.
55 With regard to visual privacy, Mr Adam offered the opinion that the proposed balustrade and the physical setback of the barbeque bench do not prevent direct overlooking of existing and potential habitable rooms and outdoor living areas of adjoining residences to the west and south and thus the proposed development does not meet the Performance Criteria 3.8.1 P1 for Visual Privacy.
56 Mr Adam was of the opinion that the deck balustrade should be constructed so that no westward view from the roof deck should be possible that allows a downward vertical angle of view that meets the western boundary of the adjoining property at a level lower than RL 23.0 metres.
(Page 14)
57 On the issue of building height, Mr Adam pointed out that the proposed dwelling would attain an overall wall height, inclusive of the 1.65 metre high roof deck balustrade, of RL 25.15 metres, or 8.4 metres above natural ground, some 2.4 metres above the 6.0 metres height limit set by TPS2.
58 Mr Adam noted that TPS2 makes no provision for a modified height limit in cases where the roof is concealed behind perimeter walls, such as the application in question. The Codes do make such a provision and would allow a wall height of 7 metres as an Acceptable Development standard, if there is an appropriate discretion to permit an increased height under the TPS2. A 7 metre wall height would equate to a level of RL 23.75 metres at the top of the wall.
59 Because height limits under the Codes are set in relation to natural ground level at any given point rather than in relation to the site as a whole, a marginal advantage accrues to the height of the western wall allowing an elevation of the top of the wall to RL 24.0 metres. A discrepancy of 1.15 metres still remains between the allowable height under the Codes and the proposed elevation of 25.15 metres.
60 Mr Adam expressed the opinion that the proposed building height is excessive in relation to the height limits set by TPS2, and also the Codes, if applicable. The excessive height of the building, in conjunction with a narrow setback, will impact on the adjoining property by way of a reduced exposure to daylight and an imposition of increased building bulk.
61 If the height of the balustrade was increased to 1.8 metres instead of 1.65 metres, in order to improve visual and acoustic screening, then the amenity problems for the adjoining property associated with the excessive height of the proposed building would be exacerbated.
62 Mr Adam concluded his evidence with an opinion that the roof deck and pool would only be acceptable on planning merits if the design was modified as follows:
• assurance that noise would be contained within reasonable limits;
• the west and south facing walls, including screening at the perimeter, being limited to a maximum height of RL 24.0 metres;
(Page 15)
- • the design of the pool to be such as to prevent a view from the pool below the horizontal from an eye level of 1.65 metres; and
• the perimeter screening to the roof deck to be designed so as to either extend to a minimum of 1.8 metres above deck level (while remaining no higher than RL 24.0 metres) or so as to prevent a downward angle of view in a westerly direction that meets the western boundary of the adjoining property at a level lower than RL 23.0 metres.
63 Counsel for the respondent, Mr Skinner, summed up the argument presented by the witnesses to the effect that the application for review of the respondent's decision should fail because:
• the development as proposed substantially exceeds the allowable wall height permitted under TPS2 and the Codes.
• additional screening measures will further exacerbate the impact of excessive wall height.
• TPS2 cannot be read in such a way as to interpret that a discretion can be applied to allow an increase in wall height in this case.
• visual privacy of adjoining properties will be eroded and noise nuisance will be unacceptable unless substantial additional measures are taken to prevent overlooking and noise transmission.
• the onus is on the applicant to show that privacy requirements are met by the application and this has not been demonstrated.
64 Mr Skinner cited the following cases as relevant to assist the Tribunal in determination of this application:
• Newman and Town of Cottesloe [2005] WASAT 154, referring to the proper construction of Acceptable Development provision 3.8.1 of the Codes.
(Page 16)
- • Saunders and City of Nedlands [2005] WASAT 190, referring to the onus on a developer to demonstrate that regulatory privacy requirements will be met.
• Bailey and City of South Perth [2006] WASAT 235, referring to the unacceptability of direct overlooking from a balcony to a habitable space.
• Aitken and Town of Cottesloe [2005] WASAT 331, referring to the refusal of a residential building height marginally above the limit prescribed by TPS2.
The applicant's argument
65 The applicant's argument proposes that Condition 1(a) imposed by the respondent is an unreasonable and inappropriate condition of approval because:
• the proposed dwelling and in particular the pool deck complies with the objectives and controls of TPS2 and the Codes.
• the application constitutes an innovative, contemporary residential development that is responsive to the immediate locality and sympathetic to the perceived issues of intrusion of and loss of privacy and adverse noise generation that may effect neighbours.
• relocation of the pool deck to the ground or first level floor will not address the concerns raised by the owners of adjoining or neighbouring properties in regard to any perceived adverse impact on their amenity.
66 On the issue of noise nuisance, Mr K Hearne, a specialist in architectural and environmental acoustics, provided evidence on behalf of the applicant.
67 Mr Hearne tendered a report addressing the expected effects of noise transmission to neighbouring properties of a ground level pool and a roof level pool. The report concluded, for a number of reasons, that noise emissions from activities associated with a roof level pool should not result in greater impact on the amenity of neighbours when compared to the same scenario at a ground level location.
(Page 17)
68 Mr Hearne, in conjunction with Mr Reynolds, the acoustical engineer appearing as witness for the respondent, prepared and tendered a joint witness statement to the Tribunal.
69 In the text of the joint witness statement Mr Hearne and Mr Reynolds further addressed the issue that the proposed roof top outdoor pool area may result in noise emissions impacting on neighbouring premises at a level higher than those associated with the same activities located at ground level. In addressing this issue both witnesses expressed no discord and agreed that if adequate perimeter screening is provided, activity associated with the roof top pool and barbeque area will result in comparable and potentially lower levels of noise transmission to adjacent premises than if the same activities were conducted at ground level.
70 In order to effect adequate acoustic screening to the pool deck the following measures should be implemented:
• Solid screening to the north side of the deck and the west side immediately adjacent to the barbeque bench should be 1650 millimetres high.
• Solid screening to the west and south side of the deck where there is no barbeque bench should be 1800mm high. Alternatively if the bench is continued along the west and south side of the deck, the height of the screen can be reduced to 1650 millimetres.
• The parapet wall to the east side of the pool should be at least 1800 millimetres high.
71 Both witnesses agreed that management of noise emissions from activities associated with the pool and barbeque area is required of users regardless of roof top or ground location.
72 Both witnesses agreed that noise emissions associated with pool equipment can be adequately controlled by normal engineering measures.
73 Mr A Stewart, the applicant's expert witness on town planning matters, presented his evidence jointly with the respondent's witness Mr Adam.
74 On the subject of building setbacks, Mr Stewart agreed with Mr Adam that if the roof deck and pool were screened to an acceptable height then building setback requirements of the Codes would be met.
(Page 18)
- Mr Stewart considered that a screen height of 1.65 metres would be adequate, rather than the height of 1.8 metres favoured by Mr Adam.
75 As to the issue of visual privacy, Mr Stewart argued that the configurations of the western edge of the deck bordered by the barbeque bench and the northern edge of the deck, both satisfy the Performance Criteria 3.8.1 P1 of the Codes without the need for additional screening because a person standing on the deck would not overlook any outdoor living areas or major openings to habitable rooms within the cone of vision.
76 Mr Stewart explained that the cone of vision does not extend into the outdoor living area of the adjoining property. The cone of vision from this point only affects the walkway on the side of the adjoining house which does not constitute an outdoor living area as defined by the Codes. Mr Stewart acknowledged that a small window of less than 1 square metre on the upper floor of the adjoining house does fall within the cone of vision but probably does not constitute a major opening to a habitable room. If it does, then screening to the northern edge of the deck should be implemented to a height of 1.65 metres to remedy overlooking.
77 With regard to the western edge of the deck bordered by the barbeque bench, Mr Stewart described that the cone of vision for a person standing adjacent to the bench does not extend into the outdoor living area of the adjoining property because the outdoor living area is more than 60 degrees below the vertical extent of the cone of vision, which otherwise falls no lower than the roof of the rear single storey portion of the adjoining building.
78 Mr Stewart addressed the question of building height by acknowledging that the proposed dwelling exceeds the wall height limit prescribed by TPS2 by 2.4 metres.
79 Mr Stewart was of the same opinion as Mr Adam that the wall height discrepancy was reduced to about 1.15 metres if the Codes are used to determine height limits.
80 In Mr Stewart's opinion, the height of the wall does not have an adverse impact on the amenity of the adjoining property because, as previously described, overlooking does not occur and it can be shown that the wall height does not compromise the Performance Criteria for Element 3 - Boundary Setbacks, and Element 7 - Building Height, of the Codes.
(Page 19)
81 Referring to "sunlight, daylight and ventilation", Mr Stewart noted that the proposed building is located east of the outdoor living area of the adjoining dwelling and that properties to the south do not have outdoor living areas or habitable rooms adjacent to the development site. Hypothetically, a pitched roof dwelling of greater height than the current proposal could be built on the site. Accordingly, Mr Stewart considered that the presently proposed wall height will not have any adverse impact on the amenity of adjacent properties as a result of the loss of sunlight, daylight or ventilation.
82 Referring to "access to views of significance" as identified in Element 7, Mr Stewart described that the significant view to the west towards the ocean was not affected by the wall height as proposed. A two storey pitched roof dwelling on the same site would have a greater impact than the present proposal.
83 If it is accepted that the configuration of the deck satisfies the specific and stringent Performance Criteria at Element 8 for privacy, then it follows that the general requirements for privacy at Element 3 would be satisfied. If extra screening is required along the western edge of the deck in order to satisfy privacy requirements under Element 8 then it follows that the development would comply with the setback and associated general privacy requirements of Element 3.
84 As to the question of building bulk which only arises in the context of Element 3 - Boundary Setbacks, if the setback of the wall satisfies the Acceptable Development provisions in Element 3, then the wall is deemed to meet the Performance criteria including those relating to building bulk.
85 For the preceding reasons, Mr Stewart was of the opinion that the proposed wall height was acceptable.
86 Whilst agreeing with Mr Adam that the single most important issue affecting amenity of the adjoining properties was the potential for overlooking, Mr Stewart emphasised that the design of the roof deck and incorporation of appropriate screening, follows the intent of the "cone of vision" provisions of the Codes and thus ensures that there will be no overlooking of the outdoor living areas of adjoining properties whilst still affording westward views from the deck. Accordingly, there will be no adverse effect on the amenity of adjacent properties.
87 Mr Stewart was of the view that the non-compliance of the wall height with the requirements of TPS2 is a direct consequence of the topography of the site. TPS2 gives the Council flexibility to calculate
(Page 20)
- natural ground level at points other than the centre of the site. Some consideration should be given to topography when assessing the height of the building, and in this instance, for the most part the proposed wall height is compliant.
88 Mr Stewart agreed with Mr Adam that:
• there is no reason in planning principle why an upper level deck and pool could not be approved on the site, if appropriately designed; and
• the main issue that needs to be considered relates to the northern edge of the deck and the portion of the deck's western edge where the barbeque bench is located, and the corresponding height, setback and privacy requirements.
89 Mr Stewart concluded his evidence by advising the Tribunal that the development in its current form satisfies the Acceptable Development provisions and Performance Criteria of Element 8 - Privacy, and it follows that the development satisfies the Performance Criteria of Element 3 - Boundary Setbacks and Element - Building Height of the Codes, and therefore ought to be approved.
90 Counsel for the applicant, Mr Hardy, drew the Tribunal's attention to two cases relevant to principles in this matter:
• Aitken and Town of Cottesloe [2005] WASAT 331, referring to the discretion available to vary building height under TPS2.
• Newman and Town of Cottesloe [2006] WASAT 83, referring to the application of privacy separation distances under the Codes.
91 Mr Hardy explained that TPS2 assigns a discretion in dealing with the height of buildings because Sub clause 5.1.1(a) refers to a "general policy" in the context of which "Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme". Sub clause 5.1.1(c) provides also that "measuring ... building height ... shall generally follow the ... formula, except in particular cases where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished".
(Page 21)
92 Mr Hardy went on to suggest that height of itself was not a relevant consideration, rather it was the result of permitting construction to a particular height which ought to be considered. In this regard, the applicant's arguments have shown that the proposed height is acceptable in terms of the resultant amenity of the locality.
Analysis
93 As can be seen from the presentation of evidence, areas of agreement in relation to issues of contention have evolved.
94 Accordingly, it is appropriate to summarise the aspects of agreement before proceeding to adjudicate the remaining contentions.
95 Both parties, in the course of the jointly presented evidence of Mr Reynolds and Mr Hearne, acknowledged that if adequate perimeter acoustic screening is provided, then noise generation associated with roof top pool deck activity would be comparable to and potentially lower than if the pool activities were located at ground level. Given the unanimity of opinion on the issue of noise nuisance by the applicant's and the respondent's witnesses, it can be concluded that subject to implementation of the recommended measures outlined in their joint evidence, noise nuisance associated with the proposal may be removed from the list of contentions itemised by the respondent.
96 As described in the evidence of Mr Adam and Mr Stewart, both parties reached a qualified agreement on the issue of building setbacks which otherwise the respondent had listed as a contention. In this regard, the proposed setbacks are acceptable subject to the roof deck and pool being screened to a height of either 1.8 metres (Mr Adam's preference) or 1.65 metres (Mr Stewart's). The remaining qualification of the parties in finally agreeing the acceptability of the setbacks is to assess and determine the acceptability of the design of the unscreened section of the western wall of the deck in relation to privacy and amenity considerations. It remains that, subject to the adequacy of visual screening of the deck in order to protect the reasonably expected privacy of adjoining properties, the question of building setbacks may be removed from the list of contentions.
97 The remaining areas of contention between the parties are thus reduced to the issues of "privacy" and "building height" and the associated consequence of determining those issues in relation to the amenity and orderly and proper planning of the area.
(Page 22)
98 The concerns in relation to privacy were strongly articulated by the respondent's witnesses Ms Pyvis and Mr Campbell who illustrated to the Tribunal the relationship of their neighbouring premises to the proposed dwelling. Both Ms Pyvis and Mr Campbell expressed concern at the likelihood of overlooking from the pool deck to habitable spaces at the rear of their dwellings. In this regard, it was important to the witnesses that whether or not overlooking was actually occurring, visible activity on the roof deck would create a perception of privacy invasion.
99 Responding to the concerns of Ms Pyvis and Mr Campbell, it should be said that both their properties are situated across the right of way from Lot 47 John Street, and the habitable spaces in question at their premises appear to be removed at some further distance beyond, thus aggregating overall effective privacy separation distances well in excess of the 7.5 metres acceptable point to point setback distance from the pool deck recommended by the Codes. The expert noise and town planning witnesses had, in any case, identified agreement as to the requirement for acoustic and visual perimeter screening to at least 1.65 metres height in order to constrain noise nuisance and overlooking southwards from the pool deck.
100 Mr Adam had preferred to increase the height of the perimeter screening to 1.8 metres to eliminate the possibility of reciprocally viewing tops of heads and other manifestations of activity and occupancy of the pool deck. It would appear to the Tribunal that such a requirement could be seen as onerous on the applicant in the event that direct overlooking was not able to occur from the pool or pool deck and that otherwise the Visual Privacy Performance Criteria of the Codes were met. Mr Adam, in his evidence with Mr Stewart, agreed that the 1.65 metre height screen to the pool and southern edge of the deck were sufficient to meet the Acceptable Development privacy provisions of the Codes.
101 In any case, the agreed recommendation of the acoustic experts, Mr Reynolds and Mr Hearne, was to either increase the screen height to 1.8 metres in order to constrain noise nuisance, or achieve the same result by extending the barbeque bench along the perimeter whereby the screen height could remain at 1.65 metres. The latter option would appear to go some way to assist the objectives of the southerly neighbours whilst avoiding the prospect of an unattractive totally "corralled" roof deck. The upward angle of view from the southern neighbours would inhibit the prospect of seeing the tops of heads of persons standing on the roof deck behind a 1.65 metre screen, particularly so if they were standing beyond the barbeque benchtop.
(Page 23)
102 Regarding the design of the northern and western edges of the pool deck, it appears from Mr Stewart's evidence that there is a question as to whether a window on the adjoining dwelling to the west, within the cone of vision of a person standing on the northern edge of the deck, is, or is not, a window of a habitable room. In the absence of certainty, which is otherwise the responsibility of the applicant to pursue, it must be assumed that the Acceptable Development standards should be met by screening of the northern deck edge. Mr Stewart accepts the need, in this circumstance, for a 1.65 metre screen.
103 As to the western deck edge, assuming the need for acoustic screening to a height of at least 1.65 metres associated with the extension of the barbeque bench as recommended by the acoustic expert witnesses, the vertical component of cones of vision from any point where a person is likely to stand looking towards the neighbouring property will be unlikely to be below a horizontal level. Accordingly, it would have to be acknowledged that the relevant Acceptable Development standard for Privacy Requirements would be met.
104 As to whether portion of the westward facing acoustic screen might be acceptable in a transparent form to afford an improved outlook by allowing some degree of downward angle of vision from the deck, the Tribunal would be reluctant to further consider for reasons which will become apparent in relation to the need for compliance with building height requirements.
105 Turning to the question of building height, evidence was provided by Mr Campbell illustrating by the means of a photograph, taken from his window, what the presence of the proposed dwelling with the roof top pool deck would look like. Mr Campbell described the proposed residence as "dominating".
106 Mr Adam expressed the view that the building height was excessive in relation to the limits prescribed by TPS2 and the Codes, and generated adverse impacts on the amenity of the adjoining property by the consequent reduction of daylight and the increased perception of building bulk.
107 Mr Stewart disagreed with Mr Adam's views on daylight and bulk and argued that the wall height was acceptable for the reasons previously set out in this report.
(Page 24)
108 Both Mr Adam's and Mr Stewart's arguments are predicated on the assumption that a discretion is available to the responsible authority to approve the proposed building height either under the TPS2 or the Codes.
109 The Codes document, in Part One: The Codes in Context at s 1.3.3 Town Planning Schemes, is explicit that "where, for historical or special circumstances, variations to the Codes are included in the town planning scheme, these provisions would prevail over the Codes". It is clear, therefore, that the relevant prevailing provisions regarding building height are contained in TPS2.
110 Both Mr Adam and Mr Stewart agreed that the building wall height as proposed at RL 25.15 metres, inclusive of the 1.65 metre height roof deck screening, aggregated to 8.4 metres, or some 2.4 metres above the wall height limit of 6.0 metres allowable under TPS2.
111 Both Mr Adam and Mr Stewart were prepared to accept varying degrees of wall height increase on the merits of the proposal as measured against the Codes' Performance Criteria, on the assumption that a discretion existed beyond the limitations of TPS2. In this regard, Mr Stewart's argument to allow the proposed wall height still exceeded the limit set by the Codes by 1.15 metres.
112 Mr Hardy, counsel for the applicant, had argued that a discretion was available to the responsible authority under TPS2 to vary the limits on building height by interpreting the expression at Sub clause 5.1.1(c) "Council shall generally follow the following formula" in regard to measuring building height, as an inference that there would be a range of occasions beyond the generality that may require a variation from the formula in relation to determining height limits.
113 Mr Skinner, for the respondent, pointed out that the same clause specifically identified the exception to the general rule which related solely to circumstances "where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished".
114 All parties agreed that the relevant clauses of the scheme could have been constructed with greater clarity.
115 The Tribunal is, however, unconvinced that any other exceptional circumstance, other than the particular exception identified by Mr Skinner in sub clause 5.1.1(c), is meant to be entertained by the construction of the sub clause.
(Page 25)
116 As to whether the exception is warranted by reference to the natural ground forms of the site, the Tribunal notes that there is actually little overall natural ground level variation across the proposed building footprint and accordingly, it is difficult to discern anything in the ground form of Lot 47 John Street to warrant a different approach to the height "formula". Even if the most extreme choice for a natural ground level benchmark at around RL 18.0 metres (which features in the north east corner of the building footprint) was justified and adopted as the point of measurement for wall height, the proposed wall height would still exceed the limit under TPS2 by 1.15 metres.
117 It follows from this reading of TPS2 that the building height formula ought to be followed and that the wall height of the proposed two storey development should therefore be limited to RL 22.75 metres as agreed by the expert town planning witnesses. Clearly, in this regard, the roof deck superstructure contributes substantially to the overall excess elevation of the building.
118 The proposition that TPS2 may be deficient in not recognising the need for a modified height limit where the roof of a dwelling is concealed behind perimeter walls, is acknowledged as a criticism of the instrument, but does not empower the responsible authority to disregard the express provisions of the scheme. Mr Adam pointed out that, to his understanding, the respondent had consistently and rigorously applied the building height limit provisions of TPS2 and that not to do so in this case would be adverse to the amenity of adjoining properties and contrary to orderly and proper planning. For the reasons discussed here, the Tribunal is inclined to agree with Mr Adam's observation.
119 Whilst constrained by the lack of a relevant and proper discretion under TPS2 to allow the building height required to accommodate the roof deck, some consideration is entertained as to whether a revised arrangement of conditions would be appropriate in the event that the proposed development could be modified to comply with the necessary height requirements. In this regard Mr Adam had offered a list of design modifications which are recorded in his evidence elsewhere in this report. The Tribunal has some difficulty in translating such design measures into supplementary conditions for several reasons:
• Compliance with the TPS2 height limit requires greater variation than that contemplated by Mr Adam.
(Page 26)
- • There is insufficient evidence before the Tribunal to assess the effect of lowering the roof deck in relation to overlooking and screening requirements.
• The extent of modification to the design of the building is likely to be profound with uncertain consequence and is therefore unsafe to be implemented by way of conditions.
120 The Tribunal otherwise concurs with Mr Adam and Mr Stewart in their observation that there is no reason in planning principle why an upper deck level and pool could not be approved on the site if appropriately designed. In this instance, however, the proposed configuration of the deck and pool on top of the proposed dwelling has been shown not to satisfactorily comply with the mandatory design requirements of TPS2.
Conclusion
121 For the reasons set out in this report it is concluded that the application for review of the respondent's decision to impose a condition upon its planning consent for the construction of a dwelling at Lot 47 John Street Cottesloe, requiring deletion of the proposed roof top pool and outdoor area and either dispensing with those components or relocating them at ground or first floor levels, should be dismissed.
Orders
122 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to impose a condition upon its planning consent for the construction of a two storey dwelling at Lot 47 John Street expressed as "deletion of the roof top pool and outdoor area as proposed and revised plans to either leave out those components or relocate them at ground or first floor levels to the satisfaction of the Manager Development Services and subject to any other relevant conditions" is affirmed.
(Page 27)
- I certify that this and the preceding [122] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SESSIONAL MEMBER
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