HHB INVESTMENTS PTY LTD and TOWN OF CAMBRIDGE
[2023] WASAT 11
•27 FEBRUARY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HHB INVESTMENTS PTY LTD and TOWN OF CAMBRIDGE [2023] WASAT 11
MEMBER: MS R LAVERY, MEMBER
HEARD: 6 FEBRUARY 2023
DELIVERED : 27 FEBRUARY 2023
FILE NO/S: DR 174 of 2022
BETWEEN: HHB INVESTMENTS PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development application single house - Roof terrace and roof garden - Whether proposed development satisfies relevant design principles in relation to height - Whether proposed development is compatible with its setting - Whether proposed development with have an adverse effect on amenity of locality - Visual amenity - Noise
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2)(m), cl 67(2)(n)
Planning and Development Act 2005 (WA), s 252(1)
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.1.6 P6, cl 5.4.1
Town of Cambridge Local Planning Scheme No 1
Result:
Application for review allowed
Development approval granted for roof terrace and roof garden on No 16 (Lot 5) Branksome Gardens, City Beach
Category: B
Representation:
Counsel:
| Applicant | : | Ms D Mrdja |
| Respondent | : | Mr B Laycock |
Solicitors:
| Applicant | : | Urbanista Town Planning (acting as Agent) |
| Respondent | : | Altus Planning (acting as Agent) |
Cases referred to in decision:
Bethany Group Incorporated v The Presiding Member of the North-West Joint Development Assessment Panel [2018] WASAT 45
Prosser and Town of Cottesloe [2021] WASAT 115
Schlothauer v the City of Bayswater [2020] WASAT 122
REASONS FOR DECISION OF THE TRIBUNAL:
(The following are my reasons for decision which I delivered orally on 6 February 2023, and which have been edited for clarity and, in one case (at para 49), to correct a misattribution of evidence).
Introduction
This is an application for review made under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the Town of Cambridge's (Respondent, Council or Town) decision of 27 September 2022 to refuse to grant development approval for an amendment to an existing development approval for a single house, for an 'Accessible Roof Terrace and Roof Garden' on No 16 (Lot 5) Branksome Gardens, City Beach (subject land or No 16).
The applicant seeks an order that the respondent's decision be set aside and an approval of the proposed development substituted.
The matter which the Tribunal deals with when an application is brought under s 252(1) of the PD Act is a review of the responsible authority's decision. The review of a reviewable decision is by way of a hearing de novo and is not confined to the matters that were before the original decision-maker but may involve the consideration of new material, whether or not it existed at the time the original decision was made.
The purpose of the review is to produce the correct and preferable decision upon the review. Further, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision and the reasons for decision provided by the decision-maker, or any grounds for review set out in the application do not limit the Tribunal in proceeding for review of a decision. The Tribunal, accompanied by parties' representatives and their planning experts, undertook to observe particular viewing locations on the subject land, and from the street and Challenger Park.
The plans shown in Exhibit 1 as attached to the decision of the respondent are the plans to be considered in this review.
The proposed development involves the conversion of portion of the roof garden, approved as part of the approval for a single house granted by the respondent on 4 January 2022, into a habitable roof terrace with an external spiral staircase and landing to access the roof terrace.
The roof terrace is set back 16.186 metres from the street boundary, 7.5 metres from the north-eastern boundary with No 14 Branksome Gardens (No 14), 8.86 metres from the south-western boundary with No 18 Branksome Gardens (No 18), and approximately 10 - 12 metres from Challenger Park at the rear of the subject land. The roof terrace is setback varying distances from the edge of the approved roof and surrounded on three sides, excluding to the rear, by the approved roof garden.
The relevant background facts are in the respondent's Statement of Issues, Facts and Contentions (respondent's SIFC) as accepted by the applicant (at paras 2 - 16 (Exhibit 2)).
The statutory and policy planning framework relevant to this application is set out in paras 17 - 39 of the respondent's SIFC (Exhibit 2) and are not disputed by the applicant.
The Tribunal heard expert evidence and received witness statements dated 6 January 2023 from Ms Bianca Sandri, an experienced town planning consultant, for the applicant and from Mr Joe Algeri, an experienced town planning consultant, for the respondent.
In coming to my decision I have considered the matters raised in the submissions and evidence, the relevant matters under the PD Act, Town of Cambridge Local Planning Scheme No. 1 (LPS 1), Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (deemed provisions), State Planning Policy 7.3 - Residential Design Codes Volume 1 (2019) (R-Codes), the Town of Cambridge Local Planning Policy 3.1 - Streetscape (LPP 3.1) and Local Planning Policy 2.1 - Precinct 1 - City Beach (LPP 2.1), together with the details of the proposed development for which approval is sought.
The issue for consideration as agreed by the parties is:
1.Whether the proposed accessible roof terrace and roof garden (proposal or proposed development) at No 16 (Lot 5) Branksome Gardens, City Beach (subject land or site), should be approved, having regard to:
a)whether the height of the proposal is acceptable;
b)whether the proposal is compatible with its setting; and
c)whether the proposal will have an adverse effect on the amenity of the locality.
a) Whether the height of the proposal is acceptable
It is agreed that the current development application proposes the following modifications to the approved single dwelling:
1.A 1 metre high clear glass balustrade surrounding the perimeter of the roof terrace; and
2.An increase to the approved maximum total building height from 7.672 metres to 8.52 metres to the top of the balustrade (at the highest point above natural ground level).
The respondent's Local Planning Policy 3.24 - Determining Natural Ground Levels identifies a historical natural ground level which for the subject land is 8.90 metres Australian Height Datum (AHD).
As the proposed height exceeds the deemed-to-comply height under the R-Codes it is to be assessed under the design principles of cl 5.1.6 P6 of the R-Codes:
P6Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
·adequate access to direct sun into buildings and appurtenant open spaces;
·adequate daylight to major openings into habitable rooms; and
·access to views of significance.[1]
[1] Respondent's s 24 Bundle of Documents, Exhibit 2, Tab 6 - State Planning Policy 7.3 - Residential Design Codes Volume 1 dated 2 July 2021.
Whilst the parties are in agreement that the proposed development is consistent with the three bullet points set out in cl 5.1.6 P6, the respondent contends that the proposed development will have an adverse impact on the amenity of the adjoining properties and the streetscape.
The respondent, in assessing this aspect of cl 5.1.6, relied upon points (a) and (b) of s 1 of the Respondent's Local Planning Policy 3.3: Building Height (LPP 3.3) which states:
With respect to the application of P6 of Element 5.1.6 'Building Height' of the Residential Design Codes, in considering the building height, Council shall have regard to the following matters:
a)Whether the proposed building height is consistent with the predominant building height of the buildings within the surrounding area; and
b)The natural topography of the site and whether the proposed building height considers and responds to the topography.[2]
[2] Respondent's s 24 Bundle of Documents, Tab 9 - LPP 3.3.
LPP 3.3 defines 'surrounding area' as being 'the three properties on either side of the proposed development on both sides of the street (excluding laneways/right of ways[sic]) that the dwelling is orientated towards'.
The parties agree that the deemed-to-comply building height as specified in cl 5.1.6 of the R-Codes is 8.0 metres and that the proposed clear glass balustrade to the roof terrace exceeds that deemed‑to‑comply height by 0.52 metres and therefore needs to be assessed under the design principle cl 5.1.6 P6.
The application was the subject of public consultation and three submissions were received objecting to the proposal for the following reasons:
a)the proposal exceeds the deemed-to-comply building height;
b)the additional height would impose on the streetscape and Challenger Park to the rear;
c)there would be a loss of privacy to windows and outdoor living areas of adjoining properties and the cone-of-vision from the staircase and associated landing area would be intrusive; and
d)the clear glass balustrading would allow for a greater range of viewing angles into adjoining properties.
The parties agree that the subject land is at the lowest point in the topography for the adjoining properties with its lowest point being 8.4 metres AHD on the south-western side boundary with No 18, and the highest level being adjacent to the north-eastern side boundary with No 14 of 10.72 metres AHD, the level at the street boundary being 9.5 metres AHD and the historical natural ground level identified as 8.9 metres AHD.
For this development the starting point for natural ground level is lower than that of adjoining properties as shown on Annexure BS4 of Ms Sandri's witness statement and as noted and agreed by the parties at the final hearing following the site view. The ground level of No 14 at the dwelling is 11.0 metres AHD, the closest spot level on No 18 at the front of the lot adjacent to the subject land is 9.7 metres AHD, Challenger Park adjacent to the subject site is at 9.5 metres AHD and rises to approximately 17 metres AHD, and No 29 Branksome Gardens opposite the subject land has contours of 11 to 15 metres AHD.
Whilst Mr Algeri accepts that No 14 and No 18 are likely to be redeveloped in the foreseeable future, he asserts a greater weight should be given to the current context which includes single storey dwellings on the adjoining properties.
Although No 14 and No 18 are currently single storey, the applicant submits that the surrounding area as defined by LPP 3.1 is shown on the plans titled 'Surrounding Area Plan and Photos', being Item 2 of the Applicant's s 24 bundle of documents, is characterised predominantly by two and three storey dwellings. Ms Sandri asserts that 'The approved dwelling is consistent with the surrounding area, the additional height attributed to the clear glass balustrade is in my opinion consistent with the surrounding area and will be imperceivable from the streetscape'.[3]
[3] Witness statement of Ms Bianca Sandri signed and dated 6 January 2023, at para 70.
Given the subject land is at the lowest level of all adjoining development in the surrounding area, and that the additional height of the proposed roof terrace is setback significantly from the street, Challenger Park and adjacent dwellings at No 14 and No 18, I find the height creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves and is therefore compliant with the design principle P6 of cl 5.1.6 of the R-Codes.
b) Whether the proposal is compatible with its setting
The extent of the locality is defined differently by the two witnesses although there was agreement that both areas identified were representative of the character of this portion of City Beach. The applicant contends and the respondent accepts that there are two to three storey dwellings in the locality. However, the respondent contends that the consideration of the consistency of the height of the proposed development with the predominant building height of the buildings within the surrounding area, greater weight should be given to the current context where the dwellings at No 14 and No 18 are both single storey dwellings. This is somewhat at odds with Mr Algeri's evidence where he speculates that the adjoining properties, and in particular No 14, are 'ripe for redevelopment'.
The respondent contends that roof top terraces are not a common characteristic of City Beach, that they are neither reflected in LPP 3.1 for City Beach nor are they referenced or consistent with the garden suburbs principles. The applicant was at pains to point out two visible roof top terraces within the locality and in proximity to the subject site. As such, I find that roof top terraces may not be commonplace but are also not an unusual or inconsistent characteristic in the locality.
Clause 67(2)(m) of the deemed provisions requires consideration of not only the existing character but also the likely future character of its setting, as well as the relationship of the development to development on adjoining land or on land in the locality. I accept the respondent's submission that the existing character of the locality includes the existing single storey dwellings on adjacent lots, however the parties also agreed that the streetscape of Branksome Gardens was characteristic of development within the locality and that consisted of a significant number of two to three storey dwellings. I also accept the evidence of the witnesses that the future of No 14 and No 18 is likely to include redevelopment commencing at higher natural ground level levels than the subject land.
I find that the built form of the proposed development is within what can be reasonably expected in the locality and not dissimilar to what has already been constructed. It is also likely, given the lot size and value of the land, that a single house in this locality will be at least two storey construction and that this is a reasonably sized dwelling for the locality.
c) Whether the proposal will have an adverse effect on the amenity of the locality
Visual privacy
It is agreed by the parties that the proposed roof terrace, for the most, is setback in excess of the R-Codes deemed-to-comply provisions of cl 5.4.1 Visual Privacy of 7.5 metres. The exception is the area identified and agreed by the parties as being the landing as notated on Annexure BS5 of Ms Sandri's witness statement as 'Staircase and landing (non‑habitable area)'.
The respondent contends that the staircase and landing to the roof terrace does not comply with the deemed-to-comply requirements of cl 5.4.1 of the R-Codes as it is set back 6.4 metres from the north‑east boundary in lieu of 7.5 metres and therefore requires consideration against the design principles.
Mr Algeri submits that:
In relation to visual privacy, the cone of vision from the stairwell landing extends over the north-eastern lot by 1.1m, which cannot be mitigated by the provision for 1.6m solid screening due to the additional bulk and height that would result. Therefore, the proposal is considered against design principles 5.4.1 Visual Privacy …[4]
[4] Witness statement of Mr Joe Algeri signed and dated 6 January 2023, at para 39.
Ms Sandri acknowledges that the applicant did not dispute this contention in its SIFC but submits that for completeness she has considered cl 5.4.1 of the R-Codes and considers that this clause is not applicable to this area as it refers to active habitable spaces and habitable rooms and that the landing is neither an active habitable space or habitable room.
The Tribunal in Prosser and Town of Cottesloe [2021] WASAT 115 at [94] and [95] found:
94… Whilst overlooking into the outdoor area of Unit 1/No 5 will be possible from the upper landing of the external staircase it will occur as a consequence of ascending and descending the staircase and not as a direct result of the use of an active habitable space.
95Although the R Codes are not strictly applicable to the staircase element of the proposal, the approach adopted regarding the protection of privacy in the R Codes can assist in determining a reasonable level of privacy as an amenity expectation. The central tenant of visual privacy as manifested in the R Codes is minimisation of overlooking, not absolute prohibition on visual interaction. Given this position, absolute prohibition on visual interaction would an unreasonable amenity expectation …
Similarly, in this case, they would currently be overlooking into a vegetated area and the front yard of No 14 from the landing of the stairwell that would occur as a consequence of ascending and descending the staircase and not as a direct result of the use of the landing as an active habitable space.
Mr Algeri acknowledges that the cone-of-vision extends into No 14 Branksome Gardens onto an area of existing vegetation and further speculates that, given the dwelling at No 14 is an older dwelling, it may be redeveloped in the foreseeable future which he says may result in a different overlooking outcome. Although the Tribunal should take into consideration future amenity impacts, Mr Algeri indicated as it was speculation at this point the Tribunal cannot determine if it would be a positive or negative outcome as it is dependent on the design of the redevelopment.
Although the R-Codes are not strictly applicable to the landing, in the context of cl 67(2)(n) of the deemed provisions, the Tribunal is satisfied that a relatively high level of protection from overlooking is afforded from the landing to the adjoining property at No 14.
The respondent submits that the Tribunal has previously dealt with the fear and perception of being overlooked and the impact of more distant lines of sight in the matter of The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45 (Bethanie) at [75] - [106]. The similarities with this case are restricted to the current single residential development surrounding the site but, in the case of Bethanie, the application was for a four-storey aged care facility where the source of the sightlines was to be permanently occupied unlike the roof garden in this case which is likely to be occupied infrequently. In my view, the situation is not sufficiently similar to be relevant to this case.
The respondent cited Schloffer and City of Bayswater [2020] WASAT 122 as a decision by the Tribunal to refuse a roof terrace because of the cumulative impact of the height and the roof terrace on one adjoining owner which it says has similarities to this case. In this case, any impact is to a great extent ameliorated by the location of the roof terrace which is well setback from adjoining properties and surrounded by roof garden on the three sides with neighbouring properties and the street, the issue of height has been dealt with earlier and in this case does not, in the Tribunal's view, cumulatively add to any impact of the roof terrace.
The witnesses agreed that the roof terrace is proposed to be significantly setback from the street and it would not be readily viewed from the street in close proximity to the subject site, but that there would be some oblique views of the roof terrace from further south in Branksome Gardens due to the curve in the road and the position of the subject land.
Given the topography of the surrounding area, that the subject land is at the lowest point in the streetscape, the considerable setback from the street and the minimal oblique views of the structure of the roof terrace that may be observed from Branksome Gardens, the Tribunal does not consider that the roof terrace will have an adverse impact on the amenity of the streetscape.
Therefore, I find that the overall impact of the proposed building height at 8.52 metres starting at the low natural ground level of the subject land and, given that 1 metre of this height is in the form of clear balustrading, is not inconsistent with the likely form of development anticipated for this locality and will not have a negative visual amenity impact on the streetscape or adjoining properties.
Noise
The respondent raised concerns with possible noise impacts from the users of the roof terrace or perception of being watched from the roof terrace. Mr Algeri says the elevation and openness of the roof terrace introduces greater risk of amenity impacts including noise and is unlike a balcony which has a portion of the building which may buffer the noise to some extent. Mr Algeri submits that the adjoining owners have also raised these concerns in relation to impact on their amenity.
The Tribunal does not consider that the proposed development will have a detrimental impact on the surrounding area because, as Ms Sandri pointed out, the roof terrace does not include weather protection so the use of the roof terrace is limited to fine, non-windy days for user comfort, meaning that it will unlikely be used on a frequent or regular basis, the roof terrace is well separated from the extremities of the roof and therefore the adjoining properties by the roof garden, and it is therefore also separated from adjoining properties and the street by the roof garden.
Conclusion
For the reasons expressed earlier, the Tribunal, in considering the substantive merits of this case and having had regard to the planning framework as set out earlier, finds that the proposed roof terrace and the building height of 8.52 metres is acceptable, is compatible with its setting, will not have an adverse effect on the amenity of the locality and warrants approval.
The Tribunal therefore considers that the application for review should be allowed and development approval should be granted subject to conditions.
Conditions
The without prejudice conditions prepared by the respondent include a condition No 4 requiring the glass balustrade to be constructed of opaque glass, the respondent contending it will increase privacy to and from the roof terrace.
The applicant objects to the condition as it is seeking to maintain the clear balustrading for openness, submitting that the plans clearly showed that the glass was to be clear and advising that a modification to the condition to read 'The glass balustrades are to remain clear for the lifetime of the development to the satisfaction of the Town', would be acceptable to the applicant. The remainder of the conditions are not in contention.[5]
[5] Applicant's response to without prejudice conditions dated 17 January 2023, Exhibit 9.
I heard from the witnesses for the parties in relation to the appropriateness of the opaque glass. Mr Algeri considered that the opaque glass would have some positive impact such as reducing visibility of furniture and the like from the street such that it would look like part of the roof unless there was someone using the terrace. Ms Sandri opined that clear glass would be preferrable because the additional height will not be clearly seen and from an amenity perspective if those who are utilising the roof terrace can be visibly seen; they are less likely to behave in an unacceptable manner that would impact on the amenity of the adjoining properties.[6]
[6] (1) in preparing my oral reasons I relied upon the transcript; (2) the transcript mistakenly recorded the evidence of Ms Sandri as that of Mr Algeri; and (3) the error was brought to my attention following the giving of oral reasons and is now corrected.
I find that in this case it is preferrable for the glass to remain clear as indicated in the plans for this application as the clear glass will minimise the visibility of the balustrade and additional height proposed such that, in my view, it will have no adverse impact on the visual amenity of the surrounding area or locality. The amended wording of the condition as proposed by the applicant should not be imposed as it is superfluous, Condition No. 1 requires compliance with the approved plans which in effect performs the function put forward by the applicant. The Tribunal does not therefore intend to impose Condition 4 of the respondent's without prejudice conditions.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse to grant development approval for an amendment to an existing development approval for a single house, for an 'Accessible Roof Terrace and Roof Garden' on No 16 (Lot 5) Branksome Gardens, City Beach is set aside and a decision is substituted that development approval is granted for an amendment to the existing development approval under the Metropolitan Region Scheme and the Town of Cambridge Local Planning Scheme No 1 subject to the following conditions:
(a)The development shall at all times comply with the application and the approved plans, subject to any modifications required as a consequence of any conditions of this approval.
(b)All structures (and associated footings) shall be contained within the lot boundaries of the subject site.
(c)All stormwater shall be contained and disposed of on‑site for the life of the development to the satisfaction of the Town.
(d)The previous development approval DA21/0196 dated 4 January 2022 and its conditions remain in effect (excluding the plans stamped as part of the previous approval).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
27 FEBRUARY 2023
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