HORTON and CITY OF SUBIACO
[2012] WASAT 48
•21 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HORTON and CITY OF SUBIACO [2012] WASAT 48
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 21 FEBRUARY 2012
DELIVERED : 21 FEBRUARY 2012
FILE NO/S: DR 219 of 2011
BETWEEN: DAVID HORTON
JASMIN HORTON
ApplicantsAND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Demolition of existing dwelling Location of front door Condition requiring relocation of entry Streetscape policy Precinct policy Passive surveillance Legibility of entry
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 27(4), cl 30, cl 38, cl 41, cl 41(f), cl 41(j)
Result:
Application for review allowed
Decision to refuse development set aside and decision substituted granting approval subject to conditions
Category: B
Representation:
Counsel:
Applicants: Mr S Allerding
Respondent: Mr A Stewart
Solicitors:
Applicants: Allerding & Associates
Respondent: Greg Rowe & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings involved an application for review of a decision by the City of Subiaco to refuse the demolition of an existing dwelling and the construction of a single storey dwelling at No 101 (Lot 18) Gloster Street, Subiaco.
While the statements of issues, facts and contentions submitted by the parties established a range of issues, the subsequent receipt of witness statements and without prejudice conditions effectively narrowed the issues in dispute to a single issue.
This issue arose out of a suggested condition put forward by the respondent's expert planning witness that read as follows:
The front entry door to the dwelling shall be relocated so that it faces north and is visible from Gloster Street to the satisfaction of the Manager, Planning Services.
However, as the proposed entry arrangement provided surveillance of the front door from within the residence, facilitated good passive surveillance of the street and established good legibility in terms of identifying the location of the front door, the Tribunal held the view that, given the particular circumstances of this case, the proposed location of the entry complied with the provisions of the scheme and the intent of council policy.
For these reasons the review was allowed subject to conditions.
Introduction
The decision under review in this matter is a decision by the Development Services Committee (Committee) of the City of Subiaco (City, council or respondent) under delegated authority on 14 June 2011 to refuse the demolition of an existing dwelling and the construction of a single storey dwelling at No 101 (Lot 18) Gloster Street, Subiaco (subject land).
Subject land and context
The subject land measures approximately 610 square metres and is rectangular in shape. The land fronts Gloster Street but also shares a boundary with a rear right of way.
The existing building on the subject land comprises a single storey brick dwelling with a Marseilles pattern tiled gabled roof. The dwelling is constructed in a simple Federation Bungalow style with a verandah, complete with timber post brackets, extending across the front of the building and down part of the eastern side of the dwelling.
The two existing dwellings immediately adjacent to the subject site appear to be original dwellings.
Locality
Development in the locality comprises single residential dwellings. Gloster Street in the immediate vicinity of the subject land has a mix of original dwellings, some of which have been renovated with modern additions. Some modern dwellings also exist, mostly in the heritage style of the original dwellings.
Of the 145 dwellings fronting Gloster Street between Railway Parade and Union Street, approximately 40% have Marseilles terracotta roof tiles and 60% have an original Zincalume or new Colorbond roof.
With respect to the front facades of the dwellings, a mix of materials is evident, including original red face brick, painted face brick and rendered brick. A small number have weatherboard facades. While the majority of properties in the locality have front doors facing the street, a number have front doors on the side of residences.
The proposed development
On 4 February 2011 the applicants applied for planning approval under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme) to demolish the existing dwelling and to construct a new single storey dwelling.
The proposed residence is of brick construction with a metal roof. It will be set back approximately 7 metres from the Gloster Street boundary, generally 1.5 metres from the western boundary and 2.3 metres from the eastern boundary. A double garage is proposed in the southwest corner of the block, accessed from the right of way, and set back approximately 1 metre from the right of way.
A theatre, entry hall and study face Gloster Street. The study and entry hall are behind a verandah while the theatre has a gabled feature to the street. Each of the three front rooms has substantial windows facing Gloster Street. The entry is located on the eastern side of the proposed residence under the verandah.
Planning framework
The review site is zoned Residential with a density coding of R20 and is located in the West Subiaco Precinct under the respondent's TPS 4.
The zoning table of TPS 4 indicates that a single dwelling is a 'P' use in the residential R20 zone and a 'P' use is defined in cl 14(2) of the Scheme as follows:
… [T]he use is permitted by the Scheme as it is taken to be consistent with the planning objectives of the Scheme and the planning policies with respect to that zone.
Clause 27(4) of TPS 4 requires council to consider a number of matters in dealing with planning applications. Of particular relevance in the current situation are:
…
(b)any relevant planning policies; [and]
…
(g)the conservation of the amenity of the locality[.]
The reason the initial appeal was received by the Tribunal relates to cl 30 of the Scheme which provides that in considering an application for or involving demolition the council may defer consideration of the application until it has granted approval for subsequent development of the relevant site.
Clause 38 of TPS 4 states:
Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in the Scheme Text, the planning policies and the Residential Planning Codes.
Clause 41 of TPS 4 importantly sets out the objectives of the Residential zone. Clause 41(f) and cl 41(j) are of relevance:
(f)[T]o enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of the existing housing stock[.]
…
(j)[T]o promote and encourage design that incorporates crime prevention through environmental design principles including but not limited to, appropriate fencing, appropriate landscaping, casual surveillance of public open spaces and adequate pedestrian movement sightlines.
In addition to the provision of the Scheme, the respondent has two policies which are relevant to the matter under review. The first is Local Planning Policy 3.1 'Streetscape Policy' (Streetscape Policy) which applies to the whole of the local municipality and sets out a number of objectives of which objective 2 is particularly relevant:
To ensure that new development is designed having regard to the issue of crime prevention and surveillance of the street and housing entrances.
The Streetscape Policy provides some detail in terms of provisions and deals with built form and orientation, setback, scale and proportion, service and infrastructure, carports and garages. Of particular relevance in the current review is subclause (3) which reads as follows:
The entrance to a development is to be clearly visible from the primary street. Design features that highlight the entrance door, such as porticos, verandas or awnings are encouraged.
The second relevant local planning policy in this matter is the West Subiaco Precinct Policy (Precinct Policy) which is obviously more constrained in terms of its area of applicability.
The primary objective of the Precinct Policy is to encourage the consolidation of the existing pattern, character and mix of residential development and it sets out requirements for the desired future character.
Clause 6.3 of the Precinct Policy states that 'high standards of design which enhance the streetscape are greatly encouraged'. Clause 6.5 suggests that 'residential development is to overlook and where possible provide frontage to streets, parks and other public spaces'.
The Precinct Policy also goes into some detail of the two areas south and north of Bagot Road. For the area south of Bagot Road it reads:
Any change or redevelopment should reflect the scale, character, details and materials of the gold boom and inter-war period buildings within the street block or immediate vicinity, including front and side setbacks, verandas, fencing, vehicular access.
The Precinct Policy does not provide any detailed prescriptive standards for application within the policy area.
Respondent's decision
On 14 June 2011 the Committee, under delegated authority, refused the application for the demolition of the existing dwelling and the construction of a single storey dwelling at No 101 (Lot 18) Gloster Street, Subiaco.
The application was refused by the Committee for the following reasons:
(1)the proposal does not satisfy clause 28(3) of Town Planning Scheme Number 4 as the development is not consistent with the orderly and proper planning of the locality and would have an undue adverse impact on the likely future development of the locality;
(2)the proposal does not satisfy the requirements of the city's streetscape policy in relation to building form and orientation and, finally;
(3)the proposal does not satisfy clause 6.2.6 of the Residential Design Codes with respect to sight lines at vehicle access points and street corners due to the 0.5 times one metre variation at the proposed vehicle access points.
The issues
While the statements of issues, facts and contentions submitted by the parties established a range of issues in this matter, the subsequent receipt of witness statements and without prejudice conditions effectively narrowed the issues in dispute to a single issue.
This issue arose out of a suggested condition put forward by the respondent's expert planning witness that read as follows:
The front entry door to the dwelling shall be relocated so that it faces north and is visible from Gloster Street to the satisfaction of the Manager, Planning Services.
Whether the front entry door to the dwelling should be relocated so that it faces north and is visible from Gloster Street
Mr Stewart, for the respondent, submitted that the Streetscape Policy and the Precinct Policy contain a number of provisions relating to the orientation of dwellings and the position of major openings in order to enhance the streetscape, maximise casual surveillance of the public domain, and assist with reducing the likelihood of crime.
In addition, Mr Stewart argued that 'a fundamental aspect of good design is to ensure the entry to a dwelling is legible and visible'. The fact that the proposed front entry door will not be visible from the street, in his view, diminishes the contribution the dwelling makes to the streetscape. This was the logic behind the inclusion of the condition requiring the relocation of the front door included in the respondent's without prejudice conditions.
Mr Allerding, for the applicants, submitted that the proposed entry is, in his view, consistent and in common with interwar and gold boom dwellings and is also the pattern of many of the existing Gloster Street residences.
In terms of this issue, the Tribunal took the view that the currently proposed location of the door could be considered. The reasons for such a consideration are threefold. Firstly, the existing residence on the subject land has an entry on the side in a similar position. Secondly, while it is not the dominant pattern, there are a number of residences with side entries in the locality. Thirdly, a side entry does reflect a characteristic represented in many gold boom and interwar period buildings.
Having reached the view that a side entry could be considered, the question then becomes whether the proposed location of the front door complies with the provisions of the Scheme and the intent of council policy.
The Tribunal believes that it does for the following reasons. Firstly, in terms of surveillance, the Streetscape Policy essentially sets out two criteria for surveillance. The first is that one needs surveillance of the front door from the inside of the house. Clearly, the current configuration provides such surveillance.
Secondly, surveillance of the street is required from within the house. The currently proposed large windows facing the street in each of the three front rooms provide such surveillance. However, if the front door was relocated into the front façade, it is likely to be a solid door which would effectively replace one of the currently proposed windows. In terms of the extent of passive surveillance of the street from the inside of the house, the current configuration performs better in terms of passive surveillance of the street than the alternative established by the condition suggested by the respondent.
However, the respondent also raised the question of the urban design outcome. While the objectives for urban design outcomes are not particularly explicit in the Streetscape Policy, they are, in the Tribunal's view, a valid concern. Essentially, this is largely a question of legibility and the site viewing provided evidence of some of the problems that can arise in terms of legibility associated with side entries.
In the present case, however, there are a number of mitigating circumstances in terms of potential legibility issues. Firstly, the legibility of the entry from the street will not be compromised by vehicular entry from the street. As there will only be pedestrian access from Chester Street, the overlap and confusion evident in a number of other residences with side entries in the locality will not occur.
Secondly, the entry is emphasised by the verandah which provides a clear focus in terms of identifying the location of the entry.
Finally, the legibility of the entry is likely to be further reinforced by the location of a gate and path to the verandah from the footpath on the street. These three factors should, in the Tribunal's view, provide good legibility in terms of identifying the location of the entry from the street.
For those reasons, the Tribunal is of the view that, given the particular circumstances of this case, the proposed location of the entry complies with the provisions of the Scheme and the intent of council policy. On this basis the Tribunal does not believe that the imposition of the condition is warranted.
Conclusion
The Tribunal is concerned that the original refusal of the application the subject of this review seemed to be based on an aspiration by the respondent to retain the existing dwelling. Moreover, this seems to have been an underlying issue in a number of other recent reviews in the City of Subiaco.
In this regard, the respondent appears to be drawing on cl 2 of the desired future character of the Precinct Policy which reads:
The retention and renovation of the gold boom and inter-war period housing stock should be encouraged.
In other local government areas the Tribunal has, on heritage grounds, supported the retention of more recently constructed and far more physically compromised dwellings than the residence the subject of this review. However, it should be recognised that, unlike those cases, the City has not established an appropriate planning framework to provide support for the retention of such dwellings.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 14 June 2011 with respect to the development application for the demolition of the existing dwelling and the construction of a new single storey dwelling at No 101 (Lot 18) Gloster Street, Subiaco is set aside and a decision is substituted that planning approval is granted for demolition of the existing dwelling and the construction of a new single storey dwelling at No 101 (Lot 18) Gloster Street, Subiaco as indicated on plans received 2 September 2011 subject to the following conditions:
1.The lot is to be stabilised to reduce the likelihood of dust generation as soon as practicable after completion of demolition.
2.Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.
3.Prior to the commencement of demolition, two copies of archival records consisting of the following information are to be submitted to the satisfaction of the Manager, Planning Services:
(a)A site plan prepared at a scale of 1:200 showing the location of all structures on the lot which are to be demolished.
(b)Photographs of all four elevations of the dwelling, its interior and any special architectural features. These photographs are to be appropriately labelled, and are to be provided in plastic archival sleeves.
(c)Any available historical information on the dwelling.
4.Unless required by any other condition of this approval, the development is to be carried out in accordance with the plans and drawings dated (2 September 2011) included with the application for development approval, with only such minor modifications as the Manager, Planning Services approves prior to the commencement of development.
5.All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.
6.All service meters and related infrastructure are not to be placed on the street side of a front fence.
7.Prior to occupation, brickwork finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development. Details of the finishes are to be submitted prior to the commencement of development and to the satisfaction of the Manager, Planning Services.
8.The details of the treatment of the front facade, including window frames, mouldings, sills, verandah posts, finishes and colours, shall be submitted prior to the commencement of development and to the satisfaction of the Manager, Planning Services.
9.Mirrors are to be placed to improve sightlines into the right of way. Plans illustrating the location of the mirrors and improved sightlines are to be provided prior to the commencement of development and to the satisfaction of the Manager, Planning Services.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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