Iemma and Town Of Vincent
[2009] WASAT 34
•27 FEBRUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: IEMMA and TOWN OF VINCENT [2009] WASAT 34
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 10 FEBRUARY 2009
DELIVERED : 27 FEBRUARY 2009
FILE NO/S: DR 523 of 2008
BETWEEN: FRANK IEMMA
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development Residential Design Elements Policy Lofts Dormer windows Resemble an additional storey Minor projections Compliance with Residential Design Codes of Western Australia (2008) Matters to be considered under the Scheme Impacts on surrounding buildings
Legislation:
Planning and Development Act 2005 (WA), Pt 3
Residential Design Codes of Western Australia (2008), cl 6.3, cl 6.7, Appendix 1, Table 3
Town of Vincent Town Planning Scheme No 1, cl 6.3(a), cl 18, cl 19, cl 20(5), cl 33, cl 38, cl 38(5), cl 38(5)(i), cl 40, cl 47
Result:
The application for review is dismissed and the decision of the respondent affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr SJ Bain (as Agent)
Solicitors:
Applicant: Self-represented
Respondent: SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Dumbleton and Town of Bassendean [2005] WASAT 145
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 24 April 2008, Mr Frank Iemma submitted an application for approval to commence development to the Town of Vincent seeking approval for the demolition of the existing residence at No 40 (Lot 2) Melrose Street, Leederville and the construction of two two-storey grouped dwellings. Relevantly, each of these dwellings incorporated a loft within the roof space.
On 6 August 2008, the Town of Vincent, under delegated authority, granted approval to the application subject to a range of conditions. On 8 September 2008, the applicant submitted a second application, similar to the first, for approval to commence development incorporating windows rather than rooflights to the loft areas and a 'chimney feature' on the side of each dwelling.
At its meeting of 2 December 2008, the Council resolved to refuse the amended plans, and an application for review of this decision was subsequently lodged by Mr Iemma with the Tribunal on 31 December 2008.
The parties agreed the issues were whether the proposed windows to the lofts and 'feature chimneys':
•were consistent with orderly and proper planning and the preservation of the amenities of the locality; and
•complied with the number of storeys and building height requirements of the Council's Policy No. 3.2.1 – Residential Design Elements.
While the Tribunal accepted the evidence of the applicant that the dormer windows provided more articulation in the façade, more importantly, it accepted the evidence of the respondent that the dormer windows did resemble an additional storey, particularly when viewed from the street. In this context, the Tribunal determined that the proposed dormer windows infringed, in a number of respects, current Council policy and that, in the particular circumstance of this case, there did not appear to be any cogent reasons for not applying the policy.
In regard to the height of the 'feature chimneys', the Tribunal found that the height provisions of the Residential Design Codes of Western Australia (2008) specifically exclude minor projections, and Council policy explicitly states that minor projections are exempted from building height.
The Tribunal did, however, express reservations regarding the interpretation of the parties that the proposed chimney/feature walls constituted minor projections. However, even if this interpretation was accepted and, in spite of the fact that the chimneys complied with the relevant provisions of the Residential Design Codes of Western Australia (2008), the provisions of the Town of Vincent Town Planning Scheme No 1 still require the Council, and the Tribunal on review, to have regard to the issues of scale and the relationship to existing buildings of any proposed building or structure. In the Tribunal's view, the proposed addition of the feature chimneys would substantially increase the perceived impact of the proposed dwellings from the adjoining properties and for this reason should not be supported.
For these reasons, the application for review was dismissed and the decision of the respondent affirmed.
Background
On 24 April 2008, Mr Frank Iemma (applicant) submitted an application for approval to commence development to the Town of Vincent (Town, Council or respondent), seeking approval for the demolition of the existing residence at No 40 (Lot 2) Melrose Street, Leederville (subject land) and the construction of two two‑storey grouped dwellings. Relevantly, each these dwellings incorporated a loft within the roof space.
On 6 August 2008, the Town, under delegated authority, granted approval to the application subject to a range of conditions.
On 8 September 2008, the applicant submitted a second application for approval to commence development. The proposal the subject of this second application was similar to the first application, with two exceptions:
•The windows to the loft areas, which, in the approved plans had been south‑facing double‑glazed rooflights aligned with the slope of the roof, were now proposed as windows under a section of new roof sloping down toward the north projecting from the main roof.
•A 'chimney feature' had been added to both the western and eastern elevations. This feature cantilevered out over the ground floor setback, provided cupboard space at the first floor level and then narrowed from 3.6 metres to approximately 2.3 metres and projected up past the roof ridge by approximately 700 millimetres. It was proposed that these features would be clad in feature strip stonework.
At its meeting of 2 December 2008, the Council resolved to refuse the amended plans for the following reasons:
(i)the development is not consistent with orderly and proper planning and the preservation of the amenities of the locality;
(ii)the non‑compliance with the number of storeys and building height requirements of the Council's Policy No. 3.2.1 – Residential Design Elements; and
(iii)consideration of the objections received.
An application for review of this decision was subsequently lodged by the applicant with the Tribunal on 31 December 2008.
Subject land
The subject land comprises an area of 438 square metres located on the northern side of Melrose Street. The subject land is located towards the western end of the street adjacent to the off-ramp from Mitchell Freeway. There is one further lot to the west of the subject land, while the alignment of the off-ramp means that on the western end of Melrose Street there are no houses on the southern side of the street. A right of way runs east‑west along the northern boundary of the subject land.
The existing building on the subject land comprises a modest single‑storey brick and tile residence. The house is set back approximately 6 metres from the street boundary, with a brick screen wall on the western side of the block and an open carport with a flat metal deck roof located in the front setback on the eastern side of the block.
Locality
The subject land falls within the Leederville Precinct in a predominantly residential area located between Oxford Street to the east and Mitchell Freeway to the west.
In the immediate locality, the area between Oxford Street and Mitchell Freeway constitutes an example of a rectangular grid road and subdivision pattern separated from the freeway to the west by Richmond Reserve and Britannia Reserve. As noted above, the off-ramp from Mitchell Freeway cuts across Melrose Street at an angle precluding any residential development on the southern side of the western end of the street.
Melrose Street is characterised by predominantly single‑storey development. Mr Bain, for the respondent, gave evidence that, of the 28 residences in the street, 21 (or 75%) were single‑storey, six (or 21%) were two‑storey and one (or 4%) was three‑storey. This evidence was not challenged in the hearing. Importantly, the three‑storey residence, at No 19 Melrose Street, was located on the southern side of the street. This side of the street falls within the Oxford Centre Precinct and is zoned R80, while the northern side of the street falls within the Leederville Precinct and is zoned R60. The two precincts have different height controls.
The locality is starting to undergo a transition with a number of more recent redevelopments both within the street and the broader area. The majority of these new developments are two‑storey residential developments, often forming part of group housing developments, where larger lots support three dwellings under the current planning provisions.
Approved development
The development approved by the Council on 6 August 2008 involved the construction of two grouped dwellings side by side on the subject land.
These dwellings were set back approximately 14 metres from the street behind a carport and tandem car bay for each dwelling. On the ground floor, the dwellings share a common wall and extend to both of the lot boundaries with a small courtyard located centrally on each boundary. The first floors are set back 1.367 metres from the side boundaries, as are the lofts above.
The dwellings have a pitched roof which is steeper on the street side and more gradual on the northern side. External living space is located on the northern side of the dwellings.
Statutory and policy provisions
The subject land is zoned Residential R60 under the provisions of the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme) and falls within the Leederville Precinct.
Clause 6 of TPS 1 sets out the objectives and intentions of the Scheme and subclause (3)(a) establishes the following general objectives:
to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;
Clause 18 of TPS 1 delineates the source of development requirements and states that:
Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential Planning Codes.
Clause 19 of TPS 1 requires that, unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia (2008) (Codes) is to conform to the provisions of those Codes, while cl 20(5) of TPS 1 states that the Council will consider variations to the Codes where it considers that acceptable levels of residential amenity can be achieved.
Clause 38(5) of TPS 1 sets out matters to which the Council shall have regard in determining an application and includes the following:
…
(b)any relevant planning policy;
…
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Clause 40 of TPS 1 sets out the requirements necessary for the Council to grant approval to a non‑complying application. These include advertising; the requirement for an absolute majority in taking the decision; a requirement that the development would be consistent with the orderly and proper planning of the locality; and the conservation of the amenities of the locality, and would not have any undue adverse affect on the property in, or the inhabitants of, the locality.
Clause 47 of TPS 1 provides powers for the Council to make planning policies which relate to an aspect or aspects of development control or any other matter relevant to this Scheme.
The relevant Council policy in this matter is Policy No 3.2.1 - Residential Design Elements (policy) which was adopted by the Council on 18 December 2007. This policy sets out in some detail the provisions for both the exercise of discretion in regard to building height and the parameters governing the development of lofts.
In regard to building height, the policy establishes a maximum height of two storeys and reiterates the provisions of Table 3 Category B of the Codes; that is, maximum allowable height to the top of an external wall is 6 metres and the maximum allowable height for the top of a pitched roof is 9 metres.
The policy states that three‑storey dwellings are generally not compatible in scale and dominate existing development in the Town, and therefore are generally not supported.
The policy also stipulates that development that proposes a variation to the building height requirements must comply with the following:
•the upper floor being set back from the primary street property boundary such distance to adequately protect the streetscape and surrounding amenity;
•the upper floor being articulated and set back from the side property boundaries to minimise impact on the affected neighbours (refer to cl 6.4.2 (iii)); and
•compliance with the overshadowing and privacy requirements of the [Codes].
Clause 7.4.6 of the policy defines a loft as 'the space contained between the roof pitch and the top of the ceiling of the storey immediately below it' and requires that 'A loft addition must not represent or resemble an additional storey but must be wholly contained within the roof space of the proposed or existing dwelling. It does not constitute as an additional storey if wholly contained within the roof space'.
The acceptable development criteria for lofts are set out as follows in the policy:
(a)Lofts are to be contained between the roof pitch area (no less than 35 degrees and no greater than 45 degrees) and the top of the ceiling of the storey immediately below;
(b)Lofts are not to:
•increase the bulk of the building;
•resemble an additional storey;
•cause undue overshadowing of adjacent properties and open spaces;
•unduly overlook adjoining properties; and
•result in relaxation of other requirements (especially height and setbacks) to accommodate useable floor area for lofts.
(c)Dormer windows and gables to lofts are to comply with the following requirements:
•Not project beyond the roof pitch nor exceed 2.4 metres above the loft finished floor level, whichever is the greater.
•Maximum aggregate length of 4.5 metres or 20 per cent of the length of the dwelling on that particular elevation, whichever is the lesser.
Issues for determination
It was agreed between the parties that the two issues under review were whether the proposed windows to the lofts and 'feature chimneys':
•were consistent with orderly and proper planning and the preservation of the amenities of the locality; and
•complied with the number of storeys and building height requirements of the Council's policy.
The proposed windows to the lofts
The respondent argued that the addition of the two south‑facing windows caused the proposed lofts to resemble a third storey, and that this was not consistent with the definition of a loft established by Council policy. In reaching this conclusion, Mr Bain submitted that the proposed lofts were not contained within the roof pitch, increased the bulk of the building and resembled an additional storey, particularly when viewed from the street.
The applicant argued that there were a number of built examples in the Leederville Precinct of two‑storey developments with lofts and dormer windows. In making this submission, the applicant provided photographs of a range of such built examples.
The applicant also argued that, as the loft has previously been approved, the only substantive issue was the policy provisions in regard to dormer windows, and on this point, he submitted that the proposed development generally complied.
Clause 7.4.6 of the policy requires that 'A loft addition must not represent or resemble an additional storey but must be wholly contained within the roof space of the proposed or existing dwelling'.
On this issue, the Tribunal rejects the submission of the applicant that the proposed development complies as the loft was previously approved, and accepts the evidence of the respondent that the proposed lofts are not contained within the roof pitch. The reason for this finding is that the windows are located under a separate section of roof which slopes up toward the south within a larger area of roof which slopes down to the south, and that this separate section projects above the main roof.
In addition, Council policy requires that lofts are not to:
•increase the bulk of the building;
•resemble an additional storey;
•cause undue overshadowing of adjacent properties and open spaces;
•unduly overlook adjoining properties; and
•result in relaxation of other requirements (especially height and setbacks) to accommodate useable floor area for lofts.
In this regard, while the Tribunal accepts the evidence of the applicant that the dormer windows provide more articulation in the façade, it more importantly accepts the evidence of Mr Bain that the dormer windows do resemble an additional storey, particularly when viewed from the street. The main reason for this impression is the scale, and particularly in this context the height, of the windows, which are approximately 1.35 metres high. This gives them a visual impact normally associated with a separate floor, rather than that of a contributory element incorporated within a visually dominant roof.
The policy further requires dormer windows to lofts to comply with the following requirement:
•Maximum aggregate length of 4.5 metres or 20 per cent of the length of the dwelling on that particular elevation, whichever is the lesser.
The proposed windows are each approximately 2,200 millimetres long, establishing an aggregate length of 4,400 millimetres. The length of the dwellings on the southern elevation at the first floor level is approximately 8 metres. Thus, the proposed windows represent some 55% of the length of the elevation.
In this context, the Tribunal determined that the proposed dormer windows infringe, in a number of respects, current Council policy. Moreover, in the particular circumstance of this case, there do not appear to be any cogent reasons for not applying the policy. The northern side of Melrose Street is currently characterized predominantly by single‑storey residences and, although this will no doubt change over time as new two‑storey residences are developed, this proposal would introduce a discordance element within the streetscape.
The proposed 'feature chimneys'
The applicant argued that cl 7.4.5(ii) of the policy, which addresses the measuring of building height, states:
Minor projections such as chimneys, TV aerials, satellite dishes, vent pipes and air conditioners are exempt from building height, however are addressed as incidental development in the [Codes].
On this basis, the applicant is of the view that the chimney/feature element of the proposed development should be exempt from calculation of building height.
The respondent submitted that the chimney/feature walls infringed both the Codes and Council policy as they are proposed to be 9.7 metres to the top of the external wall, and this constitutes a significant variation to the required wall height of 6 metres to the top of the external wall established by the Codes and Council policy.
The respondent did not challenge the interpretation of the applicant that the chimney/feature walls constituted minor projections under the Codes and Council policy.
As minor projections do not constitute incidental development under the provisions of the Codes, the clause cited by the applicant is not particularly helpful. It was the respondent's views that, given its inadequacies, the provisions of the Codes should be relied upon in preference to Council policy. Further, in his submission, while the Codes made provision for the relaxation of setbacks in regard to minor projections, they did not provide provisions for the relaxation of height controls for such projections.
However, in spite of its drafting inadequacies, the cited clause does reflect the intent of the Codes in exempting minor projections from the height control established by Building Height provisions of cl 6.7 of the Codes. This interpretation is established by the definitions of 'height' and 'minor projection' in the Codes:
Height, building
The vertical distance at any point from natural ground level to the uppermost part of the building above that point (roof ridge, parapet or wall) excluding minor projections above that point. (Emphasis added)
Minor Projection
•In relation to the height of a building a chimney, vent pipe, aerial or other appurtenance of like scale;
On this point, the Tribunal accepts the evidence of the applicant. The Codes, in the definition of 'building height' in Appendix 1, specifically exclude 'minor projections above that point', and Council policy at cl 7.4.5(iii) explicitly states that minor projections are exempted from building height.
Clearly, it is possible to challenge the interpretation of the parties that the proposed chimney/feature walls constitute minor projections and the Tribunal has reservations with this interpretation for the following reason. The definition of 'minor projection' set out in Appendix 1 of the Codes refers to a number of elements (chimney, vent pipe, aerial) which are all generally vertical components characterized by a very limited footprint. The two chimney/feature walls proposed comprise a footprint of approximately 2.16 square metres each at first floor level and could be regarded an 'appurtenance' of a different scale.
However, even if the interpretation of the parties is accepted, and in this case the minor projections meet the acceptable development provisions of cl 6.3 of the Codes in relation to building setbacks from the boundary, in Dumbleton and Town of Bassendean [2005] WASAT 145 (Dumbleton), the Tribunal argued that the respondent, and the Tribunal on review, retained a discretion under TPS 1 to refuse an application for residential development which conformed to all relevant provisions of the Codes.
Clause 33 of TPS 1 requires the applicants to obtain planning consent for the development of any land or building in the Scheme area. Clause 38(5) of TPS 1 requires that, in determining an application, the Council have regard to specified matters of which the first consideration listed is 'the provisions of this Scheme', which include, under cl 19 of TPS 1, that 'the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of those Codes'.
In Tangelo Design Consultants and Town of Vincent [2005] WASAT 67, at [42], the Tribunal argued that:
In most planning assessments, the fact that a development conforms to a relevant provision of the [Codes] is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration.
In Dumbleton, the Tribunal argued that:
On its proper construction, the Scheme permits the refusal of an application for planning consent where, taking into account each of the relevant considerations identified in the matters to which the Council shall have regard, it is appropriate, in the exercise of planning discretion, to refuse the application.
At cl 38 of TPS 1, subclause (5)(i) requires the Council to have regard to 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure'.
The currently approved plans have two sections of wall on the boundary; these comprise approximately 3.2 metres and 12.4 metres in length respectively and are separated by a narrow courtyard 6.8m long. The first floor of each dwelling is set back 1.367 metres from the boundary.
The proposed 'feature chimneys', which appear to function as a built‑in cupboard for Bedroom 1 of each dwelling , project into the side setback at the first floor level over the ground floor courtyards. In the context of the relaxations of side setbacks already provided in the approved plans, and the minimal setbacks of the adjoining residences to both the east and west, the addition of the chimneys will substantially increase the perceived impact of the proposed dwellings from the adjoining properties.
In this context, and in spite of the fact that if one accepts the parties' interpretation of the chimneys as minor projections, they comply with the provisions of the Codes, the Tribunal finds the chimneys do not fulfill the requirements of cl 38(5) of TPS 1 in that they exacerbate the impact of the proposed dwellings on surrounding buildings. For this reason they should not be supported.
Conclusion
The applicant in this matter argued that the proposed development represented an improvement on that previously approved. This was based on the increased articulation of the façade generated by the chimney features and dormer windows, particularly when the development is viewed from the street. While this may well be the case, such an argument is clearly not determinative of the matter.
The proposed variations to the previously approved plan clearly infringe specific provisions of Council policy and matters requiring consideration under the Scheme.
In regard to the dormer windows, the Council has a clear policy on the matter. This policy has, on the evidence provided to the Tribunal, been applied with some consistency in the locality, and there do not appear to be any circumstances in the present case to warrant deviation from the policy.
The feature chimneys, in spite of the fact that they may comply with the provisions of the Codes, will substantially increase the perceived impact of the proposed dwellings from the adjoining properties. Having regard, as is required by the Scheme, to 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure', they should not be supported.
For these reasons, the application for review is dismissed and the decision of the respondent affirmed.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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