INTERWEST PTY LTD and TOWN OF VINCENT - [2009] WASAT 11

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: INTERWEST PTY LTD and TOWN OF VINCENT [2009] WASAT 11

MEMBER: MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)

HEARD: 28 OCTOBER 2008

DELIVERED : 23 JANUARY 2009

FILE NO/S: DR 312 of 2008

BETWEEN: INTERWEST PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Town Planning – Development application for four attached single dwellings – Side boundary setbacks and twostorey boundary walls – Performance criteria – Streetscape garages

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.6A, cl 6.3.2, cl 6.3.2 P2, Table 2A
State Administrative Tribunal Act 2004 (WA), s 31
Town of Vincent Town Planning Scheme No 1, cl 19, cl 38

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant: Mr J Perrine (as Agent)
Respondent: Mr S Bain (as Agent)

Solicitors:

Applicant: Perrine Architecture
Respondent: SJB Town Planning & Urban Design (Town Planners)

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The matter involved the application for review of a planning application to the Town of Vincent for the development of four two‑storey (with roof deck) attached grouped dwellings.
The proposal was for development to extend to both side boundaries of the site with consequent two‑storey boundary walls.
The subject site has two street frontages. The dwelling living areas were planned to front the principal street address, whereas vehicle access and garaging were planned to be available from the rear street.
The Town of Vincent refused the application on the basis of unacceptable boundary walls and that the garages ‑ four in number ‑ facing the rear street presented an unacceptable impact on the relevant streetscape.
The Tribunal found that the boundary walls were not extensive and that the applicant had sufficiently considered the implications and presented adequate justification against the relevant performance criteria of the Residential Design Codes of Western Australia (2008).
The Tribunal also found that the provision of garages off the rear street was consistent with the usually accepted principle where secondary rear access can visually protect primary streetscapes, and in any event, conformed to a pattern of development that had been established well prior to the development application.
For the above reasons, the application for review was allowed.

Introduction

This application for review is brought by Interwest Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA), and concerns the Town of Vincent's refusal for a proposal to develop four attached two‑storey grouped dwellings, each with roof deck, at No 61 Glendower Street, Perth (site).
On 12 August 2008, the Town of Vincent (Council, Town or respondent) resolved to refuse the application. The reasons stated in the refusal were:
1)impact of the boundary walls;
2)impact on Primrose Street streetscape; and
3)four garages on Primrose Street is considered inappropriate.
Subsequently, through mediation before the Tribunal, the matter was again considered by invitation of s 31 of the State Administrative Tribunal Act 2004 (WA), and refused by Council on 7 October 2008. The previous reasons remained unaltered.
Drawings date stamped 23 September 2008 by the Town (and similarly dated on the architect drawings) were those considered by the Council and refused on 7 October 2008. There had been some amendments to those originally submitted and refused on 12 August 2008. However, at the hearing, both parties agreed that the refusal of 7 October 2008 was the refusal brought before the Tribunal for review and that the proposal as described on the drawings dated 23 September 2008 were those to be considered.
At the commencement of the hearing, a view of the site and the surrounding area was taken in company with both parties.

The site

The site consists of Lot 21 and Lot 22. The site has a 20.42 metre frontage to Glendower Street and 20.49 metre frontage to Primrose Street. The latter was formerly a service right of way but is now widened to approximately 9 metres to act as a normal residential street. The frontage onto Glendower Street has the benefit of a northern aspect.
The site area is 827 square metres and is currently occupied by a disused place of worship. The site rises approximately 1 metre from Glendower Street to Primrose Street.
On the east side, the site is adjoined by a single‑storey residence fronting Glendower Street and is set back approximately 1 metre from the common boundary, with a small screened recess additionally set back a further 0.6 metre. A 1.2 metre ‑ 1.6 metre high (at various points) brick wall divides the two properties.
To the west, the site is adjoined by a three‑storey apartment block set back approximately 2.3 metres from the common boundary. A 1.5 metre ‑ 1.8 metre high (at various points) brick wall divides the two properties. The apartment block setback area is used as a communal drying area. There are windows (apparently pertaining to habitable rooms) overlooking the subject site.
The surrounding land uses comprise a diverse range of housing stock, including terrace houses and single dwellings, together with two‑storey and three‑storey flats. The housing in the area is a mix of earlier development with some more contemporary redevelopment.

The proposal

The current building, which is a former place of worship, is proposed to be demolished and the then vacant site is to be developed with four adjoining two‑storey grouped dwellings, each with a third level open roof deck. The four connected dwellings are proposed boundary to boundary. The living areas of the dwellings are set back from, and generally address, Glendower Street. Double (parking in tandem) garages are accessed off Primrose Street. The single‑storey garages ‑ also each with an open upper level roof deck ‑ are unconnected physically to the living areas but with access across an open courtyard. The two eastern and western end garages respectively are set back 2 metres from their side boundaries.
Whilst the main bulk of the living areas are set back from Glendower Street by approximately 4 metres at the ground floor and 5 metres at the first floor, the plan configuration on the east and west side boundaries allows for respective boundary walls at first floor level (approximately 9.2 metres in length) but which are to be set back commencing approximately 10.8 metres from Glendower Street.

Planning framework

The property is zoned 'Residential R80' under the Town of Vincent Planning Scheme No 1 (TPS 1). Clause 19 of TPS 1 specifies that the development of the land for residential purposes is to conform to the now provisions of the Residential Design Codes of Western Australia (2008) (Codes), and provides, at cl 6.3.2, 'Buildings on Boundary' performance criteria.
Clause 38 of TPS 1 sets out the general provisions with respect to determining applications. The respondent is to have regard to:
(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;
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
The property is relevant to the Town of Vincent Town Planning and Building Policy Manual and is included within the Hyde Park Precinct Policy (Policy 3.1.12), the policy statement for which is:
All residential development is to comply with the Policies relating to the Residential Design Guidelines, Residential development, the Brookman and Moir Streets Design guidelines, Design Guidelines for the the 'Old Bottleyard' and Clause 20 of the Town of Vincent Town Planning Scheme No. 1.
The site is included in the Robertson Locality Plan in the Town of Vincent Residential Design Guidelines (Policy 3.3.23). This document provides a general description of the amenity and pattern of development in the locality.

Issues

From the submissions of both the respondent and the applicant, the Tribunal has identified the following issues.
1)Whether the proposed development is consistent with cl 6.3.2 of the Codes relating to buildings on the boundary.
2)Whether the proposed four garages adjacent to Primrose Street, will have an undue impact on the Primrose Street streetscape.
3)Whether the proposed development is consistent with the amenity of the area.
At the hearing, a further issue was identified and addressed by the parties.
4)Whether the proposal will provide adequate surveillance onto Primrose Street.

The applicant's argument

Mr Perrine is an architect and author of the proposal, and appeared on behalf of the applicant. Mr Perrine submitted in respect of the four issues as follows.

Issue 1 - Whether the proposed development is consistent with cl 6.3.2 of the Codes relating to buildings on the boundary

Mr Perrine referred the Tribunal to his witness statement where each of the performance criteria of the Codes at cl 6.3.2 had been addressed in some detail. The performance criteria of the codes are:
Buildings built up to the boundaries other than the street boundary where it is desirable to do so in order to:
make effective use of space ; or
enhance privacy; or
otherwise enhance the amenity of the development;
not have any significant adverse effect on the amenity of the adjoining property; and
ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
Taking each criterion in turn, the Tribunal has identified Mr Perrine’s justification of the development as follows.
The proposed development uses walls on both boundaries to:
·'make effective use of space' by providing the maximum possible frontage for each of the four units, thus taking maximum advantage of the northerly exposure;
·ensure and 'enhance privacy' by screening the development from the potential overlooking from the western neighbour flats and correspondingly to avoid overlooking of the adjoining neighbours from habitable rooms of the development;
·'otherwise enhance the amenity of the development' by affording each of the four dwellings equal access to both street frontages together with maximum benefits of internal visual amenity and outdoor living areas; and
·'not have any significant adverse effect on the amenity of the adjoining property' by design of the dwellings with the plan configured on the east and west boundaries to allow for the respective boundary walls at first floor level to not commence until set back approximately 10.8 metres from Glendower Street and to be limited to approximately 9.2 metres in length. In this location, the proposed boundary walls coincide with the east and west neighbour's setback areas unused for outdoor living.
Justification in terms of minimising height is submitted by the initiative to set down the ground floor level to correspond to Glendower Street, whereas the adjoining buildings to the west and east are noted to be generally raised, or address the higher Primrose Street level.
In evidence, Mr Perrine drew the Tribunal's attention to a comparison where wall heights for the wall length involved, well in excess of the 5 metres proposed, are permitted under the Codes, with relatively small setbacks from the boundary and with consequent higher visual impact on the adjoining properties.
The Tribunal considers, however, that side setbacks of any significance would impose quite severe frontage restrictions to the four units proposed, possibly requiring replanning, and as such, the example given does not carry the weight intended.
However, the Tribunal accepts the general point made in evidence that the proposal endeavours to minimise the boundary wall heights by aligning the ground floor level to Glendower Street ‑ with steps up to the rear garages ‑ rather than relating to Primrose Street or averaging the two. Additionally, the roof deck and balustrade are stepped back 1 metre from the boundaries. The Tribunal notes here that overlooking of the neighbours from the roof decks is controlled with 1.6 metre obscure screening.
With respect to the final performance criteria of cl .6.3.2 to:
ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted,
Mr Perrine drew attention to annexures to his witness statement where studies are provided to the effect, Mr Perrine submits, that:
resultant sun access impact of the proposed built form of walls to the boundaries is well below shadowing allowable under acceptable development standards.

Issue 2 – Whether the proposed four garages adjacent to Primrose Street will have an undue impact on the Primrose Street streetscape.

Mr Perrine submitted that the proposal responds directly to the 'Desired Future Character' as set out in Policy 3.3.23 where:
Single houses and Terrace houses will continue to be the predominant forms of housing … any development is to be designed sensitively in terms of scale and height, setback and landscaping … and … front set back areas are to be landscaped and, preferably devoid of parking spaces. Where available, on site parking is to be accessed from a right of way.
Mr Perrine submitted, accordingly, that the proposal places all parking onto Primrose Street, and further, that the initiative to do so is consistent with the Town's requirement arising from preliminary approval process discussions.
It was also submitted, arising from the view taken at the commencement of the hearing, that the built form along Primrose Street readily confirms a predominance of double garages already existing, and that the proposal addresses this aspect by minimizing the garage impact by providing vehicle parking in tandem, thus reducing the 'garage frontage' to the equivalent of a single bay for each dwelling. The Tribunal notes this as a substantial benefit to the Primrose Street streetscape.

Issue 3 – Whether the proposed development is consistent with the amenity of the area

In his witness statement, Mr Perrine submitted that the proposed development responds directly to the public consultation process and detailed interaction with the Town's planning staff undertaken at the outset of the application and maintained over 12 months of engagement.
Mr Perrine further submitted that, as a result, amendments to the proposal were undertaken to the satisfaction of the Town's planning staff. He quoted from the officer report taken to Council at the 12 August 2008 meeting:
Furthermore, the subject portion of Glendower Street comprises a diverse range of housing stock including ten town houses, one three[-]storey multiple dwelling building and four single houses ‑ one in a contemporary style with a two[-]storey building boundary wall component. In light of the diverse immediate streetscape, the proposed building boundary walls would not unduly impact on the streetscape. [In] [s]ummary in light of the above, it is recommended that the Council conditionally approve the application as per the Officer Recommendation.
The application before the Tribunal is not that as considered by Council on 12 August 2008. However, Mr Perrine pointed out that, at the consideration of Council on 7 October 2008, the officer report states:
As the subject application was refused by the Council at its Ordinary Meeting held on 12 August 2008, the Officer Recommendation is for refusal as the design has not sufficiently changed to address the Council's reasons for refusal. However the Town's Officers recommended approval of the subject application at the Ordinary Meeting held on 12 August and, as such, the Officers still consider the application worthy of conditional support.

Issue 4 - Whether the proposal will provide adequate surveillance onto Primrose Street

This issue is concerned with surveillance onto Primrose Street to enhance security. Mr Perrine concedes this is a valid concern, and provided the Tribunal at the hearing with evidence that there was proposed visual connection to Primrose Street via permeability of the garages which maintain a direct visual link with the dwelling courtyard and ground floor living areas. In evidence, diagrammatic illustrations were tabled and admitted, which showed the relationship as described, and including that, were the roof deck to the garage structures to be in use, direct overlooking onto Primrose Street would obviously be the case. (The Tribunal again notes here that overlooking from the garage roof decks to the eastern and western neighbours is controlled with 1.6 metre screens.)
Mr Perrine submitted that a secure visually permeable material would be selected and included for use on the rear garage doors and to the adjoining security gate in response to this matter.

The respondent's argument

Mr S Bain, a town planner who appeared on behalf of the respondent, opened at the hearing by reference to the witness statements of a councillor of the Town and two local residents. Mr Bain advised his intention to call the authors of the witness statements. However, the Tribunal recognised that the witness statements were comprehensive and well‑prepared, and, by consent of both parties, the proposed witness statements were admitted into evidence without the witnesses being called for oral evidence or to answer questions. The Tribunal also notes that the respondent cites seven objections received to the proposal, some of which are relevant to the issues.

Issue 1 - Whether the proposed development is consistent with cl 6.3.2 of the Codes relating to buildings on the boundary

The witness statements for the respondent strongly submit that the boundary walls are unacceptable, giving reasons of excessive height and in the fact that the development differs from neighbouring examples by being essentially one of boundary to boundary development, without side setback, and with resulting adverse visual amenity issues.
Mr Bain, in his witness statement, brings the performance criteria of cl 6.3.2 of the Codes into focus and submits that, in effect, the boundary walls are unacceptably high and lengthy, impacting the adjoining premises, and at the eastern end there is some measure of overshadowing of openings.
Mr Bain also referred to cl 3.6A of the Codes, requiring the applicant, as part of the application, to address the performance criteria of cl 3.6.2 of the Codes. The Tribunal accepts that this matter has been addressed in terms of Mr Perrine's witness statement.

Issue 2 - Whether the proposed four garages adjacent to Primrose Street will have an undue impact on the Primrose Street streetscape

The principal thrust of the submissions from the local residents is that the built form of the proposal is not consistent with the existing Primrose Street streetscape, where existing houses are built onto Primrose Street and are integrally above or attached to their respective garages, accessed off the street.
The Tribunal notes that the proposed development does not conform to this pattern and is such that the proposed dwellings are oriented to Glendower Street, with no physical built linkage to Primrose Street which remains, in respect of the development, as a vehicle access point only, with no contribution to the residential quality and environment of the Primrose Street streetscape.
The respondent's witness statements, including plans bound into the respondent’s s 24 bundle, refer in some detail to an alternative proposal which had arisen through negotiation since the application was refused.
No reference was made to this alternative at the hearing and the matter has not been directly drawn to the Tribunal’s attention. In this event and in any case, this application for review remains with the refusal on 7 October 2008 and the relevant drawings dated 23 September 2008.

Issue 3 - Whether the proposed development is consistent with the amenity of the area

Mr Bain submitted to the Tribunal, on the issue of amenity, the definition of 'amenity' taken from TPS 1:
amenity – means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity.
In his witness statement, Mr Bain submits that:
The housing in the area is a mix or original and newer dwellings. Some properties have been developed for 1 ‑ 2 and 3 storey dwellings. Of note construction of two storey walls on both external boundaries is not typical of the area
and also that the Robertson Locality Policy Statement sets out the desired future character of the locality:
New contemporary developments are encouraged provided that the design responds to the established character. The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location and orientation.
In support of adverse amenity issues, Mr Bain submits that:
The proposed development is inconsistent with the established character particularly in terms of building location as [a] two storey wall on both external boundaries is not typical of the area.
Given the existing amenity and the Robertson Locality Policy Statement outlined as above, Mr Bain concludes:
… there would be an expectation from the community that the site would be developed with a development that complies with building setbacks and not buildings on boundaries.
And further goes on to say:
The proposed development is contrary to the orderly and proper planning of the locality and will have an adverse impact on the amenity of the locality given its nil building setbacks and building on boundaries. – and – the overall cumulative impact results in a wider and bulkier development on the site.

Issue 4 - Whether the proposal will provide adequate surveillance onto Primrose Street

Mr Bain did not particularly refer to this issue in evidence, but acknowledged the Town's concern for the matter at the time Mr Perrine brought the issue into review.

Tribunal's findings

In respect of issue 1 ‑ the boundary walls ‑ the applicant has addressed the proposal against the performance criteria in cl 6.3.2 P2 of the Codes. Mr Perrine's submission goes to some length and detail in addressing the criteria and, in the opinion of the Tribunal, puts forward credible discussion for consideration. The respondent's submission takes a more general approach, to the effect, cumulatively, that community and neighbour expectation would not reasonably support a boundary to boundary development to the extent proposed. It was noted, however, at the site view taken at the commencement of the hearing that, although not common, there were individual examples of two‑storey boundary walls ‑ as confirmed by submitted photographic material in Mr Perrine's witness statement.
The Tribunal accepts that two‑storey boundary walls thrust towards a primary street frontage is a likely 'overstatement', where discretion is required by application of the performance criteria of cl 6.3.2 of the Codes, and that reasonable streetscape visual amenity suggests that side boundary setback is desirable at or approaching the street façade. Accordingly, boundary walls of two‑storey (or higher) should not be apparent until substantially recessed from the street boundary.
This, in fact, is the case here, where the subject boundary walls at first floor do not occur within 10.8 metres' setback from the street and consequently will be barely visible as a streetscape issue.
The question of two‑storey boundary walls does not arise in respect of the Primrose Street frontage.
In respect of the adjoining neighbours, although it was not brought forward in evidence, the Tribunal considers it relevant that, compared to a site side boundary dimension of 40.42 metres, the boundary first floor walls represent a small proportion of only 9.2 metres.
As to issue 2, the Tribunal notes the concern expressed by submissions from local residents that the proposed dwellings are oriented to Glendower Street, and Primrose Street remains, in respect of the development, as a vehicle access point with little contribution to a desired residential quality and environment of the Primrose Street streetscape.
However, the exposure of garages and vehicle access off Primrose Street is submitted by the applicant as being encouraged by the Town (as preferable to exposure to Glendower Street), and the Tribunal accepts that defence of the Glendower Street streetscape would inevitably lead to this outcome. At the site view taken at the commencement of the hearing, it was noted that there existed both individual and quite extensive examples of garage exposure to Primrose Street.
For reasons that have been outlined, it is difficult to challenge that vehicle access and consequent garaging are located removed from the principal street address, and while the Tribunal respects the contrary ambition of Primrose Street residents, there has to be an understanding of this factor. It is noted that there already exists extensive examples of garage exposure onto Primrose Street. The fact that the applicant has limited the garage frontage of each dwelling to 'single width' is acknowledged as an important factor in consideration of this issue.
With regard to issue 3, the definition of 'amenity' submitted by the respondent has emphasis on character. It is common ground that, at least in general terms, Glendower Street, in the vicinity of the proposed development, is a mix of earlier and newer development of different height and street presentation. It is therefore not unreasonable to say that there is little definitive character which can be relied upon to drive development standards in the streetscape sense.
The same can be said of Primrose Street, although, in the opinion of the Tribunal, the extent of garage frontages is a dominant characteristic to which the development, in this case, conforms.
It is accepted that the status of street and residential streetscape in respect of Primrose Street is not respected when lined with nil setback garage access, and the respondent's statements in support are, in turn, acknowledged in principle. However, given that a four‑unit development is acceptable (there has been no suggestion to the contrary or of overdevelopment), the proposed design is logically 'terraced' along the street frontages, and for reasons advanced by the applicant, vehicle access off Primrose Street is difficult to challenge. The applicant's endeavour to minimise streetscape impact with 'single width' frontage is acknowledged as a reasonable understanding to address this issue.
Issue 4 ‑ the aspect of security surveillance onto Primrose Street ‑ is consciously addressed by the applicant with the proposal for perforated material. The Tribunal considers, however, that it remains for the applicant to adequately demonstrate to the respondent that an effective solution can be delivered.

Orders

For the above reasons the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the Town of Vincent made on 7 October 2008 to refuse the development application is set aside and a decision granting approval is substituted, subject to the following conditions.
3.The development must be carried out in accordance with plans drawn by Perrine Architecture entitled 'Hyde Park Residence' and numbered A0.01B, A0.02D, A0.03D, and A1.01E, A1.02E, A2.01E, A2.02B, all as dated 23.9.2008 and subject to the following conditions.
(i)A demolition licence shall be obtained from the Town of Vincent prior to commencement of any demolition works on‑site.
(ii)An archival documented record of the place (including photographs, floor plans and elevations) for the Town of Vincent's Historical Archive Collection shall be submitted and approved prior to the issue of a demolition licence.
(iii)All external fixtures, such as television antennas (of a non-standard type), radio and other antennas, satellite dishes, external hot water heaters, air conditioners and the like, shall not be visible from the street(s), are designed integrally with the building, and are to be located so as not to be visually obtrusive.
(iv)First obtaining the consent of the owners of No 59 and No 75 Glendower Street for entry onto their land, the owners of the subject site shall finish and maintain the surface of the boundary (parapet) walls facing No 59 and No 75 Glendower Street in a good and clean condition.
(v)Prior to the issue of a building licence, revised plans shall be submitted and approved demonstrating any new street/front wall, fence and gate between the Glendower Street boundary and the Primrose Street boundary, and the main building, including along the side boundaries within this front setback area, complying with the following:
(a)the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(b)decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2 metres above the adjacent footpath level;
(c)the maximum width, depth and diameter of posts and piers being 350 millimetres;
(d)the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and
(e)the provision of a minimum 1.5 metre truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3 metres by 3 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level.
(vi)The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes of Western Australia and the Town of Vincent's Policies.
(vii)Prior to the issue of a building licence, the subject site shall be amalgamated into one lot on the Certificate of Title; or alternatively, prior to the issue of a building licence, the owner(s) shall enter into a legal agreement with and lodge an appropriate assurance bond/bank guarantee to the satisfaction of the Town of Vincent, which is secured by a caveat on the Certificate(s) of Title of the subject site, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent, undertaking to amalgamate the subject site into one lot within six months of the issue of the subject building licence. All costs associated with this condition shall be borne by the applicant/owner(s).
(viii)The proposal to be amended to ensure visually permeable tilt‑up doors to each garage and to each security gate between the courtyards of the four dwellings and Primrose Street to the satisfaction of the Town of Vincent.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR A EDNIE-BROWN, SENIOR SESSIONAL MEMBER

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