Jacobs and Anor and City Of Subiaco
[2007] WASAT 132
•29 MAY 2007
JACOBS & ANOR and CITY OF SUBIACO [2007] WASAT 132
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 132 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:467/2006 | 21 MAY 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) MR P PINDER (SENIOR SESSIONAL MEMBER) | 29/05/07 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Development approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | ROBERT ALLAN JACOBS LORILI AUDREY JACOBS CITY OF SUBIACO |
Catchwords: | Town planning Development application Demolition of single house and construction of four residential units R80 code Locality comprises varied built form and uses Proposed building includes two sections of three level boundary development with third level in form of steeply pitched colorbond metal sheet roofing set back 300 millimetres to 500 millimetres Whether undue adverse impact on adjoining residential unit or the general amenity of the locality Whether modifications including sinking of building and replacement of masonry balcony privacy screen with a glass screen warranted Plot ratio Whether balconies "open" on at least two sides Whether glazed privacy screen precludes balcony from being "open" Whether streetscape impact of boundary development viewed across open car park of adjoining site is acceptable Whether treatment of second level of boundary development warranted to mitigate bulk Boundary setbacks Onsite parking provision Five onsite spaces provided whereas Acceptable Development provision requires seven spaces Whether adequate car parking provided having regard to type of dwellings, onstreet parking and location of site relative to transport and other facilities Solar and environmentally sound design principles |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 12(1), cl 27(4), cl 27(4)(g), cl 27(4)(h), cl 37, cl 39(3), cl 41(2), cl 42(4), cl 42(4)(a), Sch 1 Environmental Protection (Noise) Regulations 1997 (WA) Local Government (Miscellaneous Provisions) Act 1960 (WA), s 391(2) Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.1, cl 3.3.1 A1, cl 3.3.2, cl 3.3.2 A2, cl 3.5.1 A1, cl 3.5.1 P1, cl 3.5.4 P4, Table 1 |
Case References: | Drake and City of South Perth & Anor [2005] WASAT 271 Fryer and City of Subiaco [2006] WASAT 199 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent to refuse development approval for the demolition of a single house and outbuildings and for the erection of a building comprising four dwellings and five on-site car bays is set aside and a decision is substituted that development approval is granted for the development subject to the following conditions:,(a) The development shall be carried out in accordance with the plans drawn by Iredale Pedersen Hook Architects job no 0514 revision number 5.3 drawing nos DA1.01, 1.02, 1.03, 1.04, 1.05, 2.01, 2.02, 2.03, 2.04, 2.05, 3.01, 3.02, 3.03, 3.04 and 3.05 (in accordance with treatment Option 3 colorbond roofing and coloured render) dated 25 January 2007 except as modified by the following conditions.,(b) Car bay 6 shall be deleted and car bay 5 moved to the position shown on drawing DA 2.01 revision 5 dated 25 July 2006 and the four scooter bays and the features of the rear courtyard as shown on that plan shall be implemented. At least one car bay shall be allocated to each of the four units.,(c) The automated entry gates are required to be relocated to the north a sufficient distance to enable vehicles exiting the development to stop to the south of the entry gates and to the north of the footpath.,(d) The first floor balcony associated with residence 2 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on both the eastern and northern side. ,(e) The first floor balcony associated with residence 4 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the eastern side. ,(f) The first floor balcony associated with residence 3 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western side. ,(g) The second floor balcony associated with residence 2 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the northern side.,(h) The second floor balcony associated with residence 4 in the western side is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western side.,(i) The second floor balcony associated with residence 4 in the eastern side is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western, northern and southern sides.,(j) The redundant crossover located on the western side of the property is to be removed at the owner's expense prior to the occupation of the building.,(k) The bicycle hung over the pedestrian walkway adjacent to residence 4 is to be deleted as it does not comply with AS 2890.3 – 1933 Clause 2.5.2 relating to Safety of Pedestrians.,(l) The western boundary wall is to be finished in a manner that reduces its apparent bulk and which provides architectural interest, details of which are to be provided prior to construction and be to the satisfaction of the City.,(m) Brickwork and 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 which are to be submitted prior to commencement of the development.,(n) All car bay dimensions are to accord with Australian Standard AS 2890.1.,(o) Where the finished floor level of the carport/garage is lower than the boundary levels at the point of access, drainage must be provided at the carport/garage entrance to prevent stormwater entering the carport/garage.,(p) The basement car parking area is to be protected against the inflow of water to a level of 0.5 metre above finished floor level of the car parking area.,(q) Crossovers are to be provided and constructed in accordance with the City's Policy 14.2.3.,(r) A 1.5 metre x 1.5 metre visual truncation is to be provided on the western side of the access driveway and is to be maintained at all times. No walls, landscaping or visually impermeable fences greater than 0.75 metre in height above natural ground level are to be located within this truncation.,(s) Pedestrian access is to be provided separate from or adjacent to vehicular access.,(t) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Residential Design Codes and the City's relevant policies.,(u) Any new or replacement fencing is to conform to the requirements of the City's Perimeter Fencing Policy.,(v) 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.,(w) All service meters and related infrastructure are not to be placed on the street side of a front fence.,(x) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.,(y) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and reinstated is to be to the satisfaction of the Director Technical Services. Infrastructure in the road reserve includes but is not limited to roads, rights of way, kerbs, drainage, footpaths, driveways and street trees.,(z) The redundant crossover is to be removed and the kerb and verge are to be reinstated at the owners cost in accordance with the Activities and Thoroughfares in Public Places Local Law.,(aa) The existing level of the footpath is to be maintained.,(bb) Where it is intended to construct a building within 3.0 metres of a building on a separate lot, and any part of the proposed building or structure within that 3.0 metres extends to a lower level than the foundations of the adjoining building, the subject building owner is required to give at least 35 days notice to the adjoining owner under s 391(2) of the Local Government (Miscellaneous Provisions) Act 1960 (WA).,(cc) All mechanical service systems including air-conditioners and pool filters etc are to be designed and installed to prevent emitted noise levels from exceeding the relevant decibel levels as set out in the Environmental Protection (Noise) Regulations 1997 (WA)(as amended). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JACOBS & ANOR and CITY OF SUBIACO [2007] WASAT 132 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
MR P PINDER (SENIOR SESSIONAL MEMBER)
- LORILI AUDREY JACOBS
Applicants
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Demolition of single house and construction of four residential units R80 code Locality comprises varied built form and uses Proposed building includes two sections of three level boundary development with third level in form of steeply pitched colorbond metal sheet roofing set back 300 millimetres to 500 millimetres Whether undue adverse impact on adjoining residential unit or the general amenity of the locality Whether modifications including sinking of building and replacement
(Page 2)
of masonry balcony privacy screen with a glass screen warranted Plot ratio Whether balconies "open" on at least two sides Whether glazed privacy screen precludes balcony from being "open" Whether streetscape impact of boundary development viewed across open car park of adjoining site is acceptable Whether treatment of second level of boundary development warranted to mitigate bulk Boundary setbacks Onsite parking provision Five onsite spaces provided whereas Acceptable Development provision requires seven spaces Whether adequate car parking provided having regard to type of dwellings, onstreet parking and location of site relative to transport and other facilities Solar and environmentally sound design principles
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 12(1), cl 27(4), cl 27(4)(g), cl 27(4)(h), cl 37, cl 39(3), cl 41(2), cl 42(4), cl 42(4)(a), Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 391(2)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.1, cl 3.3.1 A1, cl 3.3.2, cl 3.3.2 A2, cl 3.5.1 A1, cl 3.5.1 P1, cl 3.5.4 P4, Table 1
Result:
Application for review allowed
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicants : Mr MC Hotchkin
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicants : Hotchkin Hanley
Respondent : Allerding & Associates (Town Planners)
(Page 3)
Case(s) referred to in decision(s):
Drake and City of South Perth & Anor [2005] WASAT 271
Fryer and City of Subiaco [2006] WASAT 199
(Page 4)
Summary of Tribunal's decision
1 Mr and Mrs Jacobs sought review of the refusal of a development application for the construction of a building comprising four residential units. The building included two sections of boundary walls of three storeys in height with the uppermost storey in the form of a steeply pitched colorbond metal structure set back approximately 300 millimetres at its base and approximately 500 millimetres at its top. The application for review principally involved an assessment of the impact of the boundary walls on the amenity of an adjoining property and on streetscape, and whether five on-site car bays were adequate in the circumstances.
2 The Tribunal determined that the bulk and scale of part of the boundary wall adjacent to the balcony of an adjoining unit was unwarranted and excessive in the form in which it was presented to and rejected by the Council. However, modified plans presented to the Tribunal indicated significant changes to the relevant portion of the proposal which had the effect that there would not be any undue adverse visual impact. In passing, the Tribunal noted that glazed privacy screens would not generally preclude a balcony from being "open" with the consequence that the balcony would be excluded from plot ratio calculation. The Tribunal determined that there would not be any undue adverse impact in terms of overshadowing.
3 The Tribunal also determined that the bulk and scale of part of the boundary wall which would be apparent within the streetscape across an open car park on an adjoining property was unwarranted and excessive in the form in which it was presented to and rejected by the Council. However, modified plans showed treatment options for the second level wall to mitigate its bulk and scale of which the option of colorbond roofing and coloured render had the effect that there would not be any undue adverse impact in terms of streetscape.
4 The Tribunal determined that five on-site car bays were adequate, given that although two two-bedroom units would have only one car bay each, these units are unlikely to be occupied by more than two people, time-limited on-street parking is available and the site is located within 350 metres of extensive commercial and retail facilities, within 250 metres of bus stops and within 550 metres and 750 metres of railway stations.
(Page 5)
5 The application for review was allowed and conditional development approval was granted in accordance with the modified plans.
Introduction
6 Mr and Mrs Jacobs seek review, in accordance with s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the City of Subiaco (City or Council) to refuse their development application for the demolition of a single level single house and for the erection of a three level building comprising four residential units at No 440 (Lot 24) Barker Road, Subiaco (site).
Site and locality
7 The site has a regular, rectangular shape, a frontage of 13.48 metres to Barker Road to the south, a length of 37.28 metres, and an area of approximately 503 square metres. The site is located on the northern side of Barker Road at its western end. The western end of Barker Road between Railway Road to the west and Raphael Street to the east comprises varied and eclectic built form and uses as follows:
• on the northern side from west to east, an original single dwelling fronting Railway Road, a single dwelling, a mixed commercial/residential development with two medical consulting rooms at ground level and a residential unit above with a large open car park at the street (adjoining the site to the west), the single house on the site, two single level single houses, a three level block of residential units on what appears to be three original allotments, two level medical consulting rooms and two level residential units; and
• on the southern side from west to east, the multiple level King Edward Memorial Hospital building behind a landscaped area and part of a heritage hospital building, a large open car park for the hospital (opposite the site) and a four level block of residential units occupying the whole of the Barker Road frontage between Loretto Street and Raphael Street.
8 The site and adjoining and adjacent properties on the northern side of Barker Road are zoned "Residential" with a residential density coding of "R80" under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme). The R80 code is identified in Table 1 of the Residential Design
(Page 6)
- Codes of Western Australia (2002) (Codes) as a high density code. The site and locality is within the West Subiaco Precinct for the purposes of cl 37 of TPS 4. The hospital and its car park is zoned "Public Purposes – Hospital" and the site of the residential flat building between Loretto Street and Raphael Street is zoned "Residential" with a residential density coding of "R80" under the Scheme. The northern boundary of the site forms the zoning boundary with the Town Centre zone. The property immediately adjoining the site to the north comprises a veterinary clinic.
9 The site is located approximately 350 metres to the west of the Rokeby Road retail and commercial precinct. The site is located 550 metres from Daglish Railway Station and approximately 750 metres from Subiaco Railway Station. Bus stops are located within approximately 250 metres of the site.
Proposed development
10 The proposed building is substantially divided into two building blocks located in the southern and northern parts of the site. The lowest level comprises entrance to the car park along the eastern side, five car parking bays, front courtyards to Units 1 and 2, rear communal courtyard and part of each of the residential units comprising the home office of Units 1, 2 and 4 and the bedroom of Unit 3. The second level comprises bedroom 1 of Units 1, 2 and 4, kitchen, dining and living areas of Units 1, 2 and 3 and large north-facing balconies for each of Units 1, 2, 3 and 4. The third level comprises the second bedroom of Units 1, 2 and 4 with balconies open to the north and the kitchen, dining and living area of Unit 4 with a large north-facing balcony.
11 The building presents with a boundary wall at the lowest level to the adjoining property at No 442 Barker Road to the west and with a series of columns and a boundary fence to the adjoining property at No 438 Barker Road to the east. On the eastern side, the second level is set back by 1.0 metre other than in the break between the two building blocks where a 2.1 metre high balcony screen wall is set back approximately 6.8 metres. On the eastern side, the balconies off bedrooms on the third level are set back by 1.0 metre and the building façade by between approximately 2.2 metres and 4.6 metres. On the western side at the second level, the development presents with two boundary walls 11.49 metres and 12.36 metres in length separated by a 2.1 metre high balcony screen wall set back 1.0 metre from the boundary. On the western side at the third level, the development presents in the form of two steeply pitched colorbond sheet metal structures with lengths of
(Page 7)
- approximately 9.0 metres closest to the street and approximately 7.0 metres separated by approximately 6.0 metres in the gap between the two building forms each set back approximately 300 millimetres at its base and approximately 500 millimetres at its top. In addition, at the rear of the third level on the western side, the balcony off the kitchen, dining and living area of Unit 4 presents as an approximately 5.25 metre long by 2.1 metre high masonry wall with the result that in this, the north-western, portion of the site, the boundary wall is up to approximately 8.2 metres high for a length of approximately 5.2 metres.
Development application
12 The development application was advertised and resulted in four submissions, two opposed to the proposed development and two in support of it. The submissions in opposition to the proposed development came from the owner of the medical consulting rooms at the ground level of the adjoining property at No 442 Barker Road to the west and from the owner and resident of the residential unit at the second level of that property, Mr Rodney Kent, who also gave evidence in the Council's case.
13 The plans of the proposed development were amended in August 2006. In November 2006, the Council received a report from its assessing officer recommending refusal of the amended proposal and resolved to refuse to grant development approval for the following reasons:
"(a) the proposal incorporates extensive boundary development that does not meet the Acceptable Development Provisions of the Codes and fails to meet the associated Performance Criteria as it is considered that the proposal adversely impacts the amenity of the adjoining property to the west and presents an inappropriate building bulk to the street indicating overdevelopment of the site.
(b) several of the upper level set backs associated with the north (rear), eastern and western side boundaries do not meet the Acceptable Development provisions of the Codes and not meet the association Performance Criteria creating excessive building bulk to the front, side and rear elevations indicating over development of the site.
(c) the provision of five on-site car bays does not meet the Acceptable Development Provisions of the Codes. The
- nature of the proposal and the existing on street parking demand in the vicinity of the subject site does not enable the proposal to meet the associated Performance Criteria.
- (d) the proposal does not meet the height requirements specified in either Clause 42(4)(a) or (b) of the Scheme. Additionally it is considered that the over height building will have an adverse impact upon adjoining sites and the amenity of the locality.
(e) the proposal does not meet the requirements of the City's West Subiaco Planning Precinct policy, which requires that 'any change or redevelopment is encouraged to reflect the development pattern of existing buildings within the street block or immediate vicinity to encourage a relationship with the street and to ensure the retention of the streetscape'.
(f) the proposal does not provide the required 1.5 metre Vehicular Sightlines at Vehicle Access points as required by the Acceptable Development Provisions of the Codes and does not meet the associated Performance Criteria."
14 Following the commencement of these proceedings, Mr Finn Pedersen, Mr and Mrs Jacobs' designing architect, produced a revised set of plans that incorporates the following principal modifications:
• the northern building block is lowered by excavating it into the site by 0.5 metre;
• the 2.1 metre high balcony screen wall in the north-western portion of the building is deleted, the colorbond sheet metal roofing (set back 0.3-0.5 metre) is extended approximately 2.6 metres to the north and a 1.3 metre high obscure glazed screen is proposed along the western edge of the approximately 2.2 metre northernmost section of the balcony;
• three possible options to treat the western boundary wall at Level 2 closest to the street are identified, namely banding texture with coloured render, public artwork and colorbond roofing and coloured render;
(Page 9)
- • the bathroom accessed from the living room of Unit 3 is deleted and a shower accessed from the bedroom at Level 1 of Unit 3 is proposed (to minimise the potential for the living room of Unit 3 to be used as a second bedroom); and
• a sixth car bay is added as a tandem car space at the lowest level with the result that a "veggie patch" in the northern courtyard is removed and one scooter bay deleted.
15 At the hearing, Mr MC Hotchkin, counsel for Mr and Mrs Jacobs, contended that the proposed development in the form that was refused by the Council should be approved by the Tribunal. Mr Hotchkin submitted, however, that in the event that the Tribunal considers that any or all of the variations in the modified plans are necessary in order to satisfy one or more of the issues that arise for consideration in the review, Mr and Mrs Jacobs are content to carry out such modifications. For reasons which follow, the Tribunal would have dismissed the application for review and affirmed the City's decision to refuse development approval on the basis of the plans considered by the Council in November 2006. However, for reasons which follow, the Tribunal considers that the variations proposed in the modified plans (other than the addition of a sixth car bay) are necessary in order for the development application to be capable of approval and warrant approval.
16 The following plans are attachments to these reasons:
• Attachment A – western elevation as shown on plans refused by the City;
• Attachment B – modified western elevation; and
• Attachment C – boundary wall treatment options.
Issues for determination
17 The following five principal issues arise for determination in the review:
1. Whether the proposed development has undue adverse impact on adjoining residential sites or the general amenity of the locality.
(Page 10)
- 2. Whether the proposed development has an acceptable impact in terms of streetscape.
3. Whether the proposed development conforms to the provisions of the Codes in relation to setback from boundaries and boundary development.
4. Whether the proposed development conforms to the Codes in relation to on-site parking provision.
5. Whether the proposed development should be approved in the exercise of discretion having regard to the matters for consideration in cl 27(4) of the Scheme and the objectives for development in the residential zone stated in cl 41(2) of the Scheme.
18 The City had originally identified a further issue concerning whether the proposed vehicular access is acceptable having regard to pedestrian and vehicular safety. However, in his evidence, Mr Marc Cornell, a town planner who gave evidence on behalf of the City, accepted, on the basis of the evidence of Mr Frank Bryant, a traffic engineer who gave evidence on behalf of Mr and Mrs Jacobs, that the vehicular access is safe in conformity with the Performance Criteria in cl 3.5.4 P4 of the Codes. On the basis of Mr Bryant's evidence, the Tribunal agrees.
19 The Tribunal will consider each of the issues in turn.
Is there undue adverse impact?
20 Clause 39(3) of TPS 4 states that, unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Codes is to conform to the provisions of the Codes. However, cl 42(4) of the Scheme states as follows:
"(a) Notwithstanding any provisions of the [Codes] to the contrary, buildings on land within the Residential Zone having a R Code density of R80 shall not exceed 9 metres overall height and 6 metres wall height;
(b) The Council may permit a variation to subclause (a) and permit buildings up to 12 metres overall height and 9 metres wall height where the Council is satisfied that there is to be no undue adverse impact on the adjoining residential sites or on the general amenity of the locality."
(Page 11)
21 The term "amenity" is defined by cl 12(1) and Sch 1 of the Scheme to mean "all those factors which combine to form the character of an area and include the present and likely future amenity".
22 The adjective "undue" relevantly means "unwarranted; excessive; too great" (Macquarie Dictionary (4th ed) Macquarie, Sydney, 2005 at page 1532).
23 Including the colorbond sheet metal roofing at Level 3 as "wall", the proposed development has a maximum wall height of approximately 9.0 metres and a maximum overall height of approximately 11.0 metres. Furthermore, as noted earlier, the masonry section of the north-western boundary wall would have a height of up to approximately 8.2 metres for a width of approximately 5.2 metres.
24 Mr Cornell considers that the height of the proposed development will have an undue adverse impact on Mr Kent's unit in the adjoining property to the west, by reason of excessive bulk and scale and loss of sunlight. Mr Kent gave evidence that the main living area of his home, where he has resided since it was built 26 years ago, consists of a lounge and sunroom interconnected to the back balcony. He said that these areas are heavily dependent on the morning sunlight for ambience and quality of life. Mr Kent spends a lot of time in the sunroom which leads on to the back balcony "simply enjoying the early morning sunlight". He described morning sunlight as "fundamental to my lifestyle and wellbeing". Mr Kent also raised concern about the prospect of graffiti on the boundary wall. He considers that the wall is "simply too close, too high, too long and too intrusive".
25 While standing on Mr Kent's rear balcony during the Tribunal's view of the site and locality, Mr Pedersen noticed that the location of the balcony is approximately 1.2 metres higher than the location shown on Attachment B. Mr Cornell and Ms Jenny Smithson, a town planner who gave evidence on behalf of Mr and Mrs Jacobs, agreed. Based on the correct position of Mr Kent's balcony, he would view a section of boundary wall having a height of 4.6 metres above the floor level of his balcony and a width of 2.6 metres at a distance of approximately 3.3 metres from the edge of his balcony. The Tribunal considers that the bulk and scale of this section of wall is unwarranted and excessive when viewed from the rear second level balcony of a residential property coded "R80". However, the modified plans indicate significant changes to the north-western portion of the proposed building. In particular, the height of the masonry boundary wall adjacent to Mr Kent's balcony is reduced in
(Page 12)
- the modified plans from a height of 4.6 metres relative to Mr Kent's balcony floor level to approximately 2.0 metres (with a 1.3 metre obscured glazed screen above) and this section of wall/glazed screen is set back by 1.0 metre from the common boundary adjacent to Mr Kent's balcony resulting in an increase in separation from 3.3 metres to 4.3 metres. The Tribunal considers that the combined effect of these changes is such that there would be no undue adverse impact on Mr Kent's unit in terms of bulk and scale if the modified plans were implemented. Although an approximately 2.0 metre high section of wall with a 1.3 metre high glazed screen above, set back approximately 4.3 metres from Mr Kent's balcony, would introduce a new element into the outlook, the impact would not be unwarranted or excessive in the context of an R80 coding. Moreover, Mr Kent's principal outlook is to the north, away from the site. Finally, a 1.6 metre high privacy screen at the eastern edge of Mr Kent's balcony would have a similar visual impact. Although Mr Kent could also see part of the upper portion of the colorbond sheet metal roofing enclosing Level 3 of the proposed development above his roof, this is away from his principal outlook to the north. The only windows facing the site from Mr Kent's unit have obscure glazing.
26 Mr Cornell also expressed the opinion that the plot ratio of the proposed development is 1.33:1, whereas the maximum plot ratio prescribed in Table 1 of the Codes is 1:1. Mr Cornell considers that "plot ratio compliance is not an issue in terms of this review other than … the plot ratio variation (due to the visual impact of the provision of privacy screening) is a contributing factor to bulk and scale". It appears that, if balconies are excluded, the development has a plot ratio below 1:1. If the principal balconies are included in plot ratio area, then the development exceeds maximum plot ratio area by approximately 63 square metres. Mr Cornell considers that the principal balconies should be included within plot ratio area, because the definition of "plot ratio" in cl 2.2 of the Codes only excludes "balconies or verandahs open on at least two sides", whereas none of the principal balconies are "open" on at least two sides because of privacy screening.
27 In Drake and City of South Perth & Anor [2005] WASAT 271 at [63]-[76], the Tribunal considered whether balconies were "private open balconies" for the purposes of the precursor of the Codes in relation to the calculation of plot ratio. At [68], the Tribunal noted that the relevant, ordinary meaning of the adjective "open" is "not closed, covered, or shut up as a house, box, drawer, etc" and "not enclosed as by barriers, as a space" (Macquarie Dictionary (4th ed) Macquarie, Sydney, 2005 at page 1341) and that an assessment of whether floor area of a building is
(Page 13)
- an "open balcony" necessarily involves questions of fact and degree. At [71], the Tribunal accepted a witness' suggestion that a balcony is relevantly "open" if "it is open above its balustrade and any necessary obscure glazed privacy screen for at least its longest face" as a useful "ruleofthumb", subject to the specific circumstances of a case.
28 Obscure glazed balcony screens which are necessary for privacy do not generally preclude a balcony from being "open" on the side of the screen with the consequence that the balcony would be excluded from plot ratio area for the calculation of plot ratio. In this case, balcony 2 off the bedroom of Units 2 and 4 at the third level and part of balcony 2 off the kitchen, dining and living area of Unit 4 at the third level are excluded from the calculation of plot ratio. The exclusion of these areas would reduce the exceedance of plot ratio area by approximately 50 square metres in the modified plans. More fundamentally, the section of balcony screening that most affects Mr Kent's unit is the western screen of balcony 2 off the kitchen, dining and living area of Unit 4, which, in the modified plans, is glazed to a height of 1.3 metres and is not, therefore, included in plot ratio area.
29 In relation to solar access, the Tribunal finds that there would be no undue adverse impact on Mr Kent's unit in the case of either the proposed development as refused by the City or as revised in the modified plans. Mr Pedersen presented overshadowing diagrams which indicate that the proposed development would only have a minor overshadowing impact on Mr Kent's balcony at 9 am in midsummer and at the equinox and would not have any overshadowing impact on the sunroom. Furthermore, the overshadowing diagrams are likely to overstate the impact of the development, because Mr Kent's balcony is 1.2 metres higher than the level assumed for the purposes of the diagrams. The development is also likely to result in loss of early morning sunlight to Mr Kent's east facing bathroom. However, the Tribunal does not consider that the loss of sunlight through a second level obscure glazed bathroom window constitutes an undue adverse impact on land coded "R80".
30 In relation to Mr Kent's concern about graffiti, the Council has not raised an issue about the lowest level boundary wall, which would be most susceptible to graffiti, but only about the upper levels. Furthermore, in order to apply graffiti, a person would need to trespass on to the adjoining private property.
31 The western elevation of the street front building block would certainly be apparent within the streetscape of Barker Road. This is
(Page 14)
- principally because approximately the southern half of the adjoining property at No 442 Barker Road comprises a large open car park which is, as Ms Smithson observed, "a quite unique situation". This situation exposes the side wall of the proposal to view from the south-west. As Ms Smithson also observed, if the adjoining property were developed in accordance with its density coding, it would largely obscure the western elevation of the proposal from view within the streetscape. Ms Smithson also noted that when the site is viewed particularly from the southern side of Barker Road, a large Eucalypt tree on the street would screen the upper two levels.
32 As noted earlier, under the Scheme, "amenity" includes "likely future amenity". The proposed development will not have any undue adverse impact on the likely future amenity of the locality in terms of streetscape, because the western elevation is likely to be largely obscured if the adjoining property is developed in accordance with its coding. Furthermore, to the extent that the colorbond sheet metal roofing material would remain visible, it is reflective of the roof materials of original single cottages within the street.
33 In relation to present amenity, it is significant that the immediate locality of the site is varied and eclectic in built form, the wall in question is a side wall visible across another property and it would be from some locations in part screened by the street tree. However, the Tribunal considers that, in the absence of a parapet wall treatment, the development would have an undue, that is, an unwarranted or excessive, impact on the existing amenity of the locality in terms of streetscape, because of its bulk and scale. Mr Pedersen favoured the banding texture with coloured render parapet wall treatment (see Attachment C Option 1). However, there is no context for this form of treatment in the street. We consider that the colorbond roofing and coloured render (Option 3) treatment is preferable and appropriate, because it uses materials that are reflective of the roofs of original cottages in the street. We consider that, if the second level western boundary wall were treated in this way, there would be no undue adverse impact on the amenity of the locality in terms of streetscape, even in the short term. This parapet wall treatment will reduce the apparent bulk and scale of the boundary wall and introduce visual interest in the streetscape.
34 It follows that the Tribunal considers that it is appropriate to permit a variation to subclause (a) of cl 42(4) of TPS 4 and to permit the proposed building in accordance with the modified plans.
(Page 15)
Does the development have an acceptable impact in terms of streetscape?
35 Mr Cornell does not raise any concern about the front façade of the proposal or its presentation to the street. His concern in relation to streetscape is confined to the upper levels of the western boundary wall and its impact when viewed from the south-west across the car park of the adjoining property. Mr Cornell notes that the West Subiaco Precinct Planning Policy (Precinct Policy) states that the future character of the residential areas north of Bagot Road – which includes the site – should be encouraged as follows:
"Any change or redevelopment is encouraged to reflect the development pattern of existing buildings within the street block or immediate vicinity to encourage a relationship with the street and to ensure the retention of the streetscape."
36 Mr Cornell also notes that cl 27(4)(g) and cl 27(4)(h) of the Scheme requires the Council to consider "the conservation of the amenity of the locality" and "the design, scale and relationship to existing buildings and surroundings of any proposed building or structure".
37 Mr Cornell characterises the existing streetscape on both the northern and southern sides of Barker Road as consisting of predominantly one and two storey dwellings with three examples of three storey developments. He considers that the proposed western boundary wall is not consistent with this characteristic streetscape and is contrary to the Precinct Policy.
38 However, as noted earlier, built form in the immediate locality of the site, between Railway Road to the west and Raphael Street to the east, is varied and eclectic. This is in contrast to many areas of Subiaco which are characterised by single dwelling houses (see, for example, Fryer and City of Subiaco [2006] WASAT 199 at [12]). Building heights range from one to four levels (excluding the multiple level hospital building) in the immediate locality. Mr Cornell noted that the residential flat buildings in the locality predate TPS 4 and the Precinct Policy and said that they should not be used as a "precedent" for the proposed development. The residential flat buildings in the locality are certainly not a "precedent" for any particular development. However, they form part of the streetscape. The overall height of the proposed development is similar to the height of the three level residential flat building which is located three properties to the east. Moreover, the site is coded for high density development. Clause 42(4) of the Scheme contemplates buildings of up to 12 metres overall height and 9.0 metres wall height where there is no undue adverse impact on adjoining residential sites or the general amenity of the locality.
(Page 16)
- Although the Precinct Policy is a fundamental element in or a focal point of the decision-making process, it must be applied in the context of the underlying zoning, density coding and Scheme provisions that apply to the site. The streetscape created by high density buildings of up to 12.0 metres in height is necessarily different to the streetscape created by original single storey single houses. However, the proposed building does reflect the development pattern of existing buildings within the street block in its street setback and has a similar relationship with the street as original buildings with front entrances accessed through landscaped courtyards.
39 For these reasons, and for the reasons discussed in relation to the issue concerning whether there is undue adverse impact on the amenity of the locality in terms of streetscape, we find that the proposed development would have an acceptable streetscape impact if carried out in accordance with the modified plans including the wall treatment for the second level boundary wall in Option 3.
Does the development conform to the Codes in relation to setback?
40 It is common ground that the development does not conform to the Acceptable Development provisions in relation to buildings set back from the boundary in cl 3.3.1 A1 of the Codes and buildings on boundary in cl 3.3.2 A2 of the Codes. The corresponding Performance Criteria are as follows:
"3.3.1 Buildings Set Back from the Boundary
P1 Buildings set back from boundaries other than street boundaries so as to:
• provide adequate direct sun and ventilation to the building;
• ensure adequate direct sun and ventilation being available to adjoining properties;
• provide adequate direct sun to the building and appurtenant open spaces;
• assist with protection of access to direct sun for adjoining properties;
• assist in ameliorating the impacts of building bulk on adjoining properties; and
- • assist in protecting privacy between adjoining properties."
- "3.3.2 Buildings on Boundary
P2 Buildings built up to 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; and
• 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."
42 For reasons set out earlier, the Tribunal considers that the development as refused by the City does not assist in ameliorating the impacts of building bulk, because of the excessive building bulk that would be directly presented to Mr Kent's balcony. However, for reasons discussed, the modified plans do assist in ameliorating the impacts of building bulk on Mr Kent's unit, because of the sinking of the building by 0.5 metre, the movement away of the section of the building directly adjacent to Mr Kent's balcony by 1.0 metre and the replacement of part of the masonry balcony screen by an obscure glazed screen. The development ensures adequate direct sun being available for Mr Kent's unit, as its impact is limited to early morning during part of the year. As Ms Smithson observed, Mr Kent's principal solar access is from the north and will be uninterrupted by the proposed development. Overall, the development as proposed in the modified plans will not have any significant adverse effect on the amenity of Mr Kent's unit.
(Page 18)
43 The proposed development will result in loss of morning sunlight and daylight to the reception area of the medical consulting premises at the adjoining property. However, given that this is an effect on commercial, rather than residential, development, it does not mean that the development does not conform to the Performance Criteria.
44 The Tribunal finds that the proposed development conforms to the Performance Criteria in cl 3.3.1 and cl 3.3.2 of the Codes and, therefore, conforms to the Codes in relation to setback.
Does the proposed development conform to the Codes in relation to on-site parking provision?
45 If Unit 3 is a "single bedroom dwelling" for the purposes of the Codes, the Acceptable Development on-site parking provision in cl 3.5.1 A1 of the Codes requires seven on-site car bays. Mr Cornell said that Unit 3, as depicted on the plans refused by the Council, is not a "single bedroom dwelling", as it contains more than one habitable room that is capable of use as a bedroom. In particular, Mr Cornell considers that, because there is a bathroom directly accessed from it, the living room is a habitable room that is capable of use as a bedroom. The Tribunal agrees. However, the modified plans, which delete the offending bathroom, solve this issue and satisfy Mr Cornell and the Tribunal that Unit 3 as depicted on those plans is a "single bedroom dwelling". As noted earlier, the development proposes five on-site car bays, although the modified plans include a sixth car bay.
46 The corresponding Performance Criteria in cl 3.5.1 P1 states as follows:
"Adequate car parking provided on-site in accordance with projected need related to:
• the type, number and size of dwellings;
• the availability of on-street and other off-site parking;
• the location of the proposed development in relation to public transport and other facilities."
47 Mr Bryant considers that, given the availability of public transport, the proximity to facilities on Rokeby Road, the provision of scooter and bicycle parking, the availability of on-street parking, and the fact that five on-site bays are proposed for four dwellings, the development meets the Performance Criteria. We agree. The single bedroom unit will have one
(Page 19)
- car bay and one of the two bedroom units will have two car bays. Two other two bedroom units will have one car bay each. As Mr Bryant said, the number of bedrooms is unlikely to encourage occupancy by more than one or two person households. Mr Bryant has observed on-street parking availability on a number of occasions. These observations indicate that up to approximately half the car bays are generally available. On-street parking is restricted to one hour during working hours. Furthermore, the site has the benefit of two visitor on-street car parking permits issued by the Council. Finally, as noted earlier, the site is located within 350 metres of Rokeby Road facilities, within 250 metres of a bus stop and within 550 metres and 750 metres from train stations. In these circumstances, five on-site car bays are adequate in conformity with the Performance Criteria in cl 3.5.1 P1 of the Codes. The Tribunal does not consider that a sixth car bay is necessary or desirable, given the locational characteristics of the site, the nature and size of the dwellings and sustainability considerations.
Should development approval be granted?
48 Clause 27(4) of the Scheme provides that, without limiting the scope of the Council's discretion to determine an application for development approval, the Council must have regard to:
"(a) the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policies;
(c) a statement of planning policy of the Western Australian Planning Commission;
(d) any planning study approved by the Council;
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality;
(h) the design, scale and relationship to existing buildings and surroundings of any proposed buildings or structure; [and]
(Page 20)
- (i) the conservation of places and areas of cultural heritage significance as referred to in clauses 58 and 59."
49 Clause 41(2) of the Scheme states that, in considering an application for development approval in the residential zone, the Council shall also have regard to the following objectives:
"(a) the provision of a wide range of different types of residential accommodation to meet the diverse needs of the community;
(b) the protection of residential areas from any interaction between different intensities of uses or incompatible uses which could be objectionable or detrimental to the amenity of any neighbourhood;
(c) the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d) the protection of the privacy of indoor and outdoor living spaces of dwellings;
(e) the encouragement of new concepts of residential design including the development of new types of residential accommodation and comprehensive development projects;
(f) to 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;
(g) to ensure compatibility of the development with the established streetscape taking into consideration set backs, roof pitches, materials, design and landscaping."
50 The Tribunal considers that the proposed development generally satisfies these matters for consideration. Most significantly, the proposed development provides residential accommodation to meet the needs of the community in a manner that positively contributes to solar and environmentally sound design principles while at the same time
(Page 21)
- minimising, in its modified form, impacts on adjoining properties and on the streetscape. We accept Mr Pedersen's evidence that "this project is a prime example of a carefully considered sustainable development that contributes positively to the local and broader community and will hopefully encourage other developers to consider [environmentally sound design] as a key part of their projects". In particular, the proposal incorporates the following aspects of environmentally sound design:
• passive design features include northern orientation for passive solar gain, breeze paths for cross-ventilation, passive performance of ventilation chimneys to both catch cooling night breezes and shared excess heat via a heat stack, insulated walls, roofs and floors, including shaded and insulated open living areas and thermal breaks in structure to reduce heat flow. Most significantly, these elements are available in the proposed development to both the southern and northern units;
• active heating and cooling system includes in-slab heating for the ground level units at the rear should detail thermal models demonstrate the necessity and a night cooling system that takes high level cool air down the ventilation tower walls and ducts the air between the slabs and ceiling spaces, shedding heat and storing cool in the mass of the concrete slabs;
• water use includes the use of efficient fixtures, the collection, storage and redistribution of rain water, the separation of grey-water and black-water waste pipes to allow for future approved treatment plants, the use of local natives and fruiting plants only with rainwater irrigation and no lawns;
• materials that minimise the environmental footprint of the development over its lifespan; and
• minimisation of energy use by the high level of passive and semi-active heating and cooling systems, natural lighting and ventilation, the use of north facing outdoor living areas for both the northern and southern units with operable shade systems that are sheltered from winter winds, low energy high efficiency power systems and water heating via gas boosted solar hot water systems.
(Page 22)
51 We accept Mr Hotchkin's submission that the proposed development will certainly enhance the amenity of the residential neighbourhood by ensuring adherence to solar and environmentally sound design principles, while also having an acceptable impact, in its modified form, in relation to the amenity of adjoining properties and the streetscape.
52 It follows that the application for review should be allowed and the decision of the City to refuse development approval should be set aside and a decision substituted that conditional development approval is granted in accordance with the modified plans other than the provision of a sixth on-site car bay.
Orders
53 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent to refuse development approval for the demolition of a single house and outbuildings and for the erection of a building comprising four dwellings and five on-site car bays is set aside and a decision is substituted that development approval is granted for the development subject to the following conditions:
(a) The development shall be carried out in accordance with the plans drawn by Iredale Pedersen Hook Architects job no 0514 revision number 5.3 drawing nos DA1.01, 1.02, 1.03, 1.04, 1.05, 2.01, 2.02, 2.03, 2.04, 2.05, 3.01, 3.02, 3.03, 3.04 and 3.05 (in accordance with treatment Option 3 colorbond roofing and coloured render) dated 25 January 2007 except as modified by the following conditions.
(b) Car bay 6 shall be deleted and car bay 5 moved to the position shown on drawing DA 2.01 revision 5 dated 25 July 2006 and the four scooter bays and the features of the rear courtyard as shown on that plan shall be implemented. At least one car bay shall be allocated to each of the four units.
- (c) The automated entry gates are required to be relocated to the north a sufficient distance to enable vehicles exiting the development to stop to the south of the entry gates and to the north of the footpath.
(d) The first floor balcony associated with residence 2 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on both the eastern and northern side.
(e) The first floor balcony associated with residence 4 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the eastern side.
(f) The first floor balcony associated with residence 3 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western side.
(g) The second floor balcony associated with residence 2 is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the northern side.
(h) The second floor balcony associated with residence 4 in the western side is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western side.
(i) The second floor balcony associated with residence 4 in the eastern side is required to be permanently screened with visually impermeable and fixed material to a minimum height of 1.6 metres above the finished floor level on the western, northern and southern sides.
(Page 24)
- (j) The redundant crossover located on the western side of the property is to be removed at the owner's expense prior to the occupation of the building.
(k) The bicycle hung over the pedestrian walkway adjacent to residence 4 is to be deleted as it does not comply with AS 2890.3 – 1933 Clause 2.5.2 relating to Safety of Pedestrians.
(l) The western boundary wall is to be finished in a manner that reduces its apparent bulk and which provides architectural interest, details of which are to be provided prior to construction and be to the satisfaction of the City.
(m) Brickwork and 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 which are to be submitted prior to commencement of the development.
(n) All car bay dimensions are to accord with Australian Standard AS 2890.1.
(o) Where the finished floor level of the carport/garage is lower than the boundary levels at the point of access, drainage must be provided at the carport/garage entrance to prevent stormwater entering the carport/garage.
(p) The basement car parking area is to be protected against the inflow of water to a level of 0.5 metre above finished floor level of the car parking area.
(q) Crossovers are to be provided and constructed in accordance with the City's Policy 14.2.3.
(r) A 1.5 metre x 1.5 metre visual truncation is to be provided on the western side of the access driveway and is to be maintained at all times. No walls, landscaping or visually impermeable fences greater than 0.75 metre in height above natural
- ground level are to be located within this truncation.
- (s) Pedestrian access is to be provided separate from or adjacent to vehicular access.
(t) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Residential Design Codes and the City's relevant policies.
(u) Any new or replacement fencing is to conform to the requirements of the City's Perimeter Fencing Policy.
(v) 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.
(w) All service meters and related infrastructure are not to be placed on the street side of a front fence.
(x) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.
(y) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and
- reinstated is to be to the satisfaction of the Director Technical Services. Infrastructure in the road reserve includes but is not limited to roads, rights of way, kerbs, drainage, footpaths, driveways and street trees.
- (z) The redundant crossover is to be removed and the kerb and verge are to be reinstated at the owners cost in accordance with the Activities and Thoroughfares in Public Places Local Law.
(aa) The existing level of the footpath is to be maintained.
(bb) Where it is intended to construct a building within 3.0 metres of a building on a separate lot, and any part of the proposed building or structure within that 3.0 metres extends to a lower level than the foundations of the adjoining building, the subject building owner is required to give at least 35 days notice to the adjoining owner under s 391(2) of the Local Government (Miscellaneous Provisions) Act 1960 (WA).
(cc) All mechanical service systems including air-conditioners and pool filters etc are to be designed and installed to prevent emitted noise levels from exceeding the relevant decibel levels as set out in the Environmental Protection (Noise) Regulations 1997 (WA)(as amended).
- I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
(Page 27)
Attachment A – Western elevation as refused by City
(Page 28)
Attachment B – Modified western elevation
(Page 29)
Attachment C – Boundary wall treatment options
2
5