| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KAAMOS PTY LTD and CITY OF VINCENT [2011] WASAT 168 MEMBER : MR J JORDAN (MEMBER) HEARD : 27 SEPTEMBER 2011 DELIVERED : EDITED REASONS DELIVERED ORALLY ON 28 SEPTEMBER 2011 FILE NO/S : DR 115 of 2011 BETWEEN : KAAMOS PTY LTD Applicant
AND
CITY OF VINCENT
Respondent
Catchwords: Town planning Development Refusal Retrospective application for 1.9 metre high front fence Corner lot Mixed residential and commercial zone Commercial uses on primary street frontage Residential uses on side street frontage Policy for low front fences in residential street Nil setbacks and high fences on commercial street Proposed front fence considered as element of commercial streetscape Refusal of City of Vincent set aside and conditional retrospective approval granted for the front fence
(Page 2)
Legislation: City of Vincent Town Planning Scheme No 1, cl 38(5)
Residential Design Codes of Western Australia (2010), cl 6.2.5 Result: Application for review allowed
Refusal set aside and conditional retrospective planning approval granted for the front fence Category: B
Representation: Counsel:
Applicant : Mr H Wynaden (Acting as Agent)
Respondent : Mr R Rasiah (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : City of Vincent
Case(s) referred to in decision(s):
MacCormac and the Town of Vincent [2009] WASAT 117
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the refusal of an application for retrospective planning approval for a 1.96 metre high front fence at No 33 Brisbane Street, cnr Lacey Street, Perth. 2 The site and neighbouring properties are zoned Residential/Commercial. The streetscape of Brisbane Street is commercial with buildings and high front fences on the front property line. The streetscape of Lacey Street is residential with low front fences. 3 The Tribunal found that the proposed fence would not compromise the implementation of the development guidelines which required low front fences for Lacey Street. This was because of the character of development at the extremity of Lacey Street adjacent to the site. The front fence was also considered to be consistent with the streetscape created by the commercial development in Brisbane Street. 4 The Tribunal allowed the application for review and granted conditional retrospective planning approval for the front fence. 5 What follows is the reasons for the decision delivered orally, edited only for the purposes of clarity.
Introduction 6 This was an application by Kaamos Pty Ltd (applicant) for a review of the refusal by the City of Vincent (City or respondent) to grant retrospective planning approval for alterations to the existing front boundary fence at No 33 Brisbane Street, cnr Lacey Street, Perth (site). 7 In October 2010, the City wrote to the applicant stating that the unauthorised additions to the front fence must be modified to comply with the requirements of its fencing policy or, alternatively, an application could be made for retrospective planning approval. An application for planning approval was made and it was the City's refusal of that application that was the subject of the review proceedings before the Tribunal. 8 During the hearing, the Tribunal viewed the site and Brisbane Street and Lacey Street in the vicinity of the site, accompanied by the representatives of the applicant and the respondent. Brisbane Street in the locality of the site runs generally southwest to northeast. Lacey Street (Page 4)
runs generally north to south and meets Brisbane Street at an angle at the northern end. The site is on the southwest corner of the junction of Lacey Street with Brisbane Street. 9 The site has a frontage of 12.15 metres to Brisbane Street, a corner truncation of 1.06 metres and a boundary of about 44 metres to Lacey Street at the eastern side. The painted brick and tile house on the site has a zero setback from the Lacey Street boundary. The house is set back from Brisbane Street about 2 metres at the western side and 7 metres at the eastern side. The rear setback of the house is about 8.8 metres, half of which is covered by a carport, with the rest paved. 10 Screening the back yard from Lacey Street is a fence about 1.9 metres high and a gate of about the same height. The front fence, which extends across the Brisbane Street frontage and returns 7 metres along Lacey Street at the front of the house, is 1.96 metres high with a 1 metre wide gate on the Brisbane Street frontage. The front fence was previously about one metre high and of painted face brick. The courses added to reach the 1.96 metre height are unpainted.
Planning framework 11 The site is zoned Residential/Commercial, R80, under the City of VincentTown Planning Scheme No 1 (TPS 1). The other lots in Brisbane Street in the vicinity of the site and both lots either side of Lacey Street have the same zoning. The site is also within the City of Vincent Beaufort Precinct P13 and is within the subject area of the City of VincentDesign Guidelines for Lacey Street, Perth (Lacey Street Design Guidelines) which is Appendix 17 of the City of Vincent Planning and Building Policy Manual. 12 The respondent states that the Lacey Street Design Guildeines were adopted to augment the Residential Design Codes of Western Australia (2010) (Codes) with respect to residential development in Lacey Street. This includes cl 6.2.5 'Street Walls and Fences' of the Codes. The Lacey Street Design Guidelines state: Lacey Street is a unique street possessing qualities reminiscent of a time gone by with its narrow road reserve and collection of intact federationstyle buildings. Lacey Street is one of few streets with an intact singlestorey streetscape … 13 The Lacey Street Design Guidelines also include a policy statement which states: (Page 5)
The aim of these Guidelines is to retain and enhance the significant and distinctive qualities and characteristics of Lacey Street. It is the intention of these Guidelines that the original building stock in Lacey Street be retained and that alterations and additions to these buildings is carried out in a way which respects the integrity and continuity of the original building stock and streetscape. 14 One means listed for achieving this aim is: Ensuring front fences, if required, are low height or open style. 15 In a table at 3 of the Lacey Street Design Guidelines, there is set out a design response to achieve this aim, and this states: Provide low or open style front fencing. Front fences should not exceed 1.2 metres other than in exceptional circumstances. 16 The table also states that to be avoided is: High, solid front fencing. 17 The Lacey Street Design Guidelines plan includes 'gateway buildings', which are identified as inconsistent with the uniformity of Lacey Street properties. Identified as gateway properties are No 25 Brisbane Street, which is on the corner of Lacey Street opposite the site; the rear of Unit 1, No 266 Stirling Street, which is a carpark lot adjoining the southern boundary of the site in Lacey Street and, adjoining that lot, No 25 Lacey Street, which is a mechanics' workshop. 18 One of the threats to Lacey Street listed in the Lacey Street Design Guidelines is: Loss of open streetscape with high fencing.
Issues 19 The issues identified in this matter were: (Page 6)
Respondent's position 20 The respondent identified from cl 38(5) of TPS 1 the following items it is necessary to have regard to when determining a planning application: … (b) any relevant planning policy; … (f) any submission accompanying or relating to the application; (g) the orderly and proper planning of the locality; (h) the conservation of the amenities of the locality; [and] (i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure. 21 The respondent identified the Brisbane Street streetscape as commercial, with some residential, with mostly nil setbacks and some high front fences. The Lacey Street streetscape was described as in the Lacey Street Design Guidelines. 22 The respondent said Brisbane Street was the primary street for the site because of the location of the front of the house. It was the respondent's submission, however, that, irrespective of where the house faced, the site was within the area of the Lacey Street Design Guidelines and, to be consistent with the Lacey Street Design Guidelines, the front fence is required to be a maximum height of 1.2 metres to 'maintain and enhance the openness of the streetscape'. 23 The respondent considered that the constructed fence would have an undue adverse impact on the amenity of the immediate and surrounding residential area as the type of fencing proposed was inconsistent with the existing Lacey Street streetscape, which was characterised by open style fencing. (Page 7)
24 The constructed fence was said to be inconsistent with the objectives of the Lacey Street Design Guidelines where the town is aiming to retain and enhance the significant and distinctive qualities and characteristics of Lacey Street, which includes encouraging front fences, if required, to be low in height or open style. 25 The respondent said that should the constructed fence be approved, this would be a negative precedent and may result in increased pressure for similar types of fences to be approved in the immediate vicinity and along Lacey Street. The respondent considered the proposed fence would completely compromise the opportunity to retain the uniqueness of the Lacey Street streetscape and character. 26 The respondent was of the opinion that landscaping rather than a high fence could achieve some privacy to the front yard of the site. It was submitted that to approve the high fence would not be orderly and proper planning because of the inconsistency with the Lacey Street Design Guidelines, and there would be a reduced level of amenity for the occupants of the house and the residents of Lacey Street.
Applicant's position 27 The applicant restated from its statement of issues, facts and contentions that the front fence was needed for the safety and privacy of the occupants of the house. This was because the site was near NIB Stadium which holds sporting and musical events, the Brisbane Hotel and the carpark used by patrons of these venues. After events at these venues, there were often bottles and glass in front of the house and in the front yard, and unruly behaviour in the front yard and in the street. The applicant said the locality was also frequented by prostitutes soliciting for clients and by people leaving syringes in the front yard. 28 Prior to purchase by the applicant, the building was said to have been tenanted by a brothel and then a mental health law centre and previous clients of these uses had visited the site. It was the applicant's submission that since the fence had been erected, the problems previously experienced had ceased. 29 In support of the proposed fence, the applicant said that the site should be exempt from the Lacey Street Design Guidelines. This was because the house faced Brisbane Street, and Brisbane Street had fences similar to that proposed with commercial buildings built to the front boundary. (Page 8)
30 The applicant said that on the site was the only house used as a residence in Brisbane Street. The applicant said the site was isolated from Lacey Street because the two lots adjoining to the south separated the site from the federation style buildings of Lacey Street. The building on the opposite corner of Lacey Street and Brisbane Street was also a gateway building.
Conclusion 31 The view conducted by the Tribunal confirmed the description of Lacey Street found in the Lacey Street Design Guidelines. The presence in Lacey Street of two front fences about 1.8 metres high confirmed the desirability of the Lacey Street Design Guidelines to control the height of front fences to maintain the character of the street. 32 The view of the locality also confirmed for the Tribunal that the site fronts Brisbane Street and is part of the Brisbane Street streetscape. This streetscape is as described by the parties and shown in the photographs provided; that is, a mixture of 1.9 metre high front fences and commercial buildings built at or close to the street boundary. 33 The seven metres of the front fence that returns to the house along Lacey Street was observed at the northern end of the street to be separated from the open front fence streetscape of Lacey Street by the two gateway lots and the full length of the 1.9 metre high side fence and the side of the house on the site. In this regard, it is difficult to identify this section of the front fence on the site as an integral part of the Lacey Street streetscape that the Lacey Street Design Guidelines are directed at preserving. 34 The respondent cited in support of its refusal MacCormac and the Town of Vincent [2009] WASAT 117 (MacCormac). In MacCormac, the Tribunal dismissed an application for 1.8 metre high boundary fence additions for a grouped dwelling development on the corner of View Street and Vine Street in North Perth. The Tribunal's determination in MacCormac states, commencing at [3]: (Page 9)
35 The Tribunal considers that MacCormac can be distinguished from the present proceeding. In MacCormac the zone was residential, the streetscape in both streets was residential and at uniform setback from the street and, except for identified exemptions, front fences were 1.2 metres high and all visually permeable. The equivalent of the Brisbane Street streetscape was absent in MacCormac. 36 The Tribunal has formed the view that the proposed fence would not set an undesirable precedent. The fence would be undesirable if it was all in Lacey Street, but being in Brisbane Street, the fence can be argued to be unobjectionable because of the form of development in that street. 37 The Tribunal also considers that there could not be later undistinguishable applications from properties in Lacey Street. This is because there are no other houses in Lacey Street that actually front Brisbane Street or have potential for a front fence that is not an essential part of the Lacey Street streetscape. 38 This approval turns on its facts. If this fence is approved, there can be no other similar type of application that would directly affect the Lacey Street streetscape. If the proposed fence is not part of the streetscape that is at the heart of Lacey Street, then the amenity of the Lacey Street residents will not be impacted upon by the fence. 39 The Tribunal considers that in the circumstances of this case, having regard to the matters required to be considered under TPS 1, an approval would not compromise the objectives of the Lacey Street Design Guidelines and so would not be inconsistent with orderly and proper planning or the preservation of the amenities of Lacey Street. The Tribunal has therefore decided to allow the application subject to appropriate conditions.
The conditions 40 The respondent recommended four conditions to be imposed if the Tribunal was minded to allow the development. The first required that the maximum fence height be 1.8 metres above the adjacent footpath. The respondent said that this was because 1.8 metres was the wall height used elsewhere in the City. The applicant wanted the fence to remain at 1.96 metres high as constructed, to blend with fences in the immediate vicinity. Five examples were cited. The applicant also said that the existing height served the purpose of security and privacy. (Page 10)
41 The Tribunal found that if Brisbane Street is accepted as the relevant streetscape, the proposed wall is consistent with other front fences in that street. 42 The second condition required submission of a report from a qualified structural engineer certifying that the completed works comply with the relevant code or standard and are structurally sound. The existing fence is of unknown age and design. 43 The Tribunal is of the view that certification is required to ensure that the wall has an adequate foundation and is structurally sound. 44 The third condition would require the gate facing Brisbane Street to be visually permeable. This was said to be required to avoid a fortress-like development and to allow for an interface between the house and the street. The existing gate has downward facing slats which prevent a horizontal view between the street and the house but do allow a view down to the footpath from within the yard. The applicant has fitted a bell and an intercom system for communication. 45 The Tribunal has formed the view that in the circumstances, the existing gate provides sufficient interaction between the street and yard for the use. 46 The fourth recommended condition had two parts. The first was that the fence be fully rendered/finished. The applicant suggested an alternative condition that the fence be painted with a colour to match as close as possible with the colour of the house wall. The respondent agreed this would be a suitable finish. 47 The second part of the fourth condition required two openings of 500 millimetres by 500 millimetres (and these could be with an infill such as wrought iron) be installed in the Lacey Street length of the fence and two more such openings, one each side of the gate, be installed in the Brisbane Street frontage. The respondent said these openings would give relief to the blankness of the fence. The applicant said the openings would appear absurd because no other fence in Brisbane Street had such openings. 48 The Tribunal noted that the other fences in Brisbane Street either had double width gateways with openings and visually permeable gates or had plantings in truncations in front of the wall. Buildings in or near the front boundary of the site in Brisbane Street had landscaping and windows to provide relief to the façade. (Page 11)
49 The Tribunal considers that an opening each side of the front gate would relieve the blandness of the proposed wall in Brisbane Street consistent with relief found in other walls in the street. The openings are not considered necessary in Lacey Street. This is because the proposed wall extends from the house wall, which has windows in it to provide relief to the façade.
Orders 50 The orders of the Tribunal in this matter are: (Page 12)
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