Kelsall and City Of Stirling
[2006] WASAT 218
•2 AUGUST 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KELSALL and CITY OF STIRLING [2006] WASAT 218
MEMBER: MR J JORDAN (MEMBER)
HEARD: 23 MAY 2006
DELIVERED : 2 AUGUST 2006
FILE NO/S: DR 69 of 2006
BETWEEN: BRIAN AND KELLI KELSALL
Applicants
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development application Extensions and additions to single house Refusal Heritage protection area Mount Lawley Heritage Protection Area character retention guidelines New addition at rear not visible from street Extension at side of house visible from street Guidelines for extension to be seamless and reflect architectural style Roofing materials
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.4.3.1, cl 2.2.3, cl 2.2.3.1, cl 2.2.3.2(b), cl 3.2, Sch 4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Result:
The proposed development has been approved subject to conditions requiring roofing to match existing and finishes to the front façade of the extension to match existing
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr S Rodic (Acting as Agent)
Solicitors:
Applicants: Self-represented
Respondent: City of Stirling
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Mr Brian and Mrs Kelli Kelsall applied to the City of Stirling for planning approval for additions at the rear, extensions at the side and a carport at the front of their house at 33 Learoyd Street, Mount Lawley. The house is in the Mount Lawley Heritage Protection Area.
The City of Stirling opposed the application because it considered the extension at the side was not "seamless" or of the same architectural character as the existing as required by the Mount Lawley Heritage Protection Area Character Retention Guidelines. There were no concerns about the additions at the rear, which would not be visible from the street, or the carport at the front.
Mr and Mrs Kelsall argued that the proposed extension substantially meets the conservation objectives and management strategies of the guidelines. They offered to retain the terracotta tiles, the finishes on the walls and the height of the ridge line.
The Tribunal found that with appropriate conditions to provide continuity of materials and finish, the proposed development could be approved.
Introduction
This is an application by Brian Kelsall and Kelli Kelsall (applicants) for review of the refusal by the City of Stirling (respondent) to grant planning approval for the proposed additions and extensions to the single house at Lot 1599 (No 33) Learoyd Street, Mount Lawley (subject land).
Subject land and the locality
The subject land has a frontage of 17.2 metres, a depth of 51.7 metres and an area of 889.24 square metres. The existing house on the subject land faces southeast with the front verandah set well back at 13.25 metres from the front boundary. The side boundary setback from the northeast boundary is 1.025 metres and from the south-west boundary 6.2 metres.
Ms Nerida Moredoundt, a heritage architect called by the respondent, described the existing house as a largely intact example of the Federation bungalow style of architecture. The house is a single storey brick and tile residence with red face brickwork and contrasting stucco walling and a prominent hipped tile roof. There was also evidence from Mr Philip Griffiths, a heritage architect called by the applicants, that the design of the house showed the beginnings of interwar Californian bungalow style. He noted, correctly, that the style was not, however, an issue or a material matter for discussion.
The subject land is located on the northwest side of Learoyd Street in a section between Thongsbridge and Ferrar Streets. Ms Moredoundt described the residences on this side of the street as located on a ridge line approximately 1.0 metre above the street level with crossovers rising from the street to the footpath which was at grade with the residential lots. The houses in the street were said to be largely of similar style and age, characterised by single storey brick and tile bungalows dating from the early twentieth century. Numbers 18, 19 and 31 Learoyd Street are on the municipal heritage inventory but the house on the subject land is not.
Proposed development
The proposed additions and extension to the house include:
a)a double carport at the front of the house;
b)a front fence;
c)a two storey structure at the rear of the house comprising, on the ground floor, a games room, lounge, kitchen and dining room, and on the first floor a bedroom with en suite;
d)a two storey glassedin link extending from the new addition to the rear of the extension at the side of the existing house; and
e)a 4.0 metre wide two storey extension into the southwest setback at the side of the house toward the rear. On the ground floor would be an entrance, laundry, lavatory and store, with stairs up to the first floor. The first floor would be part void and a connection to the link to the rear addition.
On the application sketch, the front elevation of the extension showed a pitched roof with a ridge about 300 millimetres above the height of the ridge of the existing roof. The terracotta tiles of the existing house would be replaced with the zincalume proposed for the new work. The front wall of the side extension is 3.8 metres wide and extends about 800 millimetres above the gutter line. It has a flat top about 4.0 metres above the ground but 2.0 metres below the ridge. The respondent described this as a "cubic" appearance.
Planning controls
The subject land is zoned "Urban" under the Metropolitan Region Scheme and "Residential 12.5" under the City of Stirling District Planning Scheme No 2 (DPS 2).
In Sch 4 of DPS 2, the subject land is shown as located within the Mount Lawley Heritage Protection Area.
Clause 2.2.3 of DPS 2 states for Heritage Protection Areas:
"2.2.3.1 Intent of the Heritage Protections Areas:
It is the intention of the Council to ensure that any new development within a Heritage Protection Area is in harmony with and reflects:
(a)the character of existing dwellings in the area; and
(b)the local streetscape and existing pattern of development.
…
2.2.3.2Development within a Heritage Protection Area:
Development within a Heritage Protection Area shall comply with the following:
(a)the intention of the Council under clause 2.2.3.1 of Scheme;
(b)unless otherwise approved by the Council, the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and
(c)the Heritage Protection Area Design Guidelines adopted by the Council."
The respondent has adopted the "Mount Lawley Heritage Protection Area Character Retention Guidelines" (October 2005 guidelines). In the introduction to cl 3.2 of the October 2005 guidelines, it is said that it may be sometimes necessary to extend existing buildings to accommodate the changing needs of owners. The various ways to achieve this include:
"•pavilion structure with a link to the existing building
•new structure added to the rear of the existing building
•new structure added at the side of the existing building."
In a subsection titled "Mount Lawley (Estates 1 and 2)", cl 3.2 "Additions to existing buildings" of the October 2005 guidelines, it states under the heading "Policies":
"•retain the original building with minimum alterations to the existing building
•retain existing mature trees where possible
•retain the natural ground level on the site
•no additions to the existing building may occur within the front setback
•additions visible from the street should be seamless and reflect the architectural style, form, colour and materials of the original dwelling
•additions not visible from the street need not strictly adhere to the original style of the dwelling, but should reflect the intent of these guidelines
•the eaves line of the extension should not be lower than the eaves line of the existing building
•the ridge height of the addition should match the existing or fall within the sight line from the front boundary
•any additions to the side must be set back at least 2.0 metres from the front of the existing building
•second storey additions should ideally be located to the rear of the original building ridge line, or a minimum of 4m from the predominant building line of the front of the dwelling, whichever is the lesser. In areas where a lesser upper floor setback predominates, variations to the above upper floor setbacks will be considered."
The objective of cl 3.2 states:
"New additions should contribute towards the preservation of the character of the area."
The respondent's position
The respondent called as a witness Mr Richard Rodic, a development assessment officer with the City of Stirling. Mr Rodic advised that when the application was first received in October 2005, the respondent had Palassis Architects conduct an external heritage assessment of the proposed development. In December 2005, the respondent received amended plans from the applicants which the respondent also had assessed by Palassis Architects.
The respondent then refused the application because it was considered the additions did not meet the objectives of Pt 3.2 of the October 2005 guidelines. Mr Rodic said that, in his view, the proposed development did not "ensure that the heritage character of Mount Lawley is protected" as required at cl 1.2 of the October 2005 guidelines.
Mr Rodic said, in giving his evidence, that there was no issue with the two-storey addition in the rear yard, as this could not be seen from the street, and the respondent did not take issue with the proposed front fence or with the carport in the front yard, if the carport was given a tiled roof.
The respondent's concern was with the extension of the existing dwelling into the southwest side setback. Mr Rodic said that the flattopped cubic design of the front elevation of the proposed extension, extending above the gutter line, was considered to be inconsistent with, and therefore clearly distinguishable from the architectural style of the existing house. This, he said, was contrary to cl 3.2 of the October 2005 guidelines which required additions visible from the street to be "seamless and reflect the architectural style, form, colour and materials of the original dwelling".
Mr Rodic said that to be seamless, an addition should not be distinguishable from the existing house. As the proposed development was not a seamless addition to the existing house, it would detract from the preservation of the character of the area. It was his view that the extension was therefore contrary to cl 2.2.3.1 of DPS 2 in that it would not be in harmony with, and would not reflect the character of the existing dwellings in the area and the local streetscape.
Mr Rodic further argued that the proposed change of roofing for the entire house from terracotta tile to zincalume would significantly alter the character of the house. This would be contrary to cl 3.2 of the October 2005 guidelines, which refers to minimum alterations to the existing building, and cl 2.2.3.2(b) of DPS 2 which refers to conservation of significant architectural elements of an existing house that significantly contribute to the streetscape, which in this instance was largely of houses with orange terracotta tile roofs.
Mr Rodic said the requirements of DPS 2 in relation to the Mount Lawley Heritage Protection Area were not "unreasonable or undesirable in the particular circumstances of the case" and therefore should not be modified using the general discretion power of cl 1.4.3.1 of DPS 2.
In Ms Moredoundt's opinion, the extension to the southwest of the existing house would detract from the appearance of the building, and also the locality, when viewed from the street because it would form a strong contrast to the existing residence. The extension would not reflect the architectural style, materials or form of the existing front façade or roof. In her view, there were degrees of seamlessness and it would assist in meeting the objective of the October 2005 guidelines if any addition visible from the street were redesigned to be more sympathetic to the existing residence, particularly in regards to the architectural style, materials and scale. It would also assist if the roof was tiles to match the existing and the roof line was redesigned to be not substantially different from that existing.
Applicants' position
Mr Griffiths, for the applicants, offered his professional opinion that the whole of the area contained both individual places of high heritage value and a larger number of places that contribute to cultural density of the locality while having no great intrinsic heritage value. The house on the subject land, he said, fell into the latter category. Mr Griffiths provided photographs and said they showed that in the immediate locality of the subject land, the street had strong groupings of places that were related in time and style, with no overall or compelling visual stylistic homogeneity. In Mr Griffiths' view, some careless additions in the "Mount Lawley style" detracted from the stronger groups of places by being poor examples of pastiche. He considered that, more important in the heritage context, was the fact that there was a dominant overall pattern and a good deal of variation in style up to the present and that the area had absorbed all of this development and change while preserving an overall character and amenity.
Mr Griffiths, as with Ms Moredoundt, considered that the replacement roof should be tile and the façade similar materials and similar rendering of the bricks as in a significant part of the original house to preserve these details. In his view, however, the applicants had made the addition distinguishable from the base house, which he considered a sound design principle and which had been followed by other houses in the locality with success. He supported the principle of contemporary design in connection with historic places so that each phase of development was readily distinguishable.
Mr Griffiths offered the opinion that seamlessness was difficult to achieve and extensions cannot be literally seamless. His view was that the extension should not necessarily be seamless but be sympathetic. This might not comply with the "seamless" approach, but was capable of achieving the conservation objectives set out in the October 2005 guidelines without rigid adherence to the mechanics of them.
In his view, the applicants had made an attempt to blend the most conspicuous part of the house extension at the side of the house with the existing main house in a comparatively seamless manner. Mr Griffiths emphasised that the front wall of the proposed extension was not conspicuous because it was deeper than the front of the existing house, halfway down the side some 20 metres from the front boundary and well behind the front of the houses on the adjoining lots. He considered that, with this distance from the front boundary, the topography and the landscaping, the impact of the proposed side extension on the streetscape and character of the locality would be comparatively low. In his view, the relationship between the existing house and the street would remain much the same as at present.
The applicants' made personal submissions in which they argued that the October 2005 guidelines were a policy and it would be acceptable not to mimic the existing architecture but be responsive to it. They offered to have the extension built so that the tiles would match the existing, the ridge of the new roof would be no higher than the existing ridge and the finishes would be the same as on the existing house.
The applicants said the respondent had put all its weight on the one point. That is, the cubic form of the front elevation of the extension. This, in their opinion, would be softened by the landscaping and weight should be given to the development complying with all of the other requirements of cl 3.1 of the October 2005 guidelines.
Conclusion
Not at issue between the parties was the proposed twostorey, flatroofed addition at the rear not visible from the street linked to the existing dwelling by the twolevel walkway. Also not of concern was the carport in the front yard with its pitched roof and gable end, provided it was roofed with tiles to match those of the existing house.
At issue was the proposed extension to the house into the south west side setback. The applicants wanted the "cubic" form of the front wall of the extension to remain. The respondent considered that the extension would not be a seamless addition to the existing house as required by cl 3.2 of the October 2005 guidelines and so would not be in harmony with or reflect neighbouring dwellings or the streetscape. The respondent said the extension would not contribute toward the preservation of the character of the area and would be in conflict with cl 2.2.3.1 of DPS 2.
The Tribunal acknowledges that the approach of the respondent is an attempt to maintain the authenticity of design features on the basis that it believes it is protecting the character of the locality. This, however, is considered by the Tribunal, to place a too narrow and subjective view on the matter.
Some of the policies of cl 3.2 of the October 2005 guidelines appear to be expressed in prescriptive terms, others in terms that encourage a particular outcome. To elevate those purporting to be expressed in prescriptive terms to mandatory obligations is wrong in principle. The respondent's view was that to be seamless the extension should be indistinguishable from the existing house. As the extension was not seamless according to this definition, then the respondent considered this should be fatal to the application. The Tribunal agrees with both Ms Moredoundt and Mr Griffiths that there are degrees of seamlessness.
As pointed out by Mr Griffiths, the locality is not one of uniformity of design, but one where there is a dominant overall pattern with some variations in style that have been absorbed while preserving an overall character and amenity. Examination of the streetscape does not reveal a purity of design. Individual houses have additions and renovations that incorporate elements that would not have been in dwellings built early last century and which can be identified. It is agreed with Mr Griffiths that these additions have mostly been "absorbed" by the locality, particularly when set well back from the street, and make a contribution to the preservation of the character of the area.
The applicants have accepted that they should make a contribution to the character of the locality by having a particular roof height and pitch, a tiled roof and finishes to the wall which are consistent with the existing house. The cubic form of the street elevation of the extension is not traditional, but given the materials that will be used, the finishes proposed, the setback from the street and the elements of the guidelines that have been adhered to, the Tribunal has accepted that the proposed development can make an acceptable contribution. It has therefore been determined that there is a case for allowing the proposed extension to the southwestern side of the dwelling to be approved along with the addition at the rear and the carport.
Orders
The Tribunal has determined that following orders be issued:
1.The application for review be allowed.
2.The development set out in the plans of 9 December 2005 be approved subject to the following conditions:
(i)the ridge of the roof of the extension to the existing dwelling be no higher than the ridge line of the existing dwelling;
(ii)the roof of the carport and extension to the main dwelling be tiled to match the existing dwelling; and
(iii)the materials, treatment and colours of the front wall of the extension to the existing house to match that of the existing house.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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