KEVIN AND MELANIE ATTREE and CITY OF MELVILLE
[2023] WASAT 35
•12 MAY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KEVIN AND MELANIE ATTREE and CITY OF MELVILLE [2023] WASAT 35
MEMBER: MS C BARTON, MEMBER
MR R POVEY, MEMBER
HEARD: 14, 15 AND 16 DECEMBER 2022 (JOINT WRITTEN SUBMISSIONS FILED ON 17 MARCH 2023)
DELIVERED : 12 MAY 2023
FILE NO/S: DR 133 of 2022
BETWEEN: KEVIN AND MELANIE ATTREE
Applicants
AND
CITY OF MELVILLE
Respondent
Catchwords:
Town planning - Development application - Single dwelling - Building height - Site works - Natural ground level - Bulk and scale - Application of design principles - Amenity of adjoining properties or the streetscape - Amenity of the locality - Views of significance - Whether appropriate to maintain access to views - Whether development responds to natural features of the site - Whether development is compatible with its setting - Orderly and proper planning
Legislation:
City of Melville Local Planning Scheme No. 6, cl 25, cl 25(1)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 1, cl 61(1), cl 67(2), cl 67(2)(m), cl 67(2)(n)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 1.4, cl 2.5.1, cl 5.1, cl 5.1.6, cl 5.3, cl 5.1.5, cl 5.1.6, cl 5.3.7, cl 7.3.1(a)
Result:
Application for review dismissed
Respondent's decision affirmed
Category: B
Representation:
Counsel:
| Applicants | : | Mr J Skinner |
| Respondent | : | Mr P Wittkuhn |
Solicitors:
| Applicants | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Goyder and Walsh [2009] WASAT 108
L Ramakrishnan and City of Fremantle [2004] WATPAT 89
Loxton & Anor and City of Fremantle [2015] WASAT 46
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
NBN Co Limited and City of Albany [2016] WASAT 61
Prosser and Town of Cottesloe [2021] WASAT 115
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Schloffer and City of Bayswater [2020] WASAT 122
SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32; [2003] WATPAT 138
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LEGERA 23
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45
Warden and Town of Mosman Park [2019] WASAT 88
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicants, Kevin and Melanie Attree, seek approval to construct a two-storey single dwelling with basement and roof terrace (proposed development) at No 4 (Lot 70) Fraser Road, Applecross (property or subject site). The respondent is the City of Melville (City or respondent).
On 1 August 2022, the applicants commenced proceedings in the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) following the City's deemed refusal of the proposed development.
On 12 August 2022, with the consent of the parties, the Tribunal invited the City to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 16 August 2022, the Council of the City resolved to refuse the proposed development for the following reasons:[1]
[1] The City's decision was communicated by a decision notice dated 19 August 2022; respondent's s 24 bundle of documents dated 10 October 2022 (respondent's s 24 bundle) (Exhibit 14), pages 89-90.
1.The proposed development exceeds 9 metres in height over the associated natural ground level across the entire building and does not meet the deemed to comply provisions of Clause 2.1.1 of the City of Melville Local Planning Policy 1.9 Height of Buildings and or Design Principles specified in Clause 5.1.6 of State Planning Policy 7.3 Residential Design Codes Volume 1.
2.The Application is not consistent with Design Principle 5.1.6 P6 of the Residential Design Codes as the building height proposed negatively impacts access to views of significance;
3.The Application is not consistent with Design Principle 5.3.7 of the Residential Design Codes as the fill proposed does not consider or respond to the natural features of the site and is solely designed for the purpose of increasing the height of the building;
4.The Application is not consistent with cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 as:
a.The Application is inconsistent with orderly and proper planning;
b.The building height is incompatible with the desired character of its setting;
c.The building bulk, and height does not demonstrate the necessary relationship to development within the locality; and
d.The Application is inconsistent with the amenity of the locality.
We have concluded, for the reasons that follow, that the application for review should be dismissed and the City's decision to refuse the proposed development affirmed.
The issues for determination
The following issues arise for determination by the Tribunal:
1)Does the proposed development comply with design principle P7.1 in cl 5.3.7 of State Planning Policy 7.3 - Residential Design Codes Volume 1 (R-Codes) relating to 'site works' in that it considers and responds to the natural features of the site and requires minimal excavation/fill?
2)Does the proposed development comply with design principle P6 in cl 5.1.6 of the R-Codes relating to 'building height' of creating no adverse impact on the amenity of adjoining properties or the streetscape?
3)Does the proposed development comply with the design principle P6 in cl 5.1.6 of the R-Codes relating to 'building height' of maintaining access to views of significance, where appropriate?
4)Is the proposed development compatible with its setting and the amenity of the locality?
Conduct of the proceedings and witness evidence
We heard expert evidence from Mr Ryan Cribb, a surveyor employed as a project manager at McMullen Nolan Group, who was called on behalf of the respondent and from Mr Peter Hillman, a landscape architect and associate director of Urbis, called on behalf of the applicants. Mr Cribb filed two witness statements with the Tribunal which he adopted as his evidence-in-chief and was cross-examined.[2] Attached to the witness statement of Mr Cribb dated 6 December 2022 is Attachment RMC2 which provides a series of 3D model renderings of the proposed development set within its context. Mr Hillman also filed a witness statement with the Tribunal which he adopted as his evidence-in-chief and was cross-examined. Mr Hillman's witness statement includes a visual impact assessment of the proposed development.[3] At the final hearing, the applicants filed a further visual impact assessment prepared by Mr Hillman which relied on the 3D model renderings prepared by Mr Cribbs.[4]
[2] Witness statement of Ryan Mathew Cribb dated 30 November 2022, Exhibit 6 and witness statement of Ryan Mathew Cribb dated 6 December 2022, Exhibit 7.
[3] Witness statement of Peter Hillman dated 30 November 2022, attachment 2, Exhibit 9.
[4] Further Visual Assessment of Peter Hillman, Exhibit 18.
We also heard expert evidence from two town planning experts. Ms Amanda Butterworth, a consultant town planner with Allerding and Associates, was called on behalf of the respondent and Mr Neil Teo, a consultant town planner and director of Dynamic Planning and Developments Pty Ltd, was called on behalf of the applicants. Ms Butterworth and Mr Teo both filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were crossexamined.[5] Ms Butterworth filed a supplementary witness statement to address the witness statement of Mr Cribb.[6] Mr Teo also filed a supplementary witness statement[7] and a further witness statement of corrections (in which Mr Teo provides corrections to his witness statement dated 25 November 2022).[8]
[5] Witness statement of Amanda Jane Butterworth dated 28 November 2022, Exhibit 4 and witness statement of Neil Albert Teo, dated 25 November 2022, Exhibit 10.
[6] Supplementary witness statement of Amanda Butterworth dated 8 December 2022, Exhibit 5.
[7] Supplementary witness statement of Neil Albert Teo dated 30 November 2022, Exhibit 11.
[8] Witness statement corrections of Neil Albert Teo dated 13 December 2022, Exhibit 16.
In addition to the expert witness evidence, the respondent relied on the evidence of Ms Isabel Fernandez, of No 3 Fraser Road, Applecross. Ms Fernandez and her husband own and reside at this property which is located opposite (to the south) of the subject site. Ms Fernandez filed a witness statement with the Tribunal which she adopted as her evidencein-chief and was cross-examined.[9] The witness statement included several attachments, including submissions prepared and made to the City on behalf of Ms Fernandez by Mr Trevor Saleeba, an architect with Saleeba Adams Architects, during the assessment of the development application. We accept that this material was provided to the Tribunal for historical purposes to show the correspondence sent to the City by Ms Fernandez in support of her objection to the proposed development.[10] Mr Saleeba was not called as an expert witness at the final hearing and, consequently, we place no weight on the substantive content of the attachments to Ms Fernandez's witness statement that were authored by Mr Saleeba.
[9] Witness statement of Isabel Fernandez dated 25 November 2022, Exhibit 8.
[10] ts 28-30, 14 December 2022.
The Tribunal had the benefit of a site view of the property, and surrounds, which was attended by counsel for the applicants[11] and the expert witnesses. At the property, we examined the existing ground levels at the eastern and western boundaries of the property relative to the adjoining lots and viewed the building under construction on No 4A Fraser Road, to the north of the subject site. We also visited No 3 Fraser Road (the home of Ms Fernandez) and No 5A Fraser Road, which provided the opportunity to observe the subject site and views from the interior and balconies of the two properties and the viewing points identified by the expert witnesses. The site view concluded at the foreshore reserve on the northern side of Fraser Road where we again observed the existing ground levels of the property relative to adjacent properties.
[11] Counsel for the Respondent was unable to attend the view in person due to COVID-19 and participated in the hearing by video conference.
By orders made by the Tribunal on 7 March 2023, the parties were given the opportunity to comment on the effect of State Planning Policy 7.3 – Residential Design Codes, Volume 1 as published by the Western Australian Planning Commission (WAPC) in February 2023 (R-Codes 2023) on the determination of the proceeding. The parties filed a Joint Submission with the Tribunal on 17 March 2023 in which they agreed that there is no new content in the R-Codes 2023 that would materially change their respective positions.[12]
The proposed development
[12] Parties' Joint Submission as to R-Codes 2023 pursuant to Tribunal's order of 7 March 2023, dated 17 March 2023.
The proposed development is a single house comprising three storeys and a roof terrace. The lowest storey, described on the plans as a 'proposed basement' and referred to in these reasons as Level 1, has a floor level of relative level (RL) 5.243 and is set below the level of Fraser Road which is approximately RL 9.83 to RL 8.50 (from west to east, respectively, at the street boundary with the subject site). Due to the steep fall of the property away from the road, Level 1 is not a basement that is excavated into the ground in the traditional sense but will mostly be constructed above natural ground level. Level 1 incorporates a gym with sauna, cellar, two bedrooms (each with an ensuite) and a sitting room. At the rear of Level 1, is an alfresco area and yard, which includes a proposed pool. The levels in the outdoor area are proposed to be filled to RL 5.157 which is approximately 2.567 metres of fill (at the western boundary) and 3.157 metres of fill (at the eastern boundary) above natural ground level along the northern boundary of the subject site.[13]
[13] Levels and contours shown on basement site plan, respondent's s 24 bundle, page 58; Exhibit 14.
The ground floor includes a garage for four cars, a master bedroom with ensuite, laundry and study (Level 2). The entry to the garage is by a new crossover from Fraser Road. The floor level of the garage (RL 8.329) is set at a similar level to the ground level at the Fraser Road boundary (the street level at the crossover is RL 8.84 down to RL 8.26). The living areas of Level 2 are proposed at RL 8.415.
The upper storey provides for the main entry to the proposed development (via external stairs from Level 2 to the front porch and balcony), the kitchen, dining and living area and a guest bedroom with ensuite (Level 3). The floor level of Level 3 is RL 11.587 and includes a large balcony at the rear which runs the entire width of the proposed development.
The three levels of the proposed development are connected internally by stairs and a lift.
Above Level 3 is an open roof terrace with a floor level of RL 14.759 which is accessed from Level 3 by the stairs through a 'skylight hatch'. The roof terrace is partially enclosed by solid balustrade walls to 1.08 metres above the floor level on the south, west and most of the east sides of the proposed development (extending to RL 15.839). The balustrades to the north and a small portion of the east are to be glazed as they face the Swan River. The roof terrace is located centrally on top of Level 3 and is setback from all sides of the development. A central polished concrete feature wall of the front elevation extends above the level of the balustrade to RL 16.131.
When viewed from Fraser Road, the proposed development presents as two storeys. The maximum external wall height is 10.231 metres on the south elevation, with a top wall height of 16.131 metres. The maximum wall height on the east elevation is 12.539 metres, and the maximum building height is 12.339 metres on the west elevation.[14] It is uncontroversial that the height of the proposed development above road level is 7.71 metres.[15]
The subject site and locality
[14] Witness statement corrections of Neil Albert Teo dated 13 December 2022, para 5 (which amends para 9 of Exhibit 10), Exhibit 16.
[15] ts 80, 14 December 2022.
The subject site is 500m2 in area and is currently vacant. It is formally described as Lot 70 on Deposited Plan 32306, being the whole of the land in Certificate of Title Volume 2541 Folio 194.[16]
[16] Respondent's s 24 bundle, page 12, Exhibit 14.
The subject site resulted from a 'battleaxe' subdivision in 2003, with the former single dwelling constructed in the 1960s now demolished.[17] The adjoining battleaxe lot to the north (No 4A Fraser Road) is the rear lot and has its access from Fraser Road along the eastern side of the subject site. The subject site has truncations at its south-eastern and north-eastern corners to facilitate functional access to No 4A Fraser Road. The northern boundary of No 4A Fraser Road abuts the foreshore reserve (which is approximately 26 metres from the northern boundary of the subject site). A new three-storey single dwelling is currently under construction at No 4A Fraser Road.[18]
[17] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 51, Exhibit 4.
[18] Witness statement of Neil Albert Teo dated 25 November 2022, paras 15-16, Exhibit 10.
The subject site is generally rectangular in shape (except for the truncations) and with a frontage to Fraser Road (southern boundary) of 12.88 metres. It has a depth of approximately 31 metres and a rear (northern boundary) width of 13.22 metres.[19]
[19] Respondent's amended SIFC, para 11, Exhibit 2.
The topography of the locality is characterised by significant slopes, with the gradient increasing from the foreshore reserve to Tuart Lane, at the intersection with Fraser Road. The subject site slopes down significantly from the front (south) to the rear (north), being a fall of 7 metres, and more markedly from the south-east to the north-west.[20] A mound of soil was evident on the subject site during the site view, but the fill does not form part of the proposed development.[21]
[20] Respondent's s 24 bundle, page 58, Exhibit 14.
[21] Respondent's amended SIFC, para 61, Exhibit 2; ts 14, 14 December 2022.
The following single dwellings are located on the northern side of Fraser Road:
1)No 2 Fraser Road, immediately to the east of the subject site. This lot extends between Fraser Road and the foreshore reserve and is approximately 1256m2 in area. It contains a single house.
2)No 4A Fraser Road, immediately to the north of the subject site, and has a site area of 605m2. The dwelling on this site is currently under construction.
3)No 6 Fraser Road, immediately to the west of the subject site. This lot extends between Fraser Road and the foreshore reserve and is approximately 1115m2 in area. This lot contains a single house.
4)No 8 and No 8A Fraser Road, each developed with a single dwelling. This lot has a similar battleaxe subdivision as No 4 and No 4A.
The following single dwellings are located on the southern side of Fraser Road (opposite the subject site):
1)No 1 Fraser Road, at the corner of Tuart Street, with a site area of 689m2 and containing a single house.
2)No 3 Fraser Road with a site area of 782m2 and containing a single house, which was visited during the site view.
3)No 5A Fraser Road (at the western bend of Fraser Road and opposite Majestic Close) with an area of 666m2 and containing a single house, which was visited during the site view.
4)No 5B Fraser Road located at the corner of Tuart Lane with a site area of 557m2 and developed with a single house.
The single dwellings surrounding the subject site are large in size and scale and of high-quality design, with a variety of architectural styles. In most instances, the dwellings are oriented to take advantage of views of the Swan River. The Swan River foreshore reserve is located approximately 26 metres to the north of the subject site,[22] with the river a short distance further north.
The planning framework
[22] Respondent's amended SIFC, para 12, Exhibit 2.
The subject site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Residential' under City of Melville Local Planning Scheme No. 6 (LPS 6), with a density coding of R12.5.
The objectives of the 'Residential' zone under LPS 6 are:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development to promote sustainable residential development.
•To maintain the compatibility with the general streetscape, for all new buildings in terms of scale, height, style, materials, street alignment and design of facades.
Pursuant to cl 25 of LPS 6, the R-Codes are to be read as part of LPS 6.[23] Consequently, the design principles and, where applicable, the deemed-to-comply provisions of the R-Codes apply to single houses in areas coded less than R40.[24]
[23] LPS 6, cl 25(1).
[24] R-Codes, cl 1.4.
The erection of a single house on a lot does not require development approval under LPS 6 if the conditions set out in cl 61(1) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) are satisfied.[25] However, the proposed development requires development approval under LPS 6 because it does not comply with the deemed-to-comply provisions of the R-Codes as to building height set out in the City of Melville Local Planning Policy 1.9 - Height of Buildings (LPP 1.9),[26] or the deemedto-comply provisions as to site works in cl 5.3.7 of the RCodes.
[25] See item 6 of the Table in cl 61(1) of the Deemed Provisions.
[26] A local government may adopt local planning policies which amend or replace certain stipulated deemedto-comply provisions of the R-Codes, including building height: R-Codes, cl 7.3.1(a).
In determining an application for development approval under LPS 6, we must have due regard to the matters listed under cl 67(2) of the Deemed Provisions to the extent, in our opinion, those matters are relevant to the proposed development the subject of the application. This includes considering the merits of the proposed development having regard to the objectives of the design elements, and the design principles of the R-Codes.[27]
The Tribunal's consideration
[27] R-Codes, cl 2.5.1.
The development application was originally lodged with the City on 1 December 2021. However, the plans of the proposed development, which form the basis of the review proceeding, comprise the amended plans lodged with the City on 9 May 2022 by the applicants' agent, Dynamic Planning and Developments Pty Ltd.
We will first consider whether the proposed development responds to the natural features of the subject site and requires minimal excavation/fill for the purposes of the R-Codes.
Site works - does the extent of cut and fill respond to the natural features of the subject site?
The applicants contend that the proposed development complies with the deemed-to-comply provisions in cl 5.3.7 of the R-Codes relating to fill to be located between the street boundary of Fraser Road and the street setback.[28] The parties otherwise agreed that the proposed development does not meet the deemed-to-comply provisions of cl 5.3.7 of the R-Codes relating to site works.[29]
[28] ts 227-228, 16 December 2022.
[29] Respondent's amended SIFC, para 22; Applicant's SIFC, para 6.
In relation to fill to be located between the street boundary and the street setback, the deemed-to-comply requirements in cl 5.3.7 of the RCodes provide:
C7.1Retaining walls, fill and excavation between the street boundary and the street setback, not more than 0.5m above or below the natural ground level, except where necessary to provide for pedestrian, universal and/or vehicle access, drainage works or natural light to a dwelling.
The design principles relating to site works in cl 5.3.7 of the RCodes provide:
P7.1Development that considers and responds to the natural features of the site and requires minimal excavation/fill.
P7.2Where excavation/fill is necessary, all finished levels respecting the natural ground level at the lot boundary of the site as viewed from the street.
P7.3Retaining walls that result in land which can be effectively used for the benefit of residents and do not detrimentally affect adjoining properties and are designed, engineered and landscaped having due regard to clauses 5.3.7 and 5.4.1.
Further, the objectives in cl 5.3 of the R-Codes, which address site planning and design, relevantly provide:
…
(c)To ensure each development makes a contribution to a streetscape by respecting the natural topography for each site, adjoining properties and the amenity of the locality[.]
The meaning of 'natural features of the site'
The applicants contend that the reference in P7.1 to 'natural features of the site' is not necessarily the same as 'natural ground level' which is used in P7.2.[30]
[30] ts 228, 16 December 2022.
The Deemed Provisions define 'natural ground level' (NGL) in cl 1 as follows:
natural ground level, in relation to land subject to development, means —
(a)The ground level specified in either of the following that applies to the land (or, if both of the following apply to the land, the more recently of the following) —
(i)a condition on an approval of a plan of subdivision that specifies a ground level;
(ii)a previous development approval for site works on the land that specifies a ground level;
or
(b)If paragraph (a) does not apply – the level of the land before any disturbance to the land relating to the development[.]
The expression 'natural ground level' is defined in the R-Codes to mean:[31]
The levels on a site which precede the proposed development, excluding any site works unless approved by the decision-maker or established as part of subdivision of the land preceding development.
[31] R-Codes, Appendix 1 - Dictionary.
To determine the NGL of the subject site, cl 1.1 of the LPP 1.9 provides the following assistance:
For the avoidance of doubt, when determining natural ground level on sites where pre-application development and/or subdivision has not taken place, reliance is placed on the definitions of natural ground level as shown on the Water Corporation BG 2000 Maps Sheet Series.
There was no dispute, and we find, that the NGL of the subject site, being the levels before any disturbance to the land, are those shown on the Water Corporation BG 2000 Maps Sheet Series.[32] The levels of the subject site before any disturbance to the land applies in this case because, firstly, there was no record of approved site levels for the building licence for the former single dwelling on the subject site (constructed in circa 1960)[33] and, secondly, whilst the plan of subdivision which created the subject site and Lot 71 (No 4A) show retaining walls forward of the former single dwelling, the plan did not change the levels that existed at that time.[34]
[32] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 59, Exhibit 4. Witness statement of Neil Albert Teo dated 25 November 2022, para 9, Exhibit 10 and witness statement corrections of Neil Albert Teo dated 13 December 2022, para 5 (which amends para 9 of Exhibit 10), Exhibit 16; ts 50, 56-57, 14 December 2022.
[33] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 51, Exhibit 4.
[34] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 52, Exhibit 4.
Further, based on the evidence before us, we find that the NGL of the subject site are generally consistent with the historical contours shown on the site plan of the proposed development.[35]
[35] Respondent's s 24 bundle, pages 58-59, Exhibit 14.
The expression 'natural features of the site' is not defined in the RCodes. The word 'feature' is defined in the Macquarie Dictionary Online to include 'a prominent or conspicuous part or characteristic'. The word 'natural' is generally interpreted to mean 'existing in or formed by nature; not artificial'. It follows that 'natural features of the site' would include prominent unmodified components of the landscape present in or produced by nature, including but not limited to soil types, geology, slopes, vegetation, surface water, drainage patterns, aquifers, recharge areas, climate, floodplains, aquatic life, and wildlife.
The applicants accept, and we find, that the significant slope across the subject site is a natural feature but, over time, that slope has been modified in various ways by both previous and existing development.[36] Despite the modified slope of the subject site, the experts agreed, and we find, that the NGL is an appropriate reference point for determining the extent of cut and fill required for the proposed development.
Expert evidence on the extent of excavation/fill
[36] ts 228, 16 December 2022.
In relation to fill to be located between the street boundary and the street setback, Mr Teo expressed the opinion that the impact at street level is minimal because the finished level is consistent with No 6 Fraser Road.[37] Ms Butterworth observed that No 6 Fraser Road 'sits higher'.[38] Because there is a 'different starting point', Ms Butterworth did not consider that it made it acceptable to bring the levels of the proposed development up to the levels of No 6 Fraser Road.[39]
[37] ts 65, 14 December 2022.
[38] ts 65, 14 December 2022.
[39] ts 65, 14 December 2022.
Turning to the extent of fill and cut proposed for the remainder of the subject site, there was evidence before us that the NGL on the east elevation of the proposed development is shown to be close to the existing ground level. However, on the west elevation there are some differences evident between the NGL and the existing ground level. Ms Butterworth prepared an annotated copy of Annexure AJB7 to her witness statement dated 13 December 2022 showing the west elevation of the proposed development, and based on the agreed NGL contours, depicts the extent of fill and cut proposed (Exhibit 17). The extent of cut and fill with reference to the NGL contours along the east elevation is depicted in the respondent's amended statement of issues facts and contentions (SIFC).[40]
[40] Respondent's amended SIFC, para 66 (page 17), Exhibit 2.
Having regard to Exhibit 17 and the respondent's amended SIFC, Ms Butterworth expressed the following opinion about the degree of fill:[41]
… I don't believe that the development responds positively to the natural features of the site, and it does not require minimum excavation o[r] fill.
Now, if we look at the image on the west elevation that I've provided as part of exhibit 17, there's clearly a significant amount of fill when looking into the natural ground contours. And that includes fill in the front setback area under the building and to the rear. And looking at the east elevation as detailed in the respondent's amended SIFC, there is less fill in the front.
However, there is a lot of fill towards the rear of the site, under the building and in the rear setback area. So in my opinion in regard to design principle P7.1, the development does not respond to the natural features of the site and it doesn't step down, and it doesn't require minimum – minimal excavation or fill. And that can be seen in regards to the image on the east elevation in the respondent's SIFC, and exhibit 17.
[41] ts 58, 14 December 2022.
Under cross-examination, Mr Teo was asked about the extent of cut and fill in the context of the design principle P7.1 of the R-Codes. In considering the west elevation, Mr Teo observed:[42]
So yes, I do agree that there is more fill than cut that's being proposed by this development. That's quite evident from exhibit 17 which I don't hold any objection towards[.]
[42] ts 59, 14 December 2022.
When considering the east elevation, Mr Teo expressed the following opinion:[43]
So I understand that that level depicted on the east elevation is an approved level for that driveway, for number 4A going to the rear. There is an easement to benefit four, but given the topography and the levels as being set by the approval of 4A, it does present some, I guess, considerations in a functional development and design. Ultimately, you know, does it respond to the natural features of the site, and requires minimal excavation and fill. I would say that this design – again, there's more fill than cut[.]
[43] ts 59, 14 December 2022.
The most significant amount of additional fill is to the rear of the subject site, to enable a continuous Level 1, which extends the footprint of the dwelling towards the northern boundary with an outdoor living area and pool, at the same level. The respondent's counsel, Mr Wittkuhn, questioned Mr Teo about the additional fill under crossexamination, which resulted in the following exchange:[44]
MR WITTKUHN: [respondent's counsel]
… what your opinion, basically, amounts to is saying that this relationship between cut and fill ought to be approved because, in a very real sense, you're looking to approve a, or support a, swimming pool at the rear of the site, at the same floor level as the back door.
MR TEO: Following that line of thought, Mr Wittkuhn, if that's – I guess, if that's the question you put to me as a plan[ner], I then, I guess, invoke and look at the objectives of 5.3 of the R-Codes, which, you know, we start to delve into, you know, things to do with the neighbours' amenity and impact. Now, I note that there are no overshadowing or privacy contentions to the abutting property there and, I note, it's separated by, you know, a three-metre access leg as well. There's no contentions from number 4 either. So I think, you know, when I consider what has been proposed in the realm of impacts on amenity, I would conclude that, from a planning perspective, the outcome is acceptable to satisfy the objectives of 5.3.
[44] ts 87-88, 14 December 2022.
During the final hearing, the applicants acknowledged that the level of the rear outdoor area, which incorporates the pool, could be lower. If the proposed development were approved, the applicants would accept a condition to lower the level of the rear area to reduce the amount of fill.[45] The applicants did not indicate the precise reduction in fill that was possible but suggested something in the order of a third to a half could be contemplated.[46]
[45] ts 96, 15 December 2022.
[46] ts 97, 15 December 2022.
Whilst Ms Butterworth agreed that a reduction in the level of the rear outdoor area would reduce the amount of fill, and 'goes some way to addressing that matter,' she did not consider that the design principle at P7.1 of cl 5.3.7 of the R-Codes would be met.[47]
Site works - findings
[47] ts 96, 15 December 2022.
We accept the evidence of Ms Butterworth, and we find, that the level of the proposed development at the street setback will be similar to the level of No 6 Fraser Road. However, based on the evidence of Mr Teo, which we accept, we find that the proposed fill at the front of the proposed development, between the street boundary of Fraser Road and the street setback, meets the deemed-to-comply provisions of the R-Codes because it is necessary to provide for vehicle access to the garage in its proposed location.
The applicants contend that, in relation to the remainder of the proposed development, the design principle relating to minimal fill is achieved because the works are not visible from the street and will not adversely affect the amenity of the adjoining property. Specifically, the applicants' counsel referred to the decision of Prosser and Town of Cottesloe [2021] WASAT 115 (Prosser) in which the Tribunal was satisfied that sites works associated with the extension of a pool deck requiring an increase above NGL of approximately 0.72 metres complied with the relevant design principle.[48]
[48] Prosser at [110].
Having regard to the topography of the locality, it is reasonable to expect that siteworks, requiring fill, would be necessary on the subject site to create ground levels suitable for development. However, in relation to the rear of the proposed development, we accept the evidence of Ms Butterworth, and we find, that it does not respond to the natural features of the subject site and, therefore, does not satisfy the design principle set out in cl 5.3.7 P7.1 of the RCodes for minimal excavation/fill. Whilst the applicants proposed modification to the rear levels may go some way to meeting the design principle, we find, based on the evidence of Ms Butterworth which we accept, that it does not satisfy the principle. We consider that the factual circumstances in Prosser can be distinguished from the proposed development which requires substantially more fill for the rear outdoor living area and pool, and, unlike the proposal in Prosser, does not respond to the natural features of the subject site by stepping down.
Finally, based on the evidence before us, we are satisfied that the fill required for Level 1 is a factor which increases the overall height of the proposed development and, consequently, leads to a development outcome which we find does not respect the natural topography of the subject site for the purposes of meeting objective (c) of cl 5.3 of the RCodes.
Building height - will it impact the amenity of adjoining properties or the streetscape?
The height provisions of LPP 1.9 replace the deemed-to-comply height requirements in cl 5.1.6 of the R-Codes.[49] There was no dispute, and we find, that the proposed development exceeds the height provisions of LPP 1.9 which, for the subject site, provides an external wall height of 9 metres to the concealed roof and an overall building height of 10.5 metres.[50] Mr Teo observed that the overall height is lower than the deemedtocomply overall height allowance of 10.5 metres under LPP 1.9 where pitched roofs are proposed.[51]
[49] See C 6, cl 5.1.6, R-Codes.
[50] LPP 1.9, cl 2.1.1; Respondent's s 24 bundle, page 151, Exhibit 14.
[51] Witness statement of Neil Albert Teo dated 25 November 2022, para 54, Exhibit 10.
There was also no dispute, and we find, that the proposed development is to be assessed under the design principles of cl 5.1.6 of the R-Codes because the deemed-to-comply requirements relating to height are not met. Relevantly, the objectives of Design Element 5.1 - Context of the R-Codes are:
(a)To ensure residential development meets community expectations regarding appearance, use and density.
(b)To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.
(c)To ensure adequate provision of direct sunlight and ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.
(d)To ensure open space (private and communal) is provided on site that:
•is landscaped to enhance streetscapes;
•complements nearby buildings; and
•provides privacy, direct sunlight and recreational opportunities.
(e)To ensure that design and development is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing transition, development achieves the desired future character identified in local planning framework.
Clause 5.1.6 of the R-Codes relevantly provides:
P6Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
•adequate access to direct sun into buildings and appurtenant open spaces;
•adequate daylight to major openings into habitable rooms; and
•access to views of significance.
Based on the definition of 'adjoining property' in Appendix 1 to the RCodes, we find that the relevant adjoining properties for the purposes of cl 5.1.6 of the R-Codes is limited to No 4A and No 6 Fraser Road.
In his witness statement, Mr Teo set out the maximum external heights of the proposed development as follows:[52]
…
•A maximum external wall height of 10.231m on the South Elevation (Fraser Road) based on the relative level of 5.9 from the Water Corporation BG2000 Maps Sheet Series and a top of wall height of 16.131m.
•A maximum wall height of 12.539[m] on the East Elevation based on the natural ground level from the Water Corporation BG2000 Maps Sheet Series.
•A maximum wall height of 12.339m on the West Elevation based on the natural ground level from the Water Corporation BG2000 Maps Sheet Series.
[52] Witness statement corrections of Neil Albert Teo dated 13 December 2022, para 5, Exhibit 16.
Ms Butterworth added that in terms of overall building height, the plans show that the balustrades and other elements identified on the Roof Plan exceed the 10.5 metre deemed-to-comply overall building height. She observed that the height of a portion of the roof terrace balustrade is in excess of 12 metres.[53]
Expert evidence on the impact of height on amenity
[53] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 61(b), Exhibit 4.
In Ms Butterworth's opinion, the proposed development has the potential to adversely impact the amenity of the adjoining property at No 2 Fraser Road, for residents and visitors when they enter the property. Further, it is her opinion that the proposed development would present building bulk to No 2 Fraser Road with a wall and overall building height in excess of 12 metres at its north-eastern point.[54] Ms Butterworth considered that the impact of building height of the proposed development on the amenity of No 4A Fraser may be acceptable because the dwelling on that site will face the river.[55] In relation to No 6 Fraser Road, Ms Butterworth is of the opinion that the proposed development will present building bulk which will be particularly evident from the front paved area of that residence.
[54] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 68, Exhibit 4.
[55] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 69, Exhibit 4.
Ms Butterworth considered that the proposed development, particularly due to its building height, will adversely affect the streetscape. Ms Butterworth expressed the following opinion about the impact of the height of the proposed development on the streetscape:[56]
… In my opinion, the proposed dwelling presents significantly greater bulk and scale to the street when compared to the existing dwellings either side of the [subject site]. The site slopes down from the road, with the highest point of the [subject site] being at an 8 metre contour yet the proposed development has a ground floor level of FFL 8.412 metres, that is above the highest level of the lot. The design of the dwelling does not step down as the site slopes down, no levels are stepped, the levels are consistent throughout the house[.]
[56] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 71, Exhibit 4.
Ms Butterworth made further observations about the height of the proposed development in the context of the existing streetscape as follows:[57]
… What we note looking at that streetscape elevation and when we did undertake our site view is that the properties - the height of the properties - at the highest point they're higher, then they step down gradually. So 8A is higher than 6, 6 is higher than - I will jump down to 2, and 2, the overall height there is higher than 2A. So we've got a gradual stepping down of building height. And if we look at the streetscape elevation, what happens at number 4 is that - the building height - both the wall height and the overall height sits quite differently in regard to the existing streetscape[.]
[57] ts 114, 15 December 2022.
Based on her assessment above, it is Ms Butterworth's opinion that the height of the proposed development does not satisfy the design principle in cl 5.1.6 of the R-Codes of a development that creates no adverse impact on the amenity of the adjoining properties or the streetscape.[58]
[58] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 72, Exhibit 4.
In contrast, it is Mr Teo's opinion that the proposed development will create no adverse impact on the amenity of adjoining properties because:[59]
1)The proposed development has been well articulated and incorporates design measures such as varied setbacks, floor to ceiling windows, landscaping and a range of materials which assists in alleviating building bulk impacts on adjoining properties.
2)The impact of the lot boundary setbacks to the adjoining property to the east (No 2 Fraser Road) are reduced because of a 3-metre-wide access leg abutting the eastern boundary of the proposed development.
3)The western walls of the proposed development adjacent to No 6 Fraser Road primarily impact a driveway and solid wall on that property.
4)Properties to the east and west have been orientated toward the north (river) with no side setback areas accommodating outdoor living.
5)There is no loss of visual privacy to the adjoining properties as active habitable spaces and outdoor living areas are not impacted by the variations to the visual privacy deemedtocomply requirements. Further, when utilising the roof terrace, the view corridors to the adjoining properties will be obstructed by roofs and eaves.
6)The tallest sections of the proposed development are located toward the rear of the property which is a direct result of the sloping NGL and is entirely consistent with adjoining properties.
[59] Witness statement of Neil Albert Teo dated 25 November 2022, para 48, Exhibit 10; Witness statement corrections of Neil Albert Teo dated 13 December 2022, para 8, Exhibit 16.
In relation to the impact of the building height on the amenity of the streetscape, it is Mr Teo's opinion that it will create no adverse amenity impact. He said that in assessing any amenity impact, it is particularly important to consider the existing character of the streetscape.[60] He observed that the streetscape along the northern side of Fraser Road is characterised as predominantly two to three-storey dwellings but, due to the topography of the land, the dwellings present to Fraser Road as predominantly one and two-storey dwellings with the third storey only visible from the river. On the southern side of Fraser Road, Mr Teo observed that the dwellings (primarily No 1, No 3 and No 5A Fraser Road) present as three-storey dwellings.[61] In Mr Teo's opinion, the proposed development is consistent with the established character of Fraser Road as it presents to the street as a twostorey dwelling and utilises the topography to create a third storey at the lower ground level. Consequently, Mr Teo considered that the proposed development, with a deemed-to-comply primary street setback of 7.5 metres, is entirely consistent with the established streetscape in relation to building bulk and scale.[62]
Impact of height on amenity - findings
[60] Witness statement of Neil Albert Teo dated 25 November 2022, para 51, Exhibit 10; ts 115, 15 December 2022.
[61] Witness statement of Neil Albert Teo dated 25 November 2022, para 52, Exhibit 10.
[62] Witness statement of Neil Albert Teo dated 25 November 2022, para 55, Exhibit 10.
We accept the evidence of Mr Teo, and we find, that the proposed development will not have an adverse impact on the amenity of adjoining properties. We are satisfied that the 3-metre-wide access leg abutting the eastern boundary of the proposed development with No 2 Fraser Road will help ameliorate any adverse amenity impact to that residence. We are also satisfied that the presence of a driveway and solid wall at the eastern boundary of No 6 Fraser Road will reduce the impact of the western walls of the proposed development on that neighbour.
In relation to the impact of height on the amenity of the streetscape, we accept the evidence of Mr Teo, and we find, that the proposed development is consistent with the established character of Fraser Road because it presents to the street as a two-storey dwelling. Whilst we acknowledge that the proposed development will present significant bulk and scale to the street when compared with other adjacent dwellings, we consider that it is not inconsistent with the existing character of the streetscape, particularly having regard to the dwellings on the southern side of Fraser Road that present as threestorey.
Consequently, we find that the proposed development is not inconsistent with design principle (P6) in cl 5.1.6 of the R-Codes, to the extent that it relates to the amenity of adjoining properties.
We will next consider whether the proposed development maintains access to views of significance, where appropriate, as required by design principle (P6) in cl 5.1.6 of the R-Codes.
Building height - will it maintain views of significance?
Clause 5.1.6 of the R-Codes provides a design principle (P6) for building height that maintains access to views of significance where appropriate. The relevant test, when applying this design principle, was enunciated by the Tribunal in Warden and Town of Mosman Park [2019] WASAT 88 (Warden). The test comprises the following three questions (three-step test):[63]
(1)What is the existing access to views of significance, unaffected by the proposed development?
(2)Is it appropriate that access to views of significance be maintained in the circumstances of this case?
(3)If so, does the proposed development maintain access to views of significance?
[63] Warden at [56].
In Warden, the Tribunal stated that the level of access to views that should be maintained, where appropriate, will be a question of fact and degree depending on the circumstances of the case. The Tribunal provided the following assistance on the construction of cl 5.1.6 P6 of the R-Codes:[64]
59The requirement is not to 'maintain views' but rather it is to 'maintain access to views', where appropriate. The words used support the conclusion that the design principle is not focused on maintaining views exactly as they exist at a point in time prior to the development under consideration occurring. The nature of views is such that the concept of a fixed view is somewhat incongruent. Views, and how one accesses views, can be affected by things changing in the public realm. The focus in the design principle on maintaining access to views makes sense taking into account this understanding of the nature of views, particularly from a private space.
60This is not to say that the design principle in cl 5.1.6 P6 of SPP 7.3 Vol 1 is only concerned with consideration of whether there is maintained some access to views, no matter how different that access may become, or how much existing views are affected. What level of access to views should be maintained, where appropriate, will be a question of fact and degree depending on the circumstances.
[64] Warden at [59] and [60].
The three-step test is an objective test, not a subjective one. In Warden, the Tribunal stated:[65]
… Clause 5.1.6 P6 of [the R-Codes] is not about the subjective opinions of a land owner in relation to what he or she considers to be the importance of particular views. Rather, it requires an assessment of whether or not access to views is maintained, and to the degree they are not, whether that is appropriate. This has to be analysed on an objective basis.
[65] Warden at [79].
In the context of access to views, the Tribunal in Warden considered the test applied in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LEGERA 23 (Tenacity) to be a useful tool when assessing amenity impacts. However, the Tribunal observed that cl 5.1.6 P6 of the R-codes does not, unlike the planning instrument applied in Tenacity, start from a proposition that development should allow for the reasonable sharing of views.[66]
[66] Warden at [56].
Clause 5.1.6 P6 of the R-Codes refers to maintaining access to views of significance 'where appropriate'. The expression 'appropriate' is generally understood to mean being suitable or proper in the circumstances. The expression 'proper' as that term is used in the phrase 'orderly and proper planning' was considered by Pritchard J of the Supreme Court of Western Australia in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) to mean 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'.[67]
[67] Marshall at [179].
In determining whether it is appropriate to maintain access to views of significance, in the circumstances of a particular case, it is open to us to consider the relative impact of the proposed development having regard to other development which might reasonably be anticipated in the locality or the inevitable consequence of the construction of any other house of reasonable proportions on the subject site.[68] Development that might reasonably be expected to occur in the locality or on the subject site would include a building with a deemed-to-comply building height. However, comparisons of the effect of the proposed development with hypothetical alternatives, or the difference between the deemed-to-comply height requirements and the height of the proposed development are not matters that are relevant to our determination.[69] In Loxton & Anor and City of Fremantle [2015] WASAT 46 (Loxton), the Tribunal stated:[70]
… [t]he exceedance of the development with the deemed-to-comply requirement is not an appropriate measure for assessing whether the development satisfied the relevant objective(s) of the Codes, and demonstrates compliance with the design principles[.]
[68] See Goyder and Walsh [2009] WASAT 108 (Goyder) at [47]-[48] and [64]-[65].
[69] Warden at [71]; Loxton at [29].
[70] Loxton at [29]. See also Schloffer and City of Bayswater [2020] WASAT 122 at [70].
Finally, it is not relevant for us to consider whether the proposed development is the best possible development that might conceivably be placed on the subject site or whether a better design is available.[71]
[71] See SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32; [2003] WATPAT 138 at [90]; Goyder at [64][65].
The respondent contends that the nature and extent of views from No 3 and No 5A Fraser Road which will be obstructed by the proposed development is inconsistent with cl 5.1.6 P6 of the RCodes which is aimed at maintaining access to views of significance where appropriate.[72] In relation to the roof terrace, the respondent contends that there is potential for temporary or semi-permanent installations such as shade umbrellas and for the use of the roof terrace by a large number of people. The respondent says that these uses would present as additional visual obstructions to views at a level higher than the built form and should be regarded as exacerbating the potential for impact on existing views of adjoining properties.[73]
[72] Respondent's amended SIFC, para 57, Exhibit 2.
[73] Respondent's amended SIFC, paras 58-59, Exhibit 2.
In contrast, the applicants contend that the building height of the proposed development will maintain access to views of significance from No 3 and 5A Fraser Road or, in the alternative, will maintain access to views of significance from those properties to an extent that is appropriate.
Evidence on the impact of height on views of significance
Following his initial assessment, Mr Hillman provided the following evidence about the impact of the proposed development on views from the balconies of No 1, No 3 and No 5A Fraser Road:[74]
43.From the balconies at 1, 3 and 5A Fraser Road, the view looks out over Melville Water and the Swan River towards the Perth Central Business District. This sweeping panoramic view of Kings Park and the City can be described as a view of significance.
44.The extent of the panorama incorporates a wide field of view of approximately 130 degrees sweeping from the north-west to the east.
A)Northerly views from the balconies at 1, 3, and 5A Fraser Road, will be altered as there is currently no built form on the 4 Fraser Road (the front lot).
B)Northerly views from the balconies at 1, 3, and 5A Fraser Road, are undergoing change due to the ongoing development on the lower lot (4A).
C)Following completion of the proposed 4 Fraser Road development, the view towards 4 Fraser Road from the balconies at 1, 3 and 5A Fraser Road, is likely to be consistent in character with the view towards other surrounding properties.
[74] Witness statement of Peter Hillman dated 30 November 2022, Exhibit 9.
At the final hearing, the applicants filed a further visual impact assessment prepared by Mr Hillman on views of significance from No 3 Fraser Road which relied on the 3D model developed by Mr Cribbs.[75] Whilst Mr Hillman considered that the form of the 3D model was 'highly accurate,'[76] he observed that the 3D model renderings lacked detail of key elements and points of interest within the surrounding environment. He also noted that the 3D model renderings align with views selected by Mr Cribb and show part of the view only, relating to the area likely to be altered by the proposed development.[77] In Mr Hillman's opinion, the 3D model renderings are best to be used in conjunction with photography, standing in those appropriate locations and assessing the model within its context.[78]
[75] Further visual assessment of Peter Hillman, page 2, Exhibit 18.
[76] ts 45, 14 December 2022.
[77] Further visual assessment of Peter Hillman, page 2, Exhibit 18
[78] ts 45, 14 December 2022.
Applying the methodology set out in the Visual Landscape Planning Manual, Mr Hillman concluded that there would be a 'low - moderate' reduction in views from No 1, No 3 and No 5A Fraser Road as a result of the proposed development.[79] The visual impact rating of 'low - moderate' is described in Mr Hillman's Visual Impact Assessment as follows:[80]
Minor loss or change to key characteristics of the existing landscape. The proposal constitutes only a minor component of the wider view that is compatible with the surrounding character.
[79] ts 151, 15 December 2022.
[80] Witness statement of Peter Hillman dated 30 November 2022, Annexure 2, page 6.
Mr Hillman did not express an opinion on whether the 'low - moderate' impact on views of significance is reasonable or not in the context of the applicable planning controls. Mr Hillman accepted that it was not within his expertise to express such opinions.[81]
[81] ts 136, 15 December 2022.
Mr Teo, in his witness statement, provided a contour map of the locality showing contours extending from a level of 5 metres (at the intersection of Tuart Street) rising to 19 metres (at the intersection with Tuart Lane).[82] In Mr Teo's opinion, the sloping topography affords existing development in the locality with access to views of significance which he identifies as:[83]
a)the Swan River generally;
b)Jeff Joseph Reserve (to the east);
c)Matilda Bay Yacht Club and Kings Park; and
d)the Perth CBD skyline.
[82] Witness statement of Neil Albert Teo dated 25 November 2022, Figure 5, page 8, Exhibit 10.
[83] Witness statement of Neil Albert Teo dated 25 November 2022, para 20, Exhibit 10; Supplementary witness statement of Neil Albert Teo dated 30 November 2022, para 10, Exhibit 11.
Applying the methodology used in Warden and having regard to Mr Hillman's evidence, Mr Teo concluded that the proposed development will have a 'negligible' impact on views available to No 3 Fraser Road and No 5A Fraser Road which he later revised, under cross-examination, to a 'low' impact.[84] Mr Teo's conclusion was based on the following assessment:[85]
•I consider the available views that can be considered as valued highly, include the 'whole views' of the Swan River, Perth CBD, Kings Park, Matilda Bay Reserve.
•I understand that access to these views is generally, and most importantly, accessed by the Southern Properties from the more active upper levels and in particular from on the balconies and that as a matter of fact and degree, there must be consideration for maintaining appropriate access to the significant views from such areas.
•I consider that the Urbis Report [Mr Hillman's assessment] demonstrates that the Southern Properties' access to views of significance will be maintained in the event of the Development. In particular, the Southern Properties will not lose access to 'whole views' of the Swan River, Perth CBD, Kings Park, Matilda Bay Reserve.
[84] Supplementary witness statement of Neil Albert Teo dated 30 November 2022, para 13, Exhibit 11; ts 180, 15 December 2022.
[85] Supplementary witness statement of Neil Albert Teo dated 30 November 2022, para 12, Exhibit 11.
Consequently, Mr Teo considered that the proposed development complies with cl 5.1.6 P6 of the R-Codes.
Mr Teo and Ms Butterworth agreed that views of significance from No 1 Fraser Road would not be significantly impacted by the proposed development and, consequently, it was not a matter pursued by the respondent.[86] However, Ms Butterworth did not agree with Mr Teo's position that the approval of the proposed development would maintain access to views of significance enjoyed by No 3 Fraser Road. Ms Butterworth made the following assessment in respect of the impact on views that are enjoyed by No 3 Fraser Road based on the images in Attachment RMC2 to Mr Cribb's witness statement:[87]
1)The proposed development, when viewed from the locations illustrated at the Level 1 balcony, dining table and kitchen will obstruct views of Crawley, parts of Kings Park, where the Swan River meets the land at Crawley and at the base of Kings Park alongside Mount Bay Road and parts of Melville Water and the Swan River.
2)From the locations illustrated at the Level 1 balcony, dining table and kitchen, views of the Nedlands foreshore in the vicinity of Pelican Point and where the water meets the land along the Nedlands foreshore may be partially impacted, depending on the position of the person.
3)Views from Level 2 will be reduced to exclude portions of Melville Water and the Swan River.
[86] Witness statement of Neil Albert Teo, para 16, Exhibit 10 and witness statement of Amanda Butterworth, para 93, Exhibit 4; Respondent's amended SIFC, para 57.
[87] Supplementary witness statement of Amanda Jane Butterworth dated 8 December 2022, paras 12-14, Exhibit 5.
Ms Butterworth said that she would not describe the impact on views from the Level 1 balcony as 'low - moderate' or 'a minor loss or change'.[88]
[88] ts 152, 15 December 2022.
In Ms Butterworth's opinion, images 1 - 4 of Attachment RMC2 support her assessment. She described the impact of the proposed development on views of significance as follows:[89]
For the view from level 1 of 3 Fraser Road, in my opinion, there would be, visually, a distinct discontinuity – two separate views on either side of the proposed building at 4 Fraser Road. On the western side of 4 Fraser Road would be a view corridor of the river and where the river meets the land in the vicinity of Nedlands foreshore/Pelican Point. There would then be a separate view to the east of the proposed building at 4 Fraser Road. The extent of that view would change based upon where a person was located within the dwelling. Based upon my observations at my site inspection, I consider that the development, when viewed from Level 1, particularly in a seated position at the dining room table, would likely result in a total disconnect of the panoramic view presently enjoyed. This disconnect occurs roughly in the location of Kings Park (dependent upon where one was standing on Level 1).
[89] Supplementary witness statement of Amanda Jane Butterworth dated 8 December 2022, para 15, Exhibit 5.
Ms Fernandez, who resides at No 3 Fraser Road, said that she chose to invest in the property for the slope of the street and '180 degree sweeping views'.[90] The dwelling was designed and built to capitalise on those views.[91] Ms Fernandez expressed concern that if the proposed development proceeds in its current form it would block out views from her first floor to the base of King's Park, where the land and water meet, and interrupt the '180 degree river view'.[92] Whilst the subjective opinions of Ms Fernandez in relation to the visual impact of the proposed development cannot be given significant weight because she was not established as having relevant expertise in the field of visual impact assessment, we can otherwise take into account her evidence in reaching our determination.[93]
[90] Witness statement of Isabel Fernandez dated 25 November 2022, para 19, Exhibit 8.
[91] Witness statement of Isabel Fernandez dated 25 November 2022, para 24, Exhibit 8.
[92] Witness statement of Isabel Fernandez dated 25 November 2022, para 31 and para 32, Exhibit 8.
[93] Warden at [79]. See also NBN Co Limited and City of Albany [2016] WASAT 61 at [50]-[52].
In relation to No 5A Fraser Road, following review of the images at Attachment RMC2, Ms Butterworth assessed the impact of the proposed development on views of significance as follows:[94]
1)the proposed development will impact the views of Melville Waters and the Swan River from a standing position on the Level 1 balcony as shown in image series 7 and 8. The views will be reduced to exclude portions of the Melville Waters and Swan River views only.
2)views from a seated position in the living area of Level 1 may potentially obstruct views of significance of Crawley, parts of Kings Park, where the Swan River (water) meets the land at Crawley and at the base of Kings Park alongside Mounts Bay Road, and parts of Melville Water and the Swan River.
3)views from a seated or standing position on Level 2 will be reduced to exclude parts of Melville Water and Swan River views.
[94] Supplementary witness statement of Amanda Jane Butterworth dated 8 December 2022, paras 18-21, Exhibit 5.
Ms Butterworth summarised her assessment of the impact on views of significance of No 5A Fraser Road as follows:[95]
In summary, the dwelling at 5a Fraser Road has significant, extensive and panoramic views, from the bedrooms on Level 2 and from the living areas on Level 1. It is accepted that the proposal will not adversely affect the iconic view of the Perth skyline. It is my opinion that when seated in the living areas on Level 1, the proposal will affect views of the Swan River, Melville water and may also impact on the view of significance where the water meets the land. Views of the water will also be affected from the Level 2 bedrooms. I consider that the proposal does not maintain access to views of significance currently enjoyed from 5a Fraser Road.
[95] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 111, Exhibit 4.
Counsel for the applicants observed that Ms Butterworth's assessment of view loss ignored the third step of the test in Tenacity which is to assess the extent of the impact.[96] As referred to earlier, we do not consider that it is necessary to strictly adhere to the Tenacity test because it was developed in the context of a different planning instrument which required the reasonable sharing of views. Nevertheless, we are satisfied that there was expert evidence produced from Mr Hillman, in the form of visual impact assessments, which did assess the extent of the impact on views of significance based on quantitative work done by Mr Cribb in the form of 3D model renderings. Mr Teo and Ms Butterworth were afforded the opportunity to review the results of the visual impact assessments conducted by Mr Hillman and both planning experts provided their opinion on those assessments from a qualitative perspective.
Impact of height on views of significance - findings
[96] ts 270, 16 December 2022.
Mr Hillman described the sweeping 130-degree panoramic views from No 3 and No 5A Fraser Road of Kings Park and the City as a view of significance. Ms Butterworth and Mr Teo agreed that the view from No 3 and No 5A Fraser Road include sweeping or 'whole views' of the Swan River.[97] We accept the evidence of Mr Hillman, and that of the expert planners, and we find that views of significance from these properties include the panoramic or 'whole views' of the Swan River, the Swan River generally, the Matilda Bay Yacht Club and Kings Park, the Jeff Joseph Reserve, and the City skyline.
[97] Supplementary witness statement of Neil Albert Teo dated 30 November 2022, para 12, Exhibit 11; Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 85, Exhibit 4.
We further find that the height of the proposed development will cause the loss of views of significance to No 3 and No 5A Fraser Road. Mr Hillman assessed the impact to those views as 'low – moderate', while Mr Teo considered that the impact was 'low'. In Mr Teo's opinion, access to views of significance from No 3 and No 5A Fraser Road will be maintained because those properties will not lose access to 'whole views' of the Swan River, Perth CBD, Kings Park, and the Matilda Bay Reserve. Ms Butterworth did not agree that the loss of views of significance was 'low' or 'minor'.
Notwithstanding that the degree of impact on views of significance was considered by Mr Teo to be 'low', we find that the height of the proposed development would likely result in a total disconnect of the 130-degree panoramic view of the Swan River presently enjoyed from Level 1 of No 3 Fraser Road, particularly in a seated position at the dining room table. Whilst only one part of the panoramic view will be interrupted (and not the 'whole view'), we find that the extent of the interruption is significant because, based on the evidence of Ms Butterworth, which we accept, the connectivity of the panoramic view will be lost, with two separate views created on either side of the proposed development.
Having regard to the three-step test in Warden, the next question we must answer is whether it is appropriate that access to views of significance by No 3 and No 5A Fraser Road (which the experts agreed will suffer some degree of loss) should be maintained in the circumstances of this case. Whilst there is no guarantee of protection of views of significance,[98] we find that it is appropriate to maintain access to views of significance for the following reasons.
[98] See Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; L Ramakrishnan and City of Fremantle [2004] WATPAT 89.
First, the dwellings on the southern side of Fraser Road can access 130degree views by virtue of their location, which is higher in topography than the subject site. Based on the evidence of Ms Fernandez, which we accept, we find that the dwelling at No 3 Fraser Road was designed and built to take advantage of those views. As already stated, the overall height of the proposed development would likely result in a total disconnect of the 130-degree panoramic view of the Swan River presently enjoyed from Level 1 of No 3 Fraser Road, particularly in a seated position at the dining room table.
Second, the applicants tendered Google street view images from 2007 to 2015 which showed vegetation at the front of the subject site at a height, and within a field of view,[99] that would have limited access to views of significance from No. 3 Fraser Road in a similar way as the proposed development.[100] Whilst we accept that certain views from No 3 Fraser Road may have been obstructed by vegetation in the past, we must determine whether it is appropriate to maintain access to views of significance based on the proposal before us and the circumstances that currently exist.
[99] Exhibit 19.
[100] Exhibit 15; ts 195-196, 15 December 2022.
Third, there was no dispute, and we find, that the view from the Level 1 balcony, kitchen and dining room of No 3 Fraser Road includes the Swan River in which the interface between land (Crawley and Kings Park) and the Swan River is visible. Whilst we acknowledge that any development that might reasonably be expected to occur on the subject site will likely obstruct this aspect of the view of the Swan River to some extent, we find that the proposed development, due to its overall height, will present as a dominant feature from the Level 1 balcony, kitchen and dining room. We further find, based on the evidence of Ms Butterworth which we accept, that the proposed development will restrict the current views from those Level 1 locations towards Crawley (Matilda Bay) and Kings Park.
Fourth, based on the evidence of Ms Butterworth, which we accept, we find that the views currently enjoyed by No 5A Fraser Road will be impacted by the proposed development to exclude portions of the Melville Waters and the Swan River from the living areas on Level 1, including the Level 1 balcony. Whilst we acknowledge that any development that might reasonably be expected to occur on the subject site will likely exclude portions of the Swan River to some extent, we find that the bulk and scale of the proposed development and particularly its overall height (which we have found is exacerbated because the proposed development does not respond to the natural features of the subject site due to the fill required) will substantially intrude on the views currently available from the living areas on Level 1 of 5A Fraser Road.
Consequently, in the circumstances of this case, we find that the loss of connectivity in the existing 130-degree view enjoyed by No 3 Fraser Road and the intrusion on the views experienced by No 5A Fraser Road is incongruous with the design principle (P6) in cl 5.1.6 of the RCodes for building height that maintains access to views of significance where appropriate.
We will next consider the compatibility of the proposed development with its setting, its relationship to development on land in the locality, and the amenity of the locality.
Is the proposed development compatible with its setting and the amenity of the locality?
We must, in considering the application, have due regard to the compatibility of the proposed development with its setting, including:[101]
(i)the compatibility of the proposed development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land, or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
[101] Deemed Provisions, cl 67(2)(m).
In considering the application, we must also have due regard to the amenity of the locality including, relevantly, the character of the locality.[102] The expression 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
[102] Deemed Provisions, cl 67(2)(n).
The correct approach to an amenity assessment does not involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development.[103] The Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (Sunbay).[104] In Sunbay, the Tribunal referred to the decision of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Western Australian Town Planning Appeal Tribunal observed that:[105]
… the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The [Town Planning Appeal] Tribunal emphasised that the first part of the inquiry involves a determination, 'as a matter of fact, [of] the objective character of the area that represents the present state of amenity'.
[103] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70].
[104] Sunbay at [20].
[105] Sunbay at [20].
In Ridgecity Holdings Pty Ltd and City of Albany (Ridgecity) [2006] WASAT 187, the Tribunal considered the concept of the locality and found:[106]
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[106] Ridgecity at [42].
Ms Butterworth delineated the locality as Fraser Road from its commencement at Ardross Street (to the east) to the point where Fraser Street intersections with Tuart Lane. She considered that the locality is characterised by large dwellings, mostly two or three storeys on generously sized residential lots, with the dwellings being of a high quality and varying ages.[107] Ms Butterworth observed that Fraser Road gradually slopes up from Ardross Street with the height of the dwellings along Fraser Road generally stepping up as the natural level of the land gets higher.[108] She also observed that Fraser Road has a variety of trees and vegetation of varying size and type.
[107] Witness statement of Amanda Jane Butterworth dated 28 November 2022, paras 127-128, Exhibit 4.
[108] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 128, Exhibit 4.
Mr Teo's delineation and description of the locality was consistent with that of Ms Butterworth.[109] However, Mr Teo also observed that it was common for existing development in the locality to have walls that reach considerable heights above NGL in order to appropriately manage the sloping topography and achieve what he considered to be a functional built form outcome. He also observed that the dwellings have been orientated towards the Swan River and other views of significance.[110]
[109] Witness statement of Neil Albert Teo dated 25 November 2022, para 21, Exhibit 10.
[110] Witness statement of Neil Albert Teo dated 25 November 2022, paras 19-20, Exhibit 10.
We accept the delineation of the locality as identified by the expert planning witnesses, and based on their evidence, we find that the locality is characterised by large dwellings of a high quality and varying ages, with walls that reach considerable heights above NGL. We further find that the dwellings in the locality present to the street with significant bulk and scale, with those on Fraser Road stepping up in height in a manner that is consistent with the slope of the street.
We will next consider the impact of the proposed development on the amenity of the locality and whether it is compatible with its setting.
Evidence on the compatibility of the development with its setting/amenity of the locality
Whilst the proposed development would present as a two-storey dwelling when seen from Fraser Road, the respondent contends that its bulk and scale (as a three-story dwelling with rooftop terrace) would be clearly visible from other points on Fraser Road. The respondent further contends that the proposed development will 'read' inconsistently and unacceptably with the topography of its setting because the garage would present at approximately the same level as the street despite the steep slope of the subject site. For these reasons, the respondent contends that the proposed development is inconsistent with the prevailing character of the locality.[111]
[111] Respondent's amended SIFC, paras 76-78.
In support of its contentions, the respondent relied on the evidence of Ms Butterworth. In Ms Butterworth's opinion, the proposed development presents significantly greater bulk and scale to the street when compared with the existing dwellings on either side of the subject site.[112] She observed that properties on the northern side of Fraser Road do not generally adopt the highest point of the lot at the front boundary as the starting point for the ground level of the dwelling. Ms Butterworth also observed that the garages of those properties are designed to reflect the natural contours of the site and are not dominant features of the dwellings. Based on her assessment, she said that the garage of the proposed dwelling will sit above the level of the driveway to No 4A Fraser Road. In her opinion, this will result in the garage and the boundary wall to the garage being a dominant feature which is not compatible with the existing built form on Fraser Road and, consequently, will adversely affect the streetscape and amenity of the locality.[113]
[112] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 134, Exhibit 4.
[113] Witness statement of Amanda Jane Butterworth dated 28 November 2022, para 135, Exhibit 4.
The applicants did not agree with the respondent's position. The applicants contend that the proposed development is compatible with its setting, noting its character and relationship to the adjoining residential development, and consistent with the amenity of the locality. The applicants say that the Tribunal should have regard to the objectives of cl 5.1 of the R-Codes and the residential development context.[114]
[114] Applicants' SIFC, paras 45-46.
The applicants relied on the evidence of Mr Teo in support of its position that the proposed development is compatible with its setting and the amenity of the locality. In Mr Teo's opinion, the proposed development has a high degree of consistency with the existing built form outcomes in the locality in that it is a large, high quality, modern and 'striking' dwelling that is consistent in building height, and bulk and scale with other dwellings along Fraser Road.[115] Mr Teo considered that the proposed development appropriately manages the topography of the site by providing a balance of cut and fill.[116]
Compatibility of the development with its setting/amenity of the locality - findings
[115] Witness statement of Neil Albert Teo dated 25 November 2022, para 68. Exhibit 10.
[116] Witness statement of Neil Albert Teo dated 25 November 2022, para 69. Exhibit 10.
Because we have found that it is appropriate to maintain access to views of significance for No 3 and No 5A Fraser Road, we do not propose to address the issue in our assessment of the impact of the proposed development on the amenity of the broader locality.
Based on the evidence before us, we find that the proposed development will present significant bulk and scale to Fraser Road, particularly in relation to height. We consider that the fill required for Level 1, which we have found does not respond to the natural features of the subject site, is a factor which increases the overall height of the proposed development.
Whilst we acknowledge that the garage will sit above the level of the driveway to No 4A Fraser Road, we do not consider this to be inconsistent with other dwellings in the locality which present to the street with significant bulk and scale. Consequently, we prefer the evidence of Mr Teo, and we find, that the street-facing aspect of the proposed development has a high degree of consistency with the existing built form outcomes in the locality and its desired future character.[117]
[117] ts 143-144, 15 December 2022.
Having due regard to cl 67(2)(n) and cl 67(2)(m) of the Deemed Provisions, we are satisfied that the proposed development is compatible with its setting and will not adversely impact the amenity of the locality.
Conclusion
Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, including the requirements of orderly and proper planning, we conclude that the correct and preferable decision is to dismiss the application for review under s 252(1) of the PD Act.
Whilst we have found that the proposed development is compatible with its setting and will not have an unacceptable impact on the amenity of the locality, we consider it is appropriate to maintain access to views of significance from No 3 and No 5A Fraser Road in accordance with design principle P6 in cl 5.1.6 of the R-Codes. We have also found that the proposed development does not respond to the natural features of the subject site and, consequently, does not satisfy the design principle for minimal fill in cl 5.3.7 (P7.1) of the RCodes.
Accordingly, we will affirm the respondent's decision made on 16 August 2022 to refuse development application DA-2021-1315 for a two-storey single dwelling with basement and roof terrace at the subject site.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 16 August 2022 to refuse development application DA-2021-1315 for a two-storey single dwelling with basement and roof terrace at No 4 (Lot 70) Fraser Road, Applecross is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
12 MAY 2023
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