KISIEL and CITY OF VINCENT - [2014] WASAT 130

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: KISIEL and CITY OF VINCENT [2014] WASAT 130

MEMBER: MR J JORDAN (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 SEPTEMBER 2014

FILE NO/S: DR 347 of 2013

BETWEEN: ANDRZEJ KISIEL
ADAM KISIEL
Applicants
AND
CITY OF VINCENT
Respondent

Catchwords:

Town planning Development Two adjoining lots Approval granted for two dwellings with party wall on common boundary between lots Lots have dual road frontage Dwellings approved with two storeys and loft within roof space for each dwelling Loft space of each dwelling contains two bedrooms with ensuites and storage A dormer window originally proposed above each bedroom One dormer only approved for each dwelling Second dormer but without window constructed on each dwelling Application for retrospective approval Whether development appears to have a third storey Application of Residential Design Elements Policy for loft provisions Objective of policy Streetscape Local character Meaning of dormer Meaning of gable

Legislation:

City of Vincent Town Planning Scheme No 1, cl 6(3), cl 10(1), cl 10(2), cl 38(5), cl 38(5)(i), cl 38(5)(g), cl 39(5)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 31, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application for retrospective planning approval dismissed

Summary of Tribunal's decision:

This matter involved an application for a review of a refusal to grant retrospective planning approval for the addition of a structure converted from a second dormer window on the roof of each of two dwellings with lofts constructed side by side and with a party wall on the common boundary.
The Tribunal found that the additional structure on each roof resulted in the dwellings having the appearance and bulk of a three storey building. The Tribunal found that a building of the height and bulk proposed in this residential street would be inconsistent with policy and local planning scheme objectives for lofts and streetscape.
The Tribunal dismissed the application for retrospective planning approval.

Category: B

Representation:

Counsel:

Applicants: Ms S Brandsby (Acting as Agent)
Respondent: Mr T Hockley (Acting as Agent)

Solicitors:

Applicants: Sandra Brandsby Planning & Construction Consultant
Respondent: Allerding Associates, Town Planners

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

Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253
Iemma and Town of Vincent [2009] WASAT 34

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Mr Andrzej Kisiel and Mr Adam Kisiel (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the City of Vincent (City or respondent) to grant retrospective planning approval for the development of a structure, originally a dormer but now without a window, on the respective roofs of each of two adjoining houses. The two dwellings have a party wall on the common boundary between, respectively, No 3A (Lot 1) and No 3 (Lot 2) Deague Court, North Perth (site).

The site and locality

Each of the two rectangular lots which make up the site has an area of 179m² and a width of 6.68 metres. The primary frontage of each lot, with vehicle access and the front door, is to Deague Court to the north of the site. Each lot also has a secondary frontage to Bourke Street to the south.
Deague Court is an L‑shaped cul‑de‑sac that lies in a residential locality situated between Charles Street to the east and Charles Veryard Oval to the west. Deague Court comprises mostly single and two storey dwellings. Directly across Bourke Street opposite the site is single residential development, while to the south‑east, development of an approved four storey block of multiple dwellings has commenced.

Development of the site

In May 2010, the respondent granted planning approval for development on the site of a single building, which actually comprises two dwellings with a party wall on the boundary between the two lots. Construction of the building is now complete.
Each of the dwellings effectively has a skillion roof sloping down from near the common boundary towards the respective side boundaries, at an angle of 30 degrees. The roof on each dwelling has no hips and so the impression is of a single building with, on both the northern façade and the southern façade, gables into which are inserted windows framed by the two pitched roofs.
Each dwelling comprises a ground floor, a first floor and a loft. Within each loft is bedroom 2 overlooking Deague Court and bedroom 3 overlooking Bourke Street. The plans show that each of the loft bedrooms has an ensuite and, in the triangle shaped space formed by a bedroom wall, the floor and the roof, an area marked 'storage'. The windows set into the gable ends provide light to the bedrooms.
The original application proposed a dormer window with a flat roof to be built above each of the loft bedrooms and associated storage space in both dwellings, resulting in two dormer windows on each roof. The planning approval granted included a condition that there be only one dormer in the respective roofs of the two dwellings, being that above bedroom 3 at the Bourke Street frontage.
Two dormers were included in the respective roof of both houses when built. An application for retrospective approval of the second dormer in each roof was refused in August 2013. The application for review of that refusal was then filed with the Tribunal.
Following mediation, the respondent, pursuant to s 31 of the PD Act, was invited to reconsider its decision, having regard to an amended plan that left the second dormer structure in place at the Deague Court end of each roof, but with the window removed and clad in material consistent with the roof and gable ends of the dwellings.
The respondent reiterated its earlier refusal and the matter then came before the Tribunal for determination. The applicants have described the proposed structures above bedroom 2 in each dwelling as a 'roof projection'. The roof projection applied for scales at 2.9 metres long, with a vertical face of about 900 millimetres and a roof at a 6 degree pitch extending about 2.3 metres out from the slope of the main roof.
Whether the development applied for is described as a dormer without a window or as a roof projection, it is the impact of this structure on the approved development and on the streetscape that requires assessment by the Tribunal.
The Tribunal ordered that, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the matter was to be determined entirely on the documents. The Tribunal also ordered that, by consent, the Tribunal member may inspect the exterior of the subject property without the presence of the parties.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme (MRS). The site is zoned Residential R60 under City of Vincent Town Planning Scheme No 1 (TPS 1). All other lots fronting Deague Court are also coded R60 under TPS 1.
Clause 6(3) sets out the general objectives of TPS 1 and these include:
…
(b)to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment;
(c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which ‑
(i)recognises the individual character and needs of localities within the Scheme zone area[.]
Clause 38(5) of TPS 1 provides that in determining an application regard is to be had to:
(a)the provisions of this Scheme and of any other written law applying within the Schedule area including the Metropolitan Region Scheme;
(b)any relevant planning policies;
…
(f) any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Clause 10(1) of TPS 1 provides that the scheme area is divided into precincts. The site is within Precinct P6 – Smith's Lake. Clause 10(2) states that there is a planning policy for each precinct in the City's planning policy manual.
The City's Policy 7.1.6 ‑ Smith's Lake Precinct states at clause 1:
All residential development is to comply with the Policies relating to Residential Design Guidelines, Residential Development … and Clause 20 of the City of Vincent Town Planning Scheme No.1[.]
The City has adopted Residential Development Policy No 7.2.1 ‑Residential Design Elements Policy (Policy 7.2.1) (formerly Policy 3.2.1). Policy 7.2.1 has three parts. Firstly, there is the introduction which includes clauses 1 to 5 and which relates to the policy as a whole. The next part commences at clause 6 which is Element 1 ‑ Streetscape, which comprises guidance notes and an assessment table. The third part starts at clause 7, Element 2 ‑ Building Design, which also comprises guidance notes and an assessment table. The assessment tables include a column headed 'Design Solution' and a column headed 'Deemed‑to‑comply Criteria'.
Clause 5.1 of Policy 7.2.1 explains:
The 'Design Solution' in the Assessment Table also outline[s] the provisions that are to be satisfied in order to achieve the desired development outcome. The Design Solution details both prescriptive and performance based provisions. The City will assess the development proposal against these criteria when assessing and determining an application.
The 'Deemed‑to‑Comply Criteria' in the Assessment Table provide a means by which development can be 'deemed to comply' with the relevant Design Solution and therefore provide a speedy and certain path to approval.
Clause 5.2 of Policy 7.2.1 states:
Development which complies with the provisions of the R Codes and the Residential Design Elements Policy is still required not to unduly impact on the amenity of the area and be compatible with the existing development and character in the surrounding area.
Development which meets the relevant Deemed‑to‑Comply Criteria is likely to be approved. Where the Design Solution is not met, development will be assessed against the relevant Deemed‑to‑Comply Criteria. The applicant must provide written justification that the proposal satisfies the relevant Design Solution. The City may approve a development proposal which does not fully comply with the Deemed‑to‑Comply Criteria, if the City is satisfied that the development proposal meets the relevant Design Solution.
The Tribunal finds clauses 5.1 and 5.2 of Policy 7.2.1 contradictory. The Tribunal has borne in mind the principle enunciated in Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 at [41], which includes a quote to the effect that:
… planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose[.]
…
'[A]lthough planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament'. It has been relatedly observed on more than one occasion that '[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them'[.]
In this instance, the Tribunal is interpreting a policy adopted by the City, and policies, of course, are not statutory instruments. It is still necessary, however, for the Tribunal to consider the policy as a whole and attempt to make some sense of it. In this regard, the first paragraph of clause 5.2 of Policy 7.2.1 refers to compliances with the 'R Codes' (Residential Design Codes of Western Australia (Codes)). Consistent with the Codes, the Tribunal has approached the assessment tables on the basis that, as clause 5.1 of Policy 7.2.1 states in part, a development needs to be assessed against the design solutions set out for the particular design element. One way to achieve a design solution is to satisfy the deemed‑to‑comply criteria. The Tribunal considers that if it is found that the development does not satisfy deemed‑to‑comply criteria then it is necessary to revert to the design solution for the purpose of assessment. TPS 1 also sets out planning objectives and requires that the Tribunal has regard to those matters listed at cl 38(5), set out above.
Clause 2 of Policy 7.2.1 sets out aims and these include:
•encourage residential development that harmonises with the existing streetscape and compliments the character of the locality;
•promote housing design of the highest possible quality;
…
•clarify the assessment provisions in order to create consistent and desired residential development outcomes for all stake holders;
…
•provide a comprehensive set of residential design guidelines that reflect the values of the wider community and a transparent assessment process.
Relevant clauses from the guidance notes and assessment table for Element 1 ‑ Streetscape are included in the discussion below.
Element 2 – Building Design includes clause 7.4.6 which has the heading 'Lofts' and states:
A loft is the space contained between the roof pitch and the top of the ceiling of the story immediately below it. A loft addition must not represent or resemble an additional storey but must be wholly contained within the roof space of the proposed or existing dwelling. It does not constitute as an additional storey if wholly contained within the roof space.
Figure 20 of Policy 7.2.1 has the title 'Dormer windows and gables to lofts' and includes the following annotations:
Maximum aggregate length of 4.5 metres or 20 per cent of the dwelling length, whichever is lesser.
Maximum height of 2.4 metres above loft finished floor level. (Not to project beyond the roof pitch).
In the assessment table for Element 2 – Building Design of Policy 7.2.1 under the heading 'Lofts', the 'Design Solution' column states:
BDPC 6. Lofts
(i)The use of space within the roof space for habitable purposes is encouraged in lieu of a second storey, particularly in streetscapes that comprise predominantly single storey dwellings.
In the 'Deemed‑to‑comply Criteria' column, the assessment table states:
BDADC 6.Lofts
(a)Lofts are to be contained between the roof pitch area (no less than 35 degrees and no greater than 45 degrees) and the top of the ceiling of the storey immediately below;
(b)Lofts are not to:
•Increase the bulk of the building;
•Resemble an additional storey;
•Cause undue overshadowing of adjacent properties and open spaces;
•Unduly overlook adjoining properties; and
•Result in relaxation of other requirements (especially height and setbacks) to accommodate useable floor area for lofts.
(c)Dormer windows and gables to lofts are to comply with the following requirements:
•Not project beyond the roof pitch nor exceed 2.4 metres above the loft finished floor level, whichever is the greatest; and
•Maximum aggregate length of 4.5 metres or 20 per cent of the length of the dwelling on that particular elevation, whichever is the lesser.
References to other relevant clauses from Element 2 – Building Design are included in the discussion below.
The applicant listed an 'Issue 5' to be considered by the Tribunal, which states:
Do the deemed‑to‑comply criteria of clause BDADC 6(c) apply to the roof projections[?]
There was some difference between the parties on the terms used to describe the structure for which approval is being sought as well as other surfaces of the approved and constructed dwellings. In this matter, the Tribunal has referred to the Oxford Dictionary of Architecture (1999) which states:
dormer. Projecting framed structure set vertically on the *rafters of a pitched roof, with its own roof (pitched or flat), sides (dormer cheeks), and a window set vertically in the front …
gable, gavel. Wall (gable‑end), of a building, closing the end of a pitched roof: its top may be bounded by the two slopes of the roof forming parged verges or overhangs with bargeboards …
It is not clear to the Tribunal how, in this matter, the windowless, flat‑roofed structures above bedroom 2 of each dwelling can now be considered as a dormer or gable, as defined above. The Tribunal, consistent with its approach to the assessment tables of Policy 7.2.1 outlined above, has therefore formed the view that, because of the specific wording, clause BDADC 6(c) does not apply to the roof projections above bedroom 2 of each dwelling. In any event, even if it did, the projections could not be considered separately from the approved dormer windows and would not comply with the deemed‑to‑comply criteria. The design solution is then the guide for the Tribunal's assessment.
On either analysis, the Tribunal has assessed the matter on the basis of the design solutions and guidance notes of Policy 7.2.1.

Issues

The issues as listed by the respondent overlap and are interrelated. They are expressed as follows:
1)Is the application consistent with the policy framework, having regard to its adopted Policy 7.2.1 Residential Design Elements?
2)Does the proposal meet the aims and objectives of the respondent's Policy 7.2.1?
3)Will the loft present as a third storey and is this consistent with the respondent's planning framework?
4)Would approval of the development be orderly and proper, having regard to the respondent's planning framework?
The applicants submitted that issue 3 be supplemented by:
(a)Do the previously approved lofts, dormer windows and gable end windows present as a third storey?
(b)Do the subject roof projections adversely impact on the apparent bulk of the building?
As already mentioned, the applicants also added an issue 5 and this has been addressed above in the section on planning framework.

Discussion

In granting conditional planning approval in May 2010, the City determined as acceptable the development on the site of 'Two (2) Two‑Storey Grouped Dwellings with Loft'. One of the conditions that made the development acceptable to the respondent was:
The proposed dormer windows to the lofts are to have a maximum aggregate length of 3.54 metres (20 per cent), of the length of the dwellings on the east and west elevations.
This condition would result in the development satisfying the deemed‑to‑comply requirements of clause BDABC 6(c) of Policy 7.2.1.
The applicants then sought, but had refused, a retrospective application for planning approval for the additional two dormer windows originally applied for and included in the dwellings as built. There is now before the Tribunal an application for approval of an amended proposal, which is for the structures that were originally erected to be the additional dormer windows above bedroom 2 of each dwelling to be allowed to remain, but with the windows replaced with an opaque wall material of a colour that matches the existing roof.
As stated above, it is necessary that the Tribunal weigh the effect of the structures above bedroom 2 on the roof of each of the dwellings against the relevant planning requirements. In Policy 7.2.1, planning considerations are found in the aims and objectives, and in the guidance notes and 'design solutions' for streetscape at Element 1 and for lofts at Element 2. In TPS 1, it is necessary to have regard to the relevant objectives at cl 6(3) and to the criteria for development assessment at cl 38(5).

In its submissions of 16 June 2014 at paragraph 25 and 30 June 2014 at paragraph 23, the applicants argued that the approved third level of development did not meet the definition of a loft because, with the dormers added, the loft was not contained wholly within the roof space as required by clause 7.4.6 of Policy 7.2.1. The applicants further argued that part of the definition of a loft at clause BDADC 6 of Policy 7.2.1 refers to the loft being contained within a 35 to 45 degree roof pitch, and on these two dwellings the roof pitch is 30 degrees.
The applicants submitted that even in isolation of the dormer windows or roof projections, the lofts present as an additional third storey because of the presence of the approved windows to the bedrooms in the north and south facing gable ends of the dwellings. They argued that the roof projections do not then change the three storey appearance of the building.
The respondent argued, and the Tribunal agrees, that the insertion of windows within the gable end of the dwellings is consistent with a loft construction as envisaged by clause 7.4.6 and Figure 19 in Policy 7.2.1.
The Tribunal has accepted that it is wholly reasonable that a loft room have a dormer window to provide light to the loft, and a ceiling height adjacent to that window consistent with a habitable room, as illustrated by Figure 20 of Policy 7.2.1.
The Tribunal must point out, however, that it is of a view that there is also a point beyond which the extent of the structures required for dormer windows protruding through a roof present as contributing to the appearance of the dwelling having a third floor. The Tribunal does not accept that, because in its planning approval the respondent approved the variation in roof pitch, the space in the roof then changes from being a loft to a third floor which, in turn, can then lead to additional structures above the roof being included in the development.
In respect to bulk, the applicants' submission, in its responsive statement of 30 June 2014 at paragraph 23, was:
The presence of extensive windows and the extension of the feature tiled wall from the second level, emphasise the height of the third floor, while the form, material and overall appearance of the roof projections are affectively integrated into the roof, adding a balance to the building without adversely increasing the prevailing building bulk of the existing dwelling.
The Tribunal agrees that, in this instance, the building, as constructed, does appear to have a third floor. The Tribunal does not agree, however, that this is because of the features on the gable end. The windows on the gable end establish the building as being two storeys with a loft, as allowed by Policy 7.2.1. The Tribunal considers the building appears to be three storeys because of the length and height of the vertical face of the structures protruding above the roof above the respective bedroom 2 of each dwelling.
Clause 7.4.5 (i) of Policy 7.2.1 states:
Building height contributes to the bulk and scale of dwellings and therefore the streetscape and the amenities of neighbouring properties.
The Tribunal has concluded that the structures constructed above the roof add to the bulk of the building when viewed from the west and Deague Court. This was apparent to the Tribunal when viewing the development, in comparing the development with neighbouring buildings and from an examination of the approved plans.
Clause 7.3 of Policy 7.2.1 lists as an objective for residential design:
Streetscape and Surrounding Amenity
•To ensure that development responds to the existing scale and character of the street; [and]
•To distribute building height and bulk appropriately on the development site to protect the amenity of adjoining lots and maintain the visual integrity of the streetscape[.]
In the assessment table of Policy 7.2.1 for streetscape character, the design solution at SPC 1 includes:
…
(ii)development is to both preserve and enhance the visual character of the adjacent dwellings and streetscape by considering[:]
•architectural design elements; [and]
•building bulk and scale[.]
The guidance notes at clause 6.4.1 of Policy 7.2.1 state in respect of streetscape character:
Residential development, including alterations and additions, should complement and enhance the existing streetscape. New development should be designed to harmonise with the streetscape and adjoining properties. Development which visually dominates to have an undue impact on the streetscape or existing properties in building form, style or height, will be discouraged.
…
Where a new two storey development or extension is proposed, it must be demonstrated by the applicant that the impact of the development will not unduly affect the streetscape.
In this matter, the Tribunal accepts that the assessment is of the proposed development in a street where two storey dwellings have been approved. The respondent resolved that a two storey development with a loft, but not the proposed structures on the roof at the northern end, was acceptable in the Deague Court streetscape.
The applicants argue that height above two storeys is established within the surrounding area. Reference is made to the approved four storey 50 multiple dwelling development on the corner of Bourke Street and Charles Street. The Tribunal notes that the City has approved the southern elevation of the development facing Bourke Street, including the dormer windows above bedroom 3 of each dwelling.
In respect to the three storey towers of the church at the northern end of Deague Court, the Tribunal does not accept that this provides a basis for accepting three storey dwellings as a matter of course. In Deague Court, the housing consists of one and two storey dwellings.
The Tribunal is required by cl 38(5)(i) of TPS 1 to have regard to the scale and relationship of existing buildings and surroundings of any proposed structure.
The pitch of the roofs is such that the approved dwellings are already higher than the neighbouring two storey dwellings. As stated above, the Tribunal has formed the view that the structures on the roofs above bedroom 2 of each dwelling contribute to the building appearing to be three storeys. The Tribunal has further found that the additional structures on the roof, contributing to the appearance of the side walls extending above the roof level of the neighbouring two storey houses, adds to the perceived bulk of the building, compared to its neighbours in Deague Court.
The Tribunal has determined that in Deague Court, the three storey building on the site dominates and is therefore inconsistent with maintaining the scale and character of the streetscape, in conflict with the design solutions and objectives of Policy 7.2.1.

Conclusion

In respect to the first issue listed by the respondent, the Tribunal is also required under cl 38(5)(i) of TPS 1 to give consideration to the 'design, scale and relationship to existing buildings and surroundings of any proposed building or structure'. The Tribunal, in making the required comparison, has concluded that the proposed development would not be consistent with the streetscape and building design solutions of Policy 7.2.1. This is because the building presents as having a third level, and bulk that is inconsistent with the Deague Court streetscape.
TPS 1 provides that use can be made of loft space within a dwelling. In this instance, the Tribunal considers that the additional structures on the roof result in what would otherwise be obvious as a loft having the appearance of a third floor.
For the same reasons, in respect of issue 2, the Tribunal has concluded that the proposed development does not meet the aims and objectives of Policy 7.2.1. The development does not maintain the visual integrity of the existing streetscape or complement the character of the locality. In this matter, the Tribunal has concluded that 'there do not appear to be any cogent reasons for not applying the policy': Iemma and Town of Vincent [2009] WASAT 34 at [46].
In respect to issue 3 as amended by the applicants, the Tribunal considers that the previously approved gable end windows do not present as a third storey, but rather as development consistent with the allowed inclusion of a loft in the roof space. In this regard, Policy 7.2.1 allows for the addition of a dormer window. In the proposed development, however, the Tribunal has concluded that the structures associated with what was previously the additional dormer windows would extend beyond what is envisaged by the building element for lofts to where the building presents as having a third storey. The additional roof structures, which result in the building presenting as having a third storey, also result in an apparent increase in the bulk of the building, which is inconsistent with the aims and objectives of the design elements of Policy 7.2.1.
As regards issue 4, the Tribunal has formed the opinion that an approval of the building as now constructed would not be consistent with the orderly and proper planning of the locality as required by cl 38(5)(g) of TPS 1. This is because the development which the applicants are seeking to have approved is consistent with a three storey building, not a two storey building with a loft, and as a consequence, is in conflict with the TPS 1 and policy objectives and design solutions for the locality.
The Tribunal has concluded that the additional structures on the roofs of the proposed dwellings cannot be supported because the structures result in the building having the appearance of including a third storey and of having an increase in the apparent bulk. As a consequence, the building is inconsistent with the streetscape and building design objectives of TPS 1 and Policy 7.2.1. The Tribunal has therefore decided to dismiss the application.

Orders

1.The refusal of the application for approval of the additional structures on the roof converted from dormer windows above bedroom 2 of each of the dwellings is endorsed.
2.The application for retrospective planning approval is dismissed.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER