Lagdon and City Of Subiaco
[2007] WASAT 16
•23 JANUARY 2007
LAGDON and CITY OF SUBIACO [2007] WASAT 16
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 16 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:333/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 22/01/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be allowed Condition (e) be deleted from the schedule of conditions imposed by the respondent in its approval of the development dated 14 September 2006 | ||
| B | |||
| PDF Version |
| Parties: | JOHN LAGDON CITY OF SUBIACO |
Catchwords: | Town planning Development application Retrospective approval for a rear upper balcony Application for review of condition of approval Flat roof of garage extending beyond balcony Balcony reduced to less than garage roof area Condition requiring a parapet wall above edge of garage roof to be reduced to two courses Screening to balcony provided Potential for overlooking reduced Impact of garage parapet wall on locality |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 41(2), cl 41(2)(d), cl 42(1), cl 42(1)(a) Residential Design Codes of Western Australia 2002 |
Case References: | Nil Nil |
Orders | The application for review be allowed,Condition (e) be deleted from the schedule of conditions imposed by the respondent in its approval of the development dated 14 September 2006 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LAGDON and CITY OF SUBIACO [2007] WASAT 16 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 JANUARY 2007 FILE NO/S : DR 333 of 2006 BETWEEN : JOHN LAGDON
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application - Retrospective approval for a rear upper balcony - Application for review of condition of approval - Flat roof of garage extending beyond balcony - Balcony reduced to less than garage roof area - Condition requiring a parapet wall above edge of garage roof to be reduced to two courses - Screening to balcony provided - Potential for overlooking reduced - Impact of garage parapet wall on locality
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 41(2), cl 41(2)(d), cl 42(1), cl 42(1)(a)
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Residential Design Codes of Western Australia 2002
Result:
The application for review be allowed
Condition (e) be deleted from the schedule of conditions imposed by the respondent in its approval of the development dated 14 September 2006
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : D Ford (as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Subiaco
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 Mr John Lagdon applied for and received approval for a screened balcony off a first floor bedroom at the rear of number 16 Park Street, Subiaco. The balcony was above a garage and the flat roof of the garage extended beyond the balcony to near the right of way at the rear of the property. A condition of approval required that the existing 700 millimetre high parapet wall around the outside edge of the garage roof be reduced in height to two brick courses. Mr Lagdon applied to have the Tribunal delete this condition.
2 The Tribunal found that the roof of the garage could be distinguished from the balcony and that the parapet did not have an adverse impact on the locality. The application for review was allowed and the condition was deleted.
Introduction
3 In December 2003, Mr John Lagdon (the applicant) received conditional approval for the development of a new two storey house at 16 Park Street, Subiaco (subject land). This included a double garage with a flat/skillion roof at the rear of, and connected to, the house with vehicular access from the rear right of way. The proposal also included a 4.2 square metre juliette balcony above the garage with access from a first floor bedroom.
4 The dwelling was subsequently built without the juliette balcony but with a flat concrete roof to the garage with access to the roof from the bedroom. A 700 millimetre high brick parapet was built around the edge of the garage roof. This effectively increased the balcony area to 37.8 square metres, changing the balcony from an incidental feature associated with the bedroom to a space suitable as an outdoor living area.
5 The respondent brought to the applicant's attention the fact that the balcony constructed did not have development approval. The applicant then applied for retrospective development approval for the enlarged balcony, as constructed, together with the addition of a 0.9 metre high privacy screen on top of what was effectively a 700 millimetre high rendered brick balustrade around the balcony. This would provide a 1.6 metre high privacy screen for the balcony.
6 The respondent granted development approval for screening a minimum of 1.6 metres above the floor level of the balcony with
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- perforations constituting no more than 20% of the total surface area of the screens. It also required that the screening be set back 2.5 metres from the western side boundary, 4 metres from the eastern side boundary and 7.5 metres from the northern rear boundary. The approval said that the remainder of the garage roof beyond the approved screens was not to be used as a balcony or habitable area and was to have access only by ladder or similar from the ground floor. The approval also included the following conditions:
"(e) The 700 millimetre high parapet wall above the perimeter of the garage roof slab is to be reduced to two courses of brickwork above the finished level of the garage roof structure."
Planning controls
8 The respondent's Town Planning Scheme No 4 (TPS 4) includes at cl 41(2):
"In considering an application for development approval in the zones to which this division applies the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the following objectives:
(c) The protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
(d) The protection of the privacy of indoor and outdoor living spaces of dwellings."
9 At cl 42(1) of TPS 4 it states:
(a) Notwithstanding any provisions of the Residential Design Codes to the contrary, buildings on land within the Residential Zone having an R code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b) The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that
- there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality."
10 The respondent adopted policy 3.2 Visual Privacy in 2005. This policy is concerned with the protection of privacy by screening and setbacks. The balcony and screening approved by the respondent are consistent with this policy.
Discussion
11 The respondent, in its submission, raised concerns about the bulk and scale of the existing parapet above the garage. The respondent said surrounding development was characterised by single storey houses that generally met the 3.6 metre wall height requirement of cl 42(1)(a) of TPS 4.
12 The existing parapet wall extending above the rear garage was described as being up to 4.2 metres high, or up to 0.6 metres above the requirement of TPS 4. The respondent agreed that the garage parapet was not visible from Park Street, but contended that it contributed to additional building bulk at the rear of the property as viewed from the public right of way and the rear yards of surrounding houses.
13 The approved plans for the development show the garage to be set back 2.5 metres from the rear boundary. It is set back 1.5 metres from the eastern boundary and 2.5 metres from the western boundary. The right of way is about 3 metres wide. Photographs show that on the western side the parapet abuts a garage at the rear of the neighbouring property. The outlook shows that surrounding dwellings are generally single storey, but the Tribunal is of the view that while the parapet might be visible from rear yards of properties in the near vicinity, it is sufficiently distant for the bulk not to have a direct impact on those properties.
14 The respondent also raised as a concern the objections received from neighbours about erosion of privacy. Privacy, it was pointed out, is required to be addressed under cl 41(2)(d) and policy 3.2. The respondent was concerned that having the parapet wall remain might encourage the use of the roof of the garage as active outdoor space and because of the proximity of the parapet to the boundaries this would have an impact on the privacy of the neighbours.
15 The applicant pointed out that the conditions of the approval ensured that the garage roof would be inaccessible from the balcony and the visual privacy and surrounding neighbours would therefore not be affected. He
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- also made the point that the conditions allowed for 20% of the screening to be perforated for light and argued that the parapet wall beyond that screening would effectively block the minimal remaining sight lines to neighbouring properties from the approved balcony.
16 An additional point made by the applicant was that the air conditioning plant is located on the roof of the garage and the removal of the parapet would increase the noise impact. Any decrease in noise would assist harmony with the neighbours. The respondent properly made the point that there are in place regulations to control noise.
Conclusion
17 The conditions imposed by the respondent on the development approval are considered by the Tribunal to be sufficiently precise to ensure that the roof of the garage is not used as a balcony area. It is further considered that should the roof be used in such a manner this would be readily apparent and the respondent can take the necessary action against the applicant. The parapet does result in a wall 0.6 metres higher than the standard, but because the wall is at the rear of the property and separated from neighbouring properties by setbacks and, to the rear, by the width of the right of way, it is concluded that the parapet would have an acceptable level of impact. The Tribunal has therefore concluded that discretion can be exercised to allow the parapet to remain and has decided that condition (e) can be deleted from the respondent's approval.
Orders
1. The application for review be allowed.
2. Condition (e) be deleted from the schedule of conditions imposed by the respondent in its approval of the development dated 14 September 2006.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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