LANDRO and CITY OF FREMANTLE
[2006] WASAT 76
•28 MARCH 2006
LANDRO and CITY OF FREMANTLE [2006] WASAT 76
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 76 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:482/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 28/03/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed. 2. The decision under review is affirmed. | ||
| B | |||
| PDF Version |
| Parties: | MAUREEN LANDRO CITY OF FREMANTLE |
Catchwords: | Town planning – Single two storey dwelling on a relatively small lot – Approval sought for extension by the addition of a games room on second storey at rear – Medium density housing – Original development approval for several properties given en banc – Substantial number of variations to planning standards granted to maximise original development potential of site – Refusal to approve extension – Local government concerned about overdevelopment of site – Related amenity concerns such as building bulk and density and overshadowing – Tribunal agreed with assessment that site at risk of overdevelopment – Tribunal declined to deal with alternative proposal filed in papers – Application dismissed |
Legislation: | Residential Design Codes of Western Australia 2002, Table 2a City of Fremantle Town Planning Scheme No 3, cl 77(f) |
Case References: | Starworld Holdings Pty Ltd v City of Melville (2005) 38 SR (WA) 376 Willicombe and City Of Gosnells [2006] WASAT 13 Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : LANDRO and CITY OF FREMANTLE [2006] WASAT 76 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 MARCH 2006 FILE NO/S : DR 482 of 2005 BETWEEN : MAUREEN LANDRO
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning – Single two storey dwelling on a relatively small lot – Approval sought for extension by the addition of a games room on second storey at rear – Medium density housing – Original development approval for several properties given en banc – Substantial number of variations to planning standards granted to maximise original development potential of site – Refusal to approve extension – Local government concerned about overdevelopment of site – Related amenity concerns such as building bulk and density and overshadowing – Tribunal agreed with assessment that site at risk of overdevelopment – Tribunal declined to deal with alternative proposal filed in papers – Application dismissed
(Page 2)
Legislation:
Residential Design Codes of Western Australia 2002, Table 2a
City of Fremantle Town Planning Scheme No 3, cl 77(f)
Result:
1. The application for review is dismissed.
2. The decision under review is affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr K Oliver (by leave)
Respondent : Mr S Bain (by leave)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Starworld Holdings Pty Ltd v City of Melville (2005) 38 SR (WA) 376
Willicombe and City Of Gosnells [2006] WASAT 13
Case(s) also cited:
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
(Page 3)
Summary of Tribunal's decision
1 The applicant, Mrs Landro, applied to the Tribunal for a review of a decision by the respondent, the City of Fremantle, rejecting her modified application for an extension to her property in North Fremantle. The extension was for a games room at the rear on the second floor, a proposed room to be built above the existing living room.
2 The applicant and her family occupied a fairly large two storey house on this relatively small property. The original approval for development in 2002 included 12 other such dwellings of similar design and building density.
3 The respondent, despite internal advice to the contrary, considered that the extension would significantly impact on the amenity of the area with, in particular, an unacceptable impact caused by the increased building bulk and density, and the resulting overshadowing of a neighbouring property.
4 The respondent considered that sufficient compromises and related variations had been reached back in 2002, with the original approval for the 13 house. These compromises had more or less allowed the site to develop, in effect, close to its maximum potential, particularly as regards these amenity matters.
5 Some neighbours had objected to the proposal and the applicant had consistently modified the proposal to meet both the neighbours' and the respondent's planning concerns.
6 During the hearing, without the consent of the respondent and without approval of the Tribunal, another modification appeared in the papers, a new proposal which the respondent did not assess. Shortly before this, the applicant had elected to go with an earlier proposal. This later modified proposal conceded that there were significant overshadowing concerns with the earlier proposal (that is, the one under review).
7 The Tribunal agreed with the respondent, concluding that on balance the site was at risk of overdevelopment. The Tribunal declined to deal with the further modified proposal as, amongst other things, the respondent had not been given a proper opportunity to deal with it.
8 Mrs Landro's application was dismissed.
(Page 4)
Introduction
9 This application for review concerns a proposal for the addition of a games room ("teenagers' retreat") to a two storey, single dwelling house in North Fremantle. The applicant is Mrs Landro, the owner of the property. The proposal had originally been mooted with the City of Fremantle (respondent) as far back as 2003 and was finally rejected by the respondent in 2005.
10 In short, the respondent argues that the site is at risk of overdevelopment if the extension were to be approved.
History of the application
11 It will be necessary to go into the procedural history of this matter in a little detail.
12 After the original date fixed for a hearing, it was agreed between the parties to determine the matter on the papers, after a view of the subject land in the presence of the parties was arranged and carried out. Part of the reason for the matter taking this course was confusion over precisely which proposal was the subject matter of the review, and whether the respondent had had proper notice of it. The applicant was invited to clarify this issue, review her existing witness statement (to address matters raised by Mr Bain, for the respondent) and to consider whether the assistance of a town planner should be sought.
13 In the event, a modified proposal (option 3) emerged as the subject matter of the review. Mr Bain does not dispute that option 3 may be considered as relevantly the decision under review, and subject to reference to an "option 3a" (see below), the parties proceeded upon that basis.
14 The applicant did engage a professional planner (Mr Kelvin Oliver) to present her case on the papers, which greatly assisted the Tribunal – apart, perhaps, from Mr Oliver's understandable attempt to present yet a further option (that is, option 3a), a matter dealt with further below.
15 Mr Bain, pursuant to Orders of the Tribunal, submitted a revised witness statement in response to option 3.
The modified development application
16 The subject land is Lot 513 (No 26) Pensioner Guard Road, North Fremantle. The land is 221 square metres in area and has had
(Page 5)
- constructed upon it a relatively large two storey single dwelling. This was constructed, it appears, in 2003 or 2004. It may be noted at this point that the dwelling is in a row of houses of similar design (approved by the respondent en bloc in late 2002) and, as will emerge below, it will be necessary to consider the extent to which attention should be paid to the circumstances surrounding that development, particularly its "integrated" design and its building bulk.
17 The modified development proposal description (for a room to be built at the rear over the existing ground floor living room), as taken from the witness statement of Mr Oliver (for the applicant), in November 2005, is as follows:
"The current proposal is for construction of a 6.215 m x 4.575 m games room over the top of the existing lower level at the rear of the existing dwelling. The room is proposed to have a 5.32 m Southern setback, 1.512 m Western rear setback and 3.059 m Northern side setback. The total floor of the dwelling inclusive of the proposed extension is proposed to be 268.723 [square metres]."
18 This is option 3 which the applicant submitted before the Tribunal in October 2005, and which the respondent has, as already indicated, conceded may be regarded as the decision under review. The respondent therefore commented upon and responded to that proposal in late November 2005. However, it should be noted, as has already been mentioned, that the applicant, through Mr Oliver, foreshadowed a further proposal (option 3a), a course criticised by Mr Bain for the respondent as contrary to the Orders of the Tribunal. It remains unassessed by the respondent, and has not been responded to by Mr Bain.
19 Option 3a is expressed in four detailed site and related plans submitted by the applicant after the applicant had expressly submitted option 3 as "our preferred option" (as required by the Tribunal's Orders). An examination of the two options appears to show mainly a reduction in bulk achieved by a lowering of the rear extension roof-line. Option 3a does, however, according to the applicant, specifically address overshadowing concerns and marginally increases the side setback.
20 The applicant has not taken issue with the respondent's point by, for example, requesting the Tribunal to reconvene for the purposes of discussing the respondent's position that it had not and effectively would not assess yet another variation, given that a preferred option had been
(Page 6)
- previously specified with precision and had already resulted in one revised witness statement.
21 As indicated, this matter of option 3a will be returned to below. At this point, the Tribunal expresses its disappointment that the applicant has unilaterally chosen to further modify its position. The reluctance of the respondent to engage in further cost and expense in dealing with this effectively unilateral change of proposal is understandable.
22 For the time being, the Tribunal will address the final substantive proposal relevant to the decision under review that finally emerged (that is, option 3).
23 All that is presently necessary to add is that the applicant has produced various compromises along the way (apparently as far back as 2003) in a reasonable and continuing effort to address the concerns of both the respondent and her neighbours. Thus, a proposal for a balcony associated with the games room has been abandoned.
24 Both options are expressly and properly conceded by Mr Oliver to be aimed at achieving "greater compliance with the Acceptable Development criteria of the Residential Design Codes of Western Australia" (Codes). The question of the applicability of the Codes will be returned to below.
25 The respondent has, apart from option 3a, fully responded to these variations and in particular, of course, to option 3 but has rejected all of the applicant's proposals for the reasons summarised below.
Planning framework
26 It is common ground between the parties that there is no zoning of the land under the City of Fremantle Town Planning Scheme No 3 (TPS 3). However, it is governed both under the respondent's Development Plan No 8 (DP 8) and certain general provisions of TPS 3 (that is, mainly as to the criteria for assessment). Certain plans and policies of the respondent were also referred to (for example, the "Northbank Development Guidelines") but it is clear – and, again, common ground – that acceptance of the proposal will largely, if not ultimately, turn upon discretionary questions of amenity, bulk, scale, physical character and the impact upon adjoining lots, whichever planning instrument is addressed.
27 It is to be admitted that much of this, although relevantly informed (see the discussion below), is ultimately impressionistic and is also based
(Page 7)
- upon compliance with such nebulous concepts as the "harmony" of the precinct and the "implied" expectations of the residents therein expressed as amenity. Nevertheless, that is the task given to the Tribunal.
28 It is convenient to mention here that the Codes are considered to be applicable by both parties. This appears to arise because DP 8 favours medium density development in the R25-60 range. But, there are significant interpretive and factual differences between the parties concerning such matters as the plot ratio; setbacks; open space; and overshadowing. However, as appears in more detail below, the original en bloc assessment was done against an R40 standard. These issues will be returned to below.
Initial concessions in respect of the whole development (2002)
29 Mr Bain points out, and it is not disputed, that the original development (an "integrated development" of 13 units of the northern part of the street block, as Mr Bain characterises it) in 2002 was granted "concessions" in such areas as reductions in the primary front street setback, the side setbacks, the rear setbacks and open space/site cover. The assessment was largely done against an R40 coding (so far as could be made applicable): see the tables in the minutes of the respondent's Development Assessment Committee of 18 November 2002, and see the related variations referring to specific policies relevant to the area also discussed therein.
30 Further, there was, according to Mr Bain's calculations, an implicit acceptance of a slight increase in permissible over-shadowing of neighbouring buildings or lots.
31 Mr Bain draws attention to a similar scenario for the 2003 approval for the related southern side of the street block.
32 Mr Oliver, for reasons considered below, argues that the proposal is "an acceptable variation to the original integrated approvals".
33 Thus, it will also be necessary for the Tribunal to consider, quite apart from the merits of the current proposal, the extent to which, if any, these initial concessions impact upon consideration of the modified proposal. This was a key part of Mr Bain's argument.
Initial rejection of option 3's predecessor
34 In 2005, the respondent originally rejected a modified earlier proposal, contrary to the planning officers' views, upon grounds of loss of
(Page 8)
- light for existing dwellings, amenity impacts on existing residents (partly based upon objections from neighbours), overdevelopment of the site, excessive bulk and scale, overlooking, overshadowing, the creation of an undesirable precedent and lack of harmony with the existing character.
35 These objections are maintained in substance by Mr Bain in this Tribunal.
36 The Tribunal turns to consider the competing views of the parties on the criteria to be addressed. It is convenient to first address the matter of a difference between the parties as to the Codes.
Competing assessments relating to option 3 – The Codes
37 The Tribunal turns first to the issue of which coding is appropriate, given that the integrated design was assessed against the requirements specified for R40. The planning framework (see above) contemplates R25-60 and Mr Bain's view was that R60 could be considered as appropriate, at least for some assessments.
Plot ratio
38 The debate about R40 and R60 first surfaces in relation to an argument concerning plot ratio (namely, according to the definition in the Codes itself: "The ratio of the gross total of the areas of all floors of buildings on a site to the area of land within site boundaries.").
39 In Starworld Holdings Pty Ltd v City of Melville (2005) 38 SR (WA) 376it was noted by this Tribunal (at 381) that:
"The Codes use plot ratio as a means of controlling building bulk:
Plot ratio is an indirect form of density control, although it is a relatively effective means of controlling building bulk, which is its main purpose in the Codes.
The [former] Tribunal, in the decision of Jetcove Pty Ltd v City of Melville [2003] WATPAT 89 made the following comment about the application of plot ratio:
In the view of this Tribunal 'plot ratio' is an independent planning control that operates in practice in conjunction with other planning controls such as building height and setbacks. All three operate to control scale and bulk."
(Page 9)
40 The applicant first argues that R40 is the "most appropriate coding" as it "relat[es] to the size of the property" and the original development was originally assessed thus. Secondly, it is argued that the Codes do "not list a plot ratio requirement under the R40 [sic] for Single House development". Thus, the applicant says, the issue is effectively irrelevant.
41 Mr Bain argues that DP 8 assigns a R25-60 coding, the "most lenient" or "highest possible" coding (that is, R60) is appropriate and, unlike the R40 coding, this coding includes a plot ratio, a matter TPS 3 permits to be taken into account (cl 77(f)). The plot ratio, according to Mr Bain, is 1.22 and the maximum at R60 is only 0.6. Mr Bain says that the extension will add a further 12.8% to the plot ratio.
42 The officers below do not appear to have considered this issue. It may be reasonably assumed that they implicitly adopted the position of the applicant. R40 was originally chosen or used presumably because no plot ratio figure fed into the equation.
43 In the Tribunal's view, for the sake of consistency, the plot ratio should be assessed at R40 as the applicant now suggests and as the respondent formerly did back in 2002.
44 This does not mean that the figures provided by Mr Bain are thereby rendered totally irrelevant, as they might tend, for example, to suggest some support for his other arguments concerning building bulk.
Setbacks
45 Next, there is an argument between the parties about the setbacks necessary for the development. The officers below assessed the north, south and rear setbacks of the then proposal as compliant. So does the applicant, using Table 2a in the Codes (boundary setbacks for walls without major openings). Mr Bain's calculations lead him to the view that only the rear set back is non-compliant (by 1 metre) and he argues that the alternative performance criteria under the Codes is not met by the current proposal.
46 For the moment, we can put to one side the question of the proper figure for the rear setback because the issue is largely subsumed by other issues of greater but related significance (see below).
(Page 10)
Open space/site cover
47 Mr Bain argues that (presumably at an R60 rating – although R40 has the same figure under the Codes) 45% minimum open space is required, but by his calculations only 37.03% had been achieved.
48 In response, the applicant says that this development proposal neither affects open space or site cover and "that the concessions granted at the time of the original approval are not being further varied".
49 The applicant appears to be correct but again the matter is subsumed into the wider issue foreshadowed by Mr Bain of the extent of previous concessions and their cumulative effect.
Overshadowing
50 The applicant properly concedes in the main the respondent's criticisms of overshadowing of the adjoining lot that would be caused by option 3 (or its predecessors). Option 3a is offered with its reduction of the height and length of the proposed extension: "These modifications entirely remove any additional shadow cast on the adjoining property to the South". In addition, it is submitted that the southern side setback is increased from 5.32 metres to 5.635 metres.
51 As has been mentioned, there is effectively no response from the respondent on the further proposal. On option 3, Mr Bain argued that the maximum standards set for an R40 rating were exceeded and that the performance criteria could not be met in that inadequate solar access would be provided to the proposed neighbouring structure (in the course of construction) to the south.
52 If, for the sake of argument, it is accepted that option 3a has further ameliorating effects in respect of bulk, overshadowing, solar access and setbacks, and thus in part possibly reducing amenity concerns, it does not necessarily provide an answer to Mr Bain's remaining mainstay argument pointing to previous concessions already granted by the respondent in respect of this development.
Amenity issues
53 Before turning to that issue, the Tribunal should note Mr Bain's other submission that the respondent did receive a number of expressions of concern on the part of neighbours, including reference to the existing density of dwellings in the area and the expectations as to building bulk of the original purchasers.
(Page 11)
54 In reply, the applicant points out that streetscape will not be affected and that the proposed development would not be visible from the street and would be otherwise in harmony with the surrounding development. Mr Oliver submits that:
"Given the modifications [including option 3a], the impact of the proposed development on neighbours has been dramatically reduced to the extent that the proposal does not represent an over development of the site and will not create an undesirable precedent for other properties within the street block."
The previous concessions
55 The Tribunal turns to the effect, if any, of the existence of a set of cumulatively significant previous concessions in relation to the original approval by the respondent in 2002.
56 The applicant, as has already been mentioned, characterises the present application as "an acceptable variation to the original integrated approvals".
57 The Tribunal considers that the starting point in resolving this issue is to some extent set out in the Tribunal's decision in Willicombe and City Of Gosnells [2006] WASAT 13.
58 There, the Tribunal collected the relevant principles as follows (at [27]-[30]):
"Central to the respondent's case is that the cumulative departures from the Codes, and the associated performance criteria 'compromises', even if permissible if each were taken alone, indicates in effect overdevelopment of the site when adjudged by proper standards for the potential development of the land and its precinct.
There can be no real doubt that the 'cumulative effect' argument is commonly cited to or used by parties in this Tribunal in this context, and the highest authorities have accepted it. See, for example, Propertylink Finance Pty Ltd acting as trustee for Duke Investment Trust v Leichhardt Municipal Council [1999] NSWLEC 266 where Talbot J said at [43]:
'The proposal [has in effect three objections] in respect of significant non-compliance with development standards critical to the control of bulk and scale and compatibility
- with other development in the locality. The overall cumulative effect leads the Court to the view that the proposal is an overdevelopment of the site.'
- See also Plan Printing & Drafting v Glen Eira CC [1999] VCAT 1614 at page 6 and Green v Brisbane City Council & Anor [2002] QPELR 324 at [20] (per Judge Robin QC):
'I agree with Mr Haydon [of counsel]'s point that, even if, analysed individually, various elements of the development may appear acceptable, it is the combined effect and cumulative impacts that the Court must assess and have regard to.'
Such cumulative effect might, as indicated, lead to a finding of overdevelopment or related inappropriate development. In the Tribunal's view this issue of the cumulative effect is an important, and as will emerge, the central issue in this case. As the Victorian Civil and Administrative Tribunal neatly put it in Gianna Developments PL v Kingston CC [2001] VCAT 1889 at [28]:
'To conclude that an application [sic] had overdeveloped a site, there usually needs to be evidence of sacrifices in any or all of the following touchstones; density, site coverage, setbacks, open space, car parking, vehicular access, sunlight, or privacy. If there are casualties with some or all of these, a conclusion can be reached that the developer has 'squeezed' the site too much.' [original emphasis]".
60 Clearly, the site development is reasonably dense in terms of building bulk, but not yet excessive to the eye, and a compromise of sorts on setbacks and other matters was reached to produce a fair exploitation
(Page 13)
- of this relatively small site, and then in terms of an integrated group of two-storey dwellings. Consequential amenity expectations would indicate that such variations would be, at the least, very carefully scrutinised to ensure that the site was not overdeveloped.
61 Here, apart from any other concerns that the Tribunal might have had, the almost full acceptance by the applicant of the overshadowing concerns (see above) strongly indicates that option 3 does not measure up as a reasonably acceptable additional development on the site. The Tribunal is inclined to the view that the site is more or less at its maximum development in terms of bulk, but this would not, of course, rule out consideration of further development that was sympathetic to this general position. On balance, however, option 3 does not fall into this category.
62 Procedural fairness, as much as anything, indicates that the respondent should have the opportunity to properly assess, consult, negotiate and otherwise respond to the modifications effected by the alternative option 3a, which material is to date not before the Tribunal. Option 3a was filed without the Tribunal's leave (cf the Orders made on 4 October 2005) and the unilateral course taken by the applicant was clearly objected to by the respondent.
63 Option 3a should be first fully considered by the respondent on its merits either as a new development proposal or as a matter arising out of the consideration of this decision. No doubt these reasons will assist to some degree in that process.
64 The present application in the form that it came before the Tribunal should therefore be dismissed.
Orders
65 For these reasons the Tribunal makes the following Orders:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
(Page 14)
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MR P McNAB, MEMBER
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