LEE and CITY OF COCKBURN
[2008] WASAT 268
•14 NOVEMBER 2008
LEE and CITY OF COCKBURN [2008] WASAT 268
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 268 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:379/2007 | 17 JUNE 2008 AND 29 JULY 2008 | |
| Coram: | MR P McNAB (MEMBER) MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER) | 13/11/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | NICHOLAS ANDREW LEE JOANNE MAREE LEE CITY OF COCKBURN |
Catchwords: | Town planning Development application Determination of natural ground level Extent to which preexisting development can affect natural ground levels Site comprising average rise towards the rear of approximately four metres New visually imposing two to three story house with ocean views proposed on the foundation of existing two storey house with basement garage dating from 1973 Expert surveyor appointed by Tribunal to assist with determination of natural ground levels Surveyor using site visit, previous building plans and photogrammetric information to determine natural land ground levels Natural ground levels held as a matter of law to be ground level of the site existing at the date of development in its natural state as opposed to an artificially modified state Alleged compliance with acceptable development provisions of R Codes Variations also sought Planning framework still required assessment of bulk, scale and impact upon desired height in locality Tribunal finding acceptable development provisions not met based on independent survey data Proposal exceeded prescribed wall and roof heights Tribunal finding proposal had negative impact as regards bulk, scale and impact upon desired height in locality Application for review dismissed Words and phrases: 'Natural ground level' |
Legislation: | City of Cockburn Town Planning Scheme No 3, cl 5.2.2, cl 10.2.1 Planning and Development Act 2005 (WA), cl 6.3 Residential Design Codes of Western Australia (2008), cl 6.3, cl 6.7.1, cl 3.5.2 State Administrative Tribunal Act 2004 (WA), s 64 |
Case References: | Christie and Town of East Fremantle [2006] WASAT 150 Christie and Town of East Fremantle [2006] WASAT 270 Lynn and City of Joondalup [2006] WASAT 286 Makhoul v Parramatta City Council (2006) 148 LGERA 398 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent under review is affirmed. |
Summary | Mr and Mrs Lee sought a review of the City of Cockburn's refusal to approve their proposed new dwelling. This visually imposing two to three storey dwelling was proposed to be built upon the foundation and base of an existing house that they owned and occupied in Coogee.,The proposed dwelling had been denied planning approval principally because of concerns over its height and its impact upon streetscape.,The applicants maintained that some of the foundation and base of the existing dwelling could be used to calculate 'natural ground levels' within the meaning of the Residential Design Codes of Western Australia (2008) which, it was agreed between the parties, was the central planning instrument to be satisfied here.,The Tribunal did not agree and concluded that, as a matter of law, natural ground level primarily meant the ground level of a building site in its natural state existing at the date of proposed development, as opposed to an artificially modified state.,Here, in the absence of any expert evidence on what were the natural ground levels, the Tribunal commissioned an independent surveyor pursuant to s 64 of the State Administrative Tribunal Act 2004 (WA). The parties consented to the arrangement and the professional costs of the surveyor were borne equally by the parties. The independent survey work established to the Tribunal's satisfaction what the natural ground levels were. The wall and roof heights thus established exceeded the limits prescribed under the Residential Design Codes of Western Australia (2008).,In any event, the Tribunal was not satisfied that the proposed development was in keeping with the objectives of the Residential Design Codes of Western Australia (2008) or that the resulting height would not detrimentally affect the streetscape, visual amenity and character of the immediate locality, or that it would not have an adverse impact on the amenity of an adjoining property.,The application for review was therefore dismissed and the decision under review was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LEE and CITY OF COCKBURN [2008] WASAT 268 MEMBER : MR P McNAB (MEMBER)
- MR A EDNIE-BROWN (SENIOR SESSIONAL MEMBER)
- JOANNE MAREE LEE
Applicants
AND
CITY OF COCKBURN
Respondent
Catchwords:
Town planning - Development application - Determination of natural ground level - Extent to which preexisting development can affect natural ground levels - Site comprising average rise towards the rear of approximately four metres - New visually imposing two to three story house with ocean views proposed on the foundation of existing two storey house with basement garage dating from 1973 - Expert surveyor appointed by Tribunal to assist with determination of natural ground levels - Surveyor using site visit, previous building plans and photogrammetric information to determine natural land ground levels - Natural ground levels held as a matter of law to be ground level
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of the site existing at the date of development in its natural state as opposed to an artificially modified state - Alleged compliance with acceptable development provisions of R Codes - Variations also sought - Planning framework still required assessment of bulk, scale and impact upon desired height in locality - Tribunal finding acceptable development provisions not met based on independent survey data - Proposal exceeded prescribed wall and roof heights - Tribunal finding proposal had negative impact as regards bulk, scale and impact upon desired height in locality - Application for review dismissed - Words and phrases: 'Natural ground level'
Legislation:
City of Cockburn Town Planning Scheme No 3, cl 5.2.2, cl 10.2.1
Planning and Development Act 2005 (WA), cl 6.3
Residential Design Codes of Western Australia (2008), cl 6.3, cl 6.7.1, cl 3.5.2
State Administrative Tribunal Act 2004 (WA), s 64
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Mr JW Kirkness (Acting as Agent)
Respondent : Mr D McLeod
Solicitors:
Applicants : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
Christie and Town of East Fremantle [2006] WASAT 150
Christie and Town of East Fremantle [2006] WASAT 270
Lynn and City of Joondalup [2006] WASAT 286
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Makhoul v Parramatta City Council (2006) 148 LGERA 398
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Summary of Tribunal's decision
1 Mr and Mrs Lee sought a review of the City of Cockburn's refusal to approve their proposed new dwelling. This visually imposing two to three storey dwelling was proposed to be built upon the foundation and base of an existing house that they owned and occupied in Coogee.
2 The proposed dwelling had been denied planning approval principally because of concerns over its height and its impact upon streetscape.
3 The applicants maintained that some of the foundation and base of the existing dwelling could be used to calculate 'natural ground levels' within the meaning of the Residential Design Codes of WesternAustralia (2008) which, it was agreed between the parties, was the central planning instrument to be satisfied here.
4 The Tribunal did not agree and concluded that, as a matter of law, natural ground level primarily meant the ground level of a building site in its natural state existing at the date of proposed development, as opposed to an artificially modified state.
5 Here, in the absence of any expert evidence on what were the natural ground levels, the Tribunal commissioned an independent surveyor pursuant to s 64 of the State Administrative Tribunal Act2004 (WA). The parties consented to the arrangement and the professional costs of the surveyor were borne equally by the parties. The independent survey work established to the Tribunal's satisfaction what the natural ground levels were. The wall and roof heights thus established exceeded the limits prescribed under the Residential Design Codes of WesternAustralia (2008).
6 In any event, the Tribunal was not satisfied that the proposed development was in keeping with the objectives of the Residential Design Codes of WesternAustralia (2008) or that the resulting height would not detrimentally affect the streetscape, visual amenity and character of the immediate locality, or that it would not have an adverse impact on the amenity of an adjoining property.
7 The application for review was therefore dismissed and the decision under review was affirmed.
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Introduction
8 This review concerns a proposal by Mr N Lee and Ms J Lee (applicants) to make substantial additions to an existing residence that they own situated at No 9 (Lot 28) Tanunda Road, Coogee, in the City of Cockburn (respondent or City).
9 The subject land comprises an existing dwelling house on a lot of 926 square metres with a relatively narrow frontage of 16.1 metres. The site rises from the street frontage to the rear, on average by nearly 4 metres. As will emerge below, this last matter of height will be a crucial factor in the review and, in effect, led to the City refusing the redevelopment proposals put forward by the applicants.
10 The existing dwelling, which is to be used, in effect, as a 'base' for the proposed redevelopment, comprises a brick and tile house; a two level structure with an under croft basement cut into the site, with an upper floor built over and extending beyond the basement to the rear of the site. The applicants estimate that 39% of the current building footprint (257 square metres) is 'cut into the ground' and 61% is 'set on fill contained behind retaining walls generally constructed continuously with the side-walls of the dwelling'.
11 This dwelling was constructed sometime around 1973. Importantly, this construction and its associated works (considered by us to be a single development) is the only improvement, development or use of the land to date. The applicants consider that the size, condition and general useability of the existing structure warrants its partial retention; thus, it is proposed to retain significant parts of the existing built fabric. It is suggested by the applicants that the 'reuse and stylistic adaptation' of such residences 'is becoming more common in Western Australia'.
12 However, major demolition is also proposed, principally to the western side, where the built fabric and base for up to three metres deep (and applied for the length of that side of the building) is proposed to be removed, allowing an increased western side boundary set back. Demolition of certain internal and external walls is also proposed to make way for the upper floor extension.
The proposed development
13 It was common ground that the plans which are the subject of the review are those labelled 'Amended Proposal, Lee Residence, No 9 Tanunda Road, Coogee', numbered A1a - A6a, and dated February 2008.
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14 The development proposal essentially comprises a new extension at the existing basement level for car parking and then, given the western side demolition, two new levels founded on the existing base. The first level above the basement (being the existing floor conversion), is planned to accommodate four bedrooms with attached living amenities; the second level is planned to accommodate the principal living areas; and, above this, a further floor is proposed, comprising a large master bedroom suite. Each of the living and bedroom levels are planned to accommodate extensive balcony areas. The proposal may fairly be described as a two to three storey development. Considered overall, and generally speaking, the proposed development will present as significantly higher than the existing development. Mr J Kirkness, the applicants' architect and advocate submits that:
The house is located in a street containing a number of similar dwellings from that era of development, and also containing examples of more recent larger scaled residential development, indicative of the ongoing renewal of the locality. The street runs eastwest with a considerable uphill slope eastward. Older houses are principally orientated to the street while newer or renovated and extended residences more strongly address their western outlook towards the Indian Ocean …
15 The proposed development was rejected by the respondent. In summary this was because of alleged excessive height (including inconsistency with desired heights in the locality), privacy concerns, problems with open space requirements and an alleged detrimental effect on streetscape.
16 In the presence of the parties, a visit to the site and the immediately surrounding precinct (including the immediate streetscape) took place at the commencement of proceedings.
Issues
17 The principal issues before the Tribunal are:
a) How the height of the proposed development is to be determined.
b) Whether there has been compliance with the provisions of the Residential Design Codes of WesternAustralia (2008) (RCodes), in relation to wall heights and the overall building height.
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- c) The extent to which, if any, the existing works modify or constitute natural ground levels.
d) Whether the amenity of the surrounding area would be adversely affected by the overall height, bulk, scale, streetscape presentation and character of the locality.
The planning framework
18 The land is zoned R20 under the City of Cockburn Town Planning Scheme No3 (TPS 3). Importantly, TPS 3 provides, amongst other things, that due regard shall be had to 'the likely effect of the height, bulk, scale, orientation and appearance of [any proposed development]': see cl 10.2.1 of TPS 3.
19 At the time of the hearing, the City did not have an approved local planning policy in place in relation to height limitations applicable to this development. Thus, it was common ground that the development was to be determined solely under the R Codes (as applied under cl 5.2.2 of TPS 3 - the relevant provisions of the R Codes are set out below). Reference was made, however, in the hearing to a draft height policy of the respondent. In August 2008 (that is, after the hearing), the City's counsel, Mr D McLeod, properly advised the Tribunal that the City had, since the hearing, brought such a policy into force (the Coogee Residential Height Requirements Policy [APD53] (Policy APD 53)). Nevertheless, Mr McLeod's view was that he did 'not consider that the Policy should change the ultimate outcome of the [r]eview'.
20 We agree. Mr Kirkness, for the applicants, did not appear to dissent from that view, and neither party provided the Tribunal with a copy of the final version of Policy APD 53. We have therefore proceeded to primarily assess the matter under the standards applicable under the R Codes, which is how the parties mainly conducted their case before us.
21 We should add that we do not see the respondent's 2005 policy Residential Design Codes - Alternative Acceptable Development Provisions (APD49) as relevantly directed to determining height issues. To the extent that it permits, on a discretionary basis, an allowance (of up to 1 metre) in certain cases for fill or retaining works, in our view that flexibility is always subject to overriding respect for height controls consistent with the locality. And, even if it were to be applied, there would still be instances of a failure to meet the '[a]cceptable development' provisions of the R Codes upon the figures that we have determined for
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- natural ground levels. This would also be the case, it appears, if Policy APD53 had been applied here.
22 Nor do we see Christie and Town of EastFremantle [2006] WASAT 150 (Christie); affirmed in Christie and Town of EastFremantle [2006] WASAT 270 (cited by the applicants), as relevant so far as that case deals with natural ground level, as the parties between them appear to have there agreed (at [14]) what the natural ground levels were, albeit taking into account some existing development. There is no such agreement here and the issue must be determined by the Tribunal. This is dealt with separately below.
23 Accordingly, the agreed starting point is the '[a]cceptable development' provisions of the R Codes, cl 6.7.1 - A1.1 ('[b]uilding height requirements'). This standard requires, as one way of meeting the associated '[p]erformance criteria' under the R Codes, that '[b]uildings [must] comply with table 3 for category B area buildings, except where stated otherwise in a local planning policy or equivalent'. The '[p]erformance criteria' deals with desired height in the locality and the need to protect certain amenity needs of adjoining properties (such as access to light and views). The R Codes Explanatory Guidelines suggest, at 22, that:
Regulation of building height is fundamental to streetscape, and the appropriate limits should be determined on a local streetscape basis. The codes establish an objective set of height limits that correspond approximately to one-, two- and three-storey heights. A default provision establishes category B, corresponding to two storeys, as a limit in the absence of a local planning policy.
24 Table 3 dealing with '[m]aximum building heights' provides, at note (i), that:
Category B will apply unless a local planning policy requires the application of category A (generally single level development) or category C (development on three levels) or an alternative standard.
25 It is common ground in this review that category B is the applicable standard for this development. Thus, category B, as far as is relevant, provides for height limits as follows:
Top of external wall (roof above) … 6 [metres]
Top of pitched roof … 9 [metres]
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26 Relevant to this proposal, as will be seen later, is note (iii) to table 3 which provides that the height provision to the top of a pitched roof '[a]pplies to ridges greater than 6 [metres] long [, for] [s]hort ridges: add 0.5 [metre] height for each 2 [metre] reduction in length'.
27 The height and length of the proposed development's walls must also be established to determine the appropriate boundary set backs: see cl 6.3 of the R Codes ('[b]oundary setback requirements'); table 2a and table 2b; figures 2a - 2d (as applicable).
Measuring height: natural ground level
28 In order to measure the height of the proposed development, the height of the relevant components of the walls and roof should be measured from 'natural ground level'. This datumlevel is derived from the R Codes' definition for building height, as follows:
The vertical distance at any point from natural ground level to the uppermost part of the building above that point (roof ridge, parapet or wall), excluding minor projections above that point.
29 Similarly, in relation to wall height:
The vertical distance from natural ground level to the roof or parapet at any point in accordance with figures 2A, 2B and 2C.
30 The R Codes define 'natural ground level' as:
The levels on a site which precede the proposed development, excluding any site works unless approved by the council or established as part of subdivision of the land preceding development.
31 We will return to this definition later in connection with an argument advanced by Mr Kirkness, for the applicants, to the effect that the existing base (that is, the part of the existing dwelling proposed to form the foundation for the proposed development) can be regarded as 'site works' or something equivalent, thus lifting, in practical effect, the ground base.
32 It is convenient at this point to also record that the R Codes Explanatory Guidelines advise, under the heading 'Measuring building height', at 21, that:
For administrative simplicity, limits are often taken from a single point usually the level at the centre, or centroid, of the site or averaged over a site. However, that lacks precision and can lead to unintended outcomes. Hence the Codes refer to the height of the structure at any point above the natural ground level immediately below that point. This distinguishes it
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- also from the measurement of the height of walls for the purposes of setbacks, where the height is measured from natural ground level at points on the boundary corresponding to the wall in question. In the first case, the concern is about the general impact on the locality. In the second case the concern is about the specific impact on the adjoining property.
33 We will return to these guidelines below when it becomes necessary to determine with more precision certain height measurements.
34 Where there is a sloping site, as is the case here, the question of height compliance can be a difficult matter to determine. Here, as has been mentioned there was no agreement between the parties as to what was 'natural ground level' in relation to this site, and therefore there was no agreement as to which level or levels the relevant height calculations should be made from.
35 Quite apart from the applicants' site works argument (to be considered in a moment), Mr Kirkness appears to rely upon the original construction drawings of 1973 (prepared in connection with the building licence issued by the respondent), where certain ground lines ('finished ground levels') are indicated on the various elevations. In the alternative, the respondent contended that the line from which measurement should be taken is generally the level existing on the site around the dwelling. As will be seen, expert evidence commissioned by the Tribunal has assisted with the resolution of the issue, and tends to support the respondent's position.
36 At this point, it is convenient to deal with the applicants' 'site works' argument mentioned above.
Natural ground level and previous site works
37 The definition of 'natural ground level' found in the R Codes has been set out above. The applicants also drew attention to the related discussion found in the R Codes Explanatory Guidelines, at 22, as follows:
In accordance with the definitions … natural ground level may be taken as the levels resulting from development carried out as an approved part of a land subdivision or as the result of a pre-existing development …
38 See also the R Codes Explanatory Guidelines at 20 (on retaining natural topography and preexisting site levels) and, also at 20, on the use of retaining walls to establish 'base levels for lots' and also the view there expressed that they are to be regarded in certain cases as 'natural features'.
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39 Mr Kirkness submits:
Both the cut and filled portions [of the original development] are logically set relative to the natural ground levels occurring at the northeast, northwest and southeast corners respectively. As such, the effective stepping of the site to create two level ground planes for the various building portions (and another for the retained front yard) is entirely logical and practical as a means to 'averaging' the levels of the site under the ground-plane of the building and effectively creating 'natural ground levels' for [the] purposes of developing a building above it. It does not represent an artificial way of elevating an entire building as [a] means to gaining greater access to views, as has become more common practise [sic] in recent years.
40 His essential argument is that the subject land 'has been subjected to previous site works approved by Council' and that these works 'have effectively "averaged" the site into two parts under the footprint of the building to provide level planes for the ground slabs to the building'. Further, it is submitted that if one did not have this starting point then the applicants would be frustrated by being prevented from building to the acceptable standard presently under consideration so that the applicants 'would be obliged to demolish the existing building and excavate the existing fill under in order to be able to construct such a building'.
41 In reply, in his oral argument, Mr McLeod submitted as follows:
[W]e submit that the appropriate and logical way to apply the natural ground level definition to the circumstances of this case is to look at the site, the clear evidence of what the historical and present natural ground level is surrounding this building, and ignore the fact that within the perimeter walls of the building soil or something else might have been put inside to - as an assistance to building construction.
McNAB, MR: Is it any part of your case, Mr McLeod, that where it says, 'Excluding any site works unless approved by council,' that that should be read in a sense literally, that is, that the works have to be approved with the label, 'site works'?
McLEOD, MR: Yes. I would submit that it does mean - it should be given a meaning as according to its terms, and you should regard the reference to site works as gaining its meaning from the context, and it's not insignificant that the reference to the site works that might be approved in conjunction with preceding development occurs in very close proximity and [is] inextricably tied up with the reference to site works associated with subdivision, established as part of a subdivision, and that is clearly what the definition was intended to refer to: where there is a palpable and deliberate proposal to alter the levels of the site and that proposal is accepted by the local government.
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- I submit that there is - in the existing development on this site there is no evidence of any palpable proposal to alter the levels of the site, but rather the movement of soil to assist in achieving the building to the most - in the most convenient way possible. (T:137138)
42 Leave was given to Mr McLeod to make certain supplementary written submissions to the Tribunal after the adjourned hearing on 29 July 2008. In these submissions, Mr McLeod elaborated upon the argument set out above and submitted:
[On] the interpretation of 'natural ground level' urged by Mr Kirkness, fill within the perimeter walls of a building could provide a platform 1, 2, 3 or more metres above natural ground level, and that then would become the starting point for measurements for any extension or addition to the building. A person particularly anxious to gain extra building height, especially in an area where views are at a premium, could easily resort to such measures, and the definition of 'natural ground level' should not be given an interpretation which would permit such an unreasonable outcome.
43 In our view the starting point must be the ordinary meaning of the words 'natural ground level'. In Makhoul v Parramatta City Council (2006) 148 LGERA 398, Jagot J said, at [17] - [18], (emphasis added):
In Rockdale Municipal Council v M & L Rizzi, [[1991] NSWLEC 56; BC9102774], Bignold J considered the meaning of the phrase 'existing natural ground level' in a condition of development consent. His Honour said, at p 7, that:
'I think, "natural" assumes its ordinary meaning (eg "existing in or formed by nature; constituted by nature": The Macquarie Dictionary). But in the case of a parcel of residential land situate in the suburbs of metropolitan Sydney in 1991 the adjective 'natural' is quite apt to create problems if it is to be relied upon as providing a crucial datum for the measurement of height controls imposed upon a proposed building upon an existing developed site …
However I do not think the adjective "natural" in the expression "existing natural ground level" requires or justifies recourse to speculation as to the original landform contours of the subject land.
Given its context and its clear purpose to establish the relevant datum (for the purpose of height control), the expression "existing natural ground level" in my judgment means the ground level of the building site existing at the date of development consent in its natural state, as opposed to an artificially modified, state.'
The Court of Appeal in Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113 at 115 agreed with Bignold J.
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44 Jagot J went on to conclude, at [41], that '"[n]atural ground level" in the definition of "storey" in the Parramatta Local Environmental Plan2001 means the predevelopment ground level'.
45 In our view the expression primarily means: the ground level of a building site in its natural state existing at the date of proposed development, as opposed to an artificially modified state. It follows that any proviso (such as a reference to site works or pre-existing development) must be read strictly in its context and therefore in a narrow sense to include only such limited works which necessarily prepare certain land for development, and not actual further development on the land (which might, of course, include some levelling or infill as part of that work). If such later development were to be incorporated into 'natural' then that would tend to undermine the concept's evident purpose as a 'crucial datum for the measurement of height controls imposed upon a proposed building upon an existing developed site'. It would, to use Mr Kirkness' own words, result in 'an artificial way of elevating' the site.
46 It follows that we reject the applicants' contentions on this point. And, as shall be shown shortly, natural ground level (in its 'natural state') can be established here as a matter of fact. In particular, that datum can be established without the need to include any 'approved' site works as it is clear that here there are, in any event, no such works (and we so find); likewise, no site works have ever been 'established as part of subdivision of the land preceding development'.
47 This conclusion generally accords with what the Tribunal said, after a similar debate to that conducted here, in Lynn and City of Joondalup [2006] WASAT 286, at [32]:
In the view of the Tribunal it would be manifestly wrong … to allow extensive retaining walls near a property boundary with associated backfill to change the levels of a site, and then claim that the new levels were 'natural ground level'.
48 We entirely agree.
Section 64 of the SAT Act: the appointment of an independent surveyor as an expert
49 There being no consensus on an essential issue of fact as regards what constitutes 'natural ground level' (and, importantly, there being no expert evidence upon the point - the topographic feature survey from 'Avid Surveys' in June 2007, being insufficient for this purpose) the Tribunal proposed the appointment, pursuant to s 64 of the State
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- Administrative Tribunal Act 2004 (WA), of an appropriate expert to provide an historical survey and report, using the best available data, establishing an independent opinion as to the natural ground level at the time (or thereabouts) of the original construction. The parties agreed with this proposal and consent orders were made the effect of which was that a suitably qualified surveyor was to be nominated for this task by the President of The Institution of Surveyors, WA Division, and that the expert's professional fees and disbursements were to be fully met equally between the parties. The expert so appointed provided written and oral evidence to the Tribunal. All dealings between the s 64 expert and the Tribunal were conducted with the advice and consent of the parties.
50 The nominated and appointed surveyor was Mr C Younge of Messrs McMullen Nollan. He provided the Tribunal with a report which outlined the procedures undertaken in establishing the requested information and provided survey information and plans to assist the parties and the Tribunal, as follows:
a) A detailed survey of the subject land showing ground levels, floor levels, and features as are current.
b) Calculated natural surface levels at the perimeter of the existing building as shown on original construction/building licence drawn elevations.
c) Calculated photogrammetric ground levels from 1972.
51 In respect of the latter two points, Mr Younge explained both in his report and in subsequent evidence to the Tribunal, that he had researched the original construction/building licence drawings of 1973 and these, together with certain marked up calculations, were provided to us.
52 In order to assess the photogrammetric ground levels, Mr Younge's work based upon aerial photography had been limited to that which was available, namely flights from 1959 and 1972 - the former being difficult to use due to the quality of the image. However, the 1972 photography showed the subject site to be vacant of development with important neighbouring features capable of identification. It was, in Mr Younge's opinion, a clearer image enabling a reliable analysis of the natural ground levels at that time. Mr Younge noted that although better than expected results were achieved when comparing ground survey values with a photogrammetric survey, the latter has an expected precision for determining values at plus or minus 0.3 metres accuracy.
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53 The Tribunal therefore accepts that the situation as interpreted from data taken from 1972, when the subject site was vacant of development, reasonably represents the 'natural ground level' at the time of the original construction, given that the building licence drawings are date stamped as at April 1973. Such an approach is also generally consistent with the meaning that we have found for the expression 'natural ground level' as it appears in the R Codes.
54 In bringing his survey information to concluding values, Mr Younge provided a survey plan of the subject site on which the existing building was shown and the three separate values as noted above were recorded. These were plotted at various locations around the building perimeter: see the plan titled 'Comparison Plan - Lot 28 (No 9), Tanunda Road, Coogee, City of Cockburn'.
55 We note that in all of his plans and reports, Mr Younge has provided levels as represented against Australian Height Datum (AHD) values: cf cl 3.5.2 of the R Codes which requires that the 'site development plan shall be supported by drawings at a scale of not less than 1:100 which show … all elevations, with the existing and natural ground levels, wall heights and roof heights related to the common datum'.
56 As has already been discussed, the proposed development is one founded on the building as originally constructed and Mr Younge's plan on which natural ground levels as at 1972 are recorded is considered by the Tribunal to be of the most value in assisting with the calculation of and the determination of building heights.
57 Mr Younge's overall assessment and his recorded values support the view that the current existing ground levels generally speaking closely resemble the 1972 values. This finding is supported by the fact that the floor level of the existing building at the building's southeast corner closely relates to the 1972 natural ground level.
58 We now turn to use these findings to determine, as best we can, the true heights of the proposal.
Wall heights
59 As will be recalled, the development rises in additional storeys founded on the general footprint of the existing structure. The exceptions are that at street level, a single storey garage extension is proposed in the generous existing front set back and that the western side structure of the existing building is to be demolished, back up to
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- approximately a further three metres from the existing alignment.
60 The applicants' drawings have provided actual dimensions of wall height above existing and proposed floor levels. Mr Younge's survey provides correlating floor levels (at AHD) for the two lowest floor levels which remain as existing structures. From such information, the Tribunal has been able to interpret height values in respect of the wall height dimensions.
61 The bulk of the development is generally stepped up from the northern street frontage, to the rear, generally following the rise of the natural land form. Using the 1972 natural ground levels as a base, the developed wall heights of the proposal above 'natural ground level' at each of the existing built corners of the building are as follows:
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62 We again note that along the western side the existing built fabric of up to three metres deep and for the length of the existing building, is proposed to be removed allowing an increased western side boundary set back. The above values are therefore not measured at precise locations. This matter is dealt with further below.
63 The heights from the eastern side elevation are reasonably straight forward calculations. The general bulk of the eastern side which steps up from the northern street frontage, has the building face generally consistent in set back from the eastern boundary with the exception of a recess of a 1 metre additional set back, approximately 5 metres in length. This recessed wall, additionally set back, is the maximum wall height shown on the stepped eastern side, being a further 0.69 metres higher than the rear southeastern corner as recorded at a height of 7.83 metres (as set out above). The base of this wall is slightly lower than the southeastern corner so that the wall height is slightly more than the two values added together: that is, 7.83 plus 0.69 = 8.52 metres.
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64 The western side is more complex. A complication already noted on this side is that the existing built fabric of up to 3 metres deep and for the length of the existing building, is proposed to be removed allowing an increased western side boundary set back. There is, therefore, no measurement of natural ground level at the 'new' northwestern or southwestern corners. Any adjustments to the values recorded along the existing western side are relatively small. This being the case, whilst acknowledging the variation, the Tribunal has concluded that it has an immaterial effect on the height calculations.
65 The general bulk of the building also steps up towards the rear, but here there are significantly variable set backs to the main building bulk and generous balcony areas such that at the northwestern and southwestern corners, as recorded above, the wall height terminates as a balustrade to a balcony roof over the floor (or balcony) area below.
66 The maximum wall height to the western side occurs at the top of a lift shaft, but this 'face' is relatively small, is well set back, and can be largely ignored. The maximum wall height for building bulk of any significance occurs towards the rear of the building; it is set back in line with the southwestern corner balustrade, and is approximately 1.22 metres higher than the rear southwestern corner as recorded at a height of 7.70 metres (see above). The base of this wall is slightly lower than the southwestern corner so that the wall height is slightly more than the two values added together: 7.70 plus 1.22 = 8.92 metres.
67 The maximum wall height fronting and closest to the street requires some interpolation in the calculations, but it is assessed by us at approximately 6.85 metres. To the south, however, the maximum wall height relates directly to that of the west, that is 8.92 metres.
68 It will be recalled that table 3 for category B buildings, provides height maxima as follows:
Top of external wall (roof above) … 6 [metres]
- In our opinion, it could not be said that the proposed development is consistent with the wall heights prescribed under table 3, category B of the R Codes.
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Overall height
69 The maximum proposed overall height occurs at the peak of a pyramid shaped section of a quite complex system of pitched roofing. There are ridge heights of varying heights below this maximum.
70 Due to the naturally sloping land form, some work is required to relate the various peak and ridge heights to a natural ground level datum.
71 It will be recalled that the R Codes Explanatory Guidelines advise, under the heading 'Measuring building height' that:
For administrative simplicity, limits are often taken from a single point usually the level at the centre, or centroid, of the site or averaged over a site.
72 Although the guidelines go on to say that this simplicity 'lacks precision and can lead to unintended outcomes', the Tribunal is of the view that in this particular case, the 1972 natural ground level derived from Mr Younge's calculations is virtually the same at the northeastern and southwestern corners of the existing building, that is 21.15 metres and 21.07 metres AHD respectively. As a result, were a contour line of 21 metres natural ground level to be drawn across the site, it would be almost an exact diagonal line connecting the two corners and, as such can acceptably be applied as a level in the centre of, and as a representative average level, of the natural ground levels of the site.
73 Accordingly, the Tribunal considers that the measurement of overall height can sensibly be related to natural ground level at 21 metres AHD. This being the case, the peak points and the respective ridges of the roofing arrangement, in height above 21 metres AHD, are as follows:
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74 In the application of table 3, and in this case category B, the R Codes, as we have seen, allow for the relaxation of the overall ridge height according to the length of the ridge such that the height provision to the top of a pitched roof applies to ridges greater than 6 metres long, and for short ridges one can add 0.5 metres in height for each 2 metre reduction in length.
75 There was a difference of opinion between the parties as to whether the length relaxation could be taken proportionally within each of the three 2 metre increments. Although the wording of the relaxation rider is not a model of clarity in its application to these facts, the Tribunal is of the view that where, as is the case here, the ridge lengths have been reduced from the 6 metres to the 4 metre bracket, that each falls in the 4 metre to 2 metre bracket, thus permitting a 0.5 metre allowance, and that proportional calculations are not appropriate. Other than the peak height the height maximum would, therefore, be 9.5 metres.
76 As a result, using the table above, the ridge heights above natural ground level (as are determined at a datum of AHD 21 metres), can be assessed as follows:
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77 The maximum height occurs at the roof peak being a point of zero ridge length and the Tribunal accepts that this height calculation can be adjusted by the full allowance of three increments (that is, 1.5 metres), thus being increased to 10.5 metres maximum. Accordingly, with the peak height at 11.8 metres, this proposed height does not comply.
78 It will once again be recalled that table 3 for category B buildings, provides height maxima as follows:
Top of pitched roof …9 [adjusted to 9.5 or 10.5 metres, as appropriate]
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79 In our opinion, it could not be said that the proposed development is consistent with the roof heights contemplated or prescribed under table 3, category B of the R Codes.
Performance criteria and issues as to bulk and scale
80 Most of Mr Kirkness' evidence and submissions were directed at his argument in relation to determining natural ground levels by reference to the existing site works. We have rejected that argument for the reasons given above. We have also found that the acceptable development provisions of the R Codes have not been met by the proposal. At some points in his evidence Mr Kirkness does, however, address the performance criteria under the R Codes in relation to certain aspects of the proposed development. For example, at [6.3] of his witness statement (to be found in part 6 of his statement entitled 'Building Wall Heights in Relation to Performance Criteria') he says:
These variations [on short sections of the eastern wall portions] are not in my opinion excessive, where limited to a small portion of the building.
81 However, in the Tribunal's view, based upon the height figures that we have determined, some variations sought by the applicants could not be said to be insignificant.
82 In reply on these issues, Ms V Lummer, a planner employed by the respondent says:
Whilst some of the proposed variations [sought] are for short ridge lengths or points on the roof and thus relatively minor in nature, they nonetheless contribute to the overall impression of the dwelling as being significantly higher than those in the locality and, in my opinion they impact on the amenity of the adjoining properties. It is also necessary to consider the combined and cumulative effect of the various height variations proposed by the development.
I have attempted to illustrate the considerable difference in bulk and scale between the proposed development and the adjoining dwelling to the west … The difference in bulk and scale between the proposed development and the adjoining single storey dwelling [immediately] to the east (No. 11) is similar. Given the bulk and scale of the proposed development I am of the opinion that the variations to the required height … notwithstanding the minor nature of some of those variations, will have the combined and cumulative effect of exacerbating the impact of building height on the adjoining properties in a manner contrary to the intent of the [R Codes] performance criteria.
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- I am also not satisfied that the development as proposed will ensure adequate direct sun and ventilation being available to adjoining properties. …
83 Ms Lummer's evidence is, in our view, equally applicable as regards addressing both the performance criteria under the R Codes and the general decisionmaking criteria under TPS 3 set out at the beginning of these reasons.
84 Ultimately, as Mr McLeod has suggested, the case rests on how the proposed building presents. Mr Kirkness submits that:
Two new further levels are proposed to the [existing] dwelling, set variously above the existing single level portion on fill. These levels are not spread universally over the footprint and the resultant structure is variously single, two or three level. The three level portion is located to the rearmost part of the building. At no point on the site is the building a four level structure, as a simplistic reading of the elevations might otherwise suggest.
Conclusions
85 We are of the view that whether the issue is presented as cumulative variations to be authorised, or otherwise as alleged satisfaction with the performance criteria, or in connection with related discretionary issues to do with bulk and scale, streetscape and like matters under cl 10.2.1 of TPS 3, the proposal does not warrant approval. This judgment would stand even in the unlikely event that compliance or consistency with the R Codes acceptable development standards could be demonstrated.
86 We accept Ms Lummer's opinions, and they accord with our own assessment of the proposal. In short, like the Tribunal in Christie we are not satisfied that the proposed development is in keeping with the objectives of the R Codes (as the Explanatory Guidelines advise, '[r]egulation of building height is fundamental to streetscape'), or that the resulting height would not detrimentally affect the 'streetscape, visual amenity and character [of the immediate locality]', or that it would not have an adverse impact on the amenity of the adjoining property. In our opinion, the proposed development would be 'visually imposing', but excessively so.
87 Given our firm position on these central matters and given our views on the issue of how 'natural ground level' is determined, and given also the failure of the applicants to meet the acceptable development criteria, it is unnecessary to go on to consider the objecting neighbours' evidence, and related issues to do with setbacks, overlooking and privacy.
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88 The application for review will be dismissed.
Orders
89 For the reasons just given, we make the following orders:
1. The application for review is dismissed.
2. The decision of the respondent under review is affirmed.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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