LESEUR INVESTMENTS PTY LTD and CITY OF MELVILLE

[2005] WASAT 90

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION:   LESEUR INVESTMENTS PTY LTD and CITY OF MELVILLE [2005] WASAT 90

MEMBER:   MS B MOHARICH (MEMBER)

HEARD:   29 MARCH 2005

DELIVERED          :   29 APRIL 2005

FILE NO/S:   RD 353 of 2005

BETWEEN:   LESEUR INVESTMENTS PTY LTD

Applicant

AND

CITY OF MELVILLE
Respondent

Catchwords:

Town planning - Development - Heritage - Heritage place - Heritage agreements - Effect of further development - Undersized lot - Relationship of new and existing development

Legislation:

Heritage of Western Australia Act 1990, s 78

Town Planning and Development Act 1928 (WA), s 18C

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Applicant:     Mr G Harden-Jones

Respondent:     Mr I Hocking

Solicitors:

Applicant:    

Respondent:    

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

Nil

Case(s) also cited:

Nil

MS B MOHARICH (MEMBER)

REASONS FOR DECISION

1. This is an appeal from the refusal of the respondent of two development applications for land at 56 Duncraig Road, Applecross ("the site").

Land Description and Locality

1. The site is more particularly described as Lot 14592 on DP 33897, being the whole of the land in Certificate of Title Volume 3129 Folio 191.  The site is 3863m² in area.

2. The site is bounded by Duncraig Road to the south, the Swan River to the north, a residence to the west, and the Heathcote Hospital Reserve to the east.

3. Situated on the site is Duncraig House, a two­storey, Interwar California Bungalow style building, which was historically used as a nurses quarters for the adjacent Heathcote Hospital.  Together, Duncraig House and the adjoining Heathcote Hospital, and the land upon which they stand, form a place that has been registered as an interim entry (number 3289) on the State Heritage Register established pursuant to the Heritage of Western Australia Act 1990 ("Heritage Act").

Background

1. The chronology of recent events in relation to the site help to provide context to the subject matter of this appeal.

2. Approval was issued on 17 November 2004 by the Western Australian Planning Commission for the subdivision of the site into 2 lots.  The smaller lot is 620m² in area, and is at the western end of the site.  The purpose of this lot is to construct a three level residence, which is the subject of this appeal.  The larger lot is 3,243m² in area, and contains the existing Duncraig House.

3. On 23 June 2004, the respondent received a planning application ("the first application") for:

   (a)the upgrading of Duncraig House and internal works to develop three separate dwelling units within the existing structure;

   (b)the removal of a structure located at the eastern end of Duncraig House;

   (c)a fourth dwelling unit ("unit") to be constructed at the eastern end of Duncraig House where the other structure had been removed; and

   (d)a three-level single residence ("residence"), to be constructed at the western end of the site, on the land which has now been subdivided into a separate lot.

4. Thereafter there is a difference in opinion in relation to how this application was dealt with.  Mr Harden­Jones noted at the hearing that the applicant had requested that the application be split into two, and for them to be dealt with separately, on the basis that one component of the development was not contentious, and would be approved, leaving those elements in contention (and therefore likely to take longer to resolve) to be dealt with as a separate application.

5. The respondent dealt with the application on the basis that the applicant requested that the unit, and the residence be deleted from the application entirely.  On this basis, the respondent approved the renovation of Duncraig House, but did not make a determination in relation to the unit, or in relation to the residence.

6. The applicant then, on 18 January 2005, lodged two separate planning applications ("the second planning applications") for the unit at the eastern end of the Duncraig House, and for the residence, by which time subdivision approval had issued to excise the lot for the residence.

7. These applications were dealt with by the council of the respondent at its meeting on 15 February 2005, where both applications were refused for the following reasons:

   "A) The the application for a three (3) level single residence (reference DA­2005­51) located on the south-west corner of a newly created lot 1 (56) Duncraig Road, Applecross, and for one (1) additional grouped dwelling (reference DA­2005­52) located on the north-east section of the Duncraig House building on lot 14592 (No.56) Duncraig Road, Applecross, be rejected because the buildings are considered to affect the amenity and streetscape of the area, and mar the architectural integrity of Duncraig House, and are considered to be contrary to the orderly and proper planning in the this Heathcote Heritage Precinct.

   B) All local politicians be advised of the Council's strongest objection to the Western Australian Planning Commission decision to approve an undersized lot (80 sq.m less than the minimum lot size, a variation of eleven and a half (11.5) per cent) contrary to the order and proper planning provision of the Community Planning Scheme Number Five and that the Council seeks the assistance of all politicians to amend the Government policy on ignoring the density provision of local authority town planning schemes."

Statutory Framework

1. Planning approval is required for the development of land pursuant to cl 7.1 of the City of Melville's Community Planning Scheme No 5 ("CPS5"). In addition, s 18C of the Town Planning and Development Act 1928 (WA) ("Planning Act") specifically requires approval to be sought for any development in relation to a place entered on the State Heritage Register.

2. Pursuant to s 78 of the Heritage Act, in relation to an application for development made under s 18C of the Planning Act:

   "…before a decision-making authority …, except in so far as the Council may otherwise in writing agree with the decision-making authority, not be further proceeded with until the application in question has been referred by the decision­making authority to the Council, and the advice of the Council is received."

3. In this case, it was the applicant who referred the first application to the Heritage Council.  A response to that application was sent to the applicant by way of letter dated 7 July 2004, and to the respondent by way of letter enclosing the letter to the applicant, dated 8 July 2004.  That letter noted the Heritage Council's support for the first application, subject to a number of conditions requiring further detailed plans to be lodged for consideration prior to the issue of a building licence.

4. The letter to the respondent also provided information on the Heritage Council's view on the subdivision of the site:

   "For your information, the Development Committee also considered an amended subdivision proposal for the site at yesterday's Meeting.  The amended proposal is for a two­lot subdivision and was supported by the Committee.  A copy of the subdivision diagram considered is also attached to this letter along with a copy of the letter to the Western Australian Planning Commission in relation to the matter."

5. Mr Hocking, for the respondent, noted at the hearing of this matter that the second planning applications had not been referred by the respondent to the Heritage Council as required under s 78 of the Heritage Act.  This did not seem to be a concern of the respondent in determining the application.  The minutes of the Development and Neighbourhood Amenity Committee meeting on 8 February 2005 note that a referral was required, but that comments had been previously received from the Heritage Council.

6. It was clear from the plans lodged with the first application and the second applications, that there had been no material change in that which had been applied for.

7. On this basis, I am willing to proceed to determine the matter, on the basis that the advice of the Heritage Council, required to proceed in accordance with s 78 of the Heritage Act, is the advice dated 7 July 2004.

Planning Framework

1. The subject site is zoned Urban in the Metropolitan Region Scheme, and Residential 12.5 under the CPS5.  The site is located in the River Foreshore Living Area Precinct under CPS5, where the use of land for residential purposes is a P use.

2. The site is also listed as a Heritage Place in Schedule 2: List of Heritage Places, in CPS5. Pursuant to cl 6.6(j), when considering an application in relation to a Heritage Place, the respondent may solicit the views of the Heritage Council, and any other body, and take those views into account in determining the application.  As noted previously, as the site is also listed on the State Register, there is a statutory requirement to consult with the Heritage Council, over and above that requirement in cl 6.6(j).

3. Because of its interim listing on the State Heritage Register, the site is subject to a Heritage Agreement made pursuant to s 29 of the Heritage Act between the applicant and the Heritage Council of Western Australia.  The Heritage Agreement requires compliance with a conservation plan, which is appended to the Agreement.  The conservation plan provides an overview of the heritage value of Duncraig House, and in Part 8, sets out the conservation policies which should be adhered to in relation to future use (in part 8.2), future maintenance (in part 8.3), and future development (in part 8.5).

4. As noted previously, pursuant to s 18C of the Planning Act a local government must not determine a development application in relation to a site on the Heritage Register without first receiving advice from the Heritage Council. As signatory to the Heritage Agreement, the Heritage Council, in giving advice to the local government, must ensure that the Heritage Agreement has been followed. In this case, the Heritage Council was of the view that the Heritage Agreement had been followed. The Heritage Council in its letter dated 7 July 2004 advised:

   "1.The proposed development is supported subject to the following conditions:

   i.A detailed photographic record of Duncraig house and its context is to be prepared and submitted to the Heritage Council prior to any works being undertaken.

   ii.Detailed drawings are to be prepared and submitted to the Heritage Council for consideration prior to application for a building license.  The drawings should include the detailed resolution of the following issues to the satisfaction of the Heritage Council:

   •The propsed link structure between Unit 3 and Unit 4 showing the impact on Duncraig House.

   •The proposed garage and store areas at basement level showing the impact on Duncraig House.

   •The eaves height of Unit 4 – this should reference the eaves height of Duncraig House.

   •Interpretation – the original layout of Duncraig House should be interpreted through the retention of bulkheads throughout the original central corridor and the retention of selected wall nibs.

   •The articulation of the south elevation of the new residence to the west of Duncraig House.

   iii.No solid fencing is to be used for demarcating boundaries between, or in front of, the new western lot and the unit development, on the Duncraig Road side of the site.

   2.Heritage Council's advice regarding this matter does not replace the need for compliance with any requirements of the Western Australian Planning Commission or the City of Melville."

Assessment of the Proposal

1. According to the report of the town planning officer of the Respondent in the minutes of the Development and Neighbourhood Amenity Committee, the unit and the residence both comply with the prescriptive development standards set out in CPS5, and in SPP1: Residential Design Codes ("the Codes").

2. According to the reasons for refusal, the respondent’s concerns are four-fold, these being:

   (a)The effect on the streetscape and amenity of the area;

   (b)The effect on the architectural integrity of Duncraig House

   (c)The fact that the development is contrary to the orderly and proper planning in the Heathcote Heritage Precinct.

   (d)The fact that a subdivision has been approved, allowing a form of development which the respondent is unhappy with for the reasons listed in (a) to (c).

3. The Tribunal was not aided by counsel for the respondent, Mr Hocking, who also provided expert evidence in relation to heritage and architectural matters.  It was unclear to the Tribunal what it actually was that the respondent was unhappy with in relation to the design of the proposal, and how it failed to reach the standards set out in the respondent's own planning scheme and policy documents.  In addition, Mr Hocking's reasons for opposing the applications seem to differ from the Council's reasons for refusal.

4. It should be noted that Mr Hocking was also an objector to the first application when advertised by the respondent during the consideration process, as well as being the author of the conservation plan for the adjoining Heathcote Hospital site.

Subdivision

1. It is useful to deal with point (d) first.  It is clear from the documentation provided by the respondent that it is particularly concerned with the Western Australian Planning Commission's decision to allow subdivision of the site.  Mr Hocking reiterated this point at the hearing.  He relied upon Policy 20 in the conservation plan for the site, which provides:

   "A definable entity should be responsible for the planning and management of the place."

2. This policy seems to be at odds with Policy 16, which provides:

   "Possible future uses include residential, educational, commercial and community uses. Residential uses could include private single residential, apartments or hotel style accommodation."

3. In any event, as was impressed upon the parties at the hearing, the Tribunal has no power to deal with this issue.  Subdivision approval has been issued, and it is therefore a foregone conclusion.  The Tribunal is only able to assess the application that is before it ­ that is, applications for the unit and the residence.

4. The fact that the lot is undersized in accordance with the requirements of the Codes does not preclude it from development.  The Codes refer specifically to such a scenario in cl 3.1.3 A3ii.  This clause allows, as of right, a variation to the minimum site area required by the Codes where an undersized lot has been approved for subdivision by the Commission.

Development

1. The other reasons for refusal relate to the actual design of the unit and the residence.

2. It should be noted at the outset that both proposed buildings are to be located on land earmarked for further development in the conservation plan.

3. The unit is two­storeys in height, with an undercroft garage and storage area, and in this regard, has a similar bulk and scale as Duncraig House.  It is to be located adjacent to the eastern end of the existing Duncraig House, and is set back 15.3 metres from Duncraig Road, in alignment with the existing Duncraig House.  The dwelling unit presents as a separate structure, but is attached to the existing Duncraig House by a lightweight, transparent glass link, which houses a staircase.  The dwelling unit picks up on the elements of the existing Duncraig House, with the use of similar building materials, and with a similar use of horizontal design elements.  The style of this building seems to accord with Policy 46 of the conservation plan, which provides:

   "Any new development should respect the form, scale and materials of the existing significant building without directly copying it."

4. At the hearing, Mr Hocking did not press the respondent's concern regarding the unit at Duncraig House.  In fact, it was his view that the proposal did relate in terms of architectural form.

5. Mr Hocking's concerns in relation to the unit related more to the undercroft garages to be constructed under Duncraig House and approved under the first application.  Mr Hocking stated that the cutting for the undercroft garages will change the whole visible width of Duncraig House by visually and physically separating Duncraig House from the topography for which it was designed.  The existing upward slope from Duncraig Road to Duncraig House will be removed "and perch Duncraig House a floor above much of the original ground level."  As previously stated, this component of the redevelopment has already been approved, and is not before the Tribunal in relation to this appeal.  This information is only relevant in so far as the two new applications fit with that which has already been approved.

6. The residence is located at the south­western end of the site, and gains its vehicular access from Duncraig Road.  Because of the topography of the site, which falls away at this location, the lot is to be excavated to allow vehicular access at an acceptable gradient to Duncraig Road.  A retaining wall will be required along the eastern boundary, that is, the boundary between the lot containing the residence, and the lot containing Duncraig House.  The residence is three­storeys in height.  The ground floor houses the double garage, entry vestibule, the kitchen, laundry, and the dining and living areas.  There is a terrace on the ground floor at the northern end of the house.  The first floor houses two bedrooms at the southern end, a bathroom, kitchenette, study, and a theatre area.  The second floor houses the master bedroom, the guest bedroom and two bathrooms.  The second floor of the dwelling is at the same height as the top storey of Duncraig House.

7. The dwelling is set back 7.5 metres from Duncraig Road, and is oriented to take advantage of the views to the river, with balconies along the northern face of the building.  The second floor balcony creates a minor non­compliance with the privacy provisions of the Codes, in that 7.5 metre cone of vision, when measured from the balcony, intrudes by approximately 0.5 metre into the top private veranda of unit 1 at Duncraig House.  The applicant intends to ameliorate this impact by soft scape landscaping within the Duncraig House lot.

8. Mr Hocking referred to a number of policies in the conservation plan, indicating how they had been breached in some way.  At the heart of Mr Hocking's argument was reference in the conservation plan to the interrelationship between the built form and topography of the site:

   "Both the natural and cultivated vegetation create a framework of canopies, essential to the aesthetic character of the place… Duncraig House enhances the natural characteristics of the site, adding a sympathetic and complementary presence to the topography and landscape quality of the promontory."

9. Mr Hocking was at pains to point out that heritage is gained from its setting, that is, the parks and grounds which surround the heritage building.  It was his view that the proposed residence impinged, or encroached into the landscape setting, and ruined the continuity of the park like grounds by proposing a change in levels of the land, and therefore requiring fencing.  Mr Hocking says in his witness statement:

   "The development application for the three level single residence ignores the ground form and cuts the site to fit a pre-determined accommodation brief.  The European history of this site has been to work with its topography and landscape and not to carve it and excavate it to suit a pre-determined building program."

10. Any development on the proposed south­western block will require a degree of excavation to provide vehicular access directly to the site and therefore will always affect the continuity of Duncraig House's park-like setting.  In addition, because of a need to reflect the scale of Duncraig House, which is two­storeys in height, the change in ground level allows for a third­storey without being imposing.

1. As noted above, the Heritage Council's recommendations require that there be no solid fencing between the residence lot, and the Duncraig House lot.  Mr Hocking says that the retaining wall amounts to solid fencing.  The plans the subject of this appeal were reviewed by the Heritage Council, where the existing contours and the heights of the proposed development were both shown.  As noted by Mr Harden­Jones, the architect for the applicant, the applicant is willing to find a design solution to ensure compliance with the Heritage Council's requirements.  One option put forward was metal barrier grilles, enclosed within box­hedging.  The Heritage Council will retain control of the issue of landscaping in any event, by requiring a landscape plan to be lodged with them for approval.  Failure to do so in the time frame imposed will be a breach of the planning approval.

Conclusion

1. It should be noted that nothing in CPS5 or any other planning document imposed any design control in relation to the site, and while it is the City of Melville's view that the proposal contravenes the heritage agreement and conservation plan, ultimately the heritage agreement is a contract between the Heritage Council and the applicant.  This fact should not be underestimated.  Neither should the fact that the Heritage Council, as not only a party to the heritage agreement, but as the expert body for heritage in Western Australia, clearly felt that the form of development proposed was appropriate.  For the respondent to take a contrary view where the proposal complies with its own planning controls is quite extraordinary.  It is inappropriate for the respondent to refuse an application because it is unhappy with the Western Australian Planning Commission for approving the subdivision of the land.

2. It is my view that the proposed development is an appropriate form of development on the site.  The three­storey dwelling provides a sensitive transition between the substantial residences along Duncraig Road by dint of its similar proportions and set back from the street, and the adjoining Duncraig House, by dint of its use of similar building materials and architectural elements.

3. It is my view that the current design is sensitive to both the heritage character of the precinct, but also to the existing character of Duncraig House.  This is an excellent example of living heritage, allowing the adaptation of an otherwise redundant building, thereby giving it a value which will ensure its long term retention.  Such projects should be encouraged.

4. The development complies with the development standards set out in CPS5, and with the performance criteria in the Codes.  The approval of the scheme of development by the Heritage Council leads me to the irresistible conclusion that the appeal should be allowed.

Conditions

1. There still remains to be dealt with the issue of conditions to be imposed upon the approval granted by this decision.  For this reason, I will make orders requiring the parties to attend at a further hearing for the conditions to be finalised, unless that parties are able to reach agreement, and file with the Tribunal a list of those conditions prior to the hearing date.  The decision will not take effect until such time as the conditions are finalised.

Orders

For the foregoing reasons, I make the following orders:

1.The appeal be allowed.

2.The development applications lodged with the respondent on 15 January 2005 are approved, subject to:

(a)the conditions imposed by the Heritage Council in its letter dated 7 July 2004;

(b)the imposition of a condition requiring soft-scape landscaping on the boundary between the residence lot and the Duncraig House lot, to ameliorate the overlooking between the residence and unit 1, the details of which, in relation to location and type, to be dealt with in accordance with order 4.

(c)such other reasonable conditions to be imposed either as a result of the parties' agreement, or by determination of the Tribunal, in accordance with order 4.

3.Pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 (WA), orders 1 and 2 do not come into effect until such time as the conditions referred to in Order 2(b) are finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of the approval.

4.The matter is listed for a half day hearing, commencing at 10am on Friday 20 May 2005 for the conditions of approval to be argued, unless the parties file a Minute of Consent Orders setting out the conditions to be imposed prior to this date.

5.The respondent is to file with the Tribunal and serve on the applicant a list of conditions it wishes to impose by Friday 6 May 2005.

I certify that this and preceding 13 pages comprise the reasons for decision of the State Administrative Tribunal.

____________________________

Ms B Moharich

Member