LEWIS and CITY OF SUBIACO
[2007] WASAT 237
•12 SEPTEMBER 2007
LEWIS and CITY OF SUBIACO [2007] WASAT 237
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 237 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:75/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 12/09/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The decision of the respondent is set aside and conditional approval granted | ||
| B | |||
| PDF Version |
| Parties: | JOHN LEWIS CITY OF SUBIACO |
Catchwords: | Town planning Development Streetscape Character of the area Amenity Height Setbacks Boundary walls Overshadowing Vehicle sightlines |
Legislation: | City of Subiaco Town Planning Scheme No. 4, cl 26, cl 27, cl 27(4), cl 28, cl 28(3), cl 28(3)(b), cl 28(4), cl 37, cl 38, cl 39, cl 41, cl 41(2), cl 41(2)(c), cl 42(1), cl 42(1)(a), cl 42(1)(b), cl 51(4)(b) Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 3.2.6, cl 3.2.6(P6), cl 3.3.1, cl 3.3.2 |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The application to build a two storey dwelling at No 40 Hopetoun Terrace, Shenton Park is approved subject to the following conditions:,(a) Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development, details of which are to be submitted prior to commencement of the development.,(b) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Residential Design Codes of Western Australia (2002) and the City of Subiaco's relevant policies.,(c) The 2 metre long 1.6 metre high privacy screen that is located on the northern side of the upper level bedroom 1 perpendicular to the windows is to be constructed prior to the occupation of the building and maintained in perpetuity unless otherwise approved by the City of Subiaco.,(d) Any new or replacement fencing is to conform to the requirements of the City of Subiaco's Perimeter Fencing Policy. The front fence (including side fencing forward of the building line) is not to exceed 1.8 metres in height from natural ground level and is to be visually permeable above 0.9 metres in height from natural ground level.,(e) All conditions must be complied with prior to occupation of the development unless otherwise stated.,(f) All car bay dimensions are to accord with Australian Standard AS 2890.1.,(g) The double garage is to have a minimum internal width of 5.4 metres and a minimum opening width of 5 metres.,(h) The car parking area is to be provided with a manoeuvring depth of at least 6 metres.,(i) The finished floor level of the garage is not to be lower than the existing level of the right of way but may match this level.,(j) All ramps, crossovers, driveways and circulation aisles are to be constructed in accordance with Australian Standard AS 2890.1 and maintained to that standard.,(k) Existing ground levels at all proposed vehicle and pedestrian access points are to remain unaltered. No change in footpath, verge or right of way levels will be permitted.,(l) The existing level of the footpath is to be maintained.,(m) The existing level of the right of way is to be maintained.,(n) Any damage to the right of way as a result of the development is to be repaired at the owner's cost.,(o) All trenches and holes cut in the right of way are to be saw cut and any damage to the right of way is to be reinstated at the owner's cost to its original standard.,(p) Crossovers are to be provided and constructed in accordance with the City of Subiaco's Policy 14.2.3.,(q) A 1.5 metre by 1.5 metre visual truncation is to be provided either side of the access driveway and is to be maintained at all times. No walls, landscaping or visually impermeable fences greater than 0.75 metres in height above natural ground level are to be located within this truncation.,(r) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.,(s) All service meters and related infrastructure are not to be placed on the street side of a front fence.,(t) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metres in height above natural ground level.,(u) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and reinstated is to be to the satisfaction of the Director Technical Services. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LEWIS and CITY OF SUBIACO [2007] WASAT 237 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 SEPTEMBER 2007 FILE NO/S : DR 75 of 2007 BETWEEN : JOHN LEWIS
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development - Streetscape - Character of the area - Amenity - Height - Setbacks - Boundary walls - Overshadowing - Vehicle sightlines
Legislation:
City of Subiaco Town Planning Scheme No. 4, cl 26, cl 27, cl 27(4), cl 28, cl 28(3), cl 28(3)(b), cl 28(4), cl 37, cl 38, cl 39, cl 41, cl 41(2), cl 41(2)(c), cl 42(1), cl 42(1)(a), cl 42(1)(b), cl 51(4)(b)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.2.6, cl 3.2.6(P6), cl 3.3.1, cl 3.3.2
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Result:
The application for review is allowed
The decision of the respondent is set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant : Mr P Gersch (Acting as Agent)
Respondent : Mr M Cornell (Acting as Agent)
Solicitors:
Applicant : TCP Urban (Town Planning Consultants)
Respondent : City of Subiaco
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 This matter involved an application for review of the City of Subiaco's refusal of a development application for a new two-storey dwelling at No 40 Hopetoun Terrace, Shenton Park.
2 The issues to be determined by the Tribunal were whether the proposal was inconsistent with requirements for side setbacks and boundary walls; vehicle access and sightlines; overshadowing; and orderly and proper planning, having regard to the proposal's impact on streetscape.
3 The principal issue for consideration in these proceedings concerned the streetscape and associated issues of whether the height and bulk of the proposal would have an adverse impact on the character of the area.
4 The Tribunal found that the design of the proposed dwelling reflected careful consideration of both the streetscape and the affected adjoining neighbour. The Tribunal determined that the height was acceptable.
5 The Tribunal found that the proposal did meet the requirements of the City of Subiaco’s Town Planning Scheme, the City's policies and the Residential Design Codes of Western Australia (2002). The Tribunal determined that the proposal’s setbacks, boundary walls, overshadowing, and vehicle access and sightlines were acceptable.
6 The application for review of the City of Subiaco's decision was allowed subject to conditions.
Introduction
7 These proceedings involve an application brought by Mr John Lewis, architect (applicant or Mr Lewis), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Subiaco (respondent or Council) made on 26 February 2007 to refuse development approval for a two-storey residence at No 40 (lot 18) Hopetoun Terrace, Shenton Park (subject land).
8 Relevant background to the application is that the subject land is the result of a recent demolition of an existing dwelling that had been constructed over two lots (Nos 38 - 40 Hopetoun Terrace). There was community opposition to the demolition and the proposed development of
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- two two-storey dwellings on the two lots. The respondent approved the demolition and also approved applications for two-storey dwellings on both lots. One of these lots, No 40 Hopetoun Terrace, was sold to the applicant's clients. The approved two-storey dwelling (approved design) did not meet the new owners' requirements and Mr Lewis was instructed to prepare a new design.
9 The approved design is relevant since it indicates standards that the respondent considers acceptable. Mr Lewis noted that the approved design had a reduced front setback (5.4 metres), a two-storey section clearly visible from the street, and overshadowing similar to the refused application.
10 Mr Lewis stated he was aware of the Council's policies that generally require houses to present to the street as single-storey dwellings. Mr Lewis observes that this requirement forces the bulk towards the rear of the site with possible consequences on the amenity of neighbours. To overcome these problems, Mr Lewis stated he met three times with the Council's planning staff prior to finalising the design. He also met with the affected adjoining neighbour who expressed concern about overshadowing. Mr Lewis stated that although the design complied with the overshadowing requirements of the Residential Design Codes of Western Australia (2002) (Codes), the design was modified to address the overshadowing. Mr Lewis believed that at a subsequent meeting the neighbour indicated the modifications were acceptable. (This neighbour later became an objector.)
11 The revised plans were submitted to the respondent in December 2006. The application was then advertised in accordance with cl 26 of TPS 4.
12 The respondent advertised the proposal and received six written responses from nearby neighbours objecting to the proposal. Copies of the text of these objections were included in the evidence. The responses all demonstrated a reasonable knowledge of the local planning framework, and the comments on areas requiring discretion, and on the proposal in general, indicated the objectors were well informed. The respondent summarised the objections into the following matters:
"a. Concerns regarding the height of the proposed dwelling;
b. Concerns regarding the bulk and scale proposed by the proposed dwelling;
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- c. Concerns of Overshadowing of the adjacent property, its outdoor living areas and major openings to habitable rooms;
d. Concerns that the development is not compatible with the existing streetscape (identified as being predominantly single storey in submissions);
e. Variation to the rear setback;
f. Concerns of extent of upper floor area;
g. Concerns of variation to vehicle sightlines;
h. Concerns of overlooking;
i. Extent of Boundary Walls; and
j. Concern of requirement for retaining wall along the whole of the northern boundary."
13 After the close of advertising and the assessment of objections, the Council's planners requested three changes. Mr Lewis summarised the requests as:
"1) Reducing the upper floor area to comply strictly with the 25% of site area policy;
2) Reducing the height of the living room parapet to fence height (1.8 [metres]) to the portion projecting beyond the neighbours approved parapet; and
3) Making the windows to the rear facing Bed 2/Bed 3 rooms obscure to 1650 from floor level."
14 Mr Lewis stated the plans were amended (dated 17 January 2007) to incorporate a Council planner's requests and the revised plan was recommended for approval.
15 However, the respondent did not accept the officer's recommendation and the application was refused on 26 February 2007 for the following reasons:
"a) The proposal does not meet Clause 41(2)(c), (f) and (g) of the City of Subiaco Town Planning Scheme No. 4 as it is inconsistent with the heights of surrounding residential
- development, does not preserve the character of the area and is incompatible with the existing streetscape.
- b) The proposal is contrary to Clause 27(4)(b), (e), (f), (g) and (h) of the City of Subiaco Town Planning Scheme No. 4 as it is inconsistent with the orderly and proper planning of the locality, the amenity of the area and the scale of the existing buildings in the surrounding area.
c) The proposal is contrary to Clause 28(3)(a) and (b) of the city of Subiaco Town Planning Scheme No. 4 as the proposal is inconsistent with the orderly and proper planning of the area, will adversely impact upon the amenity of the locality and does not meet the relevant planning requirements for the zone.
d) The proposal incorporates several setback variations, which do not meet the acceptable development provisions or associated performance criteria of the Residential Design Codes.
e) The proposal incorporates boundary development, which do not meet the acceptable development provisions or associated performance criteria of the Residential Design Codes.
f) The proposal incorporates variations to visual sightlines requirements, which do not meet the acceptable development provisions or associated performance criteria of the Residential Design Codes.
g) The proposal does not meet the standards of the City's Streetscape and Building Height Standards for R15 and R20 Zones Policy in relation to overshadowing of glazed openings to habitable rooms."
16 On 8March 2007, the applicant lodged an appeal against the respondent's refusal.
Subject land and locality
17 The subject land is described as lot 18 (No 40) Hopetoun Terrace, Shenton Park. It has a 10.06 metre frontage to Hopetoun Terrace and a 10.06 metre frontage to a 4.0 metre wide rear right of way. The subject land is 36.23 metres deep and has an area of 364 square metres. There is
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- a fall of approximately 1 metre from the front to the rear of the subject site.
18 The long axis of the subject site is east–west, with the street frontage facing west. In terms of solar access, the orientation and the narrow frontage will inevitably result in some overshadowing of the lot to the south - No 42 Hopetoun Terrace (No 42).
19 The neighbouring lot to the south (No 42) is a larger lot with a frontage of 14.80 metres and an area of 536 square metres. This lot contains an existing single-storey dwelling. The overshadowing issue involves this lot.
20 The neighbouring lot to the north (No 38 Hopetoun Terrace) has a 10.06 metre frontage and is currently vacant, although plans for a two-storey dwelling have been approved.
21 The respondent submitted streetscape photographs of all 44 houses in Hopetoun Terrace. The Tribunal accepts the respondent's argument that there are many attractive character homes in the street and that the streetscape is characterised by single-storey components at the front of the dwellings.
22 A heritage report commissioned by one of the neighbours concerning the demolition of the previous dwelling on No 38-40 Hopetoun Terrace, and put into evidence by the respondent, describes the streetscape as follows:
"Hopetoun Tce comprises mostly single-storey timber framed residential dwellings dating from the Federation era. There are also some Federation era brick dwellings with minor single storey mid-twentieth century in-fill. The architectural character is predominantly the picturesque Federation Queen Anne style characterised by projecting front gables, front verandahs and steeply pitched roofs."
23 The Tribunal finds there is some inconsistency between the photographic evidence and the above quote from the heritage report. Whereas many of the houses are characteristic of the style described in the heritage report, there are some modern homes. These modern homes, with low roof pitches and horizontal windows, are discordant elements in the streetscape. Some other discordant elements in the streetscape include carports within the front setback area and high front screen walls. The
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- streetscape does contain some two-storey elements that are clearly visible from the street.
The proposal
24 The proposed dwelling is arranged around a central courtyard. It is single-storey at the front and two-storey at the rear. The main two-storey element is set back over 21 metres from the street. (The staircase and loft are contained within the roof space of a single-storey element at the front of the house.)
25 The witness statement of Mr Lewis describes the character of the proposal and states that:
"The Councils' [sic] streetscape policy specifically mentions that it is not the intention to produce mimics of an historical style. The previous design [approved design] has just produced a mimic of a version of federation styling. Our proposal has been deliberately designed to comply with the roof pitch, materials, height etc of the streetscape policy but to find a contemporary interpretation of these historical forms which would enable the house to sit comfortably in the streetscape without being a bland copy of an historical style."
26 Mr Lewis also stated:
"The front elevation of the previously approved design presents just one 'front' (the gable) to the street at a setback of 5.4 [metres]. Most houses in the area are set back at least 6-7 [metres] and present at least two fronts (double 'fronted') so even though both designs conform with roof pitch and height requirements, our design is far more sympathetic to the streetscape because it presents a more articulated façade and provides for more consistent setbacks overall."
27 The proposal includes a double garage at the rear of the site, accessed from the right of way.
28 There are three boundary walls in the proposed dwelling. One is at the rear of the north side boundary and mostly adjoins an approved boundary wall on the adjoining property. The second is a wall to the laundry towards the rear on the south boundary. This wall adjoins the neighbour's boundary wall to their garage. The third boundary wall is also on the south side boundary. This wall is closer to the front boundary but
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- has a front setback of over 7 metres: a setback which is similar to the neighbour's side wall facing this boundary.
29 The south side of the proposal is either on the boundary or setback between 1 metre and 1.5 metres. The various walls on or near this boundary are approximately 28 metres long.
Planning framework
30 The subject land is zoned Residential (R20) under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme) and is located in the Shenton Park Planning Precinct.
31 The respondent's reasons for refusal refer to several clauses of TPS 4. They are:
• Clause 26, which gives the respondent authority to require the proposal to be advertised;
• Clause 27(4)(b), cl 27(4)(e), cl 27(4)(f), cl 27(4)(g) and cl 27(4)(h), which deal with matters the Council is to have regard to in the determination of an application;
• Clause 28(3)(a) and cl 28(4)(b), which deal with non-complying applications;
• Clause 37, which adopts the precinct planning policies;
• Clause 38, which requires compliance with the TPS 4, planning policies and the Codes;
• Clause 39, which adopts the Codes;
• Clause 41(2)(c), cl 41(2)(f) and cl 41(2)(g), which deal with the aims and objectives of the residential zone; and
• Clause 42(1)(a) and cl 42(1)(b), which is a special application of the Codes dealing with height.
32 Where appropriate, some of these clauses are described more fully later in these reasons.
33 The parties make reference to several of the respondent's planning policies, these being:
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- • Streetscape and Building Heights for the R15 and R20 Zones Policy (Streetscape Policy);
• Residential Car Parking Policy;
• Visual Privacy Policy; and
• Shenton Park Planning Precinct Policy (Precinct Policy).
34 Several sections of the Codes are relevant to the assessment of the application:
• 3.2.6 Sightlines at vehicle access points and street corners;
• 3.3.1 Buildings set back from the boundary;
• 3.3.2 Buildings on boundary; and
• 3.9.1 Solar access for adjoining sites.
35 These sections are described more fully later in these reasons.
Issues
36 The issues to be determined are:
• Whether the proposed development is inconsistent with the heights of surrounding residential development and whether it will be compatible with the existing streetscape and preserve the character of the area;
• Whether the development meets the Performance Criteria of the Codes in relation to boundary walls and side boundary setbacks;
• Whether the proposed vehicle sightlines and access meet the Performance Criteria of the Codes; and
• Whether the proposal meets overshadowing requirements.
Whether the proposed development is inconsistent with the heights of surrounding residential development and whether it will compatible with the existing streetscape and preserve the character of the area
37 This issue is fundamental to the outcome of the application. If the application fails on this issue, the application must be dismissed and the
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- remaining issues become incidental. However, apart from height, the other aspects of this issue are difficult to resolve because of a lack of clarity in the planning framework. The respondent's case uses generalised arguments that the proposal is incompatible with the streetscape and character of the area without explaining why, except to refer to scale, setbacks and overshadowing. When the setbacks and overshadowing are extracted from the argument (because they are dealt with as separate issues) the respondent's case is based on scale, height, character and streetscape. The height issue is well defined and connected to scale, but the issues of character and streetscape can only be defined by combining the respondent's generalised arguments with an analysis of TPS 4 and associated policies.
38 When considering an application, cl 27(4) of TPS 4 requires Council to have regard to various matters. Council refused the application having regard to the following clauses of 27(4):
"…
(b) any relevant planning policies;
…
(e) any submission accompanying or relating to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenity of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
39 It is the respondent's contention that the application is out of scale and character with the streetscape of Hopetoun Terrace. Clause 28(3) of TPS 4 reinforces cl 27 by stating that Council cannot approve a non-complying application unless the Council is satisfied that:
"(a) if approval were to be granted, the development would be consistent with:
(i) the orderly and proper planning of the locality;
(ii) the preservation of the amenity of the locality; and
- (iii) the planning objectives of the particular zone and relevant precinct planning policies; and
- (b) non-compliance would not have any undue adverse effect on:
(i) the occupiers or users of the development;
(ii) the property in, or the inhabitants of, the locality; or
(iii) the likely future development of the locality."
41 Clause 41(2) of TPS 4 details various matters Council must have due regard to in consideration of applications in the residential zone. It is the respondent's contention that the application fails the following aims and objectives:
"…
(c) the protection of residential areas from disproportionate or excessive development by regulating the density of dwellings and the finished heights of buildings;
…
(f) to enhance the amenity of the residential neighbourhood by ensuring the protection of the privacy of residences, the street orientation of new dwellings, the adherence to solar and environmentally sound design principles and the preservation of the character of existing housing stock;
(g) to ensure compatibility of the development with the established streetscape, taking into consideration setbacks, roof pitches, materials, design and landscaping."
42 The respondent states that the proposal does not comply with various broad planning principles established in TPS 4, without specifically indicating how or why the application fails. The argument as presented,
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- for example, is that the proposal is not consistent with the orderly and proper planning of the locality. It is not consistent because it is out of character with the streetscape. However, there is no detailed argument on why the proposal is out of character with the streetscape.
43 Clause 41(2), for example, lists various matters that can be tested, but the argument does not identify specific breaches of the matters listed in cl 41(2) except the matter of height identified in cl 41(2)(c).
44 The following clause in TPS 4 deals with height and here the respondent provides detailed argument. Clause 42(1)(a) of TPS 4 requires that development in the R15 and R20 zones is not to exceed an overall height of 6.4 metres and a wall height of 3.6 metres. The respondent notes that the application breaches this requirement: "The proposed development incorporates a wall height of up to 5.6 metres and an overall height of 8 metres from natural ground level."
45 However, cl 42(1)(b) permits Council to vary the height limit:
"The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality."
46 The respondent's argument is that the proposal is inconsistent with the heights of surrounding residential development. This problem is compounded when consideration is given to the various setback variations which contribute to excessive bulk.
47 TPS 4 defines "amenity" as "all those factors, which combine to form the character of an area and include the present and likely future amenity". The respondent notes that neighbours have expressed concern about loss of amenity.
48 In his witness statement, Mr Cornell, a senior planning officer employed by the City of Subiaco, observes that:
"The combination of the variations to boundary setbacks, overshadowing … and over length parapet walls contribute to the concerns that have been raised as to the overall bulk and scale of the development. The combined effect of these variations is considered to add to the overall intensity of
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- development associated with the relaxations for increased height development."
49 Mr Cornell further argues that:
"One of the key issues raised in submissions relating to the proposed new dwelling is that the proposed dwelling would be out of character with the existing dwellings in Hopetoun Terrace."
50 Some of the submissions referred to the single-storey character of the street and the time, money and effort that various owners in the street had put into upgrading and maintaining their character houses. A common theme amongst the objectors is that the proposed dwelling is too large and too bulky for the existing character of Hopetoun Terrace.
51 The applicant's argument is almost a reverse of the respondent's, using the same clauses to indicate that the proposal is orderly and proper planning in that it is consistent with the character of the area and the streetscape of Hopetoun Terrace.
52 Mr Patrick Gersch, a planner appearing for the applicant, states after discussing the proposal in the context of the planning framework that:
"It is my opinion that the proposal represents orderly and proper planning for the locality given that the design, scale and relationship to existing buildings and surroundings allow for the amenity of the locality to be conserved."
53 Mr Gersch observes that his views are consistent with the planning officer for the City of Subiaco who supported the proposal and recommended it for approval.
54 This is consistent with the evidence of Mr Lewis when he stated that "[t]he design was compiled in consultation with Council planning officers with [three] meetings/consultations held prior to submission". Mr Lewis also stated that the neighbours to the south were consulted prior to finalising the design. He further notes that after the advertising closed, another meeting was held with a Council planner who indicated the proposal could be supported by the Council if some further changes were made. Mr Lewis stated that he agreed to all the requested changes.
55 Mr Lewis noted in his evidence that it is difficult to meet the spatial requirements of a family home on a small lot whilst complying not only
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- with the Codes but also the stringent policy requirements of the City of Subiaco.
56 Mr Lewis stated:
"Council's Streetscape and Building Heights Policy … requires all new development to generally appear as single story [sic] from the street, as well as lining up with the surrounding houses to continue setback consistency. This was the starting point for the design, and the second story [sic] loft and bridge are all contained with-in [sic] the roof form to achieve this requirement."
57 He further observed that the Streetscape Policy naturally pushes any allowable building bulk to the rear of the property and this is made difficult on east-west facing lots as overshadowing is inevitable. Despite the difficulties, Mr Lewis stated the proposal was:
"… designed so as to limit overshadowing onto active and passive living spaces and [instead] cast shadows primarily onto roofed areas of the [southern neighbour's] abutting garage which is built to the boundary."
58 The Tribunal was faced with the difficulty of assessing lengthy generalised arguments on this issue with limited factual evidence. This was especially noticeable in the respondent's arguments where, apart from height, there was limited argument on why the proposal was incompatible with the streetscape and the character of the area. The Tribunal referred to the Precinct Policy but found it was similarly generalised, except for specific reference to conserving the timber framed houses in the locality of the review site. Neither party placed significant emphasis on the Precinct Policy.
59 Both parties referred to the Streetscape Policy. An understanding of this Policy is essential. The Scheme sets specific height limitations which are far more stringent than Code requirements. The Scheme then provides limited discretion up to a further defined limit. The Streetscape Policy explains the background and establishes the rules that guide both the application of discretion concerning height and the requirements for streetscape.
60 Section 3.0 of the Streetscape Policy, "Rationale for Policy", states:
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- "A number of key planning instruments provide a statutory basis for the City to prepare a local planning policy to ensure the protection and enhancement of streetscape and neighbourhood character … The concept of 'character' is identified as an intrinsic component of the [Scheme's] definition of amenity …"
61 The Streetscape Policy defines "character" as:
"… the qualitative interplay of built form, vegetation and topographic characteristics in both the private and public domains that make one place different from another. Character is generally limited to height, front setbacks, side setbacks and bulk and does not relate to colour and finishes."
62 The definition's exclusion of finishes is surprising given that the Precinct Policy identifies the timber framed houses as part of the character of the area.
63 The Streetscape Policy places greater weight on the existing streetscape pattern of surrounding development which is described as the five properties on either side of the development site on both sides of the street.
64 The Tribunal made the following findings.
65 The proposal is consistent with the front setback pattern in the street.
66 The side setback from the north boundary at the front of the dwelling is consistent with the setbacks in the street. The boundary walls at the rear of the house (on both the north and south boundaries) are not an issue because they will not form part of the streetscape. The side setback towards the front of the proposed dwelling on the south side is more problematic.
67 The side setback from the south boundary is nil at the front of the house. Although the proposed boundary wall is behind the front setback line, it will be visible from the street. There are some carports with boundary walls but most of these are not in the area the Streetscape Policy defines as surrounding development.
68 From the evidence, there is only one carport with a boundary wall within the front setback and within the area described as surrounding development. However, in the surrounding development there are houses
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- with boundary walls clearly visible from the street. Also, some of the surrounding development appears to have side setbacks (visible from the street) of less than 1 metre.
69 The side and front setbacks of the proposal, as they relate to the street, are consistent with the setback patterns of surrounding development. The south side setback is not equal to the majority side setback but it is not inconsistent. Mr Lewis has reduced the impact of the wall on the south boundary because the associated room is below ground level. At the point closest to the street the wall is less than 2.2 metres above ground level and it approximates the height of the existing boundary fence. The Tribunal finds that the setback pattern is acceptable.
70 The Streetscape Policy is very specific with reference to height. In cl 6.3, "Houses of Increased Height: Streetscape Standards", the Streetscape Policy states:
"In order to fulfil the requirements of this policy the City will require a building of increased height to be designed so as to appear as a predominantly single storey house as viewed from the primary street where the surrounding development is predominantly single storey (nominally greater than 50%). To ensure compatibility with the streetscape, sections of buildings of increased height should be setback from the street façade."
71 The Streetscape Policy then includes a diagram demonstrating how to achieve the requirement.
72 The front elevation of the proposal shows a two-storey building. An unfortunate characteristic of elevations is that they are poor at representing three dimensions. The two-storey section will be difficult to view from the street and even if visible it will not be a significant part of the streetscape. This is demonstrated in the applicant's north elevation. This side elevation includes the sightlines described in the Streetscape Policy's diagram and demonstrates that the proposal complies with the Policy. The two-storey section is set back over 21 metres from the street.
73 The Streetscape Policy's requirement with reference to bulk and scale (cl 6.4) is that the upper floor be limited to 25% of the site area. The proposal complies with this requirement.
74 The Streetscape Policy excludes finishes from the assessment of character. Nevertheless, the Tribunal notes that in addition to complying with Policy and Scheme requirements for height, scale and setbacks, Mr
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- Lewis’ design is respectful of the streetscape character in several ways. The use of traditional materials, vertical windows, clear orientation to the street and a steep roof pitch are all architectural elements of the proposal that are common to houses in the surrounding area.
75 One of the objectives of the Streetscape Policy is "[t]o encourage creative and quality design solutions that meet the standards of this policy and enhance the character of existing residential areas". After examining the evidence of the planning framework, the current approved design for this site (a different applicant), drawings of the proposed development (subject of this review) and photographs of the streetscape, the Tribunal agrees with the evidence of the applicant and finds that the proposal is a quality design solution that will enhance the streetscape and character of the surrounding area.
76 The Tribunal finds that the proposed development is consistent with the heights of surrounding residential development and that it will be compatible with the existing streetscape and preserve the character of the area.
Whether the development meets the performance criteria of the Codes in relation to boundary walls and side boundary setbacks
77 The parties agree that parts of the proposal do not comply with acceptable development standards of the Codes. The evidence of the respondent did not place significance on the north boundary wall. The Tribunal agrees. The wall is at the rear of the site and for most of its length adjoins an approved proposed boundary wall on the north neighbour's site. The part of the boundary wall that does not adjoin the neighbour's wall is shown as 1.8 metres above ground level. Similarly, the respondent does not develop arguments against the setback variations to the east boundary (right of way), conceding that the variations meet performance criteria of the Codes. The Tribunal agrees the east boundary setbacks meet the performance criteria. Therefore, the setbacks in dispute involve boundary walls and setbacks to the south boundary of the subject site.
78 The respondent's argument is that setback variations on the southern boundary and the south boundary walls will have an adverse impact on the amenity of the neighbour.
79 With reference to the boundary walls, the respondent correctly asserted that they do not meet "acceptable development" provisions of cl 3.3.2 of the R Codes and that they must be assessed under
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- "performance criteria". To meet the performance criteria the proposal must comply with one of three criteria dealing with amenity on the application site and then must meet both of the following criteria under cl 3.3.2:
"• not have any significant adverse impact on the amenity of the adjoining property; and
• ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
81 Mr Lewis argued that the small south boundary wall at the rear adjoins the neighbour's garage boundary wall and has no impact on the neighbour. He then argued that the south boundary wall at the front of the house was carefully designed to be opposite the part of the neighbour's house that contains a blank wall. Mr Lewis also argued that the boundary wall is only 5 metres long and less than 2.2 metres above ground level. The boundary wall is the outside wall of a home theatre. It is excavated into the ground and has been designed to be lower than the neighbour's existing boundary fence that, including lattice, is approximately 2.3 metres high. The lattice supports a vine grown by the neighbour which takes the overall height to 2.5 metres or more. The applicant argues this boundary wall will not be visible from the neighbour's house and will have no adverse impact on amenity.
82 The Tribunal finds the south boundary walls are acceptable. The Tribunal accepts the evidence of the applicant that the height, length and location of both walls have been designed to reduce the impact on the neighbour. Even if the impact on the neighbour could be considered adverse, it is not significant and the Tribunal finds the walls comply with the performance criteria of the Codes.
83 The report to Council stated that the required setback for the upper level on the south side was 1.9 metres and the provided setback varied between 1.2 metres and 3.06 metres. Mr Cornell, in his witness statement, argued that the variation fails the acceptable development standards and
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- then fails one of the performance criteria of cl 3.3.1 of the Codes because "the proposal does not ameliorate the impacts of building bulk on the adjoining property to the south as this section of the wall will be highly visible from the adjoining property's outdoor living area".
84 Mr Gersch states that the part of the upper south wall that has a setback of 1.2 metres meets the acceptable development provisions of the Codes because parts of the wall are separated, consistent with Figure 2D of the Codes. He further argues that even if it does not meet acceptable development standards, the setback of the wall meets performance criteria because of the stepped nature of the wall and the fact that the two-storey section with the 1.2 metre setback is directly opposite the neighbour's garage which is built up to the boundary.
85 The Tribunal does not agree with Mr Gersch's claim that the 1.2 metre setback complies with acceptable development standards. However, the Tribunal does agree that the setback meets the performance criteria in cl 3.3.1 of the Codes. There are six criteria: the first four deal with sunlight and have limited relevance since the shadow will be cast on the roof of the neighbour's garage. The final two criteria are:
"• assist in ameliorating the impact of building bulk on adjoining properties; and
• assist in protecting privacy between adjoining properties."
86 The criterion concerning privacy is met because relevant windows are obscure glazed. That leaves the question of bulk.
87 The evidence of the applicant is convincing on this point. The effect of bulk is ameliorated because of the stepped nature of the proposal and the fact that the most significant bulk is opposite the neighbour's garage. The Tribunal finds the side boundary setbacks meet performance criteria of the Codes and that the evidence shows the design has been carefully planned to reduce the impact on the neighbour.
Whether the proposed vehicle sightlines and access meet the performance criteria of the Codes
88 The respondent's case is that proposal fails Performance Criterion P6 of cl 3.2.6 of the Codes. The respondent observes that the garage adjoins the north boundary at the right of way and the applicant cannot provide adequate sightlines because the neighbour may build the boundary fence
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- at 1.8 metres high where the side boundary and right of way intersect, thus restricting sightlines.
89 Performance Criterion P6 of cl 3.2.6 requires:
"Walls or fences to primary or secondary streets, rights-of-way or communal streets so that adequate sightlines are provided at vehicle access points."
90 The applicant argues that the right of way is only 4 metres wide and carries low volumes of traffic at low speeds. This claim was not disputed by the respondent. The applicant then argues that the proposed sightlines are adequate in the context of low speeds and low traffic volumes.
91 In this particular situation, the garage adjoins an approved (but not constructed) garage on the north neighbour's property. The respondent has acknowledged this and has proposed a condition requiring a 1.5 metre by 1.5 metre visual truncation on either side of the vehicle access. The intention is noted, but part of the truncation is on the north side and on the neighbour's property. There was no evidence whether a similar condition has been placed on the neighbour's approval. The condition has merit if a similar condition existed on the neighbour's approved drawings or if it is imposed on any subsequent planning approval where the neighbour proposes a garage adjoining the proposed garage.
92 Despite the difficulties with the condition, the Tribunal is satisfied that reasonable sightlines can be achieved even if the truncation is only provided on the south side of the access way given the nature of the right of way and the width of the proposed access way.
Whether the proposal meets overshadowing requirements
93 The Tribunal observes that some overshadowing of the neighbouring lot is almost inevitable because of the orientation and narrow width of the subject site. The overshadowing will be especially noticeable towards the rear where any two-storey sections are logically located as result of the policy requirements on streetscape.
94 The respondent argues that the proposal overshadows four windows to the kitchen and dining room of the south neighbour which is contrary to cl 6.4 of the Streetscape Policy: "Development is to not overshadow glazed openings to habitable rooms of neighbouring dwellings at midday on 21 June."
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95 The respondent's evidence contains marked-up drawings indicating the extent and source of the overshadowing. The applicant pointed out errors in the marked-up drawings which were subsequently corrected. The corrected evidence shows less overshadowing and a different source of the overshadowing. The parties now agree that the amended drawings show the correct overshadowing. The respondent's arguments refer to the original incorrect drawings. It is not clear from the evidence whether these incorrect drawings were made available to the Councillors of the City of Subiaco before they made their decision. What is clear is that the report prepared for the Councillors stated "the proposal partially overshadows glazed opening[s] to habitable rooms on the neighbouring property."
96 The respondent's original evidence identified the source of the overshadowing as the high point of the second-storey roof: 8.145 metres high. This was incorrect. The corrected evidence shows the source of the overshadowing of the neighbour's openings as a lower ridge.
97 The applicant argues that the corrected shadow is less than the shadow that would be cast by a complying single-storey dwelling. The shadow diagram includes a hypothetical section through a complying dwelling with wall heights of 3.6 metres and a ridge height (in the centre of the lot) of 6.5 metres.
98 The Tribunal agrees with the evidence that the shadow cast by the two-storey section is less than the shadow that would be cast by a hypothetical complying single-storey dwelling with the ridgeline in the centre of the site. The relevance of the evidence is the demonstration of the difficulties of limiting overshadowing when the subject land is narrow and orientated in an east-west direction.
99 The Tribunal accepts Mr Lewis' evidence that the proposal has been designed to minimise overshadowing. The ridge to the second-storey roof that is casting the contested shadow is on the northern side of the subject land and this results in a reduction of shadow.
100 Both parties acknowledge that the proposal complies with the Code's requirements for overshadowing. The problem is a failure to comply with a limit placed by cl 6.4 of the Streetscape Policy. However, the role of the Streetscape Policy in the context of this issue is to guide Council's discretion in cl 51(4)(b) of TPS 4. This clause enables Council to approve the proposed increased height if "the Council is satisfied that there is to be no undue adverse impact on (the) adjoining residential site".
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101 The application site is narrow; TPS 4 permits a roof height of 6.5 metres and the neighbour's windows are located close to the northern boundary. A degree of overshadowing is almost inevitable. These northern windows are not the only source of light to these rooms. Furthermore, the photographic evidence submitted indicates a higher than normal boundary fence with trellising and vegetation that will cause some existing overshadowing. The Tribunal accepts that the application is a reasonable effort to meet both the streetscape policy's height requirements and the broad range of planning requirements to protect the neighbour's access to sunlight.
102 The Tribunal is satisfied there is no undue adverse impact on the adjoining residential site and that the overshadowing is acceptable.
Conclusion
103 The Tribunal finds that the proposed dwelling is a sensitive and well-conceived solution to designing a dwelling on a small site within the context of the City of Subiaco's stringent planning requirements. The design solution demonstrates an awareness of local planning policies, especially the height limitations which are far more limiting than heights permitted in the Codes.
104 The design respects the streetscape. Mr Lewis has used forms, materials, architectural elements and setbacks that are common to the dwellings in the street to provide a contemporary solution that is compatible with the streetscape and preserves the character of the area.
105 The proposed setbacks are acceptable. The design demonstrates an awareness of the amenity of the neighbours. Boundary walls and prominent building masses have been located to ensure no significant adverse impact on the amenity of neighbours.
106 The sightline issue is relatively minor and is dealt with appropriately by a condition. The Tribunal understands the intention of the condition but the part of the condition that applies to the northern visual truncation may be difficult to enforce without the neighbour's cooperation. However, if the neighbour builds a garage in accordance with the current approved drawings, then the condition works to protect the sightlines of both the applicant and the neighbour. The Tribunal's interpretation of the condition is that the garage does not need to be altered or relocated.
107 The overshadowing is acceptable. This outcome has been achieved by careful design of Mr Lewis, who has located the bulk as far to the
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- north and rear as possible to minimise the shadow. The Tribunal does not find that the requirement in the Streetscape Policy is an absolute limit. The Streetscape Policy should guide the application of discretion to the matter of the building height. The Tribunal is satisfied that the increased height and associated overshadowing will not result in undue adverse impact on the adjoining residential site.
Orders
108 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The application to build a two-storey dwelling at No 40 Hopetoun Terrace, Shenton Park is approved subject to the following conditions:
(a) Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development, details of which are to be submitted prior to commencement of the development.
(b) All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Residential Design Codes of Western Australia (2002) and the City of Subiaco's relevant policies.
(c) The 2 metre long 1.6 metre high privacy screen that is located on the northern side of the upper level bedroom 1 perpendicular to the windows is to be constructed prior to the occupation of the building and maintained in perpetuity unless otherwise approved by the City of Subiaco.
(d) Any new or replacement fencing is to conform to the requirements of the City of Subiaco's Perimeter Fencing Policy. The front fence (including side fencing forward of the building line) is not to exceed 1.8 metres in height from
- natural ground level and is to be visually permeable above 0.9 metres in height from natural ground level.
- (e) All conditions must be complied with prior to occupation of the development unless otherwise stated.
(f) All car bay dimensions are to accord with Australian Standard AS 2890.1.
(g) The double garage is to have a minimum internal width of 5.4 metres and a minimum opening width of 5 metres.
(h) The car parking area is to be provided with a manoeuvring depth of at least 6 metres.
(i) The finished floor level of the garage is not to be lower than the existing level of the right of way but may match this level.
(j) All ramps, crossovers, driveways and circulation aisles are to be constructed in accordance with Australian Standard AS 2890.1 and maintained to that standard.
(k) Existing ground levels at all proposed vehicle and pedestrian access points are to remain unaltered. No change in footpath, verge or right of way levels will be permitted.
(l) The existing level of the footpath is to be maintained.
(m) The existing level of the right of way is to be maintained.
(n) Any damage to the right of way as a result of the development is to be repaired at the owner's cost.
(o) All trenches and holes cut in the right of way are to be saw cut and any damage to the right of way is to be reinstated at the owner's cost to its original standard.
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- (p) Crossovers are to be provided and constructed in accordance with the City of Subiaco's Policy 14.2.3.
(q) A 1.5 metre by 1.5 metre visual truncation is to be provided either side of the access driveway and is to be maintained at all times. No walls, landscaping or visually impermeable fences greater than 0.75metres in height above natural ground level are to be located within this truncation.
(r) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City of Subiaco's stormwater drainage system unless otherwise approved.
(s) All service meters and related infrastructure are not to be placed on the street side of a front fence.
(t) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metres in height above natural ground level.
(u) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and reinstated is to be to the satisfaction of the Director Technical Services.
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I certify that this and the preceding [108] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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