LEX KINGDOM and CITY OF SOUTH PERTH
[2005] WASAT 11
•21 FEBRUARY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928
CITATION: LEX KINGDOM and CITY OF SOUTH PERTH [2005] WASAT 11
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 10 FEBRUARY 2005
DELIVERED : 21 FEBRUARY 2005
FILE NO/S: RD 249 of 2004
BETWEEN: LEX KINGDOM
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Development application Conditions Street setback Building bulk Streetscape View loss from likely future development Interpretation of RCodes
Legislation:
Residential Design Codes of Western Australia, Table 1, Element 2, Element 3
Result:
1. Appeal upheld
2. Planning approval granted subject to conditions imposed by the respondent as varied by this decision
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr E Samec
Solicitors:
Applicant: Hardy Bowen
Respondent: Kott Gunning
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR D R PARRY (SENIOR MEMBER):
REASONS FOR DECISIONS
Introduction
This is an appeal against the imposition by the City of South Perth ("the respondent") of two conditions on the grant of development approval to the applicant for the erection of a five-level apartment building, comprising three multiple dwellings and common facilities, on land known as Lot 1 (No 17) South Perth Esplanade, South Perth, which is located on the corner of South Perth Esplanade and Queen Street ("the site").
The two conditions the subject of these proceedings are as follows:
"(16)Revised drawings shall be submitted incorporating measures designed to prevent overlooking of the adjoining property from the western elevation balcony from Master Bedroom by either:
(i)increasing the sill height to 1600 mm above the floor level; or
(ii)the use of glass blocks or fixed obscure glass; or
(iii)reducing the size of any windows to less than 1 square metre in aggregate; or
(iv)the deletion of the balcony and windows."
"(18)Revised drawings shall be submitted to the satisfaction of the City demonstrating:
…
(b) A 3.0 metre minimum setback from the Queen Street boundary for any wall of the building, excluding balconies, car parking areas at ground level, and the bin storage area."
Prior to the hearing, the parties agreed that condition 16 should be deleted from the approval, and jointly requested the Tribunal to do so. However, condition 18(b) remained very much in dispute.
It is the respondent's case in relation to condition 18(b) that although, given the narrow width of the site, it is appropriate to exercise discretion and accept lesser setbacks than those set out in the 'Acceptable Development' provisions of Element 3 under the Residential Design Codes of Western Australia ("R‑Codes"), the setback proposed to Queen Street in the plans of the proposed development is inadequate. The respondent contends that the setback prescribed by condition 18(b) is the minimum required in order to ameliorate the impacts of building bulk on adjoining properties, ensure that the building contributes to the desired streetscape, maintains the character of Queen Street, and achieves an acceptable bulk and scale generally. The Council also contends that although the extent of non-compliance with condition 18(b) disclosed in the plans of the proposed development is not great in purely numerical terms, its impacts are nevertheless significant in terms of building bulk, streetscape and character.
It is the applicant's case, in essence, that the imposition of condition 18(b) will not create any or any appreciable difference in impact.
In opening, Mr Samec, counsel for the respondent, stated that the Council accepts that the ground floor of the proposed development does not give rise to any adverse impact. The ground floor is not in issue. Rather, Mr Samec stated that that which is in issue, and which gives rise to an unacceptable impact, are the sections of wall of the proposed building and floor space behind (to the north) on the levels above the ground floor which project within 3.0 metres of the Queen Street frontage of the site.
Following both parties' openings, I requested the three experts giving evidence in this matter (Mr Rowe, Mr Adam, and Mr Zuideveld), to confer and mark on the plans of the proposed development the extent to which the building will be in breach of condition 18(b). The experts produced a marked-up copy of the floor plan for levels 2, 3 and 4 which shows in green highlighter the agreed position between them as to the extent of non‑compliance with condition 18(b). This document became exhibit 1 in the proceedings. It shows that the non‑compliance is restricted to four projections which are as follows (west to east along the Queen Street southern façade of the proposed building):
(a)A section of wall at the south-western corner of the building which is at an angle to the frontage and has a maximum width of 300 mm tapering to zero along a length of approximately 900 mm.
(b)A section of wall which is at an angle to the frontage and has a maximum width of 300 mm tapering to zero over a length of approximately 900 mm. This section is separated from the non-complying section referred to at [a] by approximately 4.5 metres.
(c)A section of wall and glazing enclosing the dining room of each unit and a section of the floor space of the dining room having a maximum width of 900 mm (including the wall/window of the building) and tapering to zero in consequence of a curved element on its western end. This section has a length of approximately 5.3 metres. This protrusion is separated by over 7.5 metres from the protrusion referred to at [b].
(d)A semi‑circular section of wall and glazing and a portion of the kitchen behind which has a maximum width of 900 mm tapering to zero and a length of approximately 3.5 metres. This protrusion is separated from that referred to at [c] by 1.7 metres. The point of this protrusion which extends the maximum distance into the 3.0 metre setback area contemplated by condition 18(b) (900 mm) is separated from the protrusion referred to at [c] by approximately 3.5 metres.
In addition, the experts have marked two small sections of wall which extend from the protrusions referred to at [c] and [d] above, in relation to which they disagree as to whether or not there is non-compliance with condition 18(b). I assume, for the purposes of these reasons, that these other sections of wall are also in breach of condition 18(b).
Having considered each of the issues identified by the respondent, and the applicable planning instruments and policies, I have concluded that the development as proposed by the applicant is acceptable and appropriate in its context, and that condition 18(b) is not necessary in order to ensure compliance with the relevant provisions of the R‑Codes, to maintain the character of Queen Street, or to achieve an acceptable bulk and scale for the development.
The Application
The development application was lodged with the respondent on 22 June 2004. It was subsequently amended. In particular, the setback of the proposed building to Queen Street was increased from a minimum of 1.5 metres to a minimum of 2.1 metres. The proposed building presents to Queen Street with angled walls and windows, projecting cantilevered balconies, curved elements, and recessed and projecting elements. The setback of the building's walls to Queen Street is about 2.1 - 2.2 metres at the ground floor, varies from 2.1 - 5.0 metres at levels 2 - 4, and varies from 4.5 - 6.0 metres at level 5. The setback to South Perth Esplanade is 12 metres.
Mr Rowe aptly describes the proposed building form as follows:
"The proposed building has a modern style of architecture with curved and angular shaped windows on the Queen Street façade and curved windows and balcony on the South Perth Esplanade façade. The Queen Street façade also has minor projections that extend (600 mm) from the building in the location around the ground floor curved media room and on levels 2 - 4 around the curved kitchen window and the dining room windows."
Assessment of the Application by the Respondent
Following its receipt of the development application, the respondent referred it for comment to the Design Advisory Committee ("DAC"). The DAC considered the application at its meeting on 19 July 2004. It had no objections to the design of the proposed building in relation to the general character of South Perth Esplanade and Queen Street. It considered that the proposed boundary walls (to the west and north) were satisfactory in relation to their amenity impact on neighbouring properties. However, it considered that the proposed setback to Queen Street represented a significant variation from the normal prescribed setback and was insufficient in relation to the setback of neighbouring buildings in that street. It recommended "that a setback variation to a minimum of 3 metres would be appropriate". However, as the respondent's Chief Executive Officer stated at Council's meeting of 28 September 2004, the proposal considered by the DAC, and in respect of which it made its recommendation, was the unamended proposal which included the minimum setback of 1.5 metres (rather than 2.1 metres, as presently proposed) to the Queen Street frontage. Although one of the members of the DAC, Mr Zuideveld, gave evidence in the proceedings that the proposed development is not acceptable in terms of setback to Queen Street and that a 3.0 metre setback is required, it does not appear that the respondent referred the amended proposal which is now before the Tribunal to the DAC for comment.
The owners of properties adjoining the northern and western boundaries of the site were consulted regarding the proposal. Ultimately, a letter of "no objection" was received by Council from the owner of the property to the north of the site. Three letters of objection were received from the owners of the property to the west of the site.
At its meeting on 28 September 2004, the respondent received a detailed planning assessment in relation to the proposed development from a planning officer. The officer recommended that the application be approved, subject to conditions which did not include the condition in question in these proceedings. In particular, the officer considered that the setbacks to Queen Street were acceptable and that the proposal would contribute positively to that streetscape.
The respondent resolved to accept the recommendation of its officer, but added the condition which is the subject of dispute in these proceedings.
The Site and Locality
As noted above, the site is located on the corner of South Perth Esplanade and Queen Street. It has a rectangular shape, a frontage of 15.09 metres to South Perth Esplanade, a frontage of 40.23 metres to Queen Street, and an area of 607 square metres. The experts each consider, and I accept, that South Perth Esplanade is relevantly the primary street frontage of the site and that Queen Street is its secondary frontage.
Queen Street runs west to east from Mill Point Road to South Perth Esplanade. It has a length of approximately 120 metres and a road reserve width (property boundary to property boundary) of approximately 22.5 metres. There are five allotments with frontage to Queen Street.
No 1 Queen Street is a large rectangular allotment having a frontage of about 60 metres to the north-western part of Queen Street and a frontage of about 45 metres to Mill Point Road, on which is erected an eight-storey apartment tower comprising 16 units. This building is set back a minimum of 5.5 metres from Queen Street and is oriented at a 45‑degree angle to the street. The photographs taken from the western end of Queen Street show that the streetscape on its north-western end is dominated by a large retaining structure for a tennis court at the western end of No 1 Queen Street, a tennis court fence above, and, notwithstanding some landscaping within the setback, the substantial residential tower which presents with generally vertical surfaces. It appears that No 1 Queen Street has both pedestrian and vehicular access to Queen Street.
Lying between No 1 Queen Street and the site is a property known as No 5, No 7 and No 9Queen Street, on which are erected three attached townhouses 2 - 3 storeys in height. The easternmost townhouse, at No 9, has a setback of approximately 8.6 metres from Queen Street, with a double garage within that setback. The townhouses known as Nos 7 and 5 Queen Street have an additional staggered setback to No 9. This property has a width of 20.78 metres, approximately one-third wider than the site. In contrast to the site, it is oriented towards Queen Street and has a length approximately three times the width of the site.
Erected on the site at present is a two-storey dwelling house which is set back to Queen Street 2.0 metres at ground level and 3.0 metres at the second level.
On the western end of the southern side of Queen Street, there is a large rectangular property known as No 34 Mill Point Road, on which is erected an eight-storey apartment tower comprising 23 units. This tower has a minimum setback of 6.1 metres to Queen Street, and presents to Queen Street at an angle. The photographs taken from the western end of Queen Street show a high masonry wall along the length of the Queen Street frontage of this property.
The final property fronting Queen Street, which is known as No 19 South Perth Esplanade, has, like the site, its primary frontage to South Perth Esplanade and a secondary frontage to Queen Street. However, it is considerably larger than the site. It is both wider and longer than the site. In particular, its length is equivalent to the combined length of the site and width of the property immediately to the west of the site. Erected on No 19 South Perth Esplanade is a one, two and three‑storey apartment building comprising a total of seven units. It has a uniform setback of 4.8 metres to the Queen Street frontage.
It is apparent from the foregoing description of the immediate locality that each of the five properties which has frontage to Queen Street is quite distinct in its size, orientation and built character. In addition, there is a notable difference between the southern and northern sides of Queen Street, in that the verge along the southern side is double the width of the verge along the northern side and accommodates a number of significant street trees.
I have little hesitation in accepting Mr Adam's evidence that "Queen Street does not possess anything remotely resembling a unified, coherent streetscape". Indeed, I accept his evidence that the streetscape of Queen Street is "rather chaotic". Nevertheless, a dominant characteristic of Queen Street is the vista and view of the Swan River and the City of Perth, particularly as one moves in an easterly direction through the street.
The Statutory Planning Context
The site is zoned "Urban" under the Metropolitan Region Scheme and "Residential (R80)" under the City of South Perth Town Planning Scheme No 6 ("TPS 6"). It is located within "Precinct 1‑Mill Point" under TPS 6.
Clause 1.6(2) of TPS 6 provides that the general objectives of the Scheme include to "(a) maintain the City's predominantly residential character and amenity" and "(f) safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development". Clause 4.1(3) of TPS 6 provides as follows:
"Unless otherwise provided in this Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes."
Clause 4.3 of TPS 6 prescribes certain variations to the provisions of the R‑Codes. In particular cl 4.3(i)(g) provides that in certain streets, greater setbacks than those prescribed in the R‑Codes shall apply.
Clause 4.7 and Table 2 of TPS 6 prescribes a minimum setback for development on South Perth Esplanade of 12 metres "to preserve the attractive streetscape and enable retention of views of the river". TPS 6 does not contain any variation to the R‑Codes in relation to setback to Queen Street.
Clause 7.5 of TPS 6 provides that, in considering an application for planning approval, the Council "shall have due regard to, and may impose conditions with respect to, such of the following matters, as are in the opinion of the Council, relevant to the proposed use or development the subject of the application:
(a)The objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;
(b)The requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;
(c)The provisions of the Residential Design Codes and any other approved Statement of Planning Policy of the Commission prepared under Section 5AA of the Act;
…
(f)Any planning policy, strategy or plan adopted by the Council under the provisions of cl 9.6 of this Scheme;
…
(i)The preservation of the amenity of the locality;
(j)All aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance…".
Two design elements set out in the R‑Codes are in issue in these proceedings. Before coming to those elements, it is useful to set out parts of the introductory provisions which explain how the elements of the R‑Codes are to be applied. Clause 1.1.2 sets out the aims of the R-Codes. It then continues as follows:
"These aims encompass the desirable, but potentially conflicting, concepts of flexibility and certainty. In order to accommodate both, the Codes have been formulated using a modified 'performance' approach whereby the requirements are set out as follows:
•first, the aim or Objective of the design element or aspect is stated;
•second, a set of Performance Criteria involved is provided that must be satisfied if the objective is to be met; and
•third, a set of Acceptable Development provisions related to the performance criteria is established.
The Acceptable Development provisions contained in the Codes provide a means by which the development can be 'deemed‑to‑comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
Clause 1.1.3 of the R‑Codes states that:
"All development must comply with the Performance Criteria. Compliance with the Acceptable Development provisions provides a speedy and certain pathway to approval for applicants and a correspondingly simpler basis for assessment of development proposals by Council officers."
Clause 1.5.2 of the R‑Codes includes the following statement:
"As all variables in the design process cannot be fully accounted for in the Acceptable Development provisions, especially in the elements relating to privacy, boundary setbacks and design for climate, the Acceptable Development provisions must, of necessity, be conservative. Consequently, it is incumbent upon a Council to consider each design outcome according to its merits."
Table 1 of the R‑Codes sets out general site requirements in relation to residential development. In particular, Table 1 sets out minimum setbacks to "Primary Street", "Secondary Street" and "Other/rear" in columns under those titles for each R‑Code. In the case of the subject R80 coding (and each of the other high-density R-Codes), minimum setbacks for both "Secondary Street" and "Other/rear" is not expressed as a numerical figure (as in relation to certain low and medium‑density R-Codes), but rather by an asterisk. In the legend at the bottom of Table 1, the following words appear next to the asterisk "See Table 2 and Figure 3 and Element 3". Table 2 is not relevant in the present case, because it relates to buildings with a height of 10 metres or less, whereas the proposed building has a height of 13 metres. Figure 3 states numerical building setbacks for buildings over 10 metres in height. It is common ground that the proposed development does not comply with Figure 3. Element 3 of the R‑Codes concerns boundary setbacks. However, as the introduction to this Element makes plain, it is concerned with boundary setbacks "other than street setbacks".
It is common ground that the proposed development does not comply with the "Acceptable Development" provisions of Element 3. The Objective of the boundary setback requirements in Element 3 is as follows:
"To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties."
The Performance Criteria of Element 3 are as follows –
"New development should meet the following criteria:
3.3.1Buildings Set Back from the Boundary
P 1Buildings are set back from boundaries other than street boundaries so as to:
•provide adequate direct sun and ventilation to the building;
•ensure adequate direct sun and ventilation being available to adjoining properties;
•provide adequate direct sun to the building and appurtenant open spaces;
•assist with protection of access to direct sun for adjoining properties;
•assist in ameliorating the impacts of building bulk on adjoining properties; and
•assist in protecting privacy between adjoining properties."
Element 2 of the R‑Codes is concerned with streetscape. The applicant puts forward its application on the basis that it is compliant with the Objective and Performance Criteria of Element 2. The Objective is "to contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings". The Performance Criteria are as follows:
"New development should meet these criteria:
3.2.1Set Back of Buildings Generally
P 1Buildings set back an appropriate distance to ensure they:
•contribute to the desired streetscape;
•provide adequate privacy and open space for dwellings; and
•allow safety clearances for easements for essential service corridors."
The Issues in the Appeal
During the hearing, Mr Samec identified the issues which arise for determination in these proceedings as follows:
"1.Whether the imposition of condition 18(b) is necessary in order for the development to conform to cl 3.3.1 of the Residential Design Codes, and in particular to meet the criterion that the building's setback from the Queen Street boundary 'assist in ameliorating the impacts of building bulk on adjoining properties'.
2.Whether the imposition of condition 18(b) is necessary in order for the development to conform to cl 3.2.1 of the Residential Design Codes, and in particular to meet the criterion that the building be 'set back an appropriate distance' from the Queen Street boundary to ensure it 'contributes to the desired streetscape'.
3.Whether the imposition of condition 18(b) is necessary in order to maintain the character of Queen Street.
4.Whether the imposition of condition 18(b) is necessary to achieve an acceptable bulk and scale."
I will consider each of these issues in turn, in light of the evidence and statutory provisions. However, the parties accept that there is a considerable amount of overlap between them.
Element 3 of the R-Codes
Mr Samec submitted that the asterisk which signifies the minimum setback to "Secondary Street" in Table 1 to the R‑Codes has the effect that the proposed development must conform to Element 3 in relation to setbacks to Queen Street, and that, without condition 18(b), the development does not conform to Element 3. In the statement by respondent, the Council "concedes that the development has satisfied five of the six requirements to meet [the] Performance Criteria of Element 3, but [submits] that it does not comply with the fifth bullet point, namely that buildings be set back from boundaries to assist in ameliorating the impacts of building bulk on adjoining properties".
Mr Hardy, counsel for the applicant, submitted that, on its proper construction, Element 3 of the R‑Codes does not apply in relation to setbacks to a secondary street and that it is irrelevant in relation to condition 18(b) which concerns such a setback. He also noted that the six Performance Criteria under Element 3 have not been formulated specifically to address street boundaries and that "to apply them to an issue in relation to setback from a secondary street may produce an outcome which is not within the intention of the R‑Codes".
I accept Mr Hardy's submission. Plainly, Element 3 is concerned with setbacks other than street setbacks. This is clear from the introductory words of Element 3 which I quoted earlier. It is not any less the case in relation to the Objective and the Acceptable Development criteria of Element 3, simply because, in contrast to the Performance Criteria, these provisions do not expressly refer to the exclusion of street setbacks. As noted above, the scheme of the R‑Codes is that "all development must comply with the Performance Criteria", the relevant Performance Criteria "must be satisfied if the objective is to be met", and the Acceptable Development provisions, while providing a simple and deemed‑to‑comply approach, are nevertheless "related it to the Performance Criteria".
In my opinion, on its proper construction, although the Objective of the boundary setback requirements in Element 3 does not expressly exclude street boundaries, as all development must comply with the Performance Criteria in order for the Objective to be met, the Objective implicitly excludes its application to street boundaries. Moreover, the terms of the Objective clearly imply that it is concerned only with setbacks to common boundaries, not to streets. The provision of "direct sun and ventilation" might well be dependent on adequate setbacks to buildings across common boundaries, but is unlikely to be dependent on setbacks to streets. The amelioration of impacts on "adjoining properties" is also likely to be dependent on adequate setbacks to adjoining properties, rather than to streets. Indeed, the very reference to "adjoining properties" is a clear indication that the Objective is concerned with boundaries separating "adjoining properties", not street boundaries. Similarly, although the Acceptable Development criteria do not expressly exclude their application to setbacks from street boundaries, as these criteria are simply a deemed‑to‑comply method of achieving the Performance Criteria and the Objective of the Element, they also implicitly exclude setbacks from street boundaries.
The words "See … Element 3" in Table 1 to the R‑Codes means "see Element 3 and determine whether it is relevant", not "see Element 3 and apply it where otherwise irrelevant". This does not mean that the reference to "Element 3" is an error or must somehow be ignored. Significantly, the minimum setbacks to both "Secondary Street" and "Other/rear" are each signified by the same asterisk. In the case of non‑street setbacks, Element 3 is certainly relevant.
However, in order to avoid confusion of the type which has been engendered in the respondent's case in these proceedings, consideration should be given to amending Table 1 of the R‑Codes so that the minimum setbacks to secondary streets and to non-street boundaries are signified in different ways.
Although I have determined that Element 3 is irrelevant in relation to condition 18(b), the respondent has also raised the issue of whether condition 18(b) is necessary to achieve an acceptable bulk and scale. That issue, which I consider below, includes (but is wider than) the consideration of the impacts of building bulk on adjoining properties, which was the consideration the respondent raised in relation to Element 3 of the R‑Codes.
Element 2 of the R-Codes
Mr Samec submitted that, without condition 18(b), the development does not conform to Element 2 of the R‑Codes, because it is not set back an appropriate distance to ensure that it "contribute[s] to the desired streetscape". In support of his submission, Mr Samec relied on the evidence of Mr Zuideveld that the proposed setbacks to Queen Street, and in particular the proposed minimum 2.1 metre setback, is "out of character with the prevailing setbacks in Queen Street and is inadequate", and on the evidence of Mr Gatti who measured the setbacks of all buildings in Queen Street and calculated an average minimum setback of 5.4 metres (if one includes all buildings) and 4.6 metres (if one only includes the corner buildings). Mr Samec submitted that there is a "pattern" of setbacks in Queen Street, and that the proposed development is inconsistent with that pattern.
In my opinion, the objective evidence does not disclose any "prevailing setbacks" or consistent "pattern" of setbacks in Queen Street. Rather, the evidence, and in particular the evidence of Mr Gatti, shows that there is no prevailing setback or pattern. There are a wide variety of setbacks, ranging from zero setback in the case of a substantial wall along the Queen Street boundary of No 34 Mill Point Road, to a 5.5 metre setback for an eight‑storey wall of an apartment tower at No 1 Queen Street, to the substantial setbacks of the three townhouses to the west of the subject site. I accept Mr Rowe's evidence, under cross‑examination that, to the extent that there is a "pattern", it could only be described as "random", and that in the context of the varied built form and setbacks present in Queen Street, an averaging of the setbacks, as proposed by Mr Gatti, is of little assistance in determining an appropriate setback.
The absence of a prevailing or consistent pattern of setbacks in Queen Street does not mean that a zero setback will be appropriate on the site. It does, however, mean that, as Mr Adam stated in his oral evidence, one should assess the proposal against the Objective of Element 2, and in its proposed context. I accept Mr Adam's evidence that "the design of the building not only is fitting in the context of contemporary architecture in the locality, but also would make an attractive, interesting and positive contribution to the streetscape of Queen Street". In its particular and quite varied streetscape context, the proposed setbacks ranging from 2.1 ‑ 5.0 metres on the levels in question are appropriate. The parts of the building which project forward of the Council's 3.0 metre line, particularly the partially curved dining room element and the semi-circular kitchen element, make a very positive contribution to the streetscape.
In his submission, Mr Hardy questioned the meaning of the term "the desired streetscape". In my opinion, on the proper construction of cl 3.2 of the R‑Codes, the expression "the desired streetscape" refers to "attractive streetscapes and security for occupants and passersby" and "attractive setting for buildings" which form part of the Objective of the streetscape requirements. This is because, as noted above, the scheme of the R‑Codes is that the Performance Criteria "must be satisfied if the Objective is to be met". In circumstances where there is a prevailing or consistent setback, maintenance of the setback might well be necessary to contribute towards an attractive streetscape, and thus the desired streetscape. However, the expression "the desired streetscape" is not a reference to the streetscape desired by any particular person, including a council. Rather, it is a reference to the qualities which, in any particular case, contribute towards an attractive streetscape, security for occupants and passersby, and an attractive setting for buildings.
Finally, in relation to the issue of streetscape, I note that a large part of the evidence of Mr Zuideveld, Mr Gatti and Cr Trent concerned the quite obvious differences between Queen Street and Fraser's Lane, where the Council approved a residential building having a setback of 2.1 metres to the lane frontage. In my opinion, the circumstances in which Council approved the development in Fraser's Lane, and indeed that development, are irrelevant to determination of the question of whether the proposed development is appropriate in terms of the streetscape of Queen Street.
I find, on the evidence of Mr Rowe and Mr Adam, that the proposed development will contribute towards an attractive streetscape and will provide an attractive setting for the building and, therefore, that it is set back an appropriate distance to contribute to the desired streetscape.
Character of Queen Street
Mr Gatti has lived in the South Perth area for nearly 44 years. For 21 of those years, he resided at No 7 Queen Street. It is Mr Gatti's evidence that the characteristics of the street are "openness, spaciousness, gardens and uncluttered feeling". He believes that the development will adversely impact on the openness, attractiveness and enjoyment of Queen Street, because of the lack of maintenance of a 3.0 metre setback. He took a series of photographs which, in his opinion, illustrate these considerations.
Having carefully considered Mr Gatti's evidence, and the photographs, I do not consider that the proposal will adversely impact on the character of Queen Street. I accept the evidence of Mr Adam that there is a difference in character between the southern and northern sides of Queen Street, and that in particular the northern side has a "subtly more intimate, and more urbane" character than the southern side. In that context, the projection of curved and varied architectural elements to 2.1 metres from the Queen Street frontage of the site will not close in or otherwise adversely affect the character of the street.
Moreover, the dominant characteristic of the street, namely the vista and view of the river and beyond as one looks down the street towards the east will not be detrimentally affected by the proposed development.
Finally, I note the evidence of Cr Trent that Queen Street is the widest street in the Point and provides an attractive visual link through to the Swan River foreshore. Cr Trent has served as an elected member of the Council for a total of 21 years and is familiar with the area. In my opinion, the characteristic of Queen Street identified by Cr Trent will not be adversely affected by the proposal.
Bulk and Scale
The principal issue in relation to bulk and scale in this case is whether, in the absence of condition 18(b), the proposed setback to Queen Street results in unacceptable building bulk impacts on adjoining properties. The respondent's case was formulated and presented in such a way that this issue was primarily advanced in the context of Element 3 of the R‑Codes, which I have determined is irrelevant to street setbacks. However, in my opinion, the respondent's evidence and submissions in relation to the impacts of building bulk on adjoining properties is relevant in relation to considerations of bulk generally.
The only adjoining properties which could be affected in any way by the impacts of building bulk along the Queen Street frontage of the proposed building are those located on the property immediately to the west of the site, namely the townhouses at No 5, No 7 and No 9Queen Street. I accept the evidence of Mr Rowe that the majority of the proposed southern wall is oriented away from the property to the west, and could not be seen from that property. As noted above, the closest section of the proposed building to the property to the west which projects closer than 3.0 metres to the Queen Street property boundary has a maximum depth of 300 mm. This section is set back 3.0 metres from the common boundary with the townhouse property. I accept Mr Adam's evidence that the elimination of this 0.3 metre protrusion "would make a negligible difference to the visual impact on the adjoining property". As Mr Adam observes "this is partly because the balconies themselves are a significant visual presence, but largely because 0.3 metres is a small incursion, representing only an additional 3.15 square metres of building face, or 2.2 per cent of the total building face presented to Lot 4. It is doubtful if even a close inspection would detect a difference".
I also accept Mr Adam's evidence that the other three protrusions described above would have "no impact on building bulk as perceived from Lot 4, because of the distance involved", and because of the intervening balconies. The second, third and fourth protrusions closer than 3.0 metres to the Queen Street boundary are set back about 8 metres, 17 metres and 24 metres, respectively, from the common boundary with the property to the west.
It appears that there are two principal reasons on account of which Mr Zuideveld considers that the setback of the proposed development gives rise to excessive building bulk in the absence of condition 18(b). Firstly, in his opinion, the dining room protrusion and the semi‑circular kitchen protrusion "combine visually as one element of built form about 9 metres wide with a setback of as little as 2.1 metres to Queen Street. They are part of one solid form". I do not accept this evidence. These two protrusions will clearly present as two separate and quite distinct architectural elements, visually separated by a recessed section of masonry and glass. In this regard, I prefer Mr Adam's evidence, which, in my opinion, accords with the plans and how the proposal will appear when constructed.
Secondly, Mr Zuideveld considers that No 5, No 7 and No 9Queen Street are underdeveloped and that redevelopment of this property is fairly "imminent". In his opinion, the proposed development is unacceptable in terms of building bulk on adjoining properties, in part because, when No 5, No 7 and No 9 are redeveloped consistently with the zoning and planning controls, the building bulk of the proposed building forward of the 3.0 metre setback requirement in condition 18(b) will have a detrimental impact on the redeveloped building on the adjoining site.
In his closing submissions, Mr Samec argued that, consistently with Mr Zuideveld's evidence, considerations of orderly and proper planning require an assessment of the impact of the proposed building, and in particular the sections which project closer than 3.0 metres to Queen Street, on the likely redeveloped building on the adjoining property. Mr Hardy took issue.
In my opinion, considerations of orderly and proper planning do require an assessment of whether a proposed building is set back sufficiently from boundaries so as not to give rise to unacceptable building bulk on a likely and compliant future building on an adjoining property. In the present case, it appears that redevelopment of the adjoining allotment is likely at some point in the future. The only criteria which establish a likely building envelope or form to which I have been referred by Mr Samec are the density and primary street setback requirements in the R‑Codes. According to those requirements, a building comprising seven units and set back 4.0 metres from Queen Street is achievable.
In my opinion, even on the assumption that such a building will replace the three staggered townhouses on the adjoining property to the west, I am satisfied that the imposition of the condition in dispute is not necessary in order to achieve an acceptable bulk and scale. In particular, the two protrusions in the immediate vicinity of the adjoining property to the west would be barely perceptible from that property, even once redeveloped. The easternmost two protrusions are a considerable distance from the common boundary and would be shielded by balconies and other structures from a redeveloped building on the adjoining site.
I accept the evidence of Mr Adam that the building bulk of the proposal is within the reasonable contemplation of the zoning and planning controls which apply to the site. The bulk and scale proposed is acceptable in relation to both the adjoining property to the west and the public domain. Condition 18(b) is not required. Moreover, the interesting and varied architectural treatment proposed will mitigate bulk and scale. I accept Mr Rowe's evidence in this regard.
View Loss
Although the issues formulated by the Council did not include view loss, I note that Mr Zuideveld, Mr Gatti and Cr Trent each gave evidence (without objection) about the potential view loss from a redeveloped building at No 5, No 7 and No 9Queen Street as a result of the proposed development, and in particular the four sections which project to within 3.0 metres of the street frontage.
In his submissions, Mr Hardy pointed out that the respondent's policy P373_T Views provides that "Council will have due regard to the effect that the setback variation would have on existing views" (emphasis added). Mr Hardy submitted that evidence as to possible "but by no means certain" future redevelopment of the adjoining property and protection of views from such redevelopment is "irrelevant as consideration may only be given to existing views".
Although the respondent's policy only seeks to preserve existing views, in my opinion, the broad considerations of "orderly and proper planning" referred to in cl 7.5(b) of TPS 6 would, in an appropriate case, include an assessment of the likely impacts of a development on views which would be enjoyed from a compliant and likely future development on another property. Orderly and proper planning require that a development which is non‑compliant or otherwise beyond the reasonable contemplation of the applicable planning controls, should not, in consequence of the non-compliance or exceedance, unreasonably interfere with views which could be obtained from a compliant and likely development on another property. However, in my opinion, the two minor projections proposed to within 3.0 metres of Queen Street which are most proximate to the adjoining property to the west are not likely to give rise to any unreasonable loss of view from any likely redevelopment on that property. The other two projections are sufficiently distant and shielded so as not to give rise to any loss of view at all.
Conclusion
The proposed development is, on the evidence, appropriate and acceptable in its context. Moreover, the disputed condition is not, in my opinion, necessary in order to ensure an appropriate contribution to streetscape, maintain character or mitigate excessive bulk and scale.
Although I have determined that Element 3 of the R‑Codes is irrelevant in relation to secondary street setback, the use in Table 1 of the R‑Codes of the same asterisk and legend in relation to secondary street and other/rear setbacks has given rise to some confusion. In order to avoid such confusion, consideration should be given to an amendment to Table 1 to clearly specify different controls.
The orders of the Tribunal are –
1.The appeal is upheld.
2.Pursuant to the provisions of the City of South Perth Town Planning Scheme No 6 and the Metropolitan Region Scheme, Planning Approval, in accordance with the application for Planning Approval and the plans drawn by Vision Architects Job No 0417 drawings A001‑A014, each revision D, dated 7 September 2004, is granted, subject to the conditions imposed by the respondent in its determination dated 28 September 2004, varied as follows:
(a) Condition (16) is deleted.
(b) Condition (18)(b) is deleted.
(c) Important note (4) is deleted.
(d)The sentence "Pursuant to Clause 7.9(4) of the City's Town Planning Scheme No 6, this approval is valid for a period of 24 months from the date of this determination" is deleted and the following is inserted in its place:
"Pursuant to Clause 7.9(4) of the City's Town Planning Scheme No 6, this approval is valid for a period of 24 months from 21 February 2005".
3.The exhibits, other than exhibit 1 and exhibit 7, may be returned.
4.The parties are directed, within seven days, to provide the Tribunal with a hard and electronic copy of the Planning Approval, varied in accordance with Order 2.
I certify that this and the preceding 21 pages comprise the reasons for decision of the Tribunal.
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David R Parry
Presiding Member
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