MACCORMAC and TOWN OF VINCENT
[2009] WASAT 177
•18 SEPTEMBER 2009
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | MACCORMAC and TOWN OF VINCENT [2009] WASAT 177 |
| MEMBER | : | MR L GRAHAM (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 18 SEPTEMBER 2009 |
| FILE NO/S | : | DR 165 of 2009 |
| BETWEEN | : KYM MACCORMAC |
First Applicant
ARIANE ANNING
Second Applicant
JUSTIN ANNING
Third Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Application for approval to commence development - Orderly and proper planning - Amenity of the locality - Streetscape - Precedent - Solid front boundary wall - Visually permeable - Primary and secondary street - Outdoor living areas - Privacy - Discretion - Performance criteria - Acceptable development criteria
[2009] WASAT 177
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.5
Town of Vincent Town Planning Scheme No 1, cl 19(2), cl 38(5), cl 47, Sch 1
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Third Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Third Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
| Aspen | Pty | Ltd | v | State | Planning | Commission |
(unreported; Appeal No 13 of 1988, 21 October 1988)
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
[2009] WASAT 177
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the
Town of Vincent to refuse the construction of a front boundary fence addition to two (2) two-storey dwellings, already approved, at the corner of View Street and Vine Street, North Perth.
2 The State Administrative Tribunal examined the respective position
of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to orderly and proper planning, amenity, streetscape and precedent.
3 The State Administrative Tribunal determined that the proposed
development would not be in the interests of orderly and proper planning or the preservation of the amenity of the immediate locality and, if approved, could lead to other similar type proposals which could detrimentally affect the streetscape character of the locality.
The application for review was dismissed.
Introduction
The application for review, dated 1 May 2009, was lodged by Mr Kym MacCormac (applicant) against a decision of the Town of Vincent (Council, Town or respondent) on 14 April 2009 to refuse an application for approval to commence development of a boundary fence addition (boundary wall) to two already approved two storey single houses at No 57 (Lot 38) View Street, North Perth (subject land).
The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
The notice of refusal to commence development was relayed to MacCormac Architects on 24 April 2009 in the following terms:
Application to commence development in accordance with the application for Town Planning Approval dated 17 March 2009 for Boundary Fence Addition to Approved Two (2) Two-Storey Single Houses and the attached plans dated 17 March 2009 was REFUSED in accordance with the provisions of the Town of Vincent Town Planning Scheme and the Metropolitan Region Scheme for the following reason(s):
[2009] WASAT 177
(a)
The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
(b)
The non-compliance with clause SADC 13 of the Town's Policy No 3.2.1 relating to Residential Design Elements, which require the solid portion of the wall to have a maximum height of 1.2 metres above the adjacent footpath level; and
(c)
Variations to Street Walls and Fences cannot be supported at Officer level as this requirement is contained in the Town's Policy No 3.2.1 relating to Non-Variation of Specific Development Standards and Requirements.
Subject land
The subject land can be described as Lot 38 on Plan 1577 and is shown on Certificate of Title 1033, Folio 737.
9 The subject land, which is relatively level, is located on the
south-west corner of View Street and Vine Street with a right of way (ROW) at the rear. It has an approximate area of 449 square metres with a frontage of 12.07 metres to View Street and 37.216 metres to Vine Street.
10 The immediate locality is one of change, with the original single
storey housing stock gradually being replaced by new two storey single
houses and grouped dwellings or second-storey additions.
Legislative and policy framework
11 The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential R40' in the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme).
Of relevance to this matter, in addition to TPS 1, are:
a)
the Residential Design Codes of Western Australia (2008) (Codes);
b)
the Town of Vincent Residential Development Policy No 3.2.1 - Residential Design Elements (Policy 3.2.1); and
c)
the Town of Vincent Development and Design Policy No 3.5.16 - Non-Variation of Specific Development Standards and Requirements (Policy 3.5.16).
[2009] WASAT 177
Respondent's position
13 The position of the respondent is outlined in the witness statement,
dated 6 July 2009, of Mr Rasaratnam Rasiah, Co-ordinator, Statutory Planning at the Town. He contends in relation to the Council's refusal of the proposed boundary wall:
a)
Policy 3.2.1 is a comprehensive policy aimed at protecting existing streetscapes and requires visual permeability and openness in terms of front fences and walls. The policy was extensively advertised, including community workshops and forums.
b)
The proposed development will have an adverse impact on the amenity of the locality in terms of the extent of the solid fencing proposed. The deficiency of the non-compliance is likely to result in a reduced level of amenity to the residents of the development and the community at large.
c)
In relation to Unit A (north dwelling), the following is relevant:
i)
The primary street is View Street and the allowed fencing for its entire length along View Street (and the return part of the fence along Vine Street) is that the solid portion of a wall is to have a maximum height of 1.2 metres and be a minimum of 50% visually permeable above 1.2 metres to a maximum 1.8 metres above the adjacent footpath level. The proposed development is non-compliant with these requirements.
ii)
If privacy had been identified earlier as an issue by the applicant, then it could have been rectified at the design stage.
iii)
The 100% open-style fencing 'panel', as proposed by the applicant as an alternative design solution, does not meet Council's fencing requirements as it does not achieve visual permeability across the extent of fencing along the View Street frontage.
[2009] WASAT 177
iv)
The proposed 50% permeability requirement for fencing should be achieved when viewed perpendicularly from the street, and not overly angled as proposed. This would not achieve the intent and objective of visual permeability from the street. The proposed fencing is non-compliant in that respect.
v)
As the secondary street for Unit A is Vine Street, the proposed boundary fencing can be solid up to a maximum height of 1.8 metres from the footpath level.
d)
In relation to Unit B (south dwelling), the following is relevant:
i)
The primary street is Vine Street and the allowed fencing for its entire length along Vine Street is that the solid portion of wall is to have a maximum height of 1.2 metres and be a minimum of 50% visually permeable above 1.2 metres to a maximum of 1.8 metres above the adjacent footpath level. The proposed development is non compliant with these requirements.
ii)
The 100% open-style fencing 'panel', as proposed by the applicant as an alternative design solution, does not meet Council's fencing requirements as it does not achieve visual permeability across the extent of fencing along the Vine Street frontage.
iii)
The proposed 50% permeability requirement for fencing should be achieved when viewed perpendicularly from the street, and not overly angled as proposed. The proposed fencing is non-compliant in that respect.
e)
The proposed fencing is not in keeping with the desired streetscape and not in accord with the specific performance criteria 13 (SPC 13) of Policy 3.2.1. This is evidenced by way of compliant fencing adjoining, adjacent and directly across the front of the site along View and Vine Streets.
[2009] WASAT 177
f)
The proposed fencing is not in accord with cl 6.2.5 of the Codes.
g)
There are no variation provisions in Policy 3.5.16 relating to street walls and fences. The Policy was prepared to achieve a reasonable level of amenity, whilst providing for consistency in the application of such standards and requirements.
h)
If the proposal is supported, it may result in increased pressure for similar type fencing proposals to be approved in the immediate vicinity.
Applicants' position
The position of the applicants is outlined in the application for review, dated 1 May 2009, in the following terms:
The fences in question face the streets of View and Vine are approx 12m long facing View [Street] and 10m each facing Vine [Street]. The Streetscape Policy requires solid fence to 1200 high and 50% open above which essentially means that the only 2 areas available for 'private' open space are anything but private without a fully solid wall. We seek to have the total area of 50% open space required by the policy to be located centrally in each length of fence full height so that anyone in the street would need to linger near the centre of the fence rather than having the whole space exposed for the complete length of the fence.
The inability to use the open space as private space is our concern.
| 15 | Additional argument was provided in a letter to the Tribunal, dated 16 July 2009, | from | Mr Kym MacCormac, | Director, |
MacCormac Architects in the following broad terms:
a)
Regardless of the regulations embodied in the Scheme, it completely fails to address the amenity of the owners of private space on small sites where the luxury of donating an unusable front yard to the neighbourhood is just not an option.
b)
All of the fences quoted by the Town open onto a front yard that is not, and cannot be, private. All of those sites have their private space at the other end of the site surrounded by substantial walled or fenced yards where the amenity of the private space can be maintained.
[2009] WASAT 177
c)
There is a substantial failure in the Scheme and its supporting legislation and the application for review is a test of the flexibility inherent in the Scheme.
d)
The current regulations have been followed, as far as possible, without substantially compromising the amenity of the space by adopting the exact area of open space required by the regulations but locating it in a way so as not to compromise the useability of the space for the owners, the users and the occupiers.
Planning issues
The principal planning issues are:
a)
Would the proposed boundary wall(s) be contrary to orderly and proper planning?
b)
Would the proposed boundary wall(s) be likely to lead to a reduction in the amenity of the immediate locality?
c)
Would the proposed boundary wall(s), if approved, be likely to lead to an undesirable precedent in the immediate locality and elsewhere in the Town?
Assessment of proposal
Background
17 On 24 February 2009, the Council at its Ordinary Meeting approved
the demolition of the then existing house and the construction of two (2) two-storey single houses on the subject land. The construction of the boundary fence was not part of the approval.
18 On 17 March 2009, the Council received an application for approval
to commence development from A and J Anning and A MacCormac for the boundary fences fronting View Street and Vine Street. The construction details were described in a document signed by Mr K MacCormac and dated 16 March 2009. It explained:
… all fences are to be constructed of sand render on brickwork (painted white). The 50% open will be made of silver anodised metal flats 50-75 [millimetres] wide. Pier centres and footings / reinforced will be identified at Building Licence Stage.
[2009] WASAT 177
Note that the proposed fence abuts the existing fence to 59 View Street to the west which is a solid brick wall with piers and bagged painted finish …
On 14 April 2009, the Council at its Ordinary Meeting refused the application in accordance with the reasons outlined at [7] above.
On 1 May 2009, the application for review was lodged with the
Tribunal.
Legislation and policy provisions
Town of Vincent Town Planning Scheme No 1
Under cl 19(2) it states:
Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the … Codes is to conform to the provisions of those Codes.
Clause 38(5) states:
Without limiting the scope of the Council's discretion to determine an application under subclause (3) the Council is to have regard to -
…
(b) any relevant planning policy; …
(d) any Statement of Planning Policy of the Western Australian Planning Commission; …
(f) any submission accompanying or related to the application; (g) the orderly and proper planning of the locality; (h) the conservation of the amenities of the locality; and (i) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
23 Clause 47 allows Council to make wide-ranging planning policies
over such matters as orderly and proper planning and the conservation of the amenities of the locality. The procedure involves the preparation of a 'draft' planning policy, its advertisement and notification to affected
[2009] WASAT 177
persons, a review of any submissions and to determine whether to adopt
the 'draft' planning policy, with or without amendment, or not to proceed.
Schedule 1 (Scheme Interpretations) defines amenity as:
'Amenity' means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity.
Residential Development Policy No 3.2.1
Policy 3.2.1 addresses 'residential design elements'. These include the design of street walls and fences under cl 6.4.4:
(i) Design
The character of a street can be easily defined by a number of influences, in addition to the housing styles and setbacks. Street walls and fences are such influences, which can affect the appearance and feel of a street, depending on the design and the interrelationship between the dwelling and the street. Within the Town of Vincent, walls and fences adjacent to primary and secondary streets are considered particularly important to the visual integrity of a streetscape and local character of an area. High solid walls adjacent to a street are undesirable as they disrupt the streetscapes, destroy the setting of the dwelling and compromise security. It is appropriate to design street walls and fences to ensure that a clear view exists between the dwelling (particularly its main entry) and the street. Fences higher than 1.2 metres are to be 'visually permeable'.
Should a solid wall be needed because of traffic noise or glare, it is to be designed to occupy as little of the width of the lot as necessary.
Street walls and fences are not to substantially obstruct views of the dwelling, including the main entry from the street.
26 Policy 3.2.1 includes, at Figures 8 to 11, examples of acceptable and
compliant fencing types, as well as 'front' fencing types to be encouraged and discouraged. The latter shows a high solid wall at Figure 10 on page 16 of Policy 3.2.1, with a centralised gate.
Policy 3.2.1 includes (at SPC 13) the performance criteria for street walls and fences:
(i) Street walls and fences are to be designed so that:
[2009] WASAT 177
• Buildings, especially their entrances, are clearly visible from the primary street; • A clear line of demarcation is provided between the street and development; • They are in keeping with the desired streetscape; and • Provide adequate sightlines at vehicle access points.
The acceptable development criteria for street walls and fences are included at SADC 13:
(a)
Street walls and fences are to be of a style and materials compatible with those of the dwelling on site and/or walls or fences of the immediate surrounding area. …
(1)
Street walls and fences within the primary street setback area, including along the side boundaries … to be as follows:
• Maximum height of 1.8 metres above adjacent footpath level; and …
• Maximum height of solid portion of wall to be 1.2 metres above adjacent footpath level and a maximum of fifty percent visually permeable above 1.2 metres. ...
(2)
Street walls and fences to secondary streets, behind the primary street setback line … are to comply with the following:
•
Solid portion of wall may increase to a maximum height of 1.8 metres above adjacent footpath level.
Development and Design Policy No 3.5.16
The matter of 'non-variation of specific development standards and requirements' is addressed in the 'objective' of Policy 3.5.16:
To define the development standards and requirements of the Town of Vincent Town Planning Scheme No 1 and associated Policies and the Residential Design Codes, which the Town of Vincent will not vary, in order to achieve a reasonable level of amenity, whilst providing for consistency in the application of such standards and requirements and
[2009] WASAT 177
minimising delay in processing, preparing, assessing and determining
development applications.
The policy statement advises:
1)
The Town of Vincent will not vary the following development standards and requirements …
…
(k)
New street walls, fences and gates (dimensions, height and design).
Residential Design Codes of Western Australia (2008)
The matter of street walls and fences is addressed under cl 6.2.5.
The relevant acceptable development criterion states:
A5 Front walls and fences within the primary street setback area that
are visually permeable 1.2m above natural ground level.
The relevant performance criteria state:
P5 Front walls and fences to promote surveillance and enhance
streetscape, taking account of:
• the need to provide protection from noise and headlight glare where roads are designated as primary or distinct distributors or integrator arterials; or • the need to provide screening to the front setback; or • the need to provide privacy to north facing outdoor living areas.
Under Appendix 1 'Definitions', the term 'visually permeable' is
described as:
In reference to a wall, gate, door or fence that the vertical surface has:
continuous vertical or horizontal gaps of at least 50mm width occupying not less that of its face in aggregate of the entire surface or where narrower than 50mm occupying at least one half of the face in aggregate, as viewed directly from the street or a surface offering equal or lesser observation to view.
[2009] WASAT 177
The matter of orderly and proper planning
This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy instruments.
36 As noted at [22] above, cl 38(5) of TPS 1 allows Council a degree of
flexibility under the Scheme in determining a development application on its merits. This same approach is available under the Codes, particularly if an assessment is made under the broader 'performance criteria', rather than the usually more specific 'acceptable development provisions'.
37 In making its decision under review, the Tribunal must also have
regard to the relevant planning considerations (such as the Codes), but is
not constrained by them.
| 38 | In | the | joint | statement | of | Mr Kym MacCormac | and |
Mr Rasaratnam Rasiah dated 6 July 2009 (joint statement), Mr MacCormac states: The orderly and proper planning of the area will be enhanced by the addition to the streetscape of a fully considered addition to the fencing in the locality which takes its design cue directly from the existing solid fence at 59 View Street.
The view of Mr Rasaratnam is expressed as follows:
In terms of orderly and proper planning, one of the aspects that are required to be considered is if a proposal requires the exercise of discretion in relation to the provisions of the Town's planning policies, and whether good outcomes will be achieved.
The Town's Policy No 3.2.1 relating to Residential Design Elements, achieves the above intent and is aimed at protecting the existing streetscape, requiring visual permeability and openness, which has been adopted with appropriate standards developed with community involvement.
40 In the view of the Tribunal, what needs to be determined is whether
the merits of the proposed development can be satisfactorily accommodated within the discretionary provisions of the statutory and policy instruments.
The matter of amenity
The matter of amenity was addressed in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) at [304]:
[2009] WASAT 177
The determination of amenity of the locality is a question of fact and consists of 3 parts; the existing amenity, the matter in which the proposed use will affect the existing amenity and the degree of impact on the locality.
In the joint statement, Mr MacCormac states:
The preservation of the amenities of the locality is achieved in the design of the fence when viewed from the street in that each of the two options has the same area of 50% open fencing which is merely located differently in each option. So the visual effect of the two fences will achieve the same visual intent and thus preserve the visual amenity of the locality.
The more important amenity requiring preservation is the amenity of the occupants living in the houses which will be jeopardized if the Town Council preferred option is approved. Both houses have their living areas open directly onto Private space which is all that remains once all of the building setbacks have been applied to the site.
This space will no longer be private if the Town Council preferred option is approved. The occupants of the house will experience the devastation of amenity on a daily basis while occasional observers will experience the fences on a momentary basis only. The amenity of the occupiers must surely be more important in the hierarchy of amenities in the locality.
The views of Mr Rasiah, as expressed in the joint statement, are:
Had privacy been an issue, the applicant should have addressed the privacy aspect at the design stage of the development, which was approved without any fencing proposed. It is to be noted that the applicant submitted separate planning applications, one for the two grouped dwellings and another for the boundary fencing, and on the above basis it can be concluded that the applicant was well aware of the privacy impacts and this was not an issue then. To address privacy, one option is to consider appropriate screen landscaping, as there is ample opportunity for landscaping. In my opinion, the proposed fencing would result in a negative impact on the streetscape, resulting in an undue adverse impact on the amenity as a whole.
44 What is clear to the Tribunal is that the applicants are principally
viewing amenity from the perspective of the future occupants of the two houses, rather than the likely effect of the proposed development on others in the terms expressed in Sch 1 of the Scheme at [24] above, and in Tempora.
45 It is generally believed that on-site amenity is a product of design
and that 'amenity', as understood in planning terms, is considered within a
broader community context.
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The matter of the primary street
46 The position of the applicants is that View Street is the primary street
and Vine Street is the secondary street and that various documentation
confirms this to be the case.
As stated by Mr MacCormac in the joint statement:
On that basis the whole fence along Vine Street can be solid as it is at present but it is proposed that there be [no] fence at all for 55% of the total length of the Vine Street boundary (20.64 out of 37.22m) and in addition this fence features a proposed length of full height 50% open fencing which is to be 2400 long.
The position of Mr Rasiah is explained in the joint statement:
For Unit A which is the dwelling where the living room faces View Street, based on the front street setbacks, the primary street is View Street, with Vine Street as the secondary street.
For Unit B, which is the dwelling having frontage only to Vine Street, I wish to confirm that the primary street is Vine Street.
Based on information before the Tribunal, it does appear that the officer's report to the Ordinary Meeting of Council on 24 February 2009, with respect to the two residences together, does treat View Street as the primary street and Vine Street as the secondary street.
50 It is only in this way can the two east facing residences be positioned
on the subject land with Unit A (north) being set back 4.5 metres from the View Street boundary (to allow for an outdoor living area) and 2.5 metres from the Vine Street boundary.
51 With respect to Unit B (south), the building is set back 2.5 metres
from the Vine Street boundary and some 4.5 metres from the rear ROW (to allow for an outdoor living area). The Council officer's report expressed the matter of setbacks in this way:
The upper floor street setbacks … are non-compliant with SADC 10 (Dual Street Frontages and Corner Sites). The applicant proposes upper floor setbacks to Vine Street of 2.5 metres in lieu of 4 metres in order to facilitate the effective use of the site and to ensure consistency with the style and form of the dwelling. The applicant has opted for greater setbacks to the southern boundary (ROW) than required in order to locate an outdoor living area on the ground floor within this space; this effectively means that the setback to Vine Street will be less to allow for this design.
[2009] WASAT 177
52 The point to be made here is that upper floor setback concessions
were granted by the respondent for Unit B in return for a reasonable size outdoor living area between the building (south wall of Unit B) and the solid boundary wall adjacent to both the ROW and the western boundary.
53 This is a particularly important point in the consideration of the front
(eastern) boundary wall that is the subject of this review in relation to
Unit B.54 In the view of the Tribunal, because the matter under review is in
relation to a new development application for a boundary wall, and that wall is punctuated in Vine Street by the presence of two double garages, that the boundary wall can be considered in two parts relating to Unit A on the one hand and Unit B on the other.
55 That being the case, the Tribunal accepts the argument of both
parties that for Unit A the primary street is View Street and the secondary street is Vine Street, but that in relation to Unit B (which has frontage to Vine Street only), that the primary street is Vine Street as advocated by the respondent.
The matter of streetscape
In the joint statement, Mr MacCormac states:
The proposed fencing does indeed conform to the Town Council preferred standards for fences because SPC 13 Street Walls and Fences under Acceptable Development Criteria requires street fences to be of a style and material compatible with those fences of the immediate surrounding area. The proposed fence only abuts one neighbouring property boundary fence and that is at 59 View Street. That fence is solid to 1800 and is white painted rendered brickwork.
In the joint statement, Mr Rasiah states:
In my opinion, the proposed fencing is considered not in keeping with the desired streetscape, as required in the Specific Performance Criteria (13) of the Town's Residential Design Elements Policy 3.2.1, as a site inspection has revealed compliant fencing on properties adjoining and adjacent to the subject site.
58 From photographic evidence provided to the Tribunal, the front
boundary fence as described by Mr MacCormac at 59 View Street is accurate, but it is also the case that nearby properties on the same side of the street at 53, 55 and 61 View Street and on the opposite side of the
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street at 56, 58 and 60 View Street have open style fencing or an open
appearance.59 The nearby property at 7 Vine Street, on the opposite side (south) of
the ROW, is another example of open style fencing with internal
landscaping to provide privacy.
In the view of the Tribunal, and based on the evidence before it, the nearby streetscape is generally one of open style fencing and appearance.
The matter of precedent
61 This matter was raised by the respondent at [13(h)] above and was
addressed in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at 72 (Nicholls) wherein it referred to Aspen Pty Ltd v
State Planning Commission (unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen). The precedent argument is not usually treated by this Tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development, should not be a reason why the appeal should be dismissed.
The approached adopted by Nicholls and Aspen will be continued in
this review.
Conclusions
63 The application for review was lodged against a decision of the
Town of Vincent to refuse the construction of a boundary fence addition to two already approved two-storey dwellings on the subject land at the corner of View Street and Vine Street, North Perth.
64 In undertaking this review, the Tribunal examined the respective
position of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to orderly and proper planning, amenity and a consideration of the terms 'primary street' and 'secondary street'. The matters of streetscape and precedent were also addressed.
65 In essence, what the applicants are attempting to achieve is a high
level of privacy to the two outdoor living areas (courtyards) to both Units A and B by the construction of a full height (1.8 metre) solid boundary wall broken by a single panel of 50% visually permeable
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fencing (1.8 metres high) to View Street (3.2 metres wide) and to
Vine Street (2.40 metres wide).66 This contrasts with the Council requirement of a 1.2 metre high solid
wall above the footpath along the whole length of the fence to View Street (between the vertical piers) and Vine Street (between the vertical piers) with 50% visually permeable fencing.
67 The applicants argue that the respondent's fencing requirements are
not sufficiently flexible to recognise that a single residence (with private open space at the rear of the dwelling) has been replaced with two two-storey residences, with the private open space needing to be positioned within the building setback areas to View Street (for Unit A) and the rear ROW (for Unit B), and that the amenity (privacy) of the future occupants needs to be accommodated behind essentially solid boundary walls.
68 The respondent argues that if privacy was such an issue, then a
redesign of the development, or some judicious landscaping directly behind the visually permeable fencing, would overcome the concerns of the applicants.
69 A further point argued by the applicants is that they have been
influenced in the design of the boundary wall by the adjoining property to the west (No 59 View Street) which has a high solid wall along the whole frontage, with the exception of the front gate.
However, in that respect, the Tribunal notes that the front boundary fence at 59 View Street is precisely the type of fence (shown at Figure 10 in Policy 3.2.1) that is discouraged by the Town.
71 In examining the relevant legislative and policy provisions, there is a
degree of flexibility built into the Scheme at cl 38(5) which would allow the Council to approve the proposed development, if deemed appropriate. This flexibility is also provided in both the Codes and Policy 3.2.1 if a development is assessed against the relevant performance criteria, but is not so provided if the development is assessed against the more precise acceptable development provisions.
72 In that regard, both the Codes and Policy 3.2.1 require a solid wall to
1.2 metres and visually permeable above if the development is assessed against the acceptable development provisions. The applicants' proposals fail in that respect.
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73 However, when the proposed development is assessed against the
performance criteria, the Codes recognise 'the need to provide privacy to north facing living areas (such as to Unit A) and under Policy 3.2.1, that street walls and fences '… are in keeping with the desired streetscape'.
74 On the matter of privacy as contemplated by the Codes under the
performance criteria it is, in the view of the Tribunal, a matter of degree. That is to say, that a property without any fencing could, with dense boundary planting to a height of 1.8 metres, achieve a reasonable level of privacy (but no security), whereas, in contrast, a solid 1.8 metre high wall would achieve both privacy and security.
75 However, in this case the respondent has emphasised the basics of its
policy that high solid walls adjacent to a street are undesirable and disrupt the streetscape, and that it is important to maintain the visual integrity and character of that streetscape.
76 In this instance the Tribunal believes that what is being sought, when
coupled with the 'full wall' effect of the adjoining property at 59 View Street could, if also adopted elsewhere along View Street, lead to a 'canyon-like' effect which would be less than desirable in terms of streetscape character. It must also be said that the present overall streetscape character is generally one of open style fencing and appearance.
77 This leads to the likely visual effect of the single panel of visually
permeable fencing as proposed by the applicants in both View Street and
Vine Street, and what is meant by the term 'visually permeable'.78 The Tribunal supports the respondent that the intent of the term is
that the horizontal slats should be positioned in such a way that when viewed perpendicularly from the street that there is a 50% 'see through' effect. In other words, if the slats did not exist, there would be a 100% 'see through' effect which would then be reduced to 50% with the fixing of the horizontal slats to the vertical piers. To interpret otherwise, depending on the angle of the slats (such as when viewed at 45 degrees up or down to the horizontal), could lead to a limited 'see through' effect or no 'see through' effect at all.
79 Returning to the question of amenity, the Tribunal recognises the
arguments of the applicants in terms of providing privacy to future occupants of Units A and B and trying to accommodate the respondent's requirements for 'visually permeable' fencing via a single panel in View Street and Vine Street. However, on balance, the Tribunal believes
[2009] WASAT 177
that through the use of judicious planting or placement of semi-mature or mature vegetation, that privacy can be achieved without compromising streetscape character.
80 The Tribunal also takes the view that for the current development
application, View Street is the primary street and Vine Street is the secondary street for Unit A, and that Vine Street is the primary street for Unit B. This interpretation, and its effect on the design of the walls, is in line with the arguments of Mr Rasiah in his witness statement at pages 7 to 9.
81 The Tribunal concludes that to allow the proposed development
would not be in the interests of orderly and proper planning or the preservation of the amenity of the immediate locality and, if approved, could lead to other similar type proposals which could detrimentally affect the streetscape character of the locality.
| Order |
The application for review is dismissed.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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