Manucci & Anor and City of Fremantle - [2007] WASAT 217

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MANUCCI & ANOR and CITY OF FREMANTLE [2007] WASAT 217

MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 7 JUNE 2007

DELIVERED : 29 AUGUST 2007

FILE NO/S: DR 46 of 2007

BETWEEN: MR D MANUCCI
MRS S DUNBARMANUCCI
Applicants
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning – Development application – Two storey residence – Whether garage and front fence are acceptable in relation to streetscape – Whether reduced side setback complies with performance criteria – Whether building height, bulk and mass are acceptable in relation to streetscape including heritage character

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 4.2.1(a), cl 6.3, cl 7.1.7, cl cl 10.2, Sch 12
City of Fremantle Town Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.1, cl 3.7.1

Result:

The application for review is dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr B Doyle (Acting as Agent)
Respondent: Mr S Bain (Acting as Agent)

Solicitors:

Applicants: Planning Solutions (Aust) Pty Ltd (Town Planners)
Respondent: City of Fremantle

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

Callan & Anor and City of Fremantle [2007] WASAT 133

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application by the City of Fremantle for a new two storey dwelling at No 198 Hampton Road, Beaconsfield.
It was the City of Fremantle's view that the proposed building and fence design would have a negative impact on the existing streetscape character which included heritage listed buildings.
The Tribunal found that while some elements of concern, such as the garage satisfied the City of Fremantle's policies, the overall appearance, bulk and height of the proposed development was not consistent with the expected general character of the streetscape.
The application for review was therefore dismissed and the decision of the respondent affirmed.

Introduction

These proceedings involve an application brought by Mr D Manucci and Mrs S Dunbar‑Manucci (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision made by the City of Fremantle (respondent or Council) on 20 December 2006 to refuse development approval for a two storey dwelling at No 198 (Lot 150) Hampton Road, Beaconsfield (subject land or site).

Site and locality

The subject land is located at No 198 Hampton Road, Beaconsfield and is described on Certificate of Title Volume 1072 Folio 746, as being Lot 150 on Plan 4112. It is rectangular in shape with an area of 647 square metres.
The subject land is currently vacant and is situated on the eastern side of Hampton Road between Jenkin Street and Scott Street. The predominant built form in this section of Hampton Road is single storey residences built in the early 20^th century. Directly opposite the subject land is a more recent two storey development. This residence presents as a single storey to the street with a two storey element to the rear of the site.
Hampton Road, according to evidence from Mr Doyle, a planner appearing on behalf of the applicants, carries an average of approx 16 000 vehicles per day peaking at approximately 20 000 vehicles per day. There are a variety of front fence styles and heights, and in some cases, no front fence.
The properties on either side of the subject land are listed on the Council's Heritage List. The adjoining property to the north is No 196 Hampton Road. The residence on this property dates back to the early 1900s and is a single storey painted stone and brick quoined building with a terracotta tile hipped roof. The adjoining property to the south is No 200 Hampton Road. The residence on this property is also single storey with tuck pointed stone, brick quoins and a terracotta tile roof.
According to the Heritage Inventory, both of these properties are aesthetically significant as examples of Fremantle's vernacular architecture and historically significant as representations of working people's living conditions in the Fremantle area. Both have undergone significant alterations but the original form remains intact.
These two properties, plus No 194 Hampton Road, "form a significant group and contribute to the streetscape of Hampton Road". Both have a Level 3 management category and are described "as being of cultural heritage significance for its contribution to the streetscape, local area, and Fremantle as a collective whole".

Planning framework

The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS).
The original development application was assessed under the City of Fremantle Town Planning Scheme No 3 (TPS 3). The respondent has since adopted a new town planning scheme, the City of Fremantle Local Planning Scheme No 4 (LPS 4), which was gazetted on 8 March 2007 and supersedes TPS 3.
Under the provisions of LPS 4 the subject land is zoned "Residential" with a density code of R25.
Clause 4.2.1(a) of LPS 4 outlines the objectives of the residential zone as follows:
"Development within the residential zone shall‑
(i)provide for residential uses at a range of densities with a variety of housing forms to meet the needs of different household types, while recognising the limitations on development necessary to protect local character,
(ii)safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area,
(iii)encourage high standards of innovative housing design which recognise the need for privacy, energy efficient design and bulk and scale compatible with adjoining sites,
(iv)recognise the importance of traditional streetscape elements to existing and new development,
(v)conserve and enhance places of heritage significance the subject of or affected by the development, and
(vi)safeguard and enhance the amenity of residential areas by ensuring that land use is compatible with the character of the area.
Note: All zone objectives should be read in conjunction with individual LPA objectives in schedule 12 and Scheme aims in section 1.6"
Clause 6.3 allows for the establishment of local planning areas in order "to protect and enhance locally desired character". The subject site forms part of Local Planning Area 5 – Beaconsfield (LPA 5).
Clause 7.1.7 states that the Municipal Heritage Inventory (MHI) established under TPS 3, is to comprise the heritage list under LPS 4.
"Note: 1. The purpose and intent of the heritage provisions are—
(a)to facilitate the conservation of places of heritage value; and
(b)to ensure as far as possible that development occurs with due regard to heritage values."
Clause 10.2 lists matters for the Council to have regard to when considering a development application. Of specific relevance to this matter are the following:
"(a)the aims, zoning objectives and provisions of this Scheme and any other relevant planning Scheme(s) operating within the Scheme area, including the Metropolitan Region Scheme,
(b)the requirements of orderly and proper planning including any relevant proposed new local planning Scheme or amendment, or region Scheme or amendment, which has been granted consent for public submissions to be sought,
(c)any approved Statement of Planning [P]olicy of the [Western Australian Planning] Commission,
…
(f)any planning policy adopted by the Council under clause 2.4, any heritage policy statement for any designated heritage area adopted under clause 7.2.2 and any other plan, strategy or guideline adopted by the Council under the Scheme,
…
(i)the compatibility of a use or development within its setting,
…
(k)the cultural significance of any place or area affected by the development, including but not limited to provision for the preservation, incorporation or recording (by means including public art works) and significant cultural values of the site,
…
(o)the preservation of the amenity of the locality
…
(q)the plot ratio, site coverage, setbacks, height, landscaped area and parking accommodation,
(r)the height, position, form and materials of fences and walls,
(s)the way in which buildings relate to the street and adjoining lots, including their effects on landmarks, vistas, the landscape or the traditional streetscape, and on the privacy, daylight and sunlight available to private open space and buildings,
…
(w)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal,
(x)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles,
…
(zg)any relevant submissions received on the application
…
(zi)the Heritage List,
(zj)any other planning consideration."
Relevant to this matter are the Residential Design Codes of Western Australia (2002) (Codes) and the following policies adopted by Council:
•Policy DC 6 – Garages/Carports in Front of Dwellings/Buildings (DC 6);
•Policy DBH 1 – Urban Design and Streetscape Guidelines (DBH 1);
•Policy DBH 2 – Front Fences and Side/Rear Fences (DBH 2); and
•Policy DBH 13 – Impact of Developments on Heritage Places Policy (DBH 13)

Proposed development

The proposed development is a two storey painted rendered brick dwelling with a sheet metal roof. The ground floor consists of an office, gymnasium, home theatre, double garage, store, laundry, powder room and open plan kitchen/living/dining area opening onto a semi‑enclosed alfresco area and pool to the rear. On the upper floor are four bedrooms with walk in robes, an ensuite, a bathroom and a separate WC.
The proposed Hampton Road elevation shows at ground floor level a double garage door, a recessed porch leading to the front door, and windows to the office and gymnasium. The architectural detailing indicates brick piers forward of the eaves line in contrasting render to the main house, a small section of stone clad wall and a steel awning over the corner gymnasium window.
The proposed roof as viewed from the Hampton Road elevation is pitched at 30 degrees with two dormer windows at the upper level to two bedrooms. The proposed ridge height is 7.2 metres which is 1.184 metres higher than roof ridge height at No 196 Hampton Road (northern adjoining property) and 1.404 metres higher than the roof ridge height at No 200 Hampton Road (southern adjoining neighbour).
The pitched roof over the office and gymnasium is cut back to form a partial gable to be clad in sheet metal. The wall of the gymnasium projects 1.5 metres further than the office and has a low pitched roof and a steel awning over the north‑west corner window which projects a further 0.5 metres.
The original application showed a 1.8 metres high rendered brick wall to the street boundary. This has been modified, and the application now shows a rendered brick wall with three sections reduced in height and with semi‑open infill panels above.

Council's decision

The application for approval to commence development of a two storey dwelling at No 198 Hampton Road, Beaconsfield submitted by the applicants was received by the respondent on 11 September 2006.
The Council received six submissions with various concerns regarding the proposed development. A planning officer's report was submitted to the Planning Services Committee Meeting held on 6 December 2006, which recommended conditional approval of the development application. The conditions related to the height and truncation of the front fence.
The Planning Services Committee recommendation for refusal of the application was considered by the respondent at its meeting held on 20 December 2006. The applicants were notified by a letter, dated 27 December 2006, that the application had been refused for the following reasons:
"1.Impact of the garage on the streetscape;
2.Combination of garage and fence impacting on the streetscape;
3.The design turns its back on the street; [and]
4.Form layout and appearance of the proposed development is not consistent with streetscape."

The issues

The following three issues arise for determination in this review:
1)Whether the garage and front fence are acceptable in relation to the streetscape.
2)Whether the reduced setback to the northern boundary complies with the performance criteria of the Codes.
3)Whether the building height, bulk and mass are acceptable in relation to the streetscape, including heritage character.
The Tribunal will address each issue in turn.

Whether the garage and front fence are acceptable in relation to the streetscape

The first of the respondent's reasons for refusal refers to the impact of the proposed garage on the streetscape and the second reason refers to the combined impact of the garage and the front fence.
The proposed garage is 6.35 metres x 6.42 metres and is set back 7 metres from the street boundary. The proposed garage door is a 4.8 metres wide sectional door of unspecified material or colour. The walls to the garage are to be painted rendered brickwork with a contrasting rendered band around the garage door opening.
DC 6 cl 5 states that "garages should be designed and constructed in a manner consistent with the style and standard of finishes of the existing house" and that they "should complement the character of a house and contribute in a positive manner to the streetscape".
It is Mr Doyle's evidence, in his witness statement for the applicants, that the proposed garage satisfies the "deemed to comply" provisions of the Codes with relation to street setback, side boundary setback and percentage of building frontage. Mr Doyle also quotes cl 3 of DC 6 that "new infill houses should have garages/carports built as an integral part of the house and its frontage". The proposed garage satisfies DC 6 in this regard.
With reference to the proposed front fence, the applicants have requested a variation of the maximum fence height based on the location of the subject land on Hampton Road (high traffic volume and heavy vehicles) and the existence of higher fences in the immediate vicinity. These are valid matters for consideration under DBH 2 which allows the Council discretion to vary the height limits in certain circumstances. These circumstances include when a dwelling is located on Hampton Road but "in these instances Council may consider fencing to a maximum height of 1.6 metres, and only in cases where the dwelling is setback less than six metres from the street or carriageway". The proposed dwelling is setback a minimum of 6 metres.
The Tribunal is of the view that the front fence should be designed to fulfil the objectives of DBH 2 which include; maintaining an open visual relationship with the street; enabling passive surveillance of property, street and pedestrians; as well as ensuring "that front fences complement the scale, design, and materiality of the dwelling".
The revised front fence design has attempted to satisfy some of the Council's concerns, however, the Tribunal is of the view that it does not complement the design of the dwelling. In particular, the solid end panels and the uneven spacing of piers emphasise the undisciplined aesthetic of the street elevation. The large un‑gated opening to the driveway emphasises the size of the double garage door which, as a result, becomes a dominant part of the streetscape.
The Tribunal finds that while the proposed garage does comply with the objectives of DC 6 and the front fence could be redesigned to comply with DBH 2, the garage and the fence as proposed have a negative impact on the streetscape and are therefore not acceptable to the streetscape.

Whether the reduced setback to the northern boundary complies with the performance criteria of the Codes

The proposed wall to the gymnasium on the ground floor has a setback of 1.1 metres from the northern boundary. Both Mr Bain, a planner who appeared for the respondent, and Mr Doyle agreed that when assessed under the provisions of cl 3.3.1 A1 of the Codes, this wall should have a setback of 1.5 metres.
The performance criteria for cl 3.3.1 "Buildings Set Back from the Boundary" are as follows:
"P1Buildings set back from the boundaries other than street boundaries so as to:
•provide adequate direct sun and ventilation to the building;
•ensure adequate direct sun and ventilation 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."
In his witness statement for the respondent, Mr Bain argues that the reduced setback is not appropriate for the setting of a two storey building particularly when the adjoining single storey heritage listed dwelling has a side setback of 3.3 metres. He considers the proposed development "to be imposing on the two adjoining dwellings due to its height" and that "the reduced setback on the northern side further exacerbates this situation".
Mr Doyle contends that because the other walls to the ground and upper storey comply with the minimum setback requirements, "the perception of bulk on the adjoining property is minimal". He is of the opinion that this, combined with the fact that there is no adverse overshadowing of the adjoining property due to the reduced setback, means "that the performance criteria of the Codes are adequately achieved in this instance and the proposed variation is appropriate and justified".
On analysis, the Tribunal finds that the reduced setback is not required for direct sun to the building; it does not protect access to direct sun for the adjoining building; it does not ameliorate the impacts of building bulk on the adjoining property; nor does it assist in protecting privacy between properties. Therefore the Tribunal is of the view that the projection of the northern gymnasium wall does not satisfy the performance criteria, in fact, it is likely to emphasise the non‑traditional nature of the roof shape above.
It should be noted that this section of wall is 6.46 metres in length with a height of 3.45 metres and contains 7 metres squared of glazed window openings which is approximately one third of the wall area. The drawings also show a steel awning fixed to the wall above the north‑west corner of the gymnasium which projects a further 500 millimetres into the setback area.
Clause 3.3.1 A1(iv) of the Codes states "[m]inor projections such as chimney, other architectural feature or an eaves overhang not projecting more than 0.75 metres into a setback area and to be no closer than 0.75 metres to a boundary". The proposed awning will be 0.6 metres from the boundary and therefore does not comply with the acceptable development requirements.
It is the view of the Tribunal that the reduced setback to the northern boundary does not comply with the performance criteria of the Codes.

Whether the building height, bulk and mass are acceptable in relation to streetscape including heritage character

Schedule 12 of LPS 4 sets out the height requirements for residential development within LPA 5 to be as per the Codes. In cl 3.7.1 "Building Height" of the Codes, the relevant acceptable development standards are 6 metres to top of external wall and up to 9 metres to top of pitched roof (over 30 degrees), "except where stated otherwise in a Local Planning Policy or equivalent". The application proposes an external wall height of 5.4 metres and a roof height of 7.2 metres.

Schedule 12 also sets out further matters to be considered by the Council when applying these height requirements, which are as follows:
"In granting consent to the maximum heights prescribed Council shall be satisfied in regard to all of the following‑
•that the proposal is consistent with predominant height patterns of adjoining properties and the locality generally,
•the proposal would not be detrimental to the amenity of the area,
•the proposal would be consistent, if applicable, with conservation objectives for the site and locally generally, and
•any other relevant matter outlined in Council's local planning policies.
Council may impose a lesser height in the event that the proposal does not satisfy any on(e) or all of the above requirements."
The locality in this case can be considered to include Nos 165 to 224 Hampton Road as seen by the Tribunal on the view of the subject land during the hearing. Mr Bain notes in his supplementary witness statement that 20 of these 31 dwellings are included on the respondent's Heritage List and of these 31 dwellings, one is two‑storey. This dwelling is located at No 183 Hampton Road, directly opposite the subject land, and is a traditional single storey building to the front with a two‑storey extension to the rear.
The adjoining properties are single storey heritage listed dwellings. According to the Council's Heritage Inventory, both properties have "undergone significant alterations but (the) original form remains intact". These properties, together with No 200 Hampton Road, "form a significant group and contribute to the streetscape of Hampton [Road]".
Mr Bain contends that the established character is single storey and that "the proposed development being two‑storey will not be compatible with this existing pattern of development and thus the existing character/amenity". Whereas, Mr Doyle argues that "there is an established character including two‑storey development in the locality, and the proposed development will therefore not be out of scale or proportion with the prevailing character or streetscape".
The proposed design attempts to present a single storey dwelling with loft to the street as encouraged by the respondent's Scheme and Policies. The ground floor level has been lowered and dormer windows have been placed in the large roof structure in order to mitigate the impact of building height. The ridge height will be 1.18 metres and 1.40 metres respectively higher than the adjoining dwellings.
Despite this, it is the opinion of Mr Bain that the building height "combined with the reduced northern side setback which makes the dwelling appear wider than the other dwellings … means the proposed development is inconsistent with the pattern of development in the area and will specifically impact on the two adjoining heritage listed dwellings".
The adjoining heritage listed properties are classified as Level 3 Management Category which indicates a moderate level of significance. Mr Doyle expressed concern that, given the reliance of the respondent's argument on the issue of the impact of the application on the heritage significance of these properties, a heritage assessment was not undertaken nor was a heritage impact statement prepared.
With reference to a heritage assessment, DBH 13 cl 1(f) states that "in cases of places of Level 3 and 4 significance the heritage assessment of a place included in its individual MHI entry will normally provide sufficient basis for identifying elements of the place considered to represent its significance".
With regard to a heritage impact statement, cl 2(viii) of DBH 13 states "if the new infill development is proposed next to a heritage place the impact of such development shall be assessed by the extent to which it: … is comparable to the existing heritage places in terms of scale, bulk, massing, quality of design, materials and craftsmanship, refinement of detailing". The Tribunal would have been greatly assisted by the provision of a heritage impact statement but the lack thereof does not preclude the consideration of these issues.
Mr Doyle refers to Callan & Anor and City of Fremantle [2007] WASAT 133 and the issues identified by the Tribunal that were required to be addressed. It is important to note that there are many differences between this matter and Callan which include the fact that the "Callan" subject land (No 150 Marine Terrace) is within Local Planning Area No 4 Sub‑Area 4.3.3 which prescribes that the "building height shall be limited to a maximum of three storeys" with qualifications. The "Callan" subject land is also covered by the respondent's DGF 16 – Marine Terrace Policy, which is not relevant to the proposal before the Tribunal.
It could be argued that Callan & Anor and City of Fremantle is relevant in its identification of three key issues to be addressed. These include:
•the expected general character of the streetscape;
•the compatibility of the proposed development with that general character; and
•the compatibility with adjacent heritage listed buildings.
The Tribunal is of the view that the expected general character of the streetscape for this section of Hampton Road is traditional single storey dwellings with high pitched simple roofs.
The proposed roof form attempts to appear the same as a single storey traditional roof similar to the adjacent dwellings but has an unconventional shape with a section cut away on the northern side over the study and gymnasium. The proposed roof ridge is also substantially higher than the adjacent properties, which are in turn higher than the other properties in this section of Hampton Road.
The excess ridge height; the non‑traditional roof shape, which includes the raised gutter line over the office and gymnasium; and the reduced boundary setback to the gymnasium lead the Tribunal to take the view that the proposed dwelling is incompatible with the general character of the streetscape.
With respect to the effect of the building height, bulk and mass, the proposed dwelling will have a negative impact on the expected general character of the streetscape in the immediate locality and in particular on the adjoining heritage listed properties.

Conclusion

The Tribunal has determined that while the proposed garage does comply with the objectives of DC 6 and the front fence could be redesigned to comply with DBH 2, the design of the garage and front fence, as proposed, will have a negative impact on the streetscape and is therefore not acceptable to the streetscape.
The Tribunal has also determined that the reduced setback of the gymnasium wall to the northern boundary does not comply with either the acceptable development standards or the performance criteria of the Codes.
With respect to the effect of the building height, bulk and mass, the Tribunal has determined that the proposed dwelling will have a negative impact on the expected general character of the streetscape in the immediate locality and in particular on the adjoining heritage listed properties.
The Tribunal has therefore decided that the application for review is dismissed and the decision of the Council to refuse development approval is affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 20 December 2006 to refuse development approval for a two storey dwelling at Lot 150 (No 198) Hampton Road, Beaconsfield is affirmed.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER