Marshall and Town Of Mosman Park
[2016] WASAT 82
•8 JULY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MARSHALL and TOWN OF MOSMAN PARK [2016] WASAT 82
MEMBER: MS M CONNOR (MEMBER)
MS D QUINLAN (MEMBER)
HEARD: 11 APRIL 2016
DELIVERED : 8 JULY 2016
FILE NO/S: DR 341 of 2015
BETWEEN: ARTHUR MARSHALL
Applicant
AND
TOWN OF MOSMAN PARK
Respondent
Catchwords:
Town planning Development Review of refusal Design principles Open space Primary street setback Secondary street setback Lot boundary setbacks Bulk and scale Streetscape Amenity Privacy Whether proposal constitutes overdevelopment Whether capable and appropriate for approval Whether consistent with orderly and proper planning
Legislation:
Planning and Development Act 2005 (WA), s 26, s 241(1)(a), s 252(1)(c)(i), s 256, s 257B(3)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 2, reg 8(1)(c), reg 10(4)
Town of Mosman Park Town Planning Scheme No 2, cl 1.4, cl 3.6.1, cl 5.1, cl 5.2.2(b), cl 5.4.1, cl 7.1.7(b), cl 5.11
Metropolitan Region Scheme
State Administrative Tribunal Act 2004 (WA), s 26
State Planning Policy 3.1 Residential Design Codes of Western Australia (2013), cl 5.1(e), cl 5.1.2, cl 5.2.1(c), cl 5.1.4
Result:
Development approval is not allowed
Summary of Tribunal's decision:
The applicant sought approval to demolish an existing single house and construct a three storey single house at No 1 Chine Place, Mosman Park. The proposal consisted of a large house with three levels all similar in size with a significant component of the open space being a roof terrace. The Tribunal dismissed the review and affirmed the decision of the Town of Mosman Park to refuse the application for development. In particular, the Tribunal found that it would not approve the proposal in relation to the significantly reduced primary street setback to Chine Place, the nil setback to the secondary street of Owston Street and the overall bulk and scale of the proposal which amounted to overdevelopment at the subject site which would adversely affect the amenity of the locality.
The Tribunal found that the landscaped parts of the roof terrace could be included in the open space calculations and consequently the open space component met the deemed to comply provisions in the Residential Design Codes of Western Australia (2013).
Applying the provisions of cl 5.2.2(b) of the Town of Mosman Park Town Planning Scheme No 2, the Tribunal found that, as it cannot be shown that there is a standard front setback along Chine Place that is less than 7.5 metres, the discretion cannot be exercised to allow a reduced front setback as proposed. If the Tribunal was wrong in this regard, the Tribunal found it would decline to exercise the discretion and allow the significantly reduced front setback as proposed. The Tribunal was of the view that the proposed reduced front street setback was of itself so significant that the Tribunal would refuse development approval for the proposal.
The Tribunal also found that the proposed nil secondary street setback to Owston Street would be significant in the prevailing streetscape and locality, that it was not sympathetic to the scale of the street and surrounding buildings, nor would it positively contribute to the prevailing development context and streetscape.
The Tribunal found that the proposed eastern boundary setback did not adequately reduce the impacts of the building bulk on the adjoining property at No 3 Chine Place. The proposed southern boundary, or rear setback, was found to demonstrate compliance with the design principles; however, it contributed to a number of interrelated issues such as bulk and scale. The Tribunal found that the proposal did not demonstrate compliance with the design principles concerning privacy and that utilising mitigation measures would result in further issues regarding building bulk and scale.
The Tribunal declined to exercise any residual discretion to allow the proposal because the Tribunal found that the proposal would have a negative impact on the amenity of the locality and therefore did not warrant approval. The Tribunal found that a number of features of the proposal supported a finding that the proposal constitutes overdevelopment on the subject site. The Tribunal found that the proposal was neither capable nor appropriate for approval and was therefore not consistent with orderly and proper planning.
Category: B
Representation:
Counsel:
Applicant: Mr M Hotchkin
Respondent: Mr A Roberts
Solicitors:
Applicant: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 17 June 2015, Mr Arthur Marshall (applicant) made an application to the Town of Mosman Park (respondent or Council) for development approval to demolish the existing single house and construct a three storey single house on No 1 (Lot 7) Chine Place, Mosman Park (subject site).
In July 2015, the respondent advertised the application and one submission was received objecting to the application. On 2 September 2015, the applicant lodged amended plans and additional information with the respondent in response to the objection received (proposal or proposed development).
On 15 September 2015, the respondent's Regulatory Services Committee considered the proposal. The planning officer recommended approval subject to conditions. However, the Regulatory Services Committee resolved to recommend to the respondent at its ordinary meeting on 22 September 2015 that the proposal be refused for the following reasons:
1.The design principles and overall objectives of the open space provision as per the R-Codes cannot be satisfied. The building bulk on the site is not consistent with the expectations of the applicable density code and does not reflect the desired streetscape character.
2.The cumulative impact of buildings located on three boundaries and a reduced setback to the front boundary result in excessive building bulk and scale. This is not consistent with the current streetscape amenity or its intended character for its density coding.
3.This development is inconsistent with the principles of orderly and proper planning.
On 21 September 2015, before the Council considered that recommendation, the applicant sought a review in the Tribunal under s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act) on the basis that the proposal was deemed to have been refused by the respondent. Pursuant to cl 7.1.7(b) of the Town of Mosman Park Town Planning Scheme No 2 (TPS 2 or Scheme), if a decision has not been conveyed to the applicant within 90 days of lodgement of the application and no further time had been agreed between the applicant and respondent then the application is deemed to have been refused by the respondent.
At the ordinary meeting of the Council on 22 September 2015, the planning officer again recommended approval subject to conditions. However, the Council unanimously resolved to refuse the proposal for the same reasons expressed by its Regulatory Services Committee.
Subject site
The following facts were agreed by the parties regarding the subject site:
a)It comprises a total site area of 625m² and is orientated north-south with a dual frontage to Chine Place to the north and Owston Street to the west.
b)It includes a 5.69 metre truncation at its north-western corner with a lot frontage width of 12.77 metres to Chine Place and 33.5 metres to Owston Street.
c)It is presently developed with a two-storey single house with its primary frontage to Chine Place and one crossover to Owston Street.
d)It is adjoined on its eastern boundary by No 3 (Lot 8) Chine Place which is a single house on a total site area of 1,070m². The southern boundary of the subject site abuts a paved driveway to No 3 Chine Place.
Proposal
The proposal seeks approval on the subject site to demolish the existing two-storey single house and construct a three storey single house. Each of the three floor levels are similar in size. The undercroft level is entered via a ramp from Chine Place and consists of parking for four vehicles, gym, kitchenette, pool, lift, wine cellar, workshop and store. The ground floor level consists of a terrace, an open area including the kitchen/dining/living, study, formal dining, bar, foyer, billiard room, powder room and laundry as well as a small outdoor courtyard, 'kids' pool and spa. The upper level consists of a terrace which is the same length and width as the ground terrace, a large master suite as well as three other large bedrooms all with ensuite bathrooms. The proposal also consists of a flat roof with prominent eaves that extend all the way over the terrace on the upper floor and are held up by columns.
A significant proportion of the total of the proposed open space consists of an accessible roof terrace. This proportion is approximately 149m² of the total of the proposed open space. The overall total of open space proposed on the subject site totals either 291.27m² or 345.27m². The different figures relate to the dispute between the parties as to how the proportion of open space contributed to by the roof terrace should be calculated under the R-Codes.
The proposal also seeks a reduction of the primary street setback to Chine Place under TPS 2 which requires 7.5 metres unless a reduction is allowed. The parts of the proposal which are within the 7.5 metres setback area are as follows: staircase (2.2 metres), eaves (3 metres), column supports (3.25 metres) and the front terrace (4 metres).
The proposal seeks approval for parapet walls on both of the side boundaries to the east and west and the rear boundary to the south. The deemed to comply provisions of the R-Codes are not met in relation to the secondary street setback to Owston Street as well as the eastern and southern lot boundary setbacks and therefore need to be assessed under the design principles of the RCodes.
Planning framework
The subject site is zoned Urban in the Metropolitan Region Scheme and Residential with a density coding of R12.5 under TPS 2. A 'Single House' is a 'P' (permitted) use in the Residential zone providing the use complies with the relevant development standards and requirements of the Scheme.
The intent of TPS 2 and the objectives of the Residential zone are set out in cl 1.4 and cl 3.6.1 respectively. Clause 5.1.1(b) of TPS 2 provides that the maximum height of a building shall not exceed 8.5 metres above natural ground level. Clause 5.1.2 of TPS 2 provides a number of general amenity considerations that the respondent may have regard to in considering a proposed development and any conditions that may be imposed.
Clause 5.2.1(c) of TPS 2 provides that '[u]nless otherwise provided for in the Scheme, the development of land for any residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.' Further, State Planning Policy 3.1: Residential Design Codes of Western Australia (2013) (R-Codes) is a State planning policy prepared under s 26 of the PD Act, and therefore the Tribunal, pursuant to s 241(1)(a) of the PD Act is to have due regard to 'any State planning policy which may affect the subject matter of the application'.
The parts of the R-Codes relevant to this matter are cl 5.1.2 (as it relates to secondary street setback), cl 5.1.3 (lot boundary setbacks), cl 5.1.4 (open space) and cl 5.4.1 (visual privacy). These will be discussed in more detail later under the relevant issue headings.
Relevant to these proceedings, cl 5.2.2(b) of TPS 2 departs from the RCodes in relation to front boundary setbacks and provides as follows:
For land with density codings of R20 or less no residence or part of a residence other than the eaves of the residence shall be constructed in front of a building line 7.5 metres back from the front boundary (as determined by Council) except:
(i)when it can be shown that the standard setback along a street alignment or part of a street alignment is less than that stipulated, Council may permit a reduced setback consistent with the street.
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in cl 67 of Sch 2 a number of provisions which are deemed to be included in the local planning scheme text (Deemed Provisions). The subclauses in cl 67 of Sch 2 of the Deemed Provisions that are relevant to these proceedings are: (a) aims and provisions of TPS 2; (b) requirements of orderly and proper planning; (c) any approved State planning policy; (m) compatibility of the proposal with its setting and locality; (n) amenity; (p) landscaping; (w) history of the site; and (y) any submissions received.
The Deemed Provisions came into force on 19 October 2015 pursuant to s 256 of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations. Pursuant to the operation of s 257B(3) of the PD Act, if a Deemed Provision is inconsistent with a provision of TPS 2, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.' The Deemed Provisions work together with the provisions of TPS 2 and prevail to the extent of any inconsistency. The Deemed Provisions do prescribe matters that are relevant but they do not act as a code which prescribes all matters that are to be considered.
Issues for determination
The issues for the Tribunal to determine in this matter are as follows:
Issue 1:Does the proposal meet the objectives and design principles under cl 5.1.4 (open space) of the RCodes?
Issue 2:Does the proposal meet the requirements of cl 5.2.2(b) (front boundary setback) of TPS 2?
Issue 3:Does the proposal meet the requirements of cl 5.1.2 (as it relates to secondary street setback) of the RCodes?
Issue 4:Does the proposal meet the objectives and design principles under cl 5.1.3 (lot boundary setback) of the R-Codes?
Issue 5:Does the proposal meet the objectives and design principles under cl 5.4.1 (visual privacy) of the RCodes?
Issue 6:Does the proposal meet the requirements of cl 5.1.2 (general amenity considerations) of TPS 2?
Issue 7:Whether the proposed development constitutes overdevelopment of the subject site having regard to the existing and likely future amenity of the locality?
Issue 8:Is the proposal capable and appropriate for approval under TPS 2?
Issue 9:Is approval of the proposal consistent with orderly and proper planning?
Site view
During the course of the hearing, the Tribunal had the benefit of a view of the subject site where the Tribunal also viewed the locality which includes the streetscape of Chine Place, Owston Street and Bayview Terrace. The Tribunal observed the existing house at the subject site and its current relationship with the house at No 3 Chine Place. The expert planners assisted the Tribunal in a comparison exercise between what currently exists at the subject site with the proposal so that an understanding was obtained as to the proposal and its relationship to its immediate neighbour at No 3 Chine Place as well as the streetscape and locality generally.
The evidence
The applicant provided expert evidence from the architect who designed the proposal, Mr Pavlo Szyjan, and a town planner, Mr Paul Cunningham.
The respondent provided expert evidence from town planner, Mr Stephen Allerding, as well as evidence from Ms Yvonne Burns, the neighbour of the adjoining property at No 3 Chine Place, who objected to the proposal.
Mr Allerding and Mr Cunningham conducted an expert conferral prior to the hearing and provided a joint witness statement which highlighted in relation to the issues in dispute their agreement, disagreement and reasons for their disagreement. The joint statement was of great assistance to the Tribunal in hearing and determining the issues in dispute in this matter.
The Tribunal has considered all of the evidence provided in determining the issues in these proceedings. The expert town planning evidence which is referred to in what follows was of particular importance in reaching a determination of the issues in dispute.
Expert evidence
The principles relevant to resolving a conflict of expert evidence was summarised by the Tribunal in Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65 (Lombardi) at [40] - [45]. The Tribunal in Lombardi referred to the oft-quoted Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 where Huntley JA found at [381] that '[t]he choice between conflicting experts may have to be a matter of judgment and not of detailed reasoning'.
The Tribunal also noted in Lombardi at [42] that '[t]he choice is not so much a choice between experts per se, but whether the review leads to doubt about the opinion proffered by one of the experts'. Put another way, do any of the factual findings by the Tribunal undermine one or more of the expert opinions, as that opinion or those opinions are based on a different factual foundation?
As will be apparent from the reasons pertaining to each of the issues below, the Tribunal has accepted Mr Cunningham's opinions in part and Mr Allerding's opinions in part. This is due to the findings that the Tribunal has made which underpin each of their individual opinions.
Streetscape and locality
Definitions of both 'streetscape' and 'locality' are relevant to the determination of a number of issues in this matter.
Both Mr Allerding and Mr Cunningham were asked by the Tribunal at the hearing to provide their views as to how the Tribunal might define the relevant 'streetscape' and 'locality' and their characteristics.
Mr Allerding was of the view that the 'locality' consisted of Chine Place, Owston Street and Bayview Terrace. Mr Allerding noted that the subject site could be seen along a considerable length of Bayview Terrace and part of the way along Owston Street. Both Mr Cunningham and Mr Allerding considered that the characteristics of the locality were an eclectic mixture of architectural styles. However, it was Mr Allerding's view that there was a predominant characteristic in that locality of buildings in a landscape setting that were set back from the street. Mr Allerding accepted the examples provided by Mr Cunningham of carports and other like single level structures set closer to the street; however, Mr Allerding's view was that the bulk of the buildings were set back from the street. Mr Allerding stated that the building setbacks on Bayview Terrace and Owston Street, as shown in Attachment SGA2 to his statement, are conservative figures as they were measured to the eaves (which are excluded) and not the walls of the building. Therefore, Mr Allerding's view was that the majority of the houses were set back at least, if not more than, 7.5 metres.
Mr Cunningham was also of the view that the 'locality' consisted of Chine Place, Bayview Terrace and Owston Street; however, his defined 'locality' was limited to the extent that the subject site was visible along Owston Street and Bayview Terrace. Mr Cunningham considered that the characteristics of the locality included large houses with quality landscaping and that the foreshore reserve formed an important part of the locality.
Neither Mr Allerding nor Mr Cunningham expressed any definitive views as to what constituted the relevant 'streetscape'.
Chine Place is somewhat unusual as only part of the gazetted road reserve is constructed. The constructed portion comprises the subject site and No 3 Chine Place. The other two lots, east of No 3 Chine Place, that abut the unconstructed portion of the road reserve, have alternative access arrangements via Owston Street. The parties agreed, and the Tribunal accepts, that it seems highly unlikely that the unconstructed portion of Chine Place would ever be constructed as there is no need and the topography of that portion of the road reserve is a significant constraint.
Having had the benefit of a site view and considering all of the evidence presented, the Tribunal finds that the 'streetscape' relevant to the subject site is that part of Chine Place that includes No 1 and No 3 Chine Place, as well as that part of Bayview Terrace from where it commences at its intersection with Owston Street to its corner with Manning Street, relevantly including the foreshore reserve in front of Chine Place and Bayview Terrace.
The Tribunal finds that the 'locality' relevant to the subject site is its streetscape as defined above, and including that part of Owston Street up to its corner with Sheila Street, where the Tribunal at the site view could still view the subject site.
The Tribunal finds that the characteristics of the streetscape and the locality are markedly similar. The Tribunal finds those characteristics are an eclectic mix of housing styles, quality landscaping and large houses with relatively consistent front setbacks. The consistency of front setbacks, together with the unique orientation of Bayview Terrace and Chine Place, allow for wide uninterrupted vistas across the foreshore reserve to the Swan River and the Perth City beyond. The extent of the consistency of setback from the primary setback is considered further by the Tribunal when determining Issue 2.
Issue 1: Open space
The subject site has a residential density coding of 12.5. Pursuant to cl 5.1.4 C4 and Table 1 of the R-Codes, the open space provided in a proposal is deemed to comply with the R-Codes if there is a minimum of 55% open space within the subject site as part of the proposal.
The planners were in agreement as to the calculations of open space on the ground floor. However, Mr Cunningham and Mr Allerding were in disagreement as to how to calculate the proposed roof terrace component of open space. Mr Cunningham included all of the roof terrace and Mr Allerding excluded those parts which he considered were not useable or accessible, namely the landscaped portions of the roof terrace.
This disagreement as to the calculation of the roof terrace component of the open space is significant as Mr Allerding's approach to the calculation, if accepted, results in the open space being 46.6% or 291.27m² of the total area of the subject site. If Mr Allerding is correct then the proposal does not meet the deemed to comply provisions of cl 5.1.4 of the RCodes and the design principles for open space need to be applied as the determining criteria.
Mr Cunningham's approach to the calculation of open space, if accepted, results in the open space being 55.24% or 345.27m² of the total area of the subject site. If Mr Cunningham's approach to the calculation is accepted by the Tribunal, then Mr Allerding agreed that the open space component of the proposal meets the deemed to comply provisions of cl 5.1.4 of the RCodes.
Mr Allerding's opinion was based on his view as to how to apply the definition of 'open space' in the RCodes which specifically includes 'open areas of accessible and useable flat roofs and outdoor living areas above natural ground level' and specifically excludes 'nonaccessible roofs'.
Mr Cunningham included the landscaped areas of the roof terrace as he considered that the definition of 'open space' in the R-Codes should be read together with the definition of 'outdoor living area' which includes passive use.
The Tribunal agrees with Mr Cunningham. The Tribunal is of the view that the specific inclusion of accessible roof space in the definition of 'open space' that is accessible and useable is intended to refer to access to useable roof space in the same way as open space on the ground level. In calculating the amount of open space at the ground level, active and passive areas (such as landscaping) are included. The passive areas, such as landscaping, clearly enhance the useability of the open space, whether it exists at the ground level or as part of a roof terrace. It would be an absurd outcome if a proposal for an accessible and useable roof terrace would seek to deliberately design the roof terrace to be an entirely open area on the roof space in order for all of that roof space to be counted in the open space calculation. Such an absurd outcome would be contrary to the intention of the R-Codes, that the roof space is useable open space.
Accordingly, the Tribunal finds that the open space component of the proposal meets the deemed to comply provisions in cl 5.1.4 C4 of the RCodes.
Issue 2: Primary street setback Chine Place
Clause 5.2.2(b) of TPS 2 varies the R-Codes in relation to front boundary setbacks and, relevant to these proceedings, provides that no part of the proposal (other than the eaves) can be constructed in front of a building line 7.5 metres back from Chine Place. Clause 5.2.2(b) provides a discretion to the Council (and in these proceedings the Tribunal) to permit a reduced setback consistent with the street when it can be shown that the standard setback along a street alignment or part of a street alignment is less than 7.5 metres. 'Street alignment' is defined in Appendix A of TPS 2 to mean 'the boundary between the land comprising a street and the land that abuts thereon, but where a new street alignment is prescribed, means the new street alignment so prescribed'.
It was agreed amongst the parties that the staircase (setback 2.2 metres) and the eaves (setback 3 metres) are excluded from the Chine Place front setback calculations. However, the Tribunal notes that only the eaves are permitted to be excluded and the stairs should be included in the setback calculations. What is also included in the Chine Place 7.5 metre front setback area are the column supports (setback 3.25 metres) and the front terrace (4 metres). These are all significant aspects of the proposal.
The Tribunal has a discretion under cl 5.2.2(b) of TPS 2 to permit a reduced setback when it can be shown that the standard setback along a street alignment or part of a street alignment is less than 7.5 metres.
The only other property on Chine Place is the applicant's neighbour at No 3 Chine Place, and it was agreed that this house is set back 7.5 metres. Two further lots to the east of the subject site front onto the gazetted Chine Place road reserve which is not presently constructed and not required for these two lots as they have the benefit of alternative access arrangements. The Tribunal, as discussed above, considers it highly unlikely that the remainder of Chine Place, as gazetted, would ever be constructed. Therefore, the Tribunal finds that the 'street alignment' in this instance consists of only No 1 and No 3 Chine Place. The Tribunal also finds that, in this situation where the street alignment is only two houses, no relevant finding can be made as to 'part of a street alignment' on Chine Place.
The aerial photographs provided by Mr Allerding attached to his witness statement detail the street setbacks along Owston Street and Bayview Terrace. Whilst the aerial photographs do not delineate between primary and secondary setbacks, it was apparent from the site view that at least some of the lower setback figures for instance, the setback of 3.2 metres at No 2 Owston Street was its secondary street setback and the primary street setback was 6.6 metres. Another example apparent from the site view was No 72 Bayview Terrace where it appeared that the setback of 5.6 metres was its secondary street setback and its primary street setback was 8.3 metres. Having noted those two examples, it is otherwise apparent from the aerial photographs with measurements and the site view that the standard setback along Chine Place, Bayview Terrace and Owston Street ranges from 5.9 to 9.6 metres which is significantly greater than that proposed at the subject site. The Tribunal also notes the evidence of Mr Allerding that these figures are conservative as he measured to the eaves which are excluded from a setback calculation.
Mr Cunningham sought to rely on the fact that the existing house on the subject site has a considerably reduced frontage to Chine Place. It is the Tribunal's view that, whilst the history of the subject site is to be considered as required by cl 67(w) of the Deemed Provisions, there was no evidence provided to the Tribunal regarding the previous approval and in any event, what presently exists, whilst relevant, cannot be an overriding consideration in the context of the other matters that the Tribunal is to consider.
The Tribunal finds that it cannot be shown that there is a standard setback along Chine Place that is less than 7.5 metres. Therefore, the Tribunal agrees with the respondent's submission that, in circumstances where it cannot be shown that there is standard reduced setback along a street alignment, the discretion cannot be exercised as the necessary precondition to exercising that discretion has not been met.
If the Tribunal is wrong in this regard, and the discretion does still remain, the Tribunal would decline to exercise this discretion and allow the reduced front setback as proposed. The Tribunal considers that, taking account of No 3 Chine Place having a setback of 7.5 metres and the prevailing setbacks along Bayview Terrace that are significantly more setback than that which is proposed, the proposed reduced front setback to Chine Place would have a negative impact on the prevailing streetscape.
Even if the reduced front setback was consistent with the street alignment in the immediate visual vicinity of the subject site, the Tribunal would decline to exercise its discretion to permit a reduced setback of this magnitude. The Tribunal is of the view that the proposal, in terms of bulk and scale, negatively imposes itself on the reserve and thereby would affect the existing and future amenity of the locality.
The Tribunal is of the view that the proposed reduced front street setback is of itself so significant that the Tribunal on that issue alone would refuse development approval for the proposal; however, the Tribunal will go on to consider the other issues raised for determination.
Issue 3: Secondary street setback Owston Street
Clause 5.1.2 C2.2 and Table 1 of the R-Codes provide that the deemed to comply secondary street setback is 2 metres. The proposal includes a nil setback to Owston Street on both the ground and upper level of the proposal. This aspect of the proposal must be assessed under the design principles of cl 5.1.2 P2.1 and P2.2. The design principles relevant to the proposal provide that buildings are to be set back from street boundaries an appropriate distance to ensure they contribute to, and are consistent with, an established streetscape and positively contribute to the prevailing development context and streetscape.
The Tribunal notes that the proposal was amended just prior to hearing, in effect by moving the house westwards by 1 metre. This resulted in a somewhat improved outcome for the neighbour on the eastern boundary and a nil setback to Owston Street.
Owston Street is the secondary street on the western boundary of the subject site. The design principles in cl 5.1.2 of the R-Codes apply to both primary and secondary street setbacks. Applying the design principles to a secondary street setback require different considerations than to a primary street. It is also noted from the evidence and the site view that the curved bend where the subject site is located is a prominent meeting point of both Owston Street and Bayview Terrace.
Mr Allerding's view was that the proposal which included a nil setback to Owston Street, having regard to the existing streetscape, did not positively contribute to the prevailing development context and streetscape. Mr Allerding was also of the view that the proposal did not meet the objectives in cl 5.1(e) of the R-Codes which provide that development and design should be appropriately scaled, particularly in respect of bulk, and be sympathetic to the scale of the street and surrounding buildings.
Mr Cunningham's view was that the proposed nil setback to Owston Street complied with the design principles. When preparing the joint witness statement and providing oral evidence in relation to the amended proposal, Mr Cunningham further relied on the fact that a carport on Owston Street was on the lot boundary. Mr Cunningham further supported his view by relying on the proposal's western elevation being articulated, interesting and avoids the use of blank walls. Mr Cunningham was also of the view that the subject site is 'undersized' for the R12.5 density coding and that it has a land area equivalent to the R15 density coding (which has a 1.5 metre secondary street setback). Mr Cunningham noted that the trees in the road reserve on Owston Street act to soften the western façade of the proposal.
Mr Cunningham relies on the fact that the existing house on the subject site is set back 1.5 metres, which, whilst it is less than the deemed to comply distance of 2 metres, supports his view that a nil setback should be approved for the proposal. It is the Tribunal's view that, whilst the history of the subject site is to be considered as required by cl 67(w) of the Deemed Provisions, this is not an overriding consideration in the context of the other matters that the Tribunal is to consider.
Mr Cunningham also appears to suggest that special consideration should be given to the socalled 'undersized lot'. This is a view that is not supported in the design principles, nor elsewhere in the R-Codes, and one that the Tribunal does not accept as relevant. It is pertinent to note here the interrelated submission made by the applicant, that the proposal is smaller in terms of bulk and scale than the existing house at No 3 Chine Place. The house at No 3 Chine Place sits on around 1,070m², a significantly larger site than the subject site which is only 625m². The house at No 3 Chine Place has a front setback of 7.5 metres and clear articulation of the upper floor away from the lot boundary so that the bulk and scale of the house is minimised in accordance with the R-Codes. The proposal and the bulk and scale of the existing house at No 3 Chine Place is therefore not comparable with the proposal on the subject site.
The Tribunal considers that the trees in the road reserve do serve to soften the impact of the existing house and would too the proposal. Nonetheless, these four trees also serve to highlight the considerable bulk and scale of the proposal which imposes itself on the Owston Street boundary, particularly so given its nil setback and the prevailing streetscape in the locality of Chine Place, Owston Street and Bayview Terrace. The streetscape of Owston Street proximate to the subject site is a combination of primary and secondary streets as well as a number of corner lots. Consequently, there are no uniform or consistent setbacks evident. Nonetheless, the Tribunal is of the view that the proposal, with a nil setback, would dominate the Owston Street streetscape and have a negative impact on the amenity of the locality.
It follows that the Tribunal agrees with and accepts the reasoning expressed by Mr Allerding in support of his opinion regarding the Owston Street setback and not with the reasoning expressed by Mr Cunningham in support of his opinion.
The architect, Mr Pavlo Szyjan, expressed the desire for his design to be a prominent feature or landmark in the locality. The Tribunal finds that, as the proposal would be able to be viewed along Owston Street and Bayview Terrace, in terms of its bulk and scale, the proposal would be significant in the prevailing streetscape and locality. Therefore, it follows that the Tribunal finds that the proposal is not sympathetic to the scale of the street and surrounding buildings nor would it positively contribute to the prevailing development context and streetscape.
Issue 4: Lot boundary setbacks
It was agreed by both Mr Allerding and Mr Cunningham that the lot boundary setbacks for both the ground and upper floor of the eastern side boundary and southern rear boundary of the proposal did not meet the deemed to comply provisions therefore the southern and eastern boundaries needed to be assessed under the design principles of cl 5.1.3 of the R-Codes.
Eastern boundary
Mr Cunningham was of the view that the eastern boundary complies with the design principles for lot boundary setback in cl 5.1.3 of the RCodes. Part of Mr Cunningham's reasoning relies on his assertion that the subject site is 'undersized' for the R12.5 density coding which the Tribunal has determined is not a relevant consideration in assessing a proposal under the R-Codes. Mr Cunningham is also of the view that the proposal met the design principles for lot boundary setback as the living room wall does not adjoin or adversely affect any habitable space or outdoor living area of its neighbour, No 3 Chine Place.
Mr Allerding was of the view that the eastern boundary consisting of the living room wall (setback only 1.0 metre with a length of 24 metres) and the eaves of the first floor (setback only 0.75 metres with a length of 29.75 metres commencing 4 metres forward of the northwest corner of the neighbour) would be highly visible from the neighbouring property via the upstairs ensuite as well as the passageway to the southern bedroom and study. The eaves would also be highly visible from the master bedroom and balcony as well as the external outdoor spaces at the front of the proposal. Consequently, Mr Allerding's view is that the proposal provides little relief as to bulk and scale when viewed from the neighbour's property or adjacent public open space. Mr Allerding is also of the view that the setbacks to the eastern boundary do not positively contribute to the prevailing development context, in particular in failing to reduce the impact of building bulk and scale either when viewed in isolation or in conjunction with the other proposed setbacks.
At the site view it was evident to the Tribunal that, as you moved along the verandah to the front door which is on the western boundary of No 3 Chine Place (adjacent to the eastern boundary of the proposal), the proposal's eastern parapet wall would further enclose that walkway from light and the sky in circumstances where that walkway is already quite dark. The Tribunal considers that the proposed eastern parapet wall would result in a loss of amenity to No 3 Chine Place.
Having had the benefit of a site view and considered what is proposed, the Tribunal agrees with Mr Allerding in relation to the proposed eastern lot boundary setback. The Tribunal finds that the proposed eastern boundary setback does not adequately reduce the impacts of the building bulk on the adjoining property at No 3 Chine Place and therefore does not demonstrate compliance with the design principles in cl 5.1.3 of the R-Codes.
Southern boundary
In relation to the southern boundary, Mr Cunningham is of the view that it complies with the design principles for lot boundary setback in cl 5.1.3 of the RCodes. Mr Cunningham again relies on his view that the subject site is a so called 'undersized lot' which is discussed elsewhere in these reasons. Mr Cunningham also considers that the proposed boundary wall to the rear does not affect direct sun and ventilation to the adjoining building or its open space. Mr Cunningham's views in this regard are supported by the respondent's planning officer's report provided to the Council at its ordinary meeting on 22 September 2015.
In relation to the southern boundary, Mr Allerding refers to the contrast between the lower density codes, such as R12.5 which refer to a 6 metre 'minimum' setback, and the higher density codes of R20 and above where rear setbacks are calculated for single houses by referencing wall heights and length to provide reduced setbacks. Mr Allerding's view is that this difference is to reflect a desire in the R-Codes for 'traditional' back yards and to provide separation distance of built form in the lower density codes. In his view the aerial photographs of the locality predominantly reflect this approach. Mr Allerding accepts that, in isolation, the proposed southern setback is unlikely to have any direct adverse effect on neighbouring properties. However, he is of the view that the southern setback provides a further cumulative negative effect to the bulk and scale of the proposal and that the proposal does not provide any relief of that bulk and scale when viewed from Owston Street or the neighbouring eastern property.
The Tribunal agrees with both Mr Cunningham in part and Mr Allerding in relation to the southern boundary. On its own, the proposed setback for the rear southern boundary can arguably meet the design principles in cl 5.1.3 of the R-Codes, in that the building bulk does not adversely affect the direct sun and ventilation of the adjoining eastern and southern neighbours. If the southern rear lot boundary setback was the only issue to be considered, the Tribunal finds that the proposal would be capable of being approved. However, the Tribunal also has a number of interrelated issues to consider concerning bulk and scale, and in this regard we agree with Mr Allerding, that the southern rear lot boundary setback constitutes a part of this consideration as to the cumulative effect of the proposal.
Issue 5: Visual privacy
It was agreed by both Mr Allerding and Mr Cunningham that the proposal did not meet the deemed to comply provisions for visual privacy and that the proposal needed to be assessed under the design principles of cl 5.4.1 of the R-Codes. However, there was some disagreement as to how to calculate the separation distance of the roof terrace to the eastern boundary. Mr Allerding measured the distance from the roof terrace area excluding the landscaped portion, whilst Mr Cunningham included the landscaped portion in his calculation. This relates to the disagreement between Mr Allerding and Mr Cunningham as to how to calculate the accessible and useable roof terrace component of open space. For the reasons expressed above in relation to open space, the Tribunal agrees with Mr Cunningham's calculation that includes the landscaped portion in calculating separation distances.
The witness statement of the neighbour at No 3 Chine Place, Mrs Yvonne Burns, identifies privacy concerns arising from the proposal regarding the use and enjoyment of her property, in particular the use of her front verandah as well as the kitchen and meals area.
Mr Allerding is of the view that permanent vertical screening could be erected to protect the visual privacy of the neighbour at No 3 Chine Place. However, Mr Allerding notes that, whilst this may address the privacy issue, such screening would affect the building bulk and scale thereby increasing the significance of another concern of his regarding the proposal. In relation to the front verandah, Mr Allerding was of the view that because of the location this would be expected to be heavily used and that the neighbour's privacy should be protected.
Mr Cunningham was of the view that the proposal met the design principles for visual privacy. His view was that the suggested landscaping would provide sufficient screening and permanent screening would not be required. Mr Cunningham noted that the only window of the kitchen and meals area that could be seen from the subject site was one small louvered window. Mr Cunningham relied on the planning officer's report to the Council at its ordinary meeting on 22 September 2015 which noted that screening had not been applied for as it would compromise views of the Swan River and any overlooking was oblique rather than direct. The planning officer considered that the design principles in cl 5.4.1 of the RCodes had been met. Neither the planning officer nor Mr Cunningham appear to consider the neighbour's use and enjoyment of her front verandah.
Having had the benefit of the site view, the Tribunal considers that the issue of concern in relation to visual privacy is twofold. Firstly, the proposal raises the ground level terrace 0.5 metres and the upper level terrace 0.65 metres in comparison to the existing house. Secondly, the proposal has the ground floor terrace and upper floor terrace set forward considerably more than what presently exists at the subject site. The Tribunal is of the view that these two factors impose considerably on the visual privacy of the adjoining neighbour at No 3 Chine Place and agrees with Mr Allerding's views in this regard. The Tribunal is of the view that the proposal does not demonstrate compliance with the design principles in cl 5.4.1 of the R-Codes in that it does not minimise direct overlooking of active habitable space and outdoor living area. Further, it is the view of the Tribunal that insufficient mitigation measures, in particular permanent screening devices, have been suggested by the applicant. Whilst a condition could be imposed requiring a permanent screening device, the Tribunal has the same concern as Mr Allerding, that this then would result in adding further to the issue of the proposal's building bulk and scale. Therefore, the Tribunal finds that the design principles in cl 5.4.1 have not been met in the proposal, or cannot be met by way of condition.
Issue 6: General amenity considerations
Both Mr Cunningham and Mr Allerding agreed that subclauses (i), (iii), (iv), (vi) and (viii) of cl 5.1.2 of TPS 2 are general amenity considerations that are relevant to the proposal.
In light of the reasons of the Tribunal elsewhere and the evidence presented in this matter, we do not consider that cl 5.1.2(i) and (iii) of TPS 2 are relevant to the Tribunal's decision. In relation to cl 5.1.2(vi) and (viii) of TPS 2, the amenity and privacy considerations of the neighbour at No 3 Chine Place have already been considered in these reasons and will not be repeated here.
The Tribunal notes that the proposal does not seek to disperse the building bulk into two or more separate buildings in order to minimise building bulk as referred to as an amenity consideration under cl 5.1.2(iv) of TPS 2. The Tribunal refers to its findings elsewhere in these reasons regarding its concern that the bulk and scale of the proposal is not in accordance with the design principles of the R-Codes.
Counsel for the applicant submitted that, notwithstanding a finding by the Tribunal that the proposal does not demonstrate compliance with the design principles of the R-Codes, the Tribunal has a residual discretion to approve the proposal. This is correct if only cl 67 of the Deemed Provisions is considered. A State planning policy, which the RCodes are, is something that the Tribunal must have due regard to under cl 67(c) and s 241(1)(a) of the PD Act, amongst a number of other matters, such as amenity under cl 67(n). However, TPS 2 which carries legislative force, provides in cl 5.2.1(c) that '[u]nless otherwise provided for in the Scheme, the development of land for any residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.'
Relevant to this matter, pursuant to cl 5.11 of TPS 2, Council may by absolute majority vary the provisions of TPS 2 to allow for development that does not affect the amenity of the area provided that it conforms with the general intent of TPS 2 as shown at cl 1.4 and any policy of the Council. The Tribunal stands in the shoes of the Council and retains a residual discretion to vary TPS 2 if the preconditions of cl 5.11 are met. The Tribunal would not exercise this discretion in this instance. This is because the Tribunal finds that the proposal would have a negative impact on the amenity of the locality and therefore does not warrant approval.
Issue 7: Whether the proposed development constitutes overdevelopment?
The Tribunal considers a number of features of the proposed development, such as:
a)the significantly reduced front setback to Chine Place;
b)the nil secondary setback to Owston Street;
c)the bulk and scale of the proposal which affects the amenity of No 3 Chine Place and the locality;
d)the reliance on a large roof terrace to meet the requirements for open space which results in a larger building footprint on the subject site which contributes to the bulk and scale of the proposal; and
e)even though the undercroft is not visible from the street, the three levels are of similar size and bulk with little to no articulation of the upper floor,
combined support a finding by the Tribunal that the proposal constitutes overdevelopment on the subject site.
Issues 8 and 9: Is the proposal capable and appropriate for approval and is it consistent with orderly and proper planning?
On balance, and in accordance with the reasons provided elsewhere, the Tribunal finds that the proposal is neither capable nor appropriate for approval and is therefore not consistent with orderly and proper planning.
Conclusion
The Tribunal considers that the proposal should not be approved for the reasons expressed above. In particular, the Tribunal would not approve this proposal in relation to the significantly reduced primary street setback to Chine Place, the nil setback to the secondary street of Owston Street and the overall bulk and scale of the proposal which amounts to overdevelopment at the subject site which would adversely affect the amenity of the locality.
Orders
We note that this matter arises in the Tribunal as a deemed refusal on 21 September 2015 and that the respondent considered the application at its ordinary meeting on 22 September 2015 where it refused the proposal giving its reasons. The second decision, on 22 September 2015, was either made by consent of both parties or was a decision without effect as it would then have been contrary to s 26 of the State Administrative Tribunal Act 2005 (WA). In this case, given that the second decision on 22 September 2015 was a refusal, nothing turns on which of those alternatives is correct.
Accordingly, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decisions of the respondent on both 21 and 22 September 2015 to refuse the application for development approval are affirmed.
I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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