Masiello and City of South Perth
[2007] WASAT 65
•16 MARCH 2007
MASIELLO and CITY OF SOUTH PERTH [2007] WASAT 65
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 65 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:284/2006 | 20 NOVEMBER 2006 | |
| Coram: | MR P McNAB (MEMBER) | 15/03/07 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Conditional planning approval given | ||
| B | |||
| PDF Version |
| Parties: | JOANNE MASIELLO CITY OF SOUTH PERTH |
Catchwords: | Town Planning Development approval Modern two storey house Flat or skillion roof proposed House on lot with wide frontage Design per se not in issue Unusually shaped lot Planning framework required attention to "rhythm" of focus area or precinct Suggested consistency of streetscape, scale and form not made out by respondent Significant variation in precinct area Tribunal accepting in the alternative that this modern design had intrinsic merit and did not offend planning framework standards Application of previous Tribunal decisions to this effect Ancillary concessions to R Codes design elements made out by applicant Development approved on conditions Words and phrases: "skillion roof". |
Legislation: | Building Code of Australia City of South Perth Town Planning Scheme No 6, cl 1.6, cl 7.5 General Design Guidelines for Residential Development (City of South Perth Policy P370_T) Metropolitan Regional Scheme Residential Design Codes 2002, cl 3.2.1, cl 3.2.5, cl 3.3.1 Views (City of South Perth Policy P373_T) |
Case References: | Burnett and Town of Cambridge [2006] WASAT 29 Goode v Town of Cambridge [2004] WATPAT 234 Lane v Town of Cambridge [2004] WATPAT 204 Walton and Town of Vincent [2005] WASAT 324 |
Orders | On the application heard before Member Peter McNab on 16 March 2007, it is ordered that:,1. The application for review is allowed.,2. The decision under review is set aside and in substitution for that decision will be a decision giving planning approval under TPS 6 in relation to the development proposed for No 15 Thomas Street in terms of the plans submitted to the City (serial No 11/6764) of February 2006 on the following conditions:,(a) The surface of the boundary wall on the north eastern side of the Lot shall be finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City.,(b) External clothes drying facilities shall be screened from view from the street or any other public place.,(c) The applicant shall construct a crossover between the road and the property boundary. The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within City of South Perth drawing SP30 (standard detail - cast in situ concrete vehicle crossover - domestic). The existing verge levels at the front property boundary shall not be altered.,(d) The existing crossover shall be removed and the verge and kerbing shall be reinstated to the satisfaction of the Director, Infrastructure Services.,(e) A street tree or trees will be planted by the City upon the completion of the development.,(f) Any fencing forward of the building line shall be finished to the satisfaction of the City, and shall include the following design elements:,(i) two solid wall panels parallel to the driveway and to the north east of the pool;,(ii) the first three solid wall panels from the northern corner of the front wall to 9.5 metres across the front boundary be allowed to screen the pool area and half the alfresco area; and,(iii) the maximum height of the solid infill panels to be 1.8 metres.,(g) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.,(h) Any required retaining walls along Lot boundaries shall be constructed immediately after excavation or filling has been carried out.,(i) All plumbing fittings on external walls shall be concealed from external view as required by cl 7.5(k) of Town Planning Scheme No 6.,(j) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MASIELLO and CITY OF SOUTH PERTH [2007] WASAT 65 MEMBER : MR P McNAB (MEMBER) HEARD : 20 NOVEMBER 2006 DELIVERED : 16 MARCH 2007 FILE NO/S : DR 284 of 2006 BETWEEN : JOANNE MASIELLO
- Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town Planning - Development approval - Modern two storey house - Flat or skillion roof proposed - House on lot with wide frontage - Design per se not in issue - Unusually shaped lot - Planning framework required attention to "rhythm" of focus area or precinct - Suggested consistency of streetscape, scale and form not made out by respondent - Significant variation in precinct area - Tribunal accepting in the alternative that this modern design had intrinsic merit and did not offend planning framework standards - Application of previous Tribunal decisions to this effect - Ancillary concessions to R Codes design elements made out by applicant - Development approved on conditions - Words and phrases: "skillion roof".
(Page 2)
Legislation:
Building Code of Australia
City of South Perth Town Planning Scheme No 6, cl 1.6, cl 7.5
General Design Guidelines for Residential Development (City of South Perth Policy P370_T)
Metropolitan Regional Scheme
Residential Design Codes 2002, cl 3.2.1, cl 3.2.5, cl 3.3.1
Views (City of South Perth Policy P373_T)
Result:
Application for review allowed
Conditional planning approval given
Category: B
Representation:
Counsel:
Applicant : Mr M Turnbull
Respondent : Mr S McLaughlin (Acting as Agent)
Solicitors:
Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : City of South Perth
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Goode v Town of Cambridge [2004] WATPAT 234
Lane v Town of Cambridge [2004] WATPAT 204
Walton and Town of Vincent [2005] WASAT 324
(Page 3)
Summary of Tribunal's decision
1 This review considered whether a modern two-storey single house development in South Perth was consistent with the "rhythm" (as to such matters as streetscape, bulk, form and colour) of the precinct (or "focus area") in which it was proposed to be built. This was the principal regulatory standard set out in the planning framework.
2 The respondent City of South Perth considered that there was such consistency evident in the focus area and that the proposed development, particularly with its low, flat (skillion) roof, would offend these standards of desired consistency.
3 The Tribunal, after considering the evidence, found that there was in fact no such consistency of design and scale in the focus area, at least to the extent that had been suggested. Moreover, the Tribunal was of the view that the proposed development otherwise had merit in terms of its modern, striking design. The Tribunal applied a number of previous Tribunal decisions (some of them dealing with skillion roofs) which indicated that such developments were possible or even, in some cases at least, to be encouraged.
4 The Tribunal also accepted that the applicant's expert evidence demonstrated that some concessions or variations were necessary or desirable in relation to some ancillary design elements (such as setbacks) prescribed under the Residential Design Codes 2002. This was because of the awkward shape of the Lot, its wide frontage and its position in relation to maximising solar access.
5 The Tribunal allowed the review and set aside the decision under review, going on to grant planning approval on certain conditions.
Introduction
6 This review concerns a modern two storey single house to be erected in South Perth. The essential issue in the review relates to the design compatibility of the house in relation to the existing neighbourhood and streetscape.
7 The formal description of the property is Lot 16 on Plan 1800 at No 15 Thomas Street South Perth. Lot 16 is 727 square metres and is triangular in shape. The Lot has a small truncation on the west; the
(Page 4)
- hypotenuse of the triangle is at the back of the Lot and runs parallel to Mill Point Road.
8 The applicant proposes "the construction of a two storey Single House of a contemporary design. The design incorporates a number of design features including a flat/skillion roof, feature stone/render walls, various window treatments, extensive landscaping and associated front fencing". The development is marked by stone features built into the façade and a significant glazed frontage. Four bedrooms and a double garage are proposed.
9 A skillion roof has been defined as "[a] roof with only one slope, formerly used when abutting another building, but now applied to any roof with a single slope other than a flat roof": Cowan and Smith Dictionary of Architectural and Building Technology 4th ed Spon Press, London, 2004.
10 The applicant alleges that the proposal is compliant with the majority of provisions of the Residential Design Codes 2002 (R Codes), the City of South Perth Town Planning Scheme No 6 (TPS 6) and associated written policies of the City.
11 The respondent City of South Perth (City) has refused its planning approval for the proposed development.
Issues in the review
12 The main issues, apart from general questions of orderly and proper planning and amenity, as advanced by the respondent City, are as follows:
1) whether the proposed development is in fact consistent with the R Codes and TPS 6;
2) whether, having regard to the matter specified in cl 7.5 of TPS 6 (see below), the proposal ought to be approved;
3) further, whether the proposed development satisfies a specific policy known as the General Design Guidelines for Residential Development (see below);
4) whether the proposed development in particular satisfies the requirements for setbacks, street walls and fences and boundary setbacks in the R Codes.
13 The applicant's main contentions in reply are as follows:
(Page 5)
- "3.10 It should be recognised that the proposed development will be positioned on a lot severely limited lot [sic] due to the unusual and triangle shaped boundaries. It is entirely reasonable for variations to be supported for development standards which could never be met when compared to standard rectangular shaped lots.
3.11 The proposed development complies with the majority of [the R Codes] and [TPS 6] [and its] Policy provisions. The development standard variations being sought related primarily to the limitations imposed by the lot configuration.
3.12 The basic character of Thomas Street varies substantially in terms of building height, form, spacing and character. Focussing on one building design element which is not reflected in the remainder of the street (i.e. the skillion roof) does not imply the majority of the streetscape character criteria and statutory provisions have not been achieved or cannot be supported."
The Planning Framework
14 As has been mentioned, this review is governed by TPS 6. Clause 7.5 of TPS 6 provides that regard should be had to general planning principles, for example reflected in the concept of orderly and proper planning, but TPS 6 also specifically refers to the following matters:
"(j) all aspects of design, including but not limited to, height, bulk, orientation, construction materials and general appearance; ...
(n) the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details;"
15 Also relevant is cl 1.6 of TPS 6, which provides for the following Scheme objectives:
"(2) The general objectives of the Scheme are to:
- (c) [Consider development so as to] retain the desired streetscape character and, in the older areas of the district, the existing built form character; ...
(e) Ensure community aspirations and concerns are addressed through Scheme controls; [and]
(f) Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development".
16 Of particular importance is the associated policy known as the General Design Guidelines for Residential Development (also described as Policy P370_T, formerly known as Planning Policy No P33). Hereafter, this policy will be referred to as the General Design Guidelines.
17 It will be necessary to set out at length aspects of that policy. In the Tribunal's view that policy is the principal planning instrument to which regard ought to be had for the purposes of this review. Both parties appear to have approached the review on this basis.
18 The policy objectives of the General Design Guidelines are stated as follows:
"(a) To preserve or enhance desired streetscape character, and to promote strong design compatibility between existing and proposed residential buildings.
(b) To enhance residential amenity standards generally ..."
"Definitions
Amenity means those qualities and characteristics of a site and its neighbouring area that contribute to the comfort and pleasantness of the residential environment.
Design compatibility means the extent to which a proposed residential building is visually in harmony with neighbouring existing buildings within the focus area. Primary elements contributing to design compatibility are generally scale; colour;
- form or shape; and rhythm. Secondary elements include construction materials; setbacks from the street and side boundaries; the extent and nature of site landscaping visible from the street; and architectural details.
Focus area in relation to the determination of design compatibility means the section of a street extending from one cross intersection to the next cross intersection, together with the residential properties fronting on to that section of the street.
Scale means the perceived visual magnitude of a building in relation to neighbouring existing buildings within the focus area. The perceived scale is determined by the height and bulk of the proposed building and its spatial separation from the street and adjacent buildings.
Streetscape character means the dominant visual characteristics of a residential street environment formed by the inter-relationship between the principal elements within the street reserve and the adjacent residential properties. Principal elements contributing to streetscape character include street trees (species, size and spacing); fencing visible from the street; site landscaping in front of buildings (extent and characteristics); vehicle pavement visible from the street; building setbacks; and design compatibility between neighbouring buildings within the focus area. Building design compatibility is generally the most critical element in preserving or enhancing desired streetscape character.
...
Rhythm means the maintenance of a consistent relationship and interdependence between regularly repeated design elements. The term 'rhythm' applies equally to the regular recurrence of design elements within one building, and to the maintenance of an attractive relationship between the principal design elements of consecutive buildings on adjoining lots. It is also applicable in relation to the widths of lots, as lot widths affect the widths and proportions of neighbouring buildings in the same street.
The existence of a 'regular rhythm' is a primary factor contributing to design compatibility between neighbouring buildings. A 'regular rhythm' is achieved where consecutive developments display a regularity of shapes and widths.
(Page 8)
- Critical design elements which need to demonstrate a pleasing regular rhythm include: lot widths; building widths and heights; roof shapes; and window shapes and spacing."
20 Paragraph 3 of the General Design Guidelines deals with streetscape character and provides as follows:
"3. STREETSCAPE CHARACTER
All residential development shall be designed in a manner that will preserve or enhance desired streetscape character. In order to satisfy the Council in this respect, the drawings of any proposed development are required to demonstrate design compatibility between the proposed building and the existing buildings within the focus area. In assessing the design compatibility of a proposed development, the Council will have regard to the primary and secondary contributing elements as identified in the preceding definition of the term 'designcompatibility'."
"Building bulk shall be generally distributed to ensure that a proposed building will not have an overpowering impact on neighbours and the street. Unless the Council is satisfied in this respect, approval will not be granted for any variation from the setbacks ... of the [R Codes]."
22 Paragraph 6 also contains reference to neighbours' views and provides that:
"Buildings shall be designed and located to enable the sharing of views with neighbours to the extent necessary to comply with the provisions of Council's [related planning policies]."
23 The respondent has a policy entitled Views (also described as Policy P373_T, formerly known as Planning Policy No P29). That policy, amongst other things, permits the respondent "to require [that] roof pitches … be reduced in order to protect existing views, where such a reduction would not compromise the architectural integrity of the proposed development".
(Page 9)
24 Lot 16 is zoned "Urban" under the Metropolitan Regional Scheme, and is locally zoned "Residential" under TPS 6, with a density coding of R15. The maximum building height limit for Lot 16 is 7 metres. (It was common ground that the proposed development did not exceed that height limit.)
25 Apparently the subject land is also located in the "Hurlingham Planning Precinct". It was suggested by the respondent that this part of that precinct (that is, in relation to the subject land) was characterised by a predominance of single houses on blocks ranging from around 600 to 750 square metres in area. There are, apparently, no specifically written policies relevant to this precinct.
26 It is convenient to highlight at this point that the planning framework strongly emphasises that a key objective and criterion for assessment is the maintenance of consistent patterns of the built form and streetscape in the precinct.
27 Finally, mention needs to be made of certain provisions of the R Codes. It is unnecessary to set them out in full, but the Tribunal has had regard to cl 3.2.5 ("Street Walls and Fences") P5 and A5; the explanatory notes on pages 49-51; cl 3.2.1 ("Set Back of Buildings Generally") P1; and cl 3.3.1 ("Building Set Back from the Boundary") P1 and A1.
Procedural history of the application
28 The original application was made to the respondent on 17 February 2006 and was finally refused by the respondent on 25 July 2006. The principal reasons for refusal were, as has already been indicated, failure to comply with the GeneralDesignGuidelines and failure to meet certain elements to do with street walls, fences and boundary setbacks relevant to the standards prescribed in the R codes.
29 The respondent's officers assessed the proposal against the General Design Guidelines and concluded that the relevant focus area (see the definition above) was "the length of Thomas Street from Pepper Street to Weston Avenue". (Both Pepper Street and Weston Avenue intersect with Mill Point Road and Thomas Street runs at a 45 degree angle off Pepper Street, just off Mill Point Road.) The officers assessed some 14 houses on Thomas Street as being within the "focus area".
30 The officers' summary of the focus area was that it was comprised mainly of single houses, with old housing in predominantly a single storey
(Page 10)
- form, but with some newer housing and recent additions to older housing. The roof form was mainly pitched and there was, as to roofing surfaces, some 50% breakdown between tiles and metal colourbond/zincalume. The fencing style was described as "open, [and] visually permeable above 1.2 metres".
31 The officers below concluded that:
"The proposal is not in keeping with the dominant characteristics of the focus area in terms of its flat roof design, front solid wall and use of large sections of glass across the front elevation of the house. The form and shape of the proposed single house differs markedly from existing houses within the focus area, as it displays predominantly square and flat elements within its design. Existing dwellings have quite different characteristics due to the incorporation of verandahs, angled awnings and pitched roofs within their design. As a result of the wall height, flat roof design and square elements of the proposed single house, the perceived magnitude of the building is significantly greater than that of other existing dwellings within the focus area."
32 The officers also thought that there were problems with the setbacks, as a 6 metre rear setback was prescribed for R15 density coded properties and the setback for the proposed development was 1 metre at its closest point. On fencing, the officers concluded that a portion of the proposed front brick wall, being solid at a height of 1.8 metres from natural ground level, did not comply with the R Codes as front walls and fences within the primary setback area had to be visually permeable at 1.2 metres about natural ground level.
33 The proposal was considered by the City's design advisory consultants in March and again in June 2006. On both occasions, the advisory architects' comments were that the proposed development did not demonstrate compatibility with the dominant streetscape character. There is no information in the papers identifying the persons who comprised the design advisory consultants' committee.
34 The respondent tendered a set of colour photographs of neighbouring properties in the "focus area", photographs which also appear to have formed part of the officers' report. Both parties subsequently relied upon those photographs. In addition, it is convenient to mention at this point that, during the hearing, the Tribunal was assisted with a brief inspection
(Page 11)
- on site in the presence of the parties. That view extended to a brief inspection of the neighbouring properties to assist the Tribunal to understand the arguments of the parties concerning the patterns of the built form and streetscape in the precinct.
35 The matter came to the State Administrative Tribunal in late August 2006. After a directions hearing, mediation was attempted in October 2006. The matter was heard in November 2006, with the final document in the case received from the parties in late November 2006.
The respondent's case
36 The respondent called Councillor Anthony Cala, who had been a member of Council since 1995, and had been closely involved with the development of TPS 6 and was "conversant with the expectations of the City's residents with regard to the objectives" of TPS 6 and its associated policies. Councillor Cala is also an experienced architect.
37 In his witness statement, Councillor Cala told the Tribunal that:
"[T]he architectural merits and qualities of the proposed development are not in question. Though design can be considered a subjective matter, the Design Advisory Consultants in there [sic] deliberations gave support to its design in isolation, as I do personally. However in the context of the site, it is at considerable variance with the provisions of the City of South Perth Town Planning Scheme No 6, its Policy P370_T and the Residential Design Codes in regard to:
i. Visual harmony with the neighbouring existing buildings within the focus area.
ii. Streetscape character
iii. Front and rear setbacks
iv. The provision of large sections of 1.8 metres high solid fencing along the front property boundary."
38 Councillor Cala goes on to suggest that given the triangular nature of the site, there would be great difficulty in designing a home of the size proposed, leading to significant compromises with respect to the front and rear setbacks. He said:
(Page 12)
- "Given the flat roof, large expanses of glazing and strong vertical stone elements, I could see no attempt to harmonise with the character of the neighbouring houses in the focus area, which have strong traditional roof forms and wall elements."
39 Councillor Cala also drew attention to the need created by the proposed design for the front of the house to be used for significant outdoor living. He suggested that, in doing so, the streetscape character was,
"further compromised. In order to achieve the privacy that a resident would normally have in a rear yard, the applicant is proposing a solid 1.8 metre high fence. This is not compatible with the dominant fencing and character of Thomas Street, which is a local road."
40 In cross-examination, Councillor Cala agreed that the subject land was "an unusual site", as regards its shape. He also noted that the neighbouring property currently being built (to the east) was "bulky" but had a "traditional triangular roof" form in keeping with the rest of the street. He conceded that the "extreme" amount of glass in the property might in fact break up bulk and scale. He said that the Council was only concerned with the broad, general character of the area, properly conceding that their concern was not to necessarily reproduce "past styles".
41 The respondent called Mr Christian Buttle, who is the Team Leader, Planning Services of the respondent. Consistent with the evidence referred to above, Mr Buttle said:
"The proposed development relates to a two storey Single House. The design of the dwelling does not incorporate features that are characteristic of other dwellings within the focus area by virtue of design elements such as:
(i) flat roof design;
(ii) solid front wall;
(iii) large sections of glass across the front elevation of the dwelling;
(iv) non-provision of a rear setback;
(Page 13)
- (v) location of outdoor areas appurtenant to the dwelling within the primary street setback area;
(vi) small setbacks from the street alignment."
42 Mr Buttle told the Tribunal that his general opinion was that:
"The proposal is not in keeping with the dominant characteristics of the focus area in terms of its flat roof design, front solid wall and use of large sections of glass across the front elevation of the house. The form and shape of the proposed single house differs markedly from existing houses within the focus area, as it displays predominantly square and flat elements within its design. Existing dwellings have quite different characteristics due to the incorporation of verandahs, angled awnings and pitched roofs within their design. As a result of the wall height, flat roof design and square elements of the proposed single house, the perceived magnitude of the building is significantly greater than that of other existing dwellings within the focus area."
43 In coming to this opinion, Mr Buttle was making observations in relation to the various issues of design compatibility and consistency of streetscape and form. That is apparent from the extracts from the planning instruments referred to above (see under "Planning Framework").
44 Mr Buttle also reiterated the points that have already been made concerning the proposed development's occupation of the setback areas. He said:
"[T]he siting of a building structure with a 2.0 metre setback from the property boundary is not characteristic of building setbacks within the street and does not contribute to the desired streetscape. Thomas Street is characterised by open front gardens and generous building setbacks from the street alignment."
45 He further suggested that the design of the proposed dwelling was somewhat "confused" as it attempted to "develop the front setback area in a way that is characteristic of a rear setback area". He submitted that the front setback area of the proposed development was intended to be developed with features that would "ordinarily be found to the rear of a dwelling, including [a] below ground pool and alfresco area accessed
(Page 14)
- directly from a family room". In relation to the minimum rear setback of 6 metres prescribed under the R codes, Mr Buttle said:
"In the case of dwellings at density codes of R15 and lower, the prescribed rear setback serves the same function as the minimum 'Outdoor Living Area' requirement prescribed for dwellings at density codes of R20 and above - that is, an area for private recreation appurtenant to the dwelling that is situated in an area other than within the designated front setback area."
47 This is a matter that the Tribunal will return to below.
Applicant's case
48 Mr Gary Masiello is, with his wife (who is the applicant), the co-owner of No 15 Thomas Street South Perth. Mr Masiello told the Tribunal that the proposed development had been "designed to maximise the limited potential of the lot". According to Mr Masiello, the subject land has "severe limitations for development due to the triangular shape and wide street frontage". Mr Masiello submitted in his witness statement that to build a house on the Lot "require[d] the building to be constructed across the width of the lot tapering into the rear eastern corner".
49 Mr Masiello continued as follows:
"9 As a result, the width of the house is substantial which requires a large roof over two storeys with varying angles and corners. In response to these limitations, a skillion roof is the most appropriate roof form for the building and lot.
10 The [sic] build a pitched or gabled roof across the entire building would be technically difficult not only in
- designing all the ridges and gullies but would add a significant amount of bulk to the overall building given the height of the roof that would be required.
- 11 One of the considerations I had for the roof design was not wanting to affect the views of the neighbouring properties to the rear of the lot along Mill Point Road. Proposing a skillion roof has the benefit and [sic] reducing the overall bulk of the house and allowing for views to be maintained for my neighbours.
12 I also felt that the design of the house and roof was not incompatible with the remainder of the street given the various eras of house design, the different roof styles and the mix of original single storey houses, new two storey house and combinations of both. For example I did not consider that a single storey 'Tuscan' style say at No.4 Thomas Street was similar to No.14 Thomas Street being a contemporary two-storey house."
50 In concluding his evidence, Mr Masiello drew attention to the design of the proposed house as integrating a number of design principles on a "difficult lot". The design principles to which he referred included the front of the Lot facing northwest; the living areas of the house facing north for solar access; and adjusting the design so that the "backyard" would be best located in the "awkward corner" of the block, that is the western corner.
51 Mr Matthew Turnbull represented the applicant in the review and gave evidence for the applicant. Mr Turnbull is an experienced town planner with the firm of Greg Rowe and Associates.
52 Mr Turnbull said that, in his view, the proposed development met the majority of the primary elements contributing to the issue of design compatibility, namely "scale; colour; form or shape; and rhythm". His witness statement continued as follows:
"18 The proposed height of two storeys is compatible in scale with seven (7) two storey dwellings on Thomas Street.
19 The proposed front facade colour of cream/beige render will be compatible with the predominant colours of dwellings on Thomas Street which is generally cream/beige/light coloured bricks/render.
(Page 16)
- 20 With the exception of the roof design, the form is consistent with the other modern two storey dwellings located in the street. It is important to note however that although the other dwellings on Thomas Street have pitched roofs, there is a wide variety of roof pitch angles, roof colours and materials and eaves/no eaves which does not result in a consistent roof form for the street. Furthermore, there [sic] a large variety of housing styles, construction eras, renovations and new housing which contributes further to Thomas Street not having a unified roof form. Furthermore, there is little consistency with the single storey houses at Nos. 2,4,6 and 16 Thomas Street and two-storey houses at Nos.8, 10, 14 and 17 Thomas Street and 266 Mill Point Road. This is due to different eras of development and renovation.
21 The contribution of the proposed dwelling to the rhythm of the street is difficult to meet when looking at the configuration of the lot. The triangular lot has a very wide frontage of 42 metres, is adjacent to a two storey dwelling to the east and 'rear' fences from properties fronting Mill Point Road to the west. These combined elements by default break up the rhythm of the street without any further contribution of a dwelling on the appeal lot. The proposed dwelling contributes to improving the rhythm of this portion of Thomas Street due to the width of the dwelling and the second storey tapering up from the wider ground floor."
53 On the question of roof design and height, Mr Turnbull said that the development application proposed a low scale flat roof which complied with the respondent's height restrictions and did not obstruct views enjoyed by adjoining rear properties along Mill Point Road towards the Swan River. He noted that there had been no objections from adjoining landowners on the record. (It transpired that the respondent did not, for various reasons that it is unnecessary to go into, consult with affected neighbours, except as to one boundary wall.)
54 He affirmed the evidence of his client, Mr Masiello, expressing the view that the design, which maximised solar access to the north, was consistent with Council policies and other planning instruments, including the R Codes and the Building Code of Australia. Mr Turnbull went on:
(Page 17)
- "28 Furthermore, the proposed dwelling faces north, to not only orientate all living and family activity areas for maximum solar efficiency, but to also be designed around a young families [sic] concerns of having total visual supervision of the pool area within the main family area of the residence, with also creating an area on the right side for children [sic] play activities well away from pool area."
55 Mr Turnbull submitted that there were adjacent properties at No 7 Thomas Street and 266 Mill Point Road (that is, on the corner of Thomas and Pepper Street to the southwest of the subject land) which "have extensive amounts of two storey windows facing Thomas Street which are similar in style to the proposal". Mr Turnbull further submitted that "five (5) properties on Thomas Street have either solid or fully screened front fences which do not allow any significant visibility to the front windows", indicating that the proposed front window glazing was "consistent with other properties along Thomas Street". In cross-examination he made the point that viewed from street level the impact of the glazed area would be less than appears on the plan's elevations.
56 Mr Turnbull expressed his opinion in relation to the relevant performance criteria in the R Codes which has been set out above. He said:
"32 In consideration of the [R Codes] Performance Criteria and advice notes, the proposed solid front fence within the front setback area meets the criteria. As previously stated, the irregular shape lot restricts the building envelope of the dwelling and requires the building to built [sic] across the width of the block. Furthermore, the important aspect of maintaining sufficient solar access to the north is critical in contemporary building design.
33 The combination of these criteria means that good dwelling design will require all main living area inside and outside to be located to the north. As such the proposed design of the dwelling reflects this orientation towards the north.
34 As noted in the [R Codes], concessions should be granted when the only available living areas facing north are within the front setback area. Furthermore, the front
- fence is proposed as combination of solid and open infill wall with extensive landscaping. It should be noted that the solid portion of the front fence constitutes only 45% of the total width of the lot."
57 Finally, Mr Turnbull attempted to demonstrate, through the expression of his opinion, that the proposed development met the performance criteria in the R Codes in relation to set backs from the boundary. Mr Turnbull said that setting the proposed development as far south to the corner of the Lot as was possible, maximised solar access to the main living areas inside and outside the proposed dwelling. He emphasised that the smaller second storey and flat roof ameliorated the building bulk in relation to adjoining properties. In the alternative, Mr Turnbull argued that a standard rear setback could not be applied to a triangular shaped Lot, especially one here with the southern boundary of 52 metres in length.
58 Mr Turnbull was not subjected to any relevant or substantial cross-examination by the respondent's counsel as regards his expressions of opinion on matters of performance-based assessment under the R Codes.
Discussion of the Case
59 In the circumstances, the Tribunal is inclined to accept the evidence of Mr Turnbull insofar as he attempts to demonstrate a performance-based assessment in relation to the interrelated questions of the front fencing, the front setback and the rear setback, having regard to the design and intent of the development. The Tribunal has previously held that the irregular or awkward shape of a Lot needs to be taken into account in the consideration of relevant concessions: cf, for example, Burnett and Town of Cambridge [2006] WASAT 29. Further, as the Tribunal noted in Walton and Town of Vincent [2005] WASAT 324, at [17]:
"The [local] policy, consistent with the [R Codes], recognises that compromises might need to be made in some cases where privacy is required for outdoor living areas in the front setback where no alternative exists. The subject land [in that review] does have an outdoor living area in the front setback area."
60 Moreover, Mr Buttle, with respect to him, did not materially address matters such as the unusual shape of the Lot, solar access and the northward facing of the Lot in his witness statement, nor were these matters led from him. They were touched upon in the cross-examination
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- of him but nothing that was said there persuades the Tribunal that Mr Turnbull's opinions are incorrect.
61 Accordingly, this leaves the critical issue for determination, namely, whether the scale, colour, form or shape and rhythm of the proposal in its local context is sufficient to the meet the standards of desired consistency principally to be found in the General Design Guidelines.
62 In the Tribunal's view, the proposed development meets those standards, so far as they are in fact applicable here. Moreover, the proposed development has stand alone merit. The reasons why this is so may be shortly stated.
63 First, as the colour photographs demonstrate (and an inspection confirms) the "focus area" has, in fact, a wide diversity of architectural styles and designs. Paragraph 20 of Mr Turnbull's witness statement, reproduced above, may be accepted as an accurate summary of the situation as regards roofs, roof pitches and styles in Thomas Street.
64 Secondly, as a consequence, it is difficult to establish with any precision a "regular rhythm" for the street, except perhaps there being an indication of a precinct mixture of, for the most part, attempts at high quality design (where traditional smaller houses have been redeveloped), with several of these on the "bulkier" side. Moreover, the width of the local Lots' "rhythm", if there be any, is broken by the width of the subject land.
65 Thirdly, there is the immediately neighbouring property to the East (No 17). This development is, as Councillor Cala noted, a very "bulky" two-storey building. The proposed development under review here would not look, in the Tribunal's view, necessarily inconsistent with that building (apart, perhaps, from its modern skillion roof) or, for that matter, No 266 Mill Point Road (three doors to the West of the subject land), which because of its dual street frontage design appears to front on to Thomas Street. That two-storey building is of considerable bulk and scale.
66 Fourthly, there is something to be said in any event for the striking, modern design of the proposed development and its low pitched roof. It has been observed in Planning & Environment Victoria (Butterworths Looseleaf Service) at [1.30.10] that:
"The [Victorian] tribunal [has] held that although a proposed building was out of character with surrounding buildings it was
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- a 'good example of current architectural design which has its own inherent merit'. As such it could constitute a good precedent for future development: Metier III Pty Ltd v City of Kew (P88/1733, noted (1989) 2 AATR 1)."
67 Finally, as Lane v Town of Cambridge [2004] WATPAT 204 demonstrates, even in a precinct where "the traditional style is of hipped or gabled roofs with a pitch of 30º-40º", sufficient justification can be made out for the approval of a skillion roof. After discussing Lane, the Tribunal in Goode v Town of Cambridge [2004] WATPAT 234 said, at [36]-[37]:
"While expressing a preference to have some design elements included, such as pitched roofs, the Respondent [Council] must recognise and accept that not every development must replicate or be the same or even look the same as all other developments within the street. The same view is expressed by the Tribunal in McDonald v Town of East Fremantle [2002] WATPAT 26 and reiterated in Gishubl v City of Subiaco [2003] WATPAT 61.
The Tribunal has also previously pointed out in Moullin v Town of Cottesloe [2002] WATPAT 23 that there is no obligation that a new development should in all respect [sic] comply with and be limited to the design of a previous era."
Conditions
68 The parties exchanged draft conditions and they were in substantial agreement except as to the fencing or walls forward of the building line (condition 6). The respondent suggested this condition:
"6. Any fencing forward of the building line shall not be of fibre-cement sheet construction, and shall not exceed 1.2 metres in height unless otherwise approved by the City. Any fencing forward of the building line and over 1.2 metres in height shall be visually permeable."
69 The applicant suggested the following alternative:
"• two solid wall panels parallel to the driveway and to the north-east of the pool; and
• the first three solid wall panels from the northern corner of the front wall to 9.5 metres across the front boundary
- be allowed to screen the pool area and half the alfresco area.
- • The maximum height of the solid infill panels to be 1.8 metres."
70 In the Tribunal's view, the City should have a say in the finish of the front wall/fence but in the circumstances a partial maximum height of 1.8 metres is acceptable having regard to considerations of privacy. The R Codes, on page 49, provide guidance on the point as follows (emphasis added):
"It is appropriate to design front fences and walls to ensure that a clear view exists between the building - particularly its main entry - and the street. Fences higher than 1.2m should be 'visually permeable', the meaning of which is provided in the Definitions. This principle of visual permeability applies to all forms of street, including communal streets. The exceptions to this principle are where a dwelling fronts onto an arterial road carrying high traffic volumes, or where protection is needed from headlight glare from such a road or, more rarely, where a wall is desirable to provide privacy to an outdoor living area. In these circumstances a solid wall of up to 1.8m high would be acceptable - at least for a proportion of the frontage - upon approval of the Council. Performance Criteria have been provided to guide the circumstances where a Council should grant such approval."
71 The final conditions will be as they appear immediately set out below.
Conclusions and orders
72 For the reasons given above, the review will be allowed and conditional planning approval will be given in accordance with the following orders:
1. The application for review is allowed.
2. The decision under review is set aside and in substitution for that decision will be a decision giving planning approval under TPS 6 in relation to the development proposed for No 15 Thomas Street in terms of the plans
- submitted to the City (serial No 11/6764) of February 2006 on the following conditions:
- a) The surface of the boundary wall on the north eastern side of the Lot shall be finished to the satisfaction of the adjoining neighbour or in the case of a dispute, to the satisfaction of the City.
b) External clothes drying facilities shall be screened from view from the street or any other public place.
c) The applicant shall construct a crossover between the road and the property boundary. The crossover shall be constructed in accordance with the approved drawings, associated conditions and the requirements contained within City of South Perth drawing SP30 (standard detail - cast in situ concrete vehicle crossover - domestic). The existing verge levels at the front property boundary shall not be altered.
d) The existing crossover shall be removed and the verge and kerbing shall be reinstated to the satisfaction of the Director, Infrastructure Services.
e) A street tree or trees will be planted by the City upon the completion of the development.
f) Any fencing forward of the building line shall be finished to the satisfaction of the City, and shall include the following design elements:
(i) two solid wall panels parallel to the driveway and to the north-east of the pool;
(ii) the first three solid wall panels from the northern corner of the front wall to 9.5 metres across the front boundary be allowed to screen the pool area and half the alfresco area; and
- (iii) the maximum height of the solid infill panels to be 1.8 metres.
- g) Any required filling or excavation of the site shall be retained by embankments or walls, details of which are to be incorporated in the working drawings submitted in support of a building licence application.
h) Any required retaining walls along Lot boundaries shall be constructed immediately after excavation or filling has been carried out.
i) All plumbing fittings on external walls shall be concealed from external view as required by cl 7.5(k) of Town Planning Scheme No 6.
j) The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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