May and Town of Victoria Park - [2008] WASAT 40

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MAY and TOWN OF VICTORIA PARK [2008] WASAT 40

MEMBER: MR J JORDAN (MEMBER)

HEARD: 28 NOVEMBER 2007

DELIVERED : 25 FEBRUARY 2008

FILE NO/S: DR 301 of 2007

BETWEEN: RONDELLE MAY
Applicant
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning - Development application - Refusal - Demolition of existing house - Development of new single storey house - Original house on site - Additions and alterations made to original house - Houses in locality - Neighbouring park on municipal heritage inventory - Streetscape - Policy on retention of original houses - Features of new house - Impact of new house

Legislation:

Heritage of Western Australia Act 1990 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374A
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 69, s 252(1), Sch 7
Residential Design Codes of Western Australia (2002), cl 3.3.2 A2(iii)
Town of Victoria Park Town Planning Scheme No 1, cl 3(1), cl 7(3), cl 21(3), cl 36(5), cl 38

Result:

The application for review is allowed
The development shown in the plans dated 14 August 2007 is approved subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr I McKellar (Acting as Agent)
Respondent: Mr R Cruickshank (Acting as Agent)

Solicitors:

Applicant: Civil Technology (Civil Engineers, Project Managers)
Respondent: Town of Victoria Park

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a refusal by the Town of Victoria Park of an application for planning consent to demolish the existing house and erect a new house at No 14 Washington Street, Victoria Park.
The Council refused the application because it considered the proposal did not comply with its Raphael Precinct plan and its Streetscape Policy, particularly the intent of retaining original houses in order to maintain existing residential character and streetscape. The Council also considered that the proposed new dwelling would not contribute positively to the character of the streetscape and so was not an appropriate replacement for the dwelling that would have to be demolished.
The Tribunal found that the dwelling on the site had been changed by alterations and additions so that it could no longer be readily identified as an original dwelling and was even beyond a "less than perfect example" of the style of dwelling it had been. The contribution the house had made to the streetscape for at least the last 20 years was not because it was in part an original dwelling, but because it had remnant and added design features common to the street and locality. The Tribunal formed the view that the proposed house would be a suitable replacement because it would include design features found in both original and contemporary housing in the locality, and would therefore be consistent with the streetscape and maintain the precinct's residential character.
The Tribunal approved the proposed development subject to conditions.

Introduction

These proceedings involve an application by Mrs Rondelle May (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town of Victoria Park (respondent or Council) to refuse development approval for the demolition of the existing single house and the development of a new single house on Lot 2 (No 14) Washington Street, corner Oswald Street, Victoria Park (site).
The Tribunal conducted a view of the site, Raphael Park and nearby streets accompanied by representatives of the parties.

Site, existing house and locality

The site is in the Raphael Precinct of the Town of Victoria Park. Within this precinct is Raphael Park, which is on the respondent's Municipal Heritage Inventory and which is bounded to the north‑east by Washington Street, to the north‑west by Armagh Street, to the south‑west by Gloucester Street and to the south‑east by Geddes Street. Raphael Park has an area of approximately 5.2 hectares with mature trees around the perimeter and grassed playing areas in the centre. The housing on the four streets overlooking the park is single residential in appearance.
The site is on the corner of Washington Street and Oswald Street opposite the northern corner of Raphael Park and is in a street block of only two lots. The other lot (No 12), to the north‑west of the site, is on the corner of Armagh Street and Washington Street. The intersection of Washington Street with Geddes Street is about 250 metres to the south‑east of the site.
The frontage of the site to Washington Street is 17.56 metres and 25.39 metres to Oswald Street with a curved truncation at the street corner. The area of the site is 680 square metres.
The house on the site (existing dwelling) has an asymmetrical frontage to Washington Street and is a mixture of parts of the original house built in 1923 and later additions and alterations. It appears that the original house included at the left‑hand side of the frontage a main front room with a gable end above and across the right side of the frontage, a front verandah extending from adjacent to the front room to a return along the Oswald Street side to French doors of a bedroom. The front door was, and still is, off the verandah adjacent to the main front room. The roof of orange terracotta tiles has a pitch of 30 degrees and extends over the verandah.
Plans attached to the applicant's Reply to Respondent's Issues, Facts and Contentions (Exhibit 4) showed approved additions and alterations to the original house, and the external features of these were apparent at the view. In 1973, the Oswald Street return of the front verandah was enclosed in non‑standard concrete bricks to create a "rumpus room" off a bedroom, with an aluminium sliding door to the side yard. A further approval in 1986 resulted in an additional room with a tiled roof at the rear, eastern corner, and an extension extending from the north‑western side around to the rear of the original house, also with a tiled roof. The plan shows that the main front room was enlarged into the addition by the removal of the side wall. The internal alterations and additions at the rear of the house included a kitchen, living area, laundry and bathroom.
Other changes identified by the parties were replacement of the front timber‑framed windows with aluminium‑framed windows, an aluminium awning over the front room window below the gable, and ceramic tiles laid on the front verandah. It was the applicant's opinion that the painted render of the existing dwelling covered original face brickwork. The existing front fence of brick piers and metal railing inserts was included as part of the 1986 application.

Planning framework

The site is zoned "Urban" under the Metropolitan Region Scheme (MRS) and "Residential R30" under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1). Single house is a "P" (permitted) use in this TPS 1 zone.
Clause 3(1) of TPS 1 states the scheme comprises:
"(a)the Scheme text;
(b)each of the precinct plans;
… [sic]
(c)each planning policy; and
(d)each council register."
Clause 36(5) of TPS 1 lists matters to which Council is to have regard when determining an application. These include:
"(a)the provisions of this Scheme and any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b)any relevant planning policy;
(c)any relevant precinct plan;
…
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship of existing buildings and surroundings of any proposed building or structure."
The site is within the area of Precinct Plan P5 – Raphael Precinct (Raphael Precinct). The following are excerpts from the statement of intent for the Raphael Precinct cited by the respondent:
"The Raphael Precinct shall remain as a residential precinct containing many fine examples of houses from past eras.
…
The retention of structurally sound original houses and healthy mature trees will be a priority in order to maintain the existing residential character and streetscapes".
Clause 7(3) of TPS 1 provides that the Residential Design Codes of Western Australia (2002) (Codes) are to be read as part of the scheme. Clause 21(3) provides that, unless otherwise provided for in TPS 1, the development of land for residential purposes shall conform to the provisions of the Codes.
The respondent has adopted Local Planning Policy – Streetscape (Streetscape Policy), last modified 13 June 2006, following the procedures set out in TPS 1. The introduction to the Streetscape Policy states:
"In accordance with clauses 2.6.1 'Local Planning Policies Consistent with Codes' and 2.6.2 'Local Planning Policies' of the [Codes], the Town of Victoria Park has adopted the following Local Planning Policy to substitute the provisions of 'Element 2 ‑ Streetscape' contained in the [Codes]."
Clause 3.2.9 ‑ Retention of Dwellings ‑ of the Streetscape Policy includes performance criteria as follows:
"P1To ensure the integrity of the built form is protected through retention of buildings of good quality, architectural character and particularly those:
…
•original places identified in the Town of Victoria Park Residential Character Study;
…
•dwellings constructed in or prior to 1945."
The Council commissioned the Town of Victoria Park Residential Character Study Final Report, 2003, Hocking Planning & Architecture (Residential Character Study). At its December 2003 meeting the Council resolved that the Residential Character Study be "received". The Executive Manager, Planning and Development Services states in a statement dated 19 December 2003 provided with the Residential Character Study that this was "rather than endorsing or adopting the report". Ms Rochelle Lavery, witness for the respondent, said in her witness statement, at [44], that the Council had since conducted workshops, and in November 2006 "[t]here was support from the Elected Members to finalise the [Residential Character Study] Review on the basis of implementing development control measures that would secure the retention of the remaining dwellings".
The respondent referred specifically to Figure 17 ‑ Existing Original Residential Fabric ‑ of the Residential Character Study. This shows both the site and the house adjoining to the north‑west, on the corner of Washington Street and Armagh Street, as an "original place".
The Residential Character Study includes in the section on terminology:
"Original ‑ the beginning of something, such as the first residential development in an area."
Clause 2.3 ‑ Physical Research ‑ Visual Survey ‑ of the Residential Character Study was drawn to the Tribunal's attention by Mr Cruickshank, particularly the comment:
"In terms of an area's character, where there is a predominant building style then that style contributes to the visual cohesiveness and character of the area. Even though buildings may have been modified, the form of the style will usually still be discernible and fit with the streetscape better than a contemporary building having an entirely different form. For this reason even the 'less than perfect' examples are included within areas identified as having a sustainable traditional character."
Clause 2.4.2 of the Residential Character Study describes residential character as follows:
"Original character is taken as the first generation of residential development that has occurred in an estate or neighbourhood. Character is determined by the residential development pattern of the initial subdivision, the residential development standards and trends of the day, the built form and style of the houses, the manner in which the houses relate to the street, street layout and the nature and quality of street plantings, and the overall ensemble of elements in both the private and public domain."
The respondent also referred to cl 38 of TPS 1, Determination of Non-Complying Applications, which commences with:
"(1)In this clause ‑
(a)an application that does not comply with a standard or requirement of this Scheme (including a standard or requirement set out in a planning policy or in the relevant Precinct Plan), where the standard or requirement does not provide for any permitted variation, is called a non‑complying application;
…
(2)Subject to subclause (3) the Council may refuse or approve a non‑complying application. "
Clause 38 then sets out that, to be approved, it needs to be concluded that the application is consistent with such matters as orderly and proper planning and conserving the amenity of the locality, with the intent of the precinct plan, and to not have an undue effect on inhabitants and property in, or the likely future development of, the locality.

Proposed development

The proposed development is the demolition of the existing dwelling and the construction of a new single storey single house (proposed dwelling). The proposed dwelling would face Washington Street and extend the length of the Oswald Street frontage, including a double garage from the rear of the house to a parapet on the rear boundary common with No 41 Oswald Street. The existing crossover from Oswald Street would be re-used. The rear boundary would include a length of retaining wall to retain the level of the site above the neighbouring lot.
The asymmetrical front elevation would include to the left of centre a bedroom at the front setback with a gable above, and to the left of that again, but set slightly further back, another bedroom under a hip of the main roof. To the right of the bedrooms would extend a shallow verandah with a return along the Oswald Street side of about 4.0 metres. A front door would open onto the verandah just off‑centre at the front of the house. The house would be face brickwork to about 1.1 metres with render above. The roofing would be zincalume with, at the front, the gable above the bedroom and another just under the ridge, and with another above one of the rooms facing Oswald Street. The eaves are shown as open with rafter ends visible. The front windows of the bedrooms scale at 900 millimetres wide by 1500 millimetres high. The other front room windows are two sets of two windows, 500 millimetres wide and 1500 millimetres high.

Council's decision

The Council refused the application at its meeting of 14 August 2007. The refusal included some eight reasons, which can be summarised as follows:
1.Noncompliance with the Raphael Precinct plan and the Streetscape Policy, particularly the intention of retaining structurally sound original houses built before 1945 in order to maintain existing character and streetscape.
2.Noncompliance with the Streetscape Policy in that the proposed dwelling would be of a design not sympathetic with the existing built form and streetscape.
3.Noncompliance with cl 38 of TPS 1 as the development would be a noncomplying development and would be inconsistent with the criteria to be satisfied if a noncomplying application is to be allowed.
4.The proposal would be cited as a precedent for the further demolition of existing character dwellings in the locality and development inconsistent with the Streetscape Policy and TPS 1.
5.The proposed garage parapet wall and retaining wall would not comply with the height requirements of the Codes.

The issues

In considering this matter, the Tribunal identified the following issues:
1.Whether the existing dwelling is required to be retained because of its attributes and its contribution to the existing residential character and the streetscape.
2.Whether, in the event that it is determined that the existing dwelling is not required to be retained, the proposed dwelling is an appropriate replacement.

Whether the existing dwelling is required to be retained because of its attributes and its contribution to the existing residential character and the streetscape

Respondent's position

Ms Rochelle Lavery, a town planner who is the Executive Manager, Sustainable Management at the Town of Victoria Park, appeared as a witness for the respondent. Ms Lavery said the planning intent of the Raphael Precinct and the Streetscape Policy, and the related Residential Character Study, was to retain original dwellings, such as on the site. This was to maintain residential character because of the contribution they made to the streetscape. The incremental loss of original dwellings would have the cumulative effect of loss of original residential fabric in conflict with this objective.
Ms Lavery said the existing dwelling appeared, to her, to be sound, with no evidence that it was not. In her opinion, while additions had been made to the existing house, most significantly in 1986, it remained typical of its era. She said there would be no objection to the unsympathetic additions being removed and the original 1923 portion of the dwelling being extended in sympathetic architectural character to provide a suitable standard of contemporary accommodation. Should the loss of original dwellings continue, there would be a loss of the reference points for design standards.
When asked what she considered to be the relevant streetscape, Ms Lavery referred to the definition in the Streetscape Policy, which states:
"Streetscape is the visual appearance of a street which includes all the area, both publicly and privately owned, lying between the building lines on the opposite sides of the street. Contributing elements include the orientation of development, the scale, proportion and shape of the built form, the siting of development, setbacks, materials, location of parking and related structures, landscaping and fences."
In Ms Lavery's interpretation, the streetscape was not just the physical features of a section of street, but also included the experience. This was explained to include Raphael Park as a whole, together with the streets around the entire perimeter. These together should be considered as the streetscape, and the existing house was an integral part of that streetscape and should be retained.
Ms Lavery acknowledged that the existing dwelling was not on the respondent's Municipal Heritage Inventory (MHI) and might not pass the threshold for cultural significance. She pointed out, however, that the six houses from No 28 to No 38 Washington Street, also opposite Raphael Park, were on the MHI, and Raphael Park itself was on the MHI. The importance of the existing house was as part of the relatively intact streetscape in Washington Street and particularly around Raphael Park.
A copy of the "Place Record Form" for the six houses on the MHI was included with Ms Lavery's witness statement, and she drew attention to the "Statement of Significance", which included the following:
"… It is considered vital to the atmosphere of the park that houses which were built around the time when the park was developed are retained … It is recommended the area be declared a precinct and that any proposed development be viewed carefully. Generally the present building stock around the park presents a fairly consistent rhythm and texture, which contribute to the harmony of the park. It should be noted that the houses on corner sites are particularly prominent when viewed from the park. The conservation, or design in the case of redevelopment, is therefore of particular importance."
Ms Lavery said the existing house was built at about the time of the development of Raphael Park and contributed to the atmosphere and harmony of the precinct. For this reason also, the existing dwelling should be retained and the redevelopment proposal refused.

Applicant's position

The applicant called as a witness Mr Ronald Bodycoat, a practising architect with expertise in conservation and heritage matters. Mr Bodycoat said that he accepted that the existing dwelling could be demolished. While it might, in part, be the original house, he did not consider it to be an example of a 1920s house because of the changes made to the building. The changes visible from the street included replacement of timber‑framed windows with aluminium‑framed windows, a modern front door, ceramic tiles on the verandah, aluminium awnings over the Washington Street windows, rendering of brickwork, paint colour, the infill of the verandah at the side of the house with non‑standard bricks, the additions to the north‑west side of the house, and a modern front fence. Mr Bodycoat also referred to the additions at the rear of the dwelling visible from Oswald Street. He said that the roof form appears original, but in his opinion, it would most likely have to be replaced because of the age of the materials. His view was that the "presentation" and the "characteristics" of the existing dwelling were not original. A problem with retaining the existing house was that it would be costly to restore all the defects.
It was Mr Bodycoat's submission that the original elements that survived in the existing house could be included in the new house to make a positive contribution to the streetscape without being a poor copy of a 1923‑style house. These included the setbacks and landscaping, the verandah, roof pitch, one or two storeys and masonry construction.
Mr Bodycoat's evidence was that the existing house could also be demolished because there had been "so much contextual change in that immediate locality". He explained this by stating that the immediate locality was what could be seen, and therefore what registered to the observer, when standing at the existing house. This might extend to about 100 metres along Washington Street, where the contribution of individual houses could be appreciated. The original houses on the MHI further along Washington Street could not be seen, nor could the houses on the other side of the park be easily seen. In his opinion, the more distant houses were in a different context and therefore not a relevant consideration.
Mr Bodycoat noted the original house next door to the site on the corner of Washington Street and Armagh Street, but went on to describe the context of the existing dwelling as including the new houses seen about 50 metres away to the north‑west at the other corners of the intersection of Washington Street and Armagh Street and the "poor replicas of Federation houses" extending to the south‑east from the opposite corner of Oswald Street. The houses in the immediate locality were not, in his opinion, of a standard to require a blanket refusal of redevelopment of the site, including the demolition of the existing dwelling.

Comment

Considering first the particular attributes of the existing dwelling, the Tribunal had no evidence before it of the structural condition. During the view, a superficial external examination revealed no visible structural problems. The view revealed to the Tribunal that the existing dwelling derived its character mostly from the roof pitch and the colour and pattern of roof tiles. Closer scrutiny revealed a house, including the alterations and additions, which appeared older than many neighbouring houses. The existing house might be identified as original in the Residential Character Study, in that it has never been completely demolished, but the view revealed the original style was not readily discernible because of the alterations and additions that have been in place for 20 years. The Tribunal formed the view that the existing dwelling was not simply a "less than perfect" example of an original house, but had become a house that could not be so readily identified with the original style that the attributes alone warranted its retention.
To be considered also is the contribution of the existing dwelling to the streetscape. The parties differed on what was the relevant streetscape. The Tribunal is of the view that the streetscape to be considered is that which can be seen and experienced by an observer in the street at a particular location. This will change as the observer moves, and particular streetscapes will overlap depending upon the observer's positioning and movement. In this instance, therefore, the Tribunal is inclined to Mr Bodycoat's submission that, when assessing the impact of the proposed development on the streetscape, regard should be had to the length of street, associated buildings and the park seen from the immediate vicinity of the development site, not the streets and houses on the other side of the park or at the far end of Washington Street.
The relevant streetscape includes, from Figure 17, the original house next door and two houses within 150 metres to the south‑east along Washington Street. The rest of the houses are the more recent redevelopments referred to by Mr Bodycoat. On the opposite side of the street are the trees bordering the park and the playing fields beyond. The Tribunal does not consider this to be an intact streetscape of houses of consistent character and age. There are, however, common design features, such as setbacks, masonry construction, roof pitch and gables. The Tribunal is of the view that the contribution of the existing dwelling to the cohesiveness of the streetscape is that it has these common features, not because it is a house that is, in part, an original structure.
Clause 3.2.9 A2.1 of the Streetscape Policy specifies the circumstances in which demolition of existing dwellings will be considered. These include, at v.:
"where the dwelling is identified as an 'original place' (excluding dwellings wholly clad in fibro cement or asbestos wall cladding) on Figure 17 of the Residential Character Study Final Report dated September 2003 but not listed in the State Register of Heritage Places or on the Town of Victoria Park Municipal Inventory, and planning approval has been obtained for the subsequent development proposed on site[.]"
As noted above, the existing dwelling has not been included on the State Register of Heritage Places or on the MHI. The respondent argued, however, that the original houses around the MHI‑listed Raphael Park should be preserved because they are mentioned as significant to the setting of the park. The houses around the park, however, including the six at the south‑east end of Washington Street on the MHI, have not been included in a "precinct" as suggested in the Place Record Form for the MHI‑listed houses, quoted by Ms Lavery.
The Tribunal has also noted that the Council has not, since the workshops of November 2006, implemented "development control measures that would secure the retention of the remaining dwellings" identified in the Residential Character Study. The June 2006 version of the Streetscape Policy includes a reference to the Residential Character Study in cl 3.2.9, but the Tribunal considers that this reference, in circumstances where the contents of the report have only been "received" by Council, places the Residential Character Study no higher than a relevant consideration. Figure 17 identifies the houses to which close attention must be paid when assessing contribution to the local character and streetscape. The integrity of the park is also a consideration when determining whether the existing dwelling is to remain and whether the proposed dwelling is an acceptable replacement.
Clause 2.3 of the Residential Character Study states that less than perfect original houses would fit the streetscape better than "a contemporary building having an entirely different form". Given the conclusion reached by the Tribunal above on the current appearance of the existing dwelling, a new dwelling that was not of an entirely different form, but included elements common to the existing dwelling and immediate streetscape, might be an acceptable "fit" for the streetscape. Demolition might then be considered as provided for in cl 3.2.9 A2.1v. of the Streetscape Policy, if the proposed dwelling were to be found to be of sufficient merit to be approved. The proposed dwelling is addressed below.

Whether the proposed dwelling would be a suitable replacement for the existing dwelling

Respondent's position

Ms Lavery noted that the proposed dwelling would contain some traditional elements such as gables, a 30 degree roof pitch, open eaves with exposed rafters, and a front verandah. She argued, however, that some elements, such as the proposed windows which were vertical but quite different in placement and style, were not a suitable replacement for the originals and, overall, the proposed dwelling would be an unsuitable replacement for the existing dwelling.
In Ms Lavery's opinion, the proposed dwelling would also not maintain the continuity of the streetscape. It would not be sympathetic to other houses in the street, having regard to wall heights, roof shapes and building form. Of concern to Ms Lavery was that the resultant bulk and scale of the proposed dwelling would dominate the street, emphasised by the roof being pitched across the whole width of the dwelling, specifically in the front elevation with the appearance of a large triangle. This, in her interpretation of the drawings, would create a larger roof form and ridge height compared to the existing house, and would be inconsistent with the rest of the streetscape. Ms Lavery referred to photographs in the s 24 bundle of contemporary dwellings in Washington Street that she considered picked up traditional elements and proportions to an acceptable degree.
Mr Cruickshank, in closing, added that the architectural character, good or otherwise, was not the determining factor. The existing dwelling made a better contribution to the streetscape than would the proposed dwelling. In addition, the existing dwelling was considered important to maintaining the integrity of Raphael Park.

Applicant's position

Mr Bodycoat referred to what he considered to be "contextual change" in the vicinity of the site. Particularly referred to were the two‑storey houses built about 100 metres away at the corner of Washington Street and Armagh Street, and the new house built opposite the site on the corner of Washington Street and Oswald Street. In his opinion, the proposed house would be consistent with the streetscape in the vicinity.
Mr Bodycoat was strongly of the view that a replacement dwelling should not be a replica of what had been on the site previously. The proposed dwelling incorporated original elements, such as masonry construction, a pitched roof, gables, single storey, and the setback from the street, and again incorporated other important elements such as the corner verandah. In his opinion, the design was a "statement for today" that respected the overall character in the vicinity, but had individuality. He considered the proposed house provided new architectural expression and would fit the character of the park.

Comment

At the hearing, the parties agreed that the respective heights of the retaining wall and the parapet wall of the garage at the rear of the site could be addressed as conditions, were the development to proceed.
The view conducted by the Tribunal revealed that the original houses around the park are a mix of styles. The houses in Washington Street on the respondent's MHI are different in style from the existing dwelling, and the original house next door to the site is different again from the others. The non‑original houses are also a mix of styles, with some in Washington Street being the copies of earlier styles referred to by Mr Bodycoat. The proposed house would not be an intrusion into a cohesive streetscape of uniform house design.
The viewing of the locality supported the submission of the applicant that some contemporary houses more than others in the streetscape incorporated the local design features identified by the parties. No evidence was produced that directly compared heights or any other dimensions of the proposed dwelling with those of the existing dwelling or neighbouring houses. The proposed dwelling appears in the elevation drawings to have a roof of sufficient hips, valleys and gables to be of more than a "large triangle". The windows are not replicas of the original style, but are generally of an appropriate vertical configuration. The Tribunal found that, while a differently designed house might be more acceptable to the respondent as a replacement for the existing dwelling, the proposed dwelling pays sufficient attention to the built form in the vicinity such that it would not damage the integrity of the setting of the park, and would in general maintain the pleasant residential atmosphere of the locality.
The Tribunal is of the view that the proposed dwelling would be an appropriate replacement for the existing dwelling in the streetscape.

Conclusion

Mr McKellar, for the applicant, made submissions in which he set out his interpretation of the relationship between s 374A of the Local Government (Miscellaneous Provisions) Act 1960 (WA), which is concerned with demolition and includes reference to the Heritage of Western Australia Act 1990 (WA), and s 69 and Sch 7 of the PD Act. Mr McKellar developed, at some length, an argument that might be summarised as, it is hoped not too succinctly, that absent any heritage listing of the house, demolition could not in general be refused, and that planning schemes could only be made for the "improvement, development and use" of land, which was not to empower local governments to absolutely prevent demolition and new development. He further argued that it was not open to the respondent to simply adopt policies to prevent demolition and redevelopment in conflict with the PD Act.
The applicant did not file legal argument in support of these submissions, and neither did the respondent in reply. In the event, the Tribunal did not consider it necessary to call for such submissions. The Tribunal was satisfied that, under the PD Act, demolition is development and requires planning approval. Any consideration of a licence for demolition under other legislation is a separate matter. The Tribunal has assumed regularity in the adoption of the Streetscape Policy and has commented above on the weight afforded the Residential Character Study.
The respondent's desired character for the Raphael Precinct is one of a visually attractive area with a pleasant atmosphere characterised by low to medium density housing. For the vicinity of MHI‑listed Raphael Park, there is also the consideration of the impact of redevelopment proposals on the integrity of the park. To assist in this objective, the Raphael Precinct plan and the Streetscape Policy emphasise the retention of original houses of good quality and architectural character, particularly built prior to 1945, even if less than perfect examples, which, in the absence of MHI listing, make a valuable contribution to local character and the streetscape.
The Tribunal has formed the view that the existing dwelling is not such a house. Extensions and additions in place for 20 years around the core of the original dwelling have resulted in a house where the original style can be imagined, but not readily discerned. Therefore, because of its current attributes, the identification on Figure 17 of the existing dwelling as an original dwelling in this instance is not, of itself, considered by the Tribunal to be sufficient to warrant its retention.
The contribution of the existing dwelling to the streetscape is considered by the Tribunal to be one of a house that includes elements common to the locality, such as the pitched roof, masonry construction, setback, open eaves and verandah, which still exist to a degree in the modified building. It has been concluded that, absent the additional factor of readily identifiable original character, a replacement house could make the same contribution to the streetscape and not detract from the setting of the park. Demolition of the existing house can only be considered, however, if such a replacement dwelling is proposed.
The Tribunal has found that the proposed dwelling includes sufficient of the elements found in the existing dwelling and common to the street, without being a slavish reproduction of houses of an earlier era. The Tribunal has also concluded that, in the local context of the streetscape not being one with a predominant building style, the proposed dwelling would not detrimentally affect the local amenity, including the integrity of the park.
To the extent that the application was for a noncomplying development and therefore subject to the provisions of cl 38 of TPS 1, the parties have agreed that the height of the retaining wall and the garage parapet wall can be the subject of conditions. If the performance standards cl 3.2.9 of the Streetscape Policy are also to be considered as standards or requirements of TPS 1, and therefore also subject to cl 38, then, as set out above, the Tribunal has assessed the proposed development and found that it would not adversely impact on the local character and amenity and can therefore be allowed.
The respondent raised concerns that any approval might establish a precedent for future nearby applications. There are in the planning instruments guidance as to what must be considered when a new dwelling is proposed. In this instance, the Tribunal has determined that the new development can be allowed. Any application for new development on other lots would have to be subject to the same considerations. The Tribunal is of the view that allowing the proposed development would, in this instance, be consistent with the orderly and proper planning of the locality and the Raphael Precinct.
The Tribunal has concluded that it is not required that the existing dwelling be retained because of its attributes or because of its particular contribution to the streetscape. It has also been found that the proposed dwelling is a suitable replacement and can make an appropriate contribution to local residential character and the streetscape.
The Tribunal has therefore determined that the proposed development can be allowed.

Conditions

As ordered by the Tribunal, the respondent provided a schedule of conditions, without prejudice to its position, which it would want imposed should the Tribunal be minded to allow the development proposal. The applicant objected to certain of the conditions which it considered to be ambulatory. The applicant also said boundary fencing and street trees were not part of the application and did not require conditions. The Tribunal notes, however, that annotations on the application sketches refer to a fence different from the brick and concrete block fence now in place.
The respondent recommended changes to the design, particularly the roof, but the Tribunal is of the view that the roof, when viewed in the elevations, includes sufficient hips, valleys and gables to create interest and reduce bulk. The Tribunal noted that other items mentioned by the respondent are identified on the plans, and any approval of the proposed development would include these items, particularly open eaves with exposed rafter ends to all elevations, and a zincalume roof. Matters that can be included as conditions are wall heights, and external material and colour selections. The variation to the window size and shape requested by the respondent is not considered necessary, as the windows in the front and side elevations applied for are not a copy of, but are generally consistent with, the style in the street.

Orders

The Tribunal makes the following orders:
1.The application for review be allowed.
2.The respondent's decision of 14 August 2007 be set aside and the development shown in the plans dated 14 August 2007 be approved subject to the following conditions:
1)The design of the proposed dwelling being modified to include a minimum visible wall height of 2.75 metres above ground level to the satisfaction of the Manager, Planning Services.
2)The height of the proposed garage boundary wall being reduced to not exceed an average height of 3.0 metres in accordance with cl 3.3.2 A2(iii) of the Codes to the satisfaction of the Manager, Planning Services.
3)The height of the proposed retaining wall being reduced along the north‑eastern boundary to not exceed a height of 500 millimetres above ground level to the satisfaction of the Manager, Planning Services.
4)Removal, lopping or pruning of any verge tree affected by the development on the subject site being subject to the written approval of the Parks Coordinator.
5)The street verge between the kerb and the property boundary to be landscaped, reticulated and maintained to the satisfaction of the Parks Coordinator.
6)This approval does not include the fencing forward of the building line. A separate planning application is to be submitted for any fence forward of the building line. Fencing forward of the building line is to be open style above a height of 600 millimetres above ground level.
7)The existing boundary fencing shall not be removed until such time as any approved new fencing is to be erected.
8)All fencing to be provided in accordance with the Dividing Fences Act 1961 (WA) and all boundary fencing behind the front building line to be a minimum of 1.8 metres and a maximum of 2.4 metres in height (or such other height agreed to in writing by the relevant adjoining landowners) at any point along the boundary, measured from the highest retained ground level.
9)Any letterbox, structure, wall or fence located within a 1.5 metre by 1.5 metre visual truncation at the intersection of any driveway and the front property boundary is not to exceed a height of 750 millimetres with the exception of:
(i)one brick pier (maximum dimensions 350 millimetres by 350 millimetres); and/or
(ii)wrought iron infill fencing.
10)During excavations, all necessary precautions are to be taken to prevent damage or collapse of any adjacent streets or adjoining properties. It is the responsibility of the applicant to liaise with adjoining owners and if necessary obtain consent prior to the carrying out of any work.
11)All driveways and car parking bays to be brick paved.
12)Existing crossovers or parts of existing crossovers that are not used as part of the development or redevelopment shall be removed, and the verge shall be reinstated to the satisfaction of the Executive Manager, Technical Services.
13)Complete details of the proposed external colours, finishes and materials to be used in the construction of the building are to be provided to the satisfaction of the Manager, Planning Services prior to the issue of a building licence.
14)External fixtures, including but not restricted to air conditioning units, satellite dishes and non‑standard television aerials, are to be located such that they are not visible from the primary street or the secondary street.
15)A zero lot gutter is to be provided for the boundary walls adjoining the common boundary with No 41 Oswald Street.
16)The surface of the boundary walls on the common boundary with No 41 Oswald Street is to be the same finish as the approved external wall finish for the remainder of the dwelling, unless otherwise approved by the Manager, Planning Services.
17)External clothes drying facilities are to be screened from view from the street or any other public place.
18)Approval is valid for a period of two years provided that the development has substantially commenced within this time.

I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER