Merendino and Town Of East Fremantle
[2005] WASAT 277
•13 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MERENDINO and TOWN OF EAST FREMANTLE [2005] WASAT 277
MEMBER: MR J JORDAN (MEMBER)
HEARD: 7 JULY AND 15 JULY 2005
DELIVERED : 13 OCTOBER 2005
FILE NO/S: DR 433 of 2005
BETWEEN: TERRY MERENDINO
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Development application Refusal Two storey house Narrow lot Side setbacks Parapet walls on both side boundaries Residential Design Codes Council policy Effect of height, bulk and appearance Streetscape Amenity
Legislation:
Residential Design Codes of Western Australia 2002
Town Planning and Development Act 1928 (WA)
Result:
The application is refused
Category: B
Representation:
Counsel:
Applicant: Mr Peter Goff
Respondent: Mr David Nicholson
Solicitors:
Applicant: As Agent
Respondent: McLeods
Case(s) referred to in decision(s):
Tangelo Design Consultants and the Town of Vincent [2005] WASAT 67
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Number 39 Fortescue Street, East Fremantle is a vacant residential zoned lot of 1012 square metres. The lot has a density coding of R12.5, but in 2003, when the density coding was R20, the owner, Mr Merendino, obtained an approval from the Western Australian Planning Commission to subdivide the lot into two survey strata lots of equal area, each with a frontage of 10.06 metres to Fortescue Street. The subdivision has not yet been carried out.
Earlier this year, Mr Merendino applied for planning approval for a two storey house on what was described as No 39B. The house is 10 metres wide. It would have a garage on the northern side boundary and sections of two storey wall on the south side which would become parapet walls on the boundary if the subdivision were completed.
The Council refused to grant planning approval because it considered the proposed house would not comply with the provisions of its Town Planning Scheme No 3 inclusive of the RCodes and the design would not be in keeping with the streetscape of largely interwar single storey housing.
Mr Merendino's planning consultant argued that the proposed development complies with height and front setback requirements of the RCodes and that the Council has no planning controls in place that specify house style or designs for this locality. In support of the garage on the northern boundary, the consultant refers to the Council's Local Planning Policy Residential Development that allows for a zero setback to one side boundary. The applicant also argues that the southern wall is 10 metres from the current southern boundary, but even if the subdivision were to proceed, a zero setback on that boundary should be allowed because other lots in the locality are developed boundary to boundary. In addition, the consultant argues that this house and a house built on No 39A on the common boundary would together result in an overall development similar in appearance to the neighbouring houses on 20 metre wide lots.
The Tribunal has found from the evidence presented that the particular design of the house can be supported, as can the nil setback to the garage on the northern boundary. The Tribunal has not been able to support, however, either the proposed nil setback to the southern boundary, as it is in conflict with the planning controls and the Council's policy, or the front setback which is less than that of its neighbours.
The Tribunal has therefore decided to refuse the application.
Application
This is an application by Mr Terry Merendino (applicant) against the refusal by the Town of East Fremantle (respondent) to grant planning consent for the proposed development of a two storey single house at No 39B (Lot 121) Fortescue Street, East Fremantle.
Subject land
Lot 121 (subject land) has an area of 1012 square metres with a frontage of 20.12 metres to Fortescue Street at the eastern end. There is no development on the land, the existing house having been demolished in 2004.
On 30 April 2003, the Western Australian Planning Commission granted separate approvals for two different forms of survey strata subdivisions for the subject land. Reference 9503 was an approval for two survey strata lots each with a frontage of 10.06 metres to Fortescue Street and an area of 505 square metres. Reference 9603 was for two survey strata lots, one with a frontage of 15.42 metres and an area of 501 square metres and the other a battleaxe lot with a 4.7 metre wide access leg and an area of 511 square metres. Neither approval has been effected and each expires in April 2006.
Proposed development
Proposed is a new two storey house 10.045 metres wide. The garage has a 7.7 metre long single storey parapet wall on the northern boundary. The remainder of the northern wall at ground and first floor level, including above the garage, is set back between 1.0 metre and 2.5 metres. The southern wall of the house would have two sections, 7.960 metres long and 5.68 metres long, as a two storey parapet on the approved subdivision boundary, were the subdivision reference 9503 to be effected. Those walls are otherwise 10.07 metres from the southern boundary of the original Lot 121.
The front setback of the proposed house would be 7.50 metres to a 6.48 metre wide garage with a balcony off a bedroom above. An adjacent portico at the front door with house above is set back a further 2.5 metres from the street.
The development application before the Tribunal does not include any proposed development for the southern half of the subject land.
Planning framework
The subject land is zoned "Urban" Under the Metropolitan Region Scheme. It is zoned "Residential" in the Town of East Fremantle Town Planning Scheme No 3 (TPS 3). At the time of the subdivision approvals the subject land and neighbouring lots were coded R20, but TPS 3 has been amended and the density coding is R12.5.
Under TPS 3 at cl 10.2, relevant considerations include:
"(j)The compatibility of a use or development with its setting;
(o)Preservation of the amenity of the locality;
(p)The relationship of the proposal to development on adjoining land or on other land in the locality including, but limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
(z)Any relevant submissions received on the application."
TPS 3 incorporates the Residential Design Codes of Western Australia 2002 (Codes) by reference. In Table 1 of the Codes, the front setback required is 7.5 metres.
Under the Codes at cl 3.3.2 Buildings on Boundary the Performance Criteria state:
"P2Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development; and
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted."
Also under the boundary setback requirements under the heading "acceptable development" it states at A2:
"Except where otherwise provided for in an adopted local planning policy, walls built up to a boundary behind the front setback line within the following limits, subject to the overshadowing provisions of Element 9:
(i)where the wall abuts an existing or simultaneously constructed wall of similar or greater dimension;"
The Codes set out at 3.7.1 Building Height under Acceptable Development state that:
"Except where otherwise provided for in an adopted Local Planning Policy development that complies with the following is deemed to meet the relevant Performance Criteria."
There then follows at A1.1 Table 3 Maximum Building Heights Area for Category B, which applies to the subject land, the following maximum heights:
Top of external wall roof above 6.0 metres
Top of pitched roof 9.0 metres.
The respondent has adopted "Local Planning Policy Residential Development" (Policy). Under the heading "objective" are included:
"1.To retain and maintain the vertical scale and character of residential dwellings and ensure the height of buildings are consistent with the locality/precinct.
2.To specify the proximity of buildings to boundaries, in order to retain the character and amenity of the existing streetscape and residential areas."
Under Part 1 Maximum Building Heights of the Policy it states:
"(i)The general intention is for buildings to retain the predominant bulk and scale of the locality/precinct;
(ii)Category 'B' provisions as set out within Table 3 Maximum Building heights of the Residential Design Codes are applicable as the 'Acceptable Development standards … ."
Under the heading Part 2 Streetscape of the Policy it states:
"(i)Buildings are to be set back such distance as is generally consistent with the building setback on adjoining land and in the immediate locality.
(ii)The following street setbacks apply also to any upper storey:
(a)primary street minimum setback as prescribed by the Residential Design Codes Table 1 general site requirements, column 8;
Under Part 3 Side and Rear Boundary Setback Variations it states:
"A wall may be situated closer to an adjoining residential boundary than the standards prescribed in Tables 1, 2A or 2B of the Residential Design Codes where the following are observed:
(a)walls not higher than 3 metres and no longer than 9m in length on one side boundary; and
(b)walls are behind the main dwelling; and
(c)subject to the overshadow provisions of the Residential Design Codes Element 9; and
(d)in the opinion of the Council, the wall would be consistent with the character of development in the immediate locality and not adversely affect the amenity of adjoining property(s) having regard for views; and
(e)having regard to the above, where the wall abuts an existing or simultaneously constructed wall of similar or greater dimensions."
The refusal
The respondent refused to grant planning approval for the proposed development:
" … due to noncompliance with the provisions of Town Planning Scheme 3 inclusive of the RCodes and the fact that the design is considered to be not in keeping with the established streetscape of the area."
Discussion
The respondent argues that the proposed development is not in sympathy with the Fortescue Street streetscape and architectural character of the locality. This, it is argued, is a result of the bulk and scale of the proposed development, which is a result of the cumulative effect of the design and reduced seatbacks. In support of this position it called as witnesses Mayor James O'Neill and two residents of the street, Mr Jeff McDonald and Ms Sophie Yesberg.
These three witnesses all submitted that, although they are not opposed to all two storey dwellings, the locality is predominantly single storey with any two storey dwellings being located on rear battle axe lots or in the vicinity of Canning Highway and in this instance the height will exceed the height of neighbouring residences.
Ms Lisa Goff, a planning consultant who appeared as a witness for the applicant, pointed out that the height of the proposed development is within the maximum stipulated in the Codes with a wall height of 5.6 metres, where 6.0 metres is the maximum and a ridge height of 8.0 metres where the maximum is 9.0 metres.
In this regard, Mayor O'Neill and Mr McDonald said it is not just the ridge height alone that determines bulk and scale, but the positioning of that bulk relative to the subject lot and the neighbours. In their view, the height would be out of proportion to other houses in the street because the proposed second storey extends to the front setback, unlike other two storey dwellings in the locality where the second storey is more significantly set back behind the main building line.
The respondent also refers to comments in its 1995 Municipal Inventory on the Woodside locality, particularly reference to houses of the interwar period that give the locality a particular character. The respondent says it is not its contention that development should conform to or mimic that style but should be less confronting and more sympathetic to the character of the local area. The applicant points out and the respondent concedes that the respondent does not yet have specific planning controls to define architectural styles or designs acceptable to this locality.
The respondent refers to cl 10.2(p) of TPS 3 under which it is required to consider the relationship of the appearance of a proposed development to the development on adjoining land and in this regard considers the development to be unsympathetic with the streetscape. Ms Goff made reference to more contemporary dwellings in the locality and the service buildings on the rear of the Woodside hospital which front Fortescue Street some six lots to the north as support for the comment in the inventory about a diversity of architectural expression.
The respondent and its witnesses, in commenting on the impact of the proposed development, also tie the height and appearance of the house to the setback of the house from the front boundary. Houses in the street are said to be generally set back about 10.0 metres. Having the particular design of house set back at less distance, it is argued, will have an adverse effect on the amenity of the neighbours and on the streetscape. Ms Goff points out that the front setback complies with the Codes.
On side boundary setbacks, the respondent said that, while the Codes do not allow for walls to be situated on boundaries of lots coded R 12.5, the respondent's Policy allows for one such wall on a side boundary whereas the present development proposes two.
For the northern side boundary setback, the applicant argues that the garage wall on the boundary can be approved because, with a height of 3.0 metres and a length of 9.0 metres, it complies with the Policy and garages on boundaries are commonplace in this locality.
For the southern setback, one submission by the applicant is that, as the subject land is one lot, the 10.0 metre setback from the existing southern boundary to the proposed development is more than adequate to comply with the acceptable development requirements of the Codes.
In relation to the proposed boundary down the centre of the subject land, the applicant acknowledged that there will be two storey walls on that boundary were the subdivision to be completed, but argued that there are planning reasons to approve the reduced setback. It was Ms Goff's submission that, as shown with the earlier, now lapsed development proposal on No 39A, a mirror image of the proposed development would result in a concentration of building in the middle of the land that, in his opinion, would be more in tune with the rhythm of the houses on 20 metre wide lots in the street than would be the case if the second storey setbacks from the common boundary were enforced. Ms Goff expressed the opinion that the respondent's preference for two "tramcar" houses would not be consistent with that rhythm and the reduced setback should be approved, particularly where the circumstances of the subject land are a "one off" as there can be no further subdivision in this recoded locality.
Conclusion
The respondent reminded the Tribunal of its broader discretion in determining matters by citing Tangelo Design Consultants and the Town of Vincent [2005] WASAT 67 at [42] in which it was stated:
"In most planning assessments, the fact that a development conforms to a relevant provision of the RCodes is likely to be significant in relation to a related required matter for consideration under a town planing scheme, although it cannot be in itself determinative of such a consideration."
On the design, the Tribunal finds that there is not sufficient in the planning controls to prevent the form of development proposed from being allowed. Two storey houses are permitted and there are no special design controls applicable to the locality. In the Policy, an upper storey is not required to be set back any further than the ground floor and so can be located as proposed in the design. The only impact on the neighbouring houses is that the new house would be visible. The only concern then is amenity. The proposed house is not a repeat of the single storey houses common to the locality, but it includes a roof pitch and materials common to the area. The height is below the maximum in the Codes and referred to in the Policy, and while higher than the neighbouring houses, is not out of scale.
To note in this regard is Part 2 of the Policy, which can only be sensibly interpreted as requiring upper storeys to be set back the minimum in the Codes, where a ground floor is closer to the front boundary than would otherwise be allowed by the codes. There is nothing in the Policy that gives any direction on upper storeys being further back than ground floors in any other circumstances, which is the personal preference of the respondent's witnesses.
On front setback, the Tribunal has accepted that the Policy and TPS 3 require consideration of the setback of neighbouring properties. It is therefore concluded from the evidence that, were the development to proceed, a front setback consistent with that of the neighbours' would be appropriate.
The Tribunal notes that the proposed subdivision has not been affected, but is of the view that in the exercise of its discretion it is necessary to take account of the fact of subdivision as a relevant planning consideration. From the evidence of Mr Merendino and the documents lodged with the Tribunal, the subdivision is in contemplation and will be effected as a matter of course.
It was the evidence of Mr Merindino that when the approved subdivision is effected, the remaining portion of Lot 121 (No 39A) sold. The form of house that an unknown future owner might want to build on No 39A cannot be known. The Tribunal therefore rejects the argument that a reduced southern setback should be allowed to facilitate the concentration of building mass in the centre of the subject land.
The street is generally one where the main bulk of houses is set back from side boundaries. The examples of nil side boundary set back have been garages well behind the building line. No examples of two stories on the boundary were cited. The Tribunal has formed the view that nil set back to both boundaries cannot be supported.
From the examination of this matter, as set out above, the Tribunal has formed the view that because of the reduced setback required for the southern side of the house and a front setback inconsistent with that of neighbours, the development as proposed cannot be supported.
Order
The application is refused.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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