Miktad Holdings Pty Ltd and City Of South Perth
[2009] WASAT 77
•28 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MIKTAD HOLDINGS PTY LTD and CITY OF SOUTH PERTH [2009] WASAT 77
MEMBER: MR J JORDAN (MEMBER)
HEARD: 18 DECEMBER 2008 AND 8 JANUARY 2009
DELIVERED : 28 APRIL 2009
FILE NO/S: DR 295 of 2008
BETWEEN: MIKTAD HOLDINGS PTY LTD
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning - Development refusal - Mixed development - Three storeys and partly sunken basement parking - Ground floor commercial and multiple dwellings - Highway Commercial zone with R80 density coding - Adjoining low density residential zone - Whether transitional development required - Focus area relevant to the development - Requirements for mixed use development in town planning scheme - Application of Residential Design Codes of Western Australia (2008) - Plot ratio - Setbacks - Impact on single residential neighbour - Impact on streetscape
Legislation:
City of South Perth Town Planning Scheme No 6, cl 1.6, cl 3.3(5), cl 4.1(3), cl 4.6, Pt V, cl 5.1, cl 6.10(3), cl 7.8(1), Sch 1, Table 1, Table 3, Table 5
Planning and Development Act 2005 (WA), s 242, s 252(1)
Residential Design Codes of Western Australia (2008), cl 2.5.4, cl 7.2 A1, cl 7.2.1 A1, cl 7.2.1 A1(iii), Table 1
Result:
The application for review is dismissed
The decision of the City of South Perth to refuse the development application for a mixed development at 26 Banksia Terrace, South Perth is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr K Adam (Acting as Agent)
Respondent: Mr A Roberts
Solicitors:
Applicant: KA Adam & Associates (Architects and Town Planners)
Respondent: McLeods
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Dumbleton and Town of Bassendean [2005] WASAT 145
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Miktad Holdings Pty Ltd sought review by the Tribunal of the decision by the City of South Perth to refuse to grant development approval for the construction of a three storey mixed development at 26 Banksia Terrace, South Perth. The building would be comprised of ground floor commercial and ground floor and upper floor multiple dwellings with parking in a partly sunken basement. The site and an adjoining lot to the south‑east on the corner with Canning Highway, which is developed with high density multiple dwellings, are zoned 'Highway Commercial'. The lots to the north-west along Banksia Terrace are zoned for, and developed with, low density residential use.
The Tribunal identified three main issues for consideration. The first issue was whether the plot ratio of the proposed development was acceptable. Proposed was a plot ratio of 1.2, whereas the City of South Perth Town Planning Scheme No 6 stipulated a plot ratio of 0.5. The Tribunal found that such a significant increase in the plot ratio for this type of development would be inconsistent with orderly and proper planning and so could not be supported. As the development failed on this point, it was determined that the application must be dismissed.
The second issue was whether the impact of the proposed development on the streetscape was acceptable. The Tribunal found that the proposed front setbacks and the front landscaping were acceptable in the streetscape. The building would, however, appear to extend from side boundary to side boundary at street level. This effect, and the height of the wall of the building on the south‑west side boundary, would result in an apparent bulk that would have an impact on the streetscape that could not be supported. The Tribunal found that the proposed building would not be of a design that would be sufficiently sensitive to the streetscape of the focus area of Banksia Terrace.
The third issue was whether the impact of the proposed development on 24 Banksia Terrace adjoining to the north‑west was acceptable. The Tribunal found that the bulk of the high side wall of the building on the boundary would have a dominating and therefore unacceptable impact on 24 Banksia Terrace.
The Tribunal decided not to exercise the discretion in the City of South Perth Town Planning Scheme No 6 available to vary plot ratio and setbacks because the proposed development was not consistent with the orderly and proper planning and the preservation of the amenity of the locality. This was because the increase in plot ratio required would be too great for a mixed development use. The relaxation in the plot ratio and the reduced setbacks would also result in a building that would have an unacceptable impact on the streetscape and 24 Banksia Terrace and the development would not be sufficiently sympathetic to its location at the boundary between the 'Highway Commercial' zone and the low density residential properties of the focus area.
The Tribunal has dismissed the application for review.
Introduction
These proceedings involve an application brought by Miktad Holdings Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal by the City of South Perth (respondent, City or Council) to grant development approval for the development of a three storey mixed development with partly sunken basement parking and a roof terrace at No 26 (Lot 19) Banksia Terrace, South Perth (site).
Site and locality
The site is on the southwest side of Banksia Terrace which runs from a junction with Mill Point Road in a south-easterly direction where it intersects with Canning Highway and continues to an eventual junction with George Street. The site is about 230 metres south-east of Mill Point Road and 70 metres north‑west of Canning Highway. It has an area of 516 square metres, a frontage to Banksia Terrace of 12.19 metres and a depth of 42.4 metres. There is a rise from front to rear of approximately 2 metres and a fall across the frontage of the site of just under a metre consistent with the slope of Banksia Terrace down from Canning Highway to Mill Point Road. Views are to the city centre. A vacant, single storey former TAB agency sits on a pad created by cutting at near street level. Retained fill at the rear of the site has been used for parking.
Next door to the site to the south‑east toward Canning Highway, built perpendicular to Banksia Terrace, is a three storey block of apartments with a 6.3 metre wide driveway to ground level garages abutting the boundary of the site. On the corner of Canning Highway and Banksia Terrace is a four storey block of apartments. These are together known as Hillcrest Apartments. Diagonally opposite on the corner of Banksia Terrace and Canning Highway is the Metro Inn, a 10 storey hotel with a podium level on the Banksia Terrace boundary.
Opposite the site, and to the northwest along Banksia Terrace to Mill Point Road, are single houses of mixed ages and styles, with side setbacks set back from the street with front gardens and vehicle crossovers at street level.
The carriageway of Banksia Terrace from Canning Highway to the front of the site has a narrow verge and on the opposite side of the street is angled parking. In front of the house adjoining to the northwest, the street is narrowed to a single lane for about 15 metres to depict the separation between 'Highway Commercial' zoned properties adjacent to Canning Highway and the Residential zoned properties to the northwest along Banksia Terrace.
On 18 December 2008, the Tribunal viewed the site and locality with representatives of the two parties. The Tribunal also viewed the site from various positions inside and outside the single house next door to the site at 24 Banksia Terrace owned by Mr F P Mylonas and Mrs T Mylonas. Mr and Mrs Mylonas had been granted leave by the Tribunal, pursuant to s 242 of the PD Act to make submissions as persons having sufficient interest in the proposal.
Planning framework
The site, together with Lot 101 adjoining to the southeast on the Canning Highway corner on which Hillcrest Apartments are built, and the hotel site are zoned 'Highway Commercial' in City of South Perth Town Planning Scheme No 6 (TPS 6). These lots also have a designated density coding of R80, in respect of which cl 4.6 of TPS 6 states:
Unless otherwise provided in the Scheme, on land in any nonresidential zone, development solely for residential purposes shall not exceed the respective density codings depicted on the Scheme Maps for that land.
Clause 4.1(3) of TPS 6 states:
Unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
The lots between the site and Mill Point Road are zoned 'Residential' in TPS 6 with a density coding of R15. These lots are each about 516 square metres, similar to the site.
At cl 1.6(1) of TPS 6 it states:
The overriding objective of the Scheme is to require and encourage performancebased development in each of the 14 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct.
At cl 1.6(2)(f) the general objectives for TPS 6 include:
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.
Schedule 1 of TPS 6 includes the definitions:
'Mixed Development': means any land or building used for the purpose of both:
(a)one or more dwellings; and
(b)one or more nonresidential uses;
which are permissible within the applicable zone, but the term does not include a Home Business, a Home Occupation or a Home Office.
and
'nonresidential' or 'nonresidential Use' : means a Use or combination of Uses listed in Table 1 within the category entitled 'NonResidential Uses'.
Part V of TPS 6 is headed 'Development Requirements for Nonresidential Uses', and states at cl 5.1(1).
All Mixed Development and other nonresidential Uses in nonresidential zones shall comply with the requirements prescribed in Table 3.
The proposed development is by definition a 'mixed development'. The use 'Mixed Development' is listed in Table 1 'Zoning - Land Use' of TPS 6 (Zoning Table) within the category entitled 'Non-residential Uses'. 'Mixed Development' is a 'D' use in the 'Highway Commercial' zone. That is, a use not permitted unless Council exercises its discretion and grants planning approval. Clause 3.3(5) provides that, in respect of a Discretionary Use:
[I]n exercising its discretion as to whether or not planning approval ought to be granted, the Council shall have regard to the Scheme objectives listed in clause 1.6 and to any objectives for the precinct as stated within the relevant Precinct Plan and to such matters referred to in clause 7.5 as Council considers to be relevant in the circumstances.
As referred to by counsel for the respondent, there is a hierarchy of planning instruments that set out the development requirements for this proposal. That hierarchy is, in descending order, the provisions of TPS 6, which has the status of a statutory document; if TPS 6 is silent provisions of cl 7.2 'Mixed use development requirements' within the Residential Design Codes of Western Australia (2008) (Codes); then the more general provisions of the Codes are relevant to the development.
Table 3 of TPS 6 sets out particular requirements for all the uses listed in the nonresidential uses category of the zoning table. In respect of 'Highway Commercial' zoned land, the table includes the following:
| Zone | Maximum Plot Ratio | Minimum Setbacks from Lot Boundaries | Minimum Landscaped Area (% of site) |
| Highway Commercial | Mixed Development or 0.50 other Non-Residential | Street - Refer to Table 5 Rear - 4.5m Side - Nil | 15% |
Where TPS 6 is silent in relation to particular requirements for mixed development, the next planning instrument, the Codes, provide at cl 7.2 performance criteria and acceptable development standards for mixed use development. Mixed use development is defined as:
Buildings that contain commercial and other non-residential uses in conjunction with residential dwellings in a multiple dwelling configuration.
In Table 3 of TPS 6, in respect of setbacks, reference is made by way of footnote 2 to cl 5.1(4) of TPS 6 which states:
Notwithstanding the minimum setbacks prescribed in Table 3:
(a)in any non-residential zone where a development site has a common boundary with land in the Residential zone:
(i)the Council may require a building on the development site to be set back a greater distance from the street than the setback prescribed in Table 3, in order to protect the amenity of the adjoining land in the residential zone. In such cases, the setback area in front of the building shall contain landscaping visible from the adjoining residential site; and
(ii)the setback from that common boundary shall be the same as that prescribed for Grouped Dwellings on the adjoining residential land, unless otherwise prescribed by the Council;
…
Clause 7.8(1)(a) of TPS 6 provides discretion to vary the following:
(i)minimum lot area;
(ii)plot ratio;
(iii)setbacks;
(iv)open space;
(v)car parking;
(vi)landscaping; and
(vii)related matters;
…
Clause 7.5 of TPS 6 lists matters to which the Council shall have due regard when considering a development application. These include:
(a)the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan …
(b)the requirements of orderly and proper planning …
(c)the provisions of the Residential Design Codes …
…
(i)the preservation of the amenity of the locality;
(j)all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;
…
(l)the height and construction materials of retaining walls on or near lot boundaries, having regard to visual impact and overshadowing of lots adjoining the development site;
…
(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;
…
(q)the topographic nature … of the land;
…
Clause 6.10(3) of TPS 6 is concerned with finished ground level beyond the external walls of the building and requires that there be equal cut and fill of land. This is considered to mean sites are not allowed to be filled above that which has been excavated so that retaining walls and dividing fences do not 'unreasonable adversely affect the amenity of neighbouring properties in relation to visual impact and overshadowing'.
Clause 2.5.4 of the Codes states:
A council shall not refuse to grant approval to an application in respect of any matter where the application complies with the relevant acceptable development provision and the relevant provisions of the council's planning scheme or a local planning policy.
In respect of the application of the Codes, the Codes are not expressly incorporated into TPS 6. The standards of the Codes are addressed by reference in TPS 6. It follows, therefore, that notwithstanding the wording of cl 2.5.4 of the Codes, even if there were compliance with acceptable development standards of the Codes there remains a residual discretion within TPS 6 to decide whether the proposed development should be approved: Dumbleton and Town of Bassendean [2005] WASAT 145 at [23] (Dumbleton). This residual discretion lies in cl 7.5 of TPS 6, referred to above, which lists the matters to be considered in assessing a development application. The provisions of the Codes are to be given considerable weight, but the provisions of TPS 6, such as cl 7.5, must still be applied.
The planning experts, in their joint statement, referred to policies from the City's 'Residential Design Policy Manual Policy P350' City-Wide Residential Policies. At cl 4 of the introduction, however, it states that the manual relates to the design of '… all forms of residential development …' Mixed use is a non‑residential development by definition under TPS 6 so the policies are not applicable to the proposed development.
The respondent also made reference to the 1998 draft of the City's 'Precinct Plan Precinct No 5 Arlington' (precinct policy). Mr Matthew Stuart, the town planner from the City who appeared as a witness for the respondent, said it was prepared as a 'visioning' document to assist in the preparation of TPS 6 but had never been formally adopted. The Tribunal notes that cl 1.6 of TPS 6 reflects the precinct policy general objectives and cl 7.5 and cl 5.1 reflect the objectives and controls more particularly for the 'Highway Commercial' zone. The precinct policy is relevant insofar as it provides the context for these provisions, as explained by the respondent.
Proposed development
The development before the Tribunal for consideration was shown on a set of plans SK01 to SK11 inclusive, with the revision date 8 November 2008. Proposed is a rendered masonry, four level, mixed development comprising:
•a basement, partly sunken which extends to the perimeter of the site, with 10 car bays, including one for disabled access; bin store; three private stores; lift and stair access to upper levels and vehicle access via a ramp down from the street at the north-western side;
•a ground floor with a partly covered walkway from the street alongside the southeast boundary to an entry lobby at the centre of the building with lift to basement and upper levels and stair access to upper levels; a street facing office area of just under 100 square metres; a twobedroom dwelling of 108 square metres at the rear, with access to a large rear courtyard, gazebo and a pool;
•two upper floor levels, each with a threebedroom dwelling of approximately 187 square metres plus substantial balcony areas; and
•an accessible roof terrace of 96 square metres.
Setbacks and features of the proposed development are addressed below in the discussion on the issues.
The refusal
At its meeting of 3 September 2008, the respondent refused the application for 18 reasons. The reasons referred to noncompliance with particular provisions of TPS 6, the Codes and Council policies. The items that have remained of concern are addressed in the discussion on the issues below.
The issues
The two planning witnesses produced a list of 15 issues they considered arose in respect of the proposed development. They agreed height had fallen away as an issue because the building would comply with the requirements of TPS 6. They also agreed that items that could be addressed by conditions if the development were allowed were external lighting and the rear boundary fence.
Other issues raised related to the effect of the development on the apartment building to the south-east. The Tribunal considers that the effect on that building would be acceptable. The two buildings would be separated by the 6.3 metre wide driveway to the ground level garages of the apartments and the side setback to the bulk of the development. Conditions would ensure there would be no overlooking of balconies of the apartment building. In respect of views, the development would conform to height requirements and the Tribunal does not accept that a development should be constrained to a standard less than what otherwise would be allowed simply to preserve the complete views across a site from a neighbouring development. There would still be oblique views from the apartments but it would be unreasonable for it to have been in the contemplation of the neighbour that those views currently enjoyed would not be interrupted to some extent by a normal development on the site.
The Tribunal has found that there are three significant issues that arise in respect of this matter. These overlap in part, and the findings in respect of one will influence consideration of the others: The main issues are:
1)Whether the plot ratio of the proposed development is acceptable;
2)Whether the impact of the proposed development on the streetscape is acceptable; and
3)Whether the impact of the proposed development on 24 Banksia Terrace adjoining to the northwest is acceptable.
Before discussing these issues, it is necessary to discuss whether particular consideration of the proposed development is required because of the site being on the boundary between the 'Highway Commercial' zone and the Residential R15 zoned properties. This will in turn influence whether the form of the development proposed can be supported.
Requirement for a transitional and sensitive design
Counsel for the respondent referred to 'practical planning difficulties' which arise from the juxtaposition of R80 and R15 coded sites, as recognised by the Tribunal in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [24] (Canning Mews). The Tribunal found in Canning Mews at [74], that the juxtaposition of an R80 and an R15 site calls for a 'transitional and sensitive design in the portion of the site closest to the low density residential area'.
The applicant's agent said there was no explicit requirement in TPS 6 for a development on a commercial or higher density coded lot abutting low density residential land to provide a 'transitional' design. The applicant's agent went on to say in his closing submissions that:
[t]he notion of providing a design to effect an appropriate transition across the interface in such cases, is however, clearly implicit in clause 5.1(4)(a) of TPS 6, and nowhere else in the scheme. Had the requirement for transitional design beyond that implied in clause 5.1(4)(a)(i) and (ii) been intended it could, and surely would, have been included in TPS 6.
It was the applicant's respectful submission that it was not open to the Tribunal to impute a requirement for a transitional design, which would be tantamount to a transitional coding. The applicant also said it was not open to the Tribunal to interpret any of the more general provisions of TPS 6, such as the objectives of cl 1.6, or the matters to be considered under cl 7.5, to require a development at such an interface to be transitional beyond what was required by cl 5.1(4)(a).
In commenting on the difference between the parties on this point, the Tribunal would repeat that it is required to have regard to the matters listed at cl 7.5 of TPS 6 as well as cl 5.1(4)(a) of TPS 6 when considering the proposed development. This principle was identified in the discussion above on the relationship between the provisions of TPS 6 and the Codes. The findings of the Tribunal in Dumbleton gave expression to the residual power at cl 7.5 of TPS 6 which requires that regard shall be had to certain matters when considering the proposed development. This includes cl 7.5(n), repeated from above:
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.
The Tribunal considers that having regard to both cl 7.5(n) and cl 5.1(4)(a) of TPS 6 results in contemplation of what might be termed 'transitional and sensitive design'. This, however, must be tempered by the circumstances. In Canning Mews, the Tribunal said at [25]:
The Tribunal must assess the proposed development on the basis of, and subject to, the development standards imposed in respect of the higher density R80 coding
and at [30]:
the Tribunal must give due weight to the reasonable contemplation of the different coding density of the site to the adjoining R 15 residential area.
In considering what might be appropriate transitional and sensitive design in this matter, the Tribunal must assess the development proposed for the site on the basis of the development standards for a mixed development use in the 'Highway Commercial' zone (the development in Canning Mews was R80 residential on partly 'Highway Commercial' zoned land). That is, give reasonable contemplation to the difference between those standards and the standards for, and the development of, the adjoining low density residential development of the focus area as contemplated by cl 7.5(n) of TPS 6.
Is there a 'focus area' relevant to the proposed development?
As referred to above, this question arises from the reference in cl 7.5(n) of TPS 6 which is one of the matters to be considered in the assessment of a development application.
The term 'focus area' is defined in Sch 1 of TPS 6 to mean:
[T]he section of a street extending from one cross-intersection to the next cross-intersection, together with the residential properties fronting onto both sides of that section of the street.
The applicant submitted that the focus area includes the residential properties of Banksia Terrace but excludes the non-residential properties. The site was therefore not in the focus area. It was said, cl 7.5 of TPS 6 applies to proposed buildings within a focus area not neighbouring a focus area. There is no requirement in TPS 6, it was argued, for a non‑residential building in a non‑residential zone to be in harmony with neighbouring residential properties in a residential zone.
The Tribunal, as has essentially the respondent, has respectfully adopted the approach of the Tribunal in Canning Mews at [30], where the focus area was taken to extend from the review site on the Canning Highway corner, which was partly zoned 'Highway Commercial', to Third Avenue, the next cross street. The comparison was between the development proposed for the 'Highway Commercial' site, in that case R80 residential, and the mostly single residential existing neighbouring buildings in that focus area. In this matter, cl 7.5(n) of TPS 6 requires that there be harmony between the proposed building and the neighbouring existing buildings; that is, the residential buildings in the focus area which extends from Mill Point Road to Canning Highway.
In this matter, the Tribunal considers that cl 7.5(n) requires consideration be given to the visual harmony of the proposed mixed development with the neighbouring residential properties. The Tribunal must, however, consistent with Canning Mews and as referred to above in the discussion on transitional and sensitive design, give 'due weight to the reasonable contemplation' of the different use type proposed for the site ‑ a mixed development - relative to the majority of the focus area. This has been the approach of the Tribunal in considering the issues in the discussion to follow.
Discussion
Issue 1: whether the plot ratio of the proposed building is acceptable
This issue is critical to whether or not the proposed development is to be allowed. It was common ground between the parties that the maximum plot ratio for the proposed mixed development is 0.5 as prescribed in Table 3 of TPS 6. The applicant said the proposed development would have a plot ratio of 1.2. There was no dispute that when a proposed development does not comply with the maximum plot ratio specified by TPS 6, there is discretion to still grant an approval provided at cl 7.8(1)(a)(ii) of TPS 6.
It was the submission of the respondent that the discretion available at cl 7.8(1) of TPS 6 should not be exercised. This was because the amount by which the specified maximum plot ratio of 0.5 was exceeded would produce a building with a bulk and scale completely inconsistent with that of the development of the R15 area in Banksia Terrace and particularly the adjoining property at 24 Banksia Terrace. Compliance with the 0.5 maximum plot ratio specified by TPS 6 would in the opinion of the respondent produce a form of building far more compatible with the dwellings in the focus area.
The applicant said that it would be absurd to restrict a mixed development to a plot ratio of 0.5 when a solely residential, multiple dwelling development at a density of R80 was allowed with, under the Codes, a plot ratio of 1.0. The applicant referred also to the acceptable development provisions for mixed use developments at cl 7.2.1 A1(iii) of the Codes where a plot ratio of up to 1.0 for the residential component is acceptable 'in addition to any ground level nonresidential floor area'. This, it was said, when translated to the proposed development, would have allowed a maximum plot ratio of the order of 1.5 and the proposed development would be well within this. It was pointed out that if the space allocated to office in the proposed development were to become common facilities for the residential dwellings, it would not be included in plot ratio and there would be no change to the external form or appearance or perceived bulk.
The applicant expressed the view that the bulk and scale of the development in the adjoining R15 residential area was not relevant. Consistency with the plot ratios and bulk and scale of other developments in the 'Highway Commercial' zone with the R80 coding was both relevant and consistent with orderly and proper planning. It was the applicant's submission that to restrict the plot ratio to 0.5 for mixed development on the site would have planning consequences that must have been 'unintended'.
The Tribunal notes that on the Scheme Maps for TPS 6, all six commercial zones have an allocated R coding. It is also noted that in Table 3 of TPS 6, each of the six commercial zones includes a plot ratio for mixed development different from the plot ratio for multiple dwellings at Table 1 of the Codes for the respective R codings. The Tribunal is not persuaded that plot ratio for mixed development in the commercial zones, including the 'Highway Commercial' zone, is an 'unintended' consequence of poor drafting and that it is appropriate to ignore Table 3 of TPS 6 and refer to cl 7.2.1 A1(iii) of the Codes as a guide to a plot ratio more consistent with, in the applicant's submission, a more logical planning outcome. The Tribunal considers that the reference must be to Table 3 of TPS 6 for the plot ratio for a mixed development.
The Tribunal views the R80 coding allocated to the 'Highway Commercial' zoned site as explicitly for the purpose of stipulating the maximum density of a development used solely for residential purposes and the plot ratio that follows from that. In this regard cl 4.6 of TPS 6 provides that:
Unless otherwise provided in the Scheme, on land in any nonresidential zone, development solely for residential purposes shall not exceed the respective density codings depicted on the Scheme Maps for that land.
The Tribunal considers that to look to cl 7.2.1 A1 of the Codes for plot ratio would, in effect, be a de facto rewriting of Table 3. It is not the Tribunal's role to undertake such a task. If it had been the intention of the drafter of TPS 6 to match the plot ratio for the residential component of mixed development with that of cl 7.2 and Table 1 of the Codes rather than the various plot ratios set out in Table 3 of TPS 6, then it would have been easy to say so in plain words: Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at [39]. If a different planning outcome is intended, then it would appear to the Tribunal that the step necessary to be taken is an amendment to TPS 6 rather than to simply ignore Table 3.
As pointed out by the parties, cl 7.8(1)(a) of TPS 6 provides a discretion to vary plot ratio. Clause 7.8(1)(b) provides that the discretion may only be exercised if the Council, or the Tribunal on review, is satisfied that:
(1)approval of the proposed development would be consistent with the orderly and proper planning of the precinct and the preservation of the amenity of the locality;
(2)the noncompliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the precinct or upon the likely future development of the precinct; and
(3)the proposed development meets the objectives for the City and the precinct in which the land is situated as specified in the precinct Plan for the precinct.
The Tribunal has formed the view that the proposal fails the test that any variation must be consistent with orderly and proper planning. Examination of Table 3 of TPS 6 reveals the listed maximum plot ratio for the 'District Centre Commercial' zone and the 'Mends Street Centre Commercial' zone is 1.75 (with the residential component of 0.5) and for 'Neighbourhood Centre Commercial' and 'Mixed Use Commercial', the plot ratio for mixed development is 0.75. For 'Highway Commercial' and 'Local Commercial' it is 0.5. Table 3 of TPS 6 is considered to represent conscious decisions to create a pattern of mixed development of different plot ratios in commercial zones. The 'Highway Commercial' zone is part of this pattern.
Other forms of development allowed in the 'Highway Commercial' zone might provide a different plot ratio, but it is a mixed development that is under consideration. Increasing the plot ratio for mixed development in the 'Highway Commercial' zone from 0.5 to 1.2 is considered, with respect, to effectively create a different and unintended form of development. The Tribunal is of the view that increasing plot ratio of the proposed mixed development to 1.2 would not be consistent with orderly and proper planning and so has concluded that the discretion available to vary plot ratio under cl 7.8(1)(b) of TPS 6 should not be exercised.
In respect of issue 1, the Tribunal has found that the proposed plot ratio of 1.2 for the development is unacceptable. The development fails on this point and must be refused.
The other two main issues identified by the Tribunal raise questions that involve principles that warrant comment if the site is to be redeveloped. The Tribunal will proceed therefore to consider the issues in respect of the proposed development. To note, however, is that a mixed development that had a plot ratio at or near that prescribed in Table 3 of TPS 6 might have dimensions different from those in this current proposal. Therefore, in some respects, the discussion of the following issues might not be apposite to any fresh proposal.
Issue 2: Whether the impact of the proposed development on the streetscape is acceptable
Whether the impact of the proposed development on the streetscape is acceptable can be considered in three parts. The 'sub-issues' of issue 2 are:
2.1Impact of the front setback on the streetscape;
2.2Impact of the bulk and scale of the development on the streetscape; and
2.3Impact of the development on the streetscape generally.
2.1 Impact of the front setback on the streetscape
The front setback of the proposed development can be considered as having three elements: the wall of the building on the front boundary; the setback to the building as a whole; and the landscaping of the front setback.
In respect of the first element, the wall of the building on the front boundary is 4.5 metres long and, as a result of the basement being partly sunken and the slope of the land, varies in height above the footpath from 1.5 metres at the southeast end to 2 metres at the northwest end.
Table 3 of TPS 6 states that reference is to be made to Table 5 for street setbacks. Table 5 of TPS 6 provides no relevant street setback for the site. Table 3 also includes footnote 2, which refers to cl 5.1(4)(a) of TPS 6 which is concerned with setbacks to non-residential development in a non-residential zone where the site has common boundary with land in the residential zone. Clause 5.1(4)(a)(i) states that Council may require a greater setback from the street than prescribed in Table 3 in order to protect the amenity of adjoining residential zoned land. As stated above, there is no front setback described in Table 3. Where TPS 6 is silent regarding a requirement for mixed development, regard must be had to the Codes. Clause 7.2.1 A1(iii) of the Codes specifies a minimum street setback of nil as an acceptable development standard.
The respondent noted the development complied with the acceptable development standard of the Codes but, citing Dumbleton, referred to the residual discretion in TPS 6 to decide whether the proposed development should be approved at a nil setback. Particular reference was made to the following subclauses to which regard must be had at cl 7.5 of TPS 6:
(b)concerned with orderly and proper planning;
(i)concerned with the preservation of the amenity of the locality;
(j)concerned with bulk; and
(n)which refers to the extent to which a proposed building is visually in harmony with neighbouring buildings within the focus area.
The respondent said that the proposed front boundary wall would not be consistent with the orderly and proper planning or preservation of the visual amenity of the focus area. Reference was made to the houses set back from the street with visually permeable fencing. In respect of the brick fence next door at the front of No 24 Banksia Terrace, the respondent said this allowed views into the garden of the property from certain vantage points on the street and was therefore unlike the front wall proposed for the site.
It was the opinion of Mr Ken Adam, the town planner and architect who appeared as a witness for the applicant, that the proposed front wall is less obtrusive than the boundary walls on either side of the subject site, including what he described as the longer, higher more obtrusive wall of 24 Banksia Terrace. He considered the setbacks to other single houses in Banksia Terrace to be less relevant, if at all, to the consideration of the streetscape of the site.
The Tribunal has found that the proposed wall on the front boundary could be supported. From the viewing of the locality, it was seen that the wall on the front boundary of the lot to the southeast developed for the residential apartment is on the boundary and would appear to be as long as, if not longer, than that proposed for the site and of at least the same height. The wall at the front boundary of the residence at number 24 Banksia Terrace is generally higher than that proposed and is prominent because of its length and colour. This is a non-residential development which complies with the acceptable development standard for front setback under the Codes. It is considered that while the front wall on the street boundary does not match the open fences of houses further along Banksia Terrace, it would be an acceptable addition to this part of the streetscape.
The second element in the consideration of front setback is the setback to the building as a whole. The main bulk of the proposed building would be set back 4 metres from the street alignment. At this alignment the height of the building would be between 11.5 metres and 12.5 metres above footpath level. The balconies jut into this setback. As referred to above, cl 7.2.1 A1(iii) of the Codes sets a nil minimum street setback as the acceptable development standard.
The respondent, in respect of this issue, again referred to Dumbleton and invoked cl 7.5(b), cl 7.5(i), cl 7.5(j) and cl 7.5(n) of TPS 6 and the character of the single residential dwellings of the focus area to argue the proposed setback was not consistent with orderly planning and the preservation of the amenity of the locality. The respondent said that having a building of this bulk at this setback would not be in harmony with the character of the focus area.
The applicant said that the relevant streetscape is that of the 'Highway Commercial' zoned land with the hotel and the residential R80 development and not the adjoining R15 coded residential zoned land. The submission was that the building was not required to be in harmony with residential development within the focus area. The applicant said that, despite this, the proposed development made concessions, including street setbacks where none were required in order to reduce the degree of difference and in that way make a transition between the different zonings.
The Tribunal has noted that the setback requirement for dwellings in the residential zoned area is 6 metres. Generally the houses in the street are at this setback although the house at No 24 Banksia Terrace is set back about 16 metres. The Tribunal does not accept that the proposed development would be required to setback at the same distance as the house at No 24 Banksia Terrace, and while the height and setback of the wall on the northwest boundary is another issue, in general terms, a building on the site set back at 4 metres would appear to be a reasonable transition between the nil setback of the 'Highway Commercial' zone and the 6 metre setback of the residential zone.
The third element in consideration of the impact of front setback is whether the proposed front landscaping would be acceptable. The front setback comprises steps and pedestrian entry, office courtyard area with planters and the driveway and landscaping strips each side. As noted above, the setback standard under the Codes is nil and there is no requirement for front landscaping, so the proportions of hard and soft landscaping does not arise. The development includes soft landscaping beside the drive and the proposed planters on the office outdoor area would be visible. It was noted at the viewing of the site the treatment of the setback would be consistent with the streetscape appearance of the properties adjoining to the south‑east. The Tribunal accepts that the proposal is a mixed development and that the front landscaping goes some way to providing a transition to the neighbouring residential use, given that the front wall is considered acceptable and a driveway and steps must be accommodated on a 12 metre wide 'Highway Commercial' zoned lot.
2.2 Impact of the bulk and scale of the development on the streetscape
In considering the impact on bulk and scale, it is necessary to have regard to the objectives of TPS 6 at cl 1.6(f) and the matters referred to at cl 7.5(j) and cl 7.5(n) of TPS 6.
The respondent considered the streetscape to be defined by the characteristics of the low density residential development of the focus area. The proposed building would not be in harmony with the streetscape because it was five levels, had a nil street setback, nominal landscaping and was built boundary to boundary. It was said that while due weight must be given to the reasonable contemplation of the different density coding of the site to the majority of Banksia Terrace focus area, there was in the respondent's opinion no transitional design which would lessen the disharmony with the existing streetscape.
Mr Adam said that the scale and bulk of the development was a consequence of compliance with the height and other provisions applicable to mixed development in the 'Highway Commercial' zone. He did not consider that the development would be 'very prominent in that streetscape' because it was set back 4 metres from the street and, from the street, it was not possible to perceive the building was built from boundary to boundary. He again referred to what he considered as the relative insignificance of the residential zoning to the northwest of the site and said the building to the southeast was of greater scale.
The Tribunal has formed a view of the perception of the bulk and scale of the development from the drawings and the viewing of the locality. It is noted that the building would mostly be set back 4 metres but at street level would appear to be boundary to boundary. At the south‑eastern side this would appear to be to a height of 4.5 metres because of the architectural features of the side walkway and on the north‑western side this would be to a height of 6 metres because of the side wall of the building to first floor level being on the boundary with 24 Banksia Terrace. The first and second floors of the building would be set back from the side boundaries but, from the sketches, would be approximately 1.5 storeys higher than the peak of the roof of the residence on 24 Banksia Terrace.
If the only comparison were with the apartment building to the southeast, then the building would be of an acceptable bulk and scale. The buildings of the focus area are, however, also part of the streetscape. In this streetscape the Tribunal is of the view that a design that set the building back from the side boundaries and perhaps a further setback from the front at the top level might be more sensitive to the position of the site at the boundary of the 'Highway Commercial' zone and the 'Residential' zone. The Tribunal has concluded that the bulk and scale of the proposed building as it impacts on the streetscape cannot be supported.
2.3 Impact of the development on the streetscape generally
The Tribunal considers the streetscape to be considered extends from Canning Highway toward Mill Point Road and includes buildings in the focus area. As discussed above, cl 7.5(n) and cl 5.1(4)(a) of TPS 6 require contemplation of what might be termed 'transitional and sensitive design' in respect of a non‑residential development in a nonresidential 'Highway Commercial' lot on the boundary with a 'Residential' zone. As found in Canning Mews (at [30]), however, this consideration is to be tempered by the development controls of the 'Highway Commercial' zoning. Also relevant to the consideration are the objective of TPS 6 at cl 1.6(2)(f) and the matters referred to in cl 7.5(b), cl 7.5(i), and cl 7.5(j) of TPS 6.
The respondent said the proposed development was in conflict with the streetscape of Banksia Terrace, highlighting the differences between the design of the proposed development and the characteristics of the low density residential development in the focus area.
Mr Adam said that the development was compatible with the neighbouring development in 'Highway Commercial' zone. He said there was no provision in TPS 6 that required a mixed development in a non‑residential zone to be compatible with the streetscape of an adjoining 'Residential' zone. The streetscape characteristics identified for the 'Residential' zone were not relevant to the streetscape of the 'Highway Commercial' zoned land. Mr Adam said that although not required, the development was not insensitive to the neighbouring residential uses. Clause 7.2.1 A1(iii) of the Codes allowed a nil setback to the street but the development proposed a significant setback and therefore made a sensitive concession to the streetscape of the adjoining focus area.
The Tribunal agrees with Mr Adam in that, to the extent that cl 7.5(i) and cl 7.5(j) of TPS 6 are relevant to the consideration of the impact of the proposal on the streetscape, they cannot be interpreted to require that the proposal conform to the scale and character of the neighbouring R15 coded properties.
The Tribunal does consider, however, that to be sensitive to the focus area, the development must at least substantially comply with the relevant minimum standards. The development does not comply with the standards for plot ratio and setback to the side wall of the building on the south-western boundary. With the boundary to boundary appearance at street level and the substantial boundary wall on the common boundary with 24 Banksia Terrace, the Tribunal is of the view that the resultant bulk and scale would have an unacceptable impact on the streetscape.
Issue3: Whether the impact of the proposed development on 24 Banksia Terrace adjoining to the northwest is acceptable
As stated in the introduction, the Tribunal viewed the site from the yard and within the house at 24 Banksia Street in company with representatives of the parties and the owners, Mr and Mrs Mylonas. The two storey house at 24 Banksia Street is set back about 16 metres from the street, which is considerably greater than the minimum of 6 metres for R15 coded land is under the Codes. In the front yard is a four-car carport perpendicular to the road, paved access and gardens around the margins. The carport is at road level, the house is on a retained terrace up about six steps and the backyard is up at a further level.
The expert planners agreed there would be no adverse impact on 24 Banksia Terrace in respect to overshadowing. The respondent identified three impacts of the proposed development on 24 Banksia Terrace as being:
3.1impact of bulk and scale;
3.2impact on privacy (overlooking); and
3.3impact of cut and fill on the side wall of the proposed development.
3.1 Impact of bulk and scale on 24 Banksia Terrace
As stated by Mr Adam, building bulk is a function of height and length of walls, their distance from the viewpoint and the degree of articulation of the façade. The plans show that the development would feature on the side boundary common with 24 Banksia Terrace, a wall with two distinct components:
•the side wall of the building extending from the 4 metre front setback along the boundary for approximately 12.8 metres to about level with the front of the house on 24 Banksia Terrace at a height above the ground level of 24 Banksia Terrace of between 5 metres and 5.5 metres. The wall comprises the above ground portion of the side wall of the partly sunken basement on top of which is the side wall of the ground floor office; and
•the rest of the side boundary wall, which is a masonry fence, continuing to the rear boundary at a height of between 2.92 metres above ground level adjacent to the house on 24 Banksia Terrace to 1.8 metres at the rear boundary. The wall is at its highest where it sits above the above ground section of wall of the partly sunken basement. The bulk of the building is set back from this section of boundary wall.
Table 3 of TPS 6 sets a nil minimum side setback, but is subject to note 2 which refers to cl 5.1(4)(a) of TPS 6 relating to setbacks where adjoining land is in the Residential zone. Clause 5.1(4)(a)(ii) of TPS 6 requires that:
Notwithstanding the minimum setbacks prescribed in Table 3:
(a)in any nonresidential zone where a development site has a common boundary with land in the Residential zone:
…
(ii)the setback from that common boundary shall be the same as that prescribed for Grouped Dwellings on the adjoining residential land, unless otherwise prescribed by the Council[.]
Mr Adam and Mr Stuart gave evidence that the application of this provision would result in the proposed development being set back from the common boundary with 24 Banksia Terrace by approximately 1.5 metres to 1.6 metres. It was also agreed that if the building were moved back there would need to be a screen fence at least 1.7 metres high from ground level on the site to ensure privacy of 24 Banksia Terrace.
Mr Adam said setting the wall back 1.5 metres from the boundary would have minimal impact. With the need for screen fencing, the overall reduction in wall height on the boundary would be about 1.7 metres. In addition, the wall on the boundary would not project above the line of the upper level wall of the floors beyond, and so setting back would not in his opinion make any difference in that respect. He also noted that the front section of boundary wall is for most of its length adjacent to the neighbouring carport, not an outdoor living area or the house and any view to the wall from the house would be oblique.
As stated above, the Tribunal considers that to have a sensitive transition between the two zones the side setback requirements of cl 5.1(4)(a)(ii) of TPS 6 should be complied with 'in order to protect the amenity of the adjoining land'. The Tribunal agrees with the recognition in Canning Mews that a development on the boundary between the two zones should be set back. In Canning Mews the frontage of the site to Hovia Terrace was about 25 metres which afforded opportunity for generous setback. The site has a frontage of 12.19 metres. In recognition that mixed development might be allowed under the zoning of the site, and the need to give consideration to the development standards for this use when considering 'transitional' development, in this instance the setback should be a minimum of at least the standard prescribed at cl 5.1(4)(a)(ii) of TPS 6. This would mitigate to some degree the impact of the wall on the front yard of the house.
Mr Adam pointed out that the boundary fence immediately adjacent to the house at 24 Banksia Terrace is higher than normal as a consequence of the constraints imposed by access to the headroom for the basement parking. He considered, however, that at less than 3 metres it was acceptable, especially given that there would be no adverse impact of the fence on sunlight or daylight to the house because of the bulk of the building behind. The Tribunal notes that because of the topography there has been terracing at 24 Banksia Terrace. Immediately between the house and the boundary, this appears to have resulted in a level lower than at the rear of the lot. In the circumstances, the Tribunal agrees with the applicant that adjacent to the house a wall of under 3 metres would be acceptable, with the building behind at least at the prescribed setback and articulated, as in this design, to increase that setback in places.
The Tribunal has found that the bulk and scale of the wall of the proposed building on the boundary of 24 Banksia Terrace would have a dominating and therefore unacceptable impact on 24 Banksia Terrace. The suggested 0.9 metre reduction in height achieved by removing the parapet above the side wall of the office at the front half of the boundary would not sufficiently ameliorate this impact. The Tribunal concluded that the side wall of the building on the boundary with 24 Banksia Terrace is unacceptable and the development cannot be supported.
3.2 Impact on visual privacy
The Tribunal agrees with the applicant that any overlooking could be addressed by a condition of approval, if the development were to be allowed.
3.3 Impact on the side walls of cut and fill
Clause 6.10(3) of TPS 6 requires there to be equal cut and fill of the site in relation to the proposed development. It was Mr Stuart's evidence that this was not achieved by the proposed development and this was unacceptable.
Mr Adam said the requirements for cut and fill were not contravened because there was negligible cut and fill 'beyond the external walls of the building … at the perimeter of the site'. He then said that even if development did propose unequal cut and fill, the effect of cl 6.10(3) is unclear in circumstances where a building has a substantial basement/undercroft area. In his opinion the criteria at cl 6.10(3)(a) and cl 6.10(3)(b) of TPS 6 that allowed a variation were met as there was no resultant adverse visual impact or overshadowing or loss of visual privacy as a result of the site levels.
The Tribunal found it difficult from the evidence to identify exactly where cut and fill was proposed and required, as pointed out by the applicant, because of the partly sunken basement car park extending virtually to the perimeter of the site. It was also apparent from the viewing that 24 Banksia Terrace downhill from the site had been terraced but there was no evidence of the relative effect of this. The plans appeared to show that the levels to the rear of the site would remained as present. On the evidence, it appeared that cut and fill generally would not have such an impact that it could be a basis for rejecting the proposed development.
Summary and conclusion
In its consideration of this matter, the Tribunal determined that the site was in a focus area as defined under TPS 6 that extended along Banksia Terrace between Mill Point Road and Canning Highway. The site is one of a small number of lots zoned 'Highway Commercial' close to Canning Highway which included three storey and four storey apartment blocks next door and diagonally opposite a 10 storey hotel. Abutting the site and extending about 230 metres to Mill Point Road was a Residential zone with an R15 coding developed with mostly single storey houses.
The Tribunal also determined that when assessing a development on a site that adjoins low residential density properties, the provisions of TPS 6 require consideration be given to what might be termed 'transitional and sensitive design' which has regard to the residential development of the focus area. In considering what might be appropriate transitional and sensitive design, however, the Tribunal must assess the development proposed for the site on the basis of the development standards for a mixed development use and give reasonable contemplation to the difference between those standards and the standards for the adjoining low density residential development.
The Tribunal identified three main issues for consideration.
The first issue was whether the plot ratio of the proposed development was acceptable. Proposed was a plot ratio of 1.2. Table 3 of TPS 6 stipulates a plot ratio of 0.5 for mixed development in the 'Highway Commercial' zone.
The Tribunal found that increasing the plot ratio to the proposed 1.2 would effectively create an unintended form of use. TPS 6 provides discretion to vary plot ratio but the Tribunal concluded that increasing plot ratio of the proposed mixed development to 1.2 would not be consistent with orderly and proper planning and the discretion should not be exercised. In respect of issue 1, the Tribunal found that the proposed plot ratio of 1.2 for the development was unacceptable. As the development failed on this point, it was determined that the application must be dismissed.
The second issue was whether the impact of the proposed development on the streetscape was acceptable. This had three 'sub‑issues'.
The first of these was the impact of the front setback on the streetscape. The Tribunal formed the view that the nil setback to the 4.5 metre long front wall of between 1.5 metres and 1.8 metres high could be supported. It was similar to the front boundary walls on the lots on both sides, and while it did not match the open fences of houses further along Banksia Terrace, it would be an acceptable addition to the streetscape. In respect of the setback of 4 metres to the bulk of the building, this was found to be a reasonable transition between the nil setback of the 'Highway Commercial' zone and the 6 metre setback of the 'Residential' zone. The Tribunal also found that the proposed landscape treatment would be acceptable for this type of use in this location.
The second 'sub-issue' was the impact of the bulk and scale of the building on the streetscape. The building would mostly be set back 4 metres but at street level would appear to be boundary to boundary. The first and second floors would be set back from the side boundaries but would be approximately 1.5 storeys higher than the peak of the roof of the residence on 24 Banksia Terrace. The Tribunal concluded that because of the impact on the street of the proposed building, the development could not be supported.
In respect of the third 'sub-issue', impact of the development on the streetscape generally, the Tribunal concluded that the development could not be supported because of the bulk and scale of the building, the side boundary to side boundary appearance at the ground floor level and the substantial wall visible on the side boundary common with 24 Banksia Terrace. The proposed building would not be of a design that would be sufficiently sensitive to the streetscape of the focus area of Banksia Terrace.
The third main issue was whether the impact of the proposed development on 24 Banksia Terrace adjoining to the northwest was acceptable. The Tribunal agreed with the applicant that any overlooking could be addressed by a condition of approval, if a development were to be allowed.
The proposal included a side wall of the building on the front half of the common boundary of between 5 metres and 5.5 metres high. The remainder of the wall on the boundary was a screening fence of between 2.92 metres and 1.8 metres high. The Tribunal found that the bulk of the high side wall of the building on the boundary was unacceptable. Unless it was set back at least the minimum required by TPS 6 to have some ameliorating effect on the impact, the wall would have a dominating and therefore unacceptable impact on 24 Banksia Terrace.
TPS 6 includes discretion to vary plot ratio and setbacks. That discretion may be exercised if satisfied that approval of the proposed development would be consistent with the orderly and proper planning of the precinct and the preservation of the amenity of the locality. The Tribunal has concluded that discretion should not be exercised to allow the proposed development because the increase in plot ratio from 0.5 to 1.2 would be too great for a mixed development use. The relaxation in the plot ratio and the reduced setbacks would also result in a building that would have an unacceptable impact on the streetscape and 24 Banksia Terrace and a development that would not be sufficiently sensitive, as required by TPS 6, to its location at the boundary between the 'Highway Commercial' zone and the low density residential properties of the focus area.
The Tribunal has therefore dismissed the application for review.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the City of South Perth dated 3 September 2008 to refuse the development application for a mixed development at 26 Banksia Terrace, South Perth, is affirmed.
I certify that this and the preceding [111] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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