MONDELLO and TOWN OF VINCENT
[2008] WASAT 88
•28 APRIL 2008
MONDELLO and TOWN OF VINCENT [2008] WASAT 88
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 88 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:8/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 28/04/08 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | SALVATORE MONDELLO TOWN OF VINCENT |
Catchwords: | Town planning Application for approval to commence development Building height, size and mass Streetscape Amenity of the locality Orderly and proper planning |
Legislation: | Metropolitan Region Scheme, Form 1 Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia(2002), cl 1.1.2, cl 1.5.2, cl 2.4.6, cl 3.2.1 A1, cl 3.2.1 P1, cl 3.2.2 A2(i), cl 3.3.1 P1, cl 3.4.1 P1, cl 3.8.1 A1(i), Pt 3.8.1 A1(ii) Town of Vincent Town Planning Scheme No 1, cl 10(1), cl 10(2), cl 19(2), cl 32(1), cl 38, cl 40(3), cl 47 |
Case References: | Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65 |
Orders | The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MONDELLO and TOWN OF VINCENT [2008] WASAT 88 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 APRIL 2008 FILE NO/S : DR 8 of 2008 BETWEEN : SALVATORE MONDELLO
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Application for approval to commence development - Building height, size and mass - Streetscape - Amenity of the locality - Orderly and proper planning
Legislation:
Metropolitan Region Scheme, Form 1
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia(2002), cl 1.1.2, cl 1.5.2, cl 2.4.6, cl 3.2.1 A1, cl 3.2.1 P1, cl 3.2.2 A2(i), cl 3.3.1 P1, cl 3.4.1 P1, cl 3.8.1 A1(i), Pt 3.8.1 A1(ii)
Town of Vincent Town Planning Scheme No 1, cl 10(1), cl 10(2), cl 19(2), cl 32(1), cl 38, cl 40(3), cl 47
(Page 2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980)
Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Vincent to refuse an application for a three-storey house in Bream Cove, Mount Lawley.
2 The State Administrative Tribunal examined the respective position of the parties, the background to the application, the relevant legislative and policy provisions, the content of submissions regarding the proposed development and matters of streetscape, amenity, orderly and proper planning and the design of a three-storey development previously approved by the Town of Vincent in 2005.
3 The State Administrative Tribunal determined that the height, size and bulk of the proposed development was inappropriate on the subject land, and bore little or no relationship to the design and scale of the existing two-storey residences in Bream Cove.
4 Also, that the proposed development was not consistent with orderly and proper planning; particularly in respect of the relevant provisions of Town of Vincent Town Planning Scheme No 1 and the Walters Brook Design Guidelines and that, if approved, the development would have a detrimental effect on the immediate residential environment of Bream Cove.
5 The application for review was dismissed.
Introduction
6 The application for review, dated 9 January 2008, was lodged by Mr Salvatore Mondello (applicant) against a decision of the Town of Vincent (respondent, Town or Council) on 18 December 2007 to refuse an application for town planning approval for a three-storey house at No 2 Bream Cove, Mount Lawley (subject land).
7 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The reasons for refusal were:
"(i) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
(Page 4)
- (ii) the non-compliance with the setbacks, privacy and open space requirements of the Residential Design Codes, and the setbacks, privacy and building height requirements of the Town's policy relating to the Walters Brook Design Guidelines for Lots 229 - 232 Pakenham Street, Mount Lawley, respectively; and
(iii) consideration of the objections received."
Subject land
8 The subject land can be described as Lot 3 (No 2) Bream Cove, Mount Lawley on Certificate of Title Volume 2503, Folio 326 (Plan or Diagram 24107).
9 The rectangular shaped property is located on the north-east corner of Bream Cove and Joel Terrace. It has a site area of 352 square metres with a north-east to south-west dimension of some 15.5 metres and a north-west to south-east dimension of some 23 metres. The corner truncation is 4.24 metres long.
10 The predominant housing type in Bream Cove is two-storey single residential, with the residence immediately to the north-east in Joel Terrace, on the corner of Pakenham Street, being an elevated two-storey residence above a double garage. The street slopes upwards to the north-east and so the southern elevation of that residence gives the appearance of being higher than two storeys.
11 The residences in Joel Terrace are predominantly two storeys, but with the occasional three-storey development.
Legislative and policy framework
12 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" in the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). It has a coding of R20.
13 Of relevance in this matter are the:
(a) Residential Design Codes of Western Australia (2002) (Codes);
(b) Town of Vincent Planning and Building Policy Manual - Banks Precinct (Policy No 3.1.15);
(Page 5)
- (c) Town of Vincent Planning and Building Policy Manual - Residential Design Guidelines - Riverside Locality (Policy No 3.3.30);
(d) Town of Vincent Planning and Building Policy Manual - Non-Variation of Specific Development Standards and Requirements (Policy No 3.5.16);
(e) Town of Vincent Planning and Building Policy Manual - Walters Brook Design Guidelines for Lots 229 - 232 Pakenham Street, Mount Lawley (WBDG).
Respondent's position
14 The position of the respondent is outlined in its statement of issues, facts and contentions dated February 2008. The respondent contends:
(a) The proposed development does not satisfy the relevant criteria contained within Policy No 3.3.30, and would be inconsistent with the existing and future character.
(b) The proposed development contravenes the open space, building setback and privacy requirements of the Codes.
(c) The proposed development contravenes the building setback, building height and privacy requirements of the WBDG.
(d) The six objections lodged against the proposed development are considered to be valid.
Applicant's position
15 The position of the applicant is outlined in a letter to the Tribunal, dated 18 February 2008, from Mr Marcello Carbone, a building designer with mcarbonedesign. Mr Carbone contends:
(a) The three-storey height proposal is sympathetic to the Joel Terrace streetscape and in line with the WBDG.
(b) Bream Cove is a minor street and its two-storey residences have a minor impact on the greater Joel Terrace.
(Page 6)
- (c) Bream Cove tends to slope down from Joel Terrace and even a two-storey structure with a pitched roof would seem imposing on the Bream Cove residences.
(d) The various setback issues raised by the respondent can be discussed and rectified once the three-storey height limit has been addressed.
(e) Privacy screens will be provided to the first and second floor balconies along the eastern boundary. This will conform to Pt 3.8.1 A1(ii) of the Codes and to TPS 1.
(f) The open space calculations amount to the 50% requirement, and not to the 42.8% as calculated by the respondent.
(g) A three-storey development was previously granted by the Town on 13 September 2005 to a former owner, and prior to the purchase of the subject land by the applicant.
Planning issues
16 The principal planning issues are:
(a) Is the proposed development consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality?
(b) What weight should be given to the views of nearby landowners in the determination of the matter?
Assessment of the proposal
Background
17 On 17 December 2002, a conditional approval was granted by the Town at an Ordinary Meeting of Council for a two-storey single house. The structure was never built.
18 On 13 September 2005, an approval was granted by the Town at an Ordinary Meeting of Council for a three-storey single house (including basement and undercroft parking) on the subject land. The structure was never built, and the vacant property was subsequently sold to the applicant.
(Page 7)
19 On 6 August 2007, an application for approval to commence development (MRS Form 1) for the proposed three-storey single house was lodged with the Town and was considered at an Ordinary Meeting of Council on 20 November 2007. The matter was deferred at the request of the applicant.
20 On 18 December 2007, the matter was again considered at an Ordinary Meeting of Council and was refused.
21 The application for review was lodged with the Tribunal on 9 January 2008.
The proposed development
22 The proposed development, which has an external "castle" appearance, is broadly comprised of:
(a) a ground floor to include a four-car garage, entry, games room, guest suite, cellar, bar and terrace;
(b) a first floor to include a kitchen/dining room, family room, activity room, study, bathroom and balcony;
(c) a second floor to include a master bedroom with en-suite, two other bedrooms with individual en-suites, a sitting room and balcony; and
(d) other features; including an eight-person lift and a ground floor lap pool.
23 Based on an associated drawing (Sheet 2 of 5) dated May 2007, the total floor area is 571.08 square metres, with the building having a 50% site cover.
Legislative and policy provisions
Town of Vincent Town Planning Scheme No 1
24 Under cl 10(1) and cl 10(2), it is explained that the Scheme area is divided into precincts, and that for each precinct, there is a planning policy. The subject land falls within the Banks precinct.
25 Clause 19(2) explains:
"Unless otherwise provided in, or consistent with, this Scheme or a planning approval, the development of land for any of the residential purposes dealt with by the Residential Planning Codes is to conform to the provisions of those Codes."
(Page 8)
26 The Residential Planning Codes were replaced by the Codes in October 2002, and were automatically incorporated into the Scheme.
27 The need for a planning approval is covered under cl 32(1) of TPS 1:
"A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by Clause 33, without first having applied for and obtained planning approval."
28 The general provisions relating to the determination of planning appreciations is covered under cl 38 of TPS 1:
"(1) The Council may refuse to consider an application which does not comply with the requirements of this Part.
(2) In assessing an application, the Council -
(a) may consult with any person or body; and
(b) is to have regard to any written submissions lodged with the Council under Clause 37(3).
(3) Subject to subclause (4), the Council may refuse or approve an application.
…
(5) Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to -
(a) the provisions of this Scheme and of any other written law applying within the Schedule area including the Metropolitan Region Scheme;
(b) any relevant planning policy;
…
(d) any Statement of Planning Policy of the Western Australian Planning Commission;
- …
(f) any submission accompanying or related to the application;
(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 to existing buildings and surroundings of any proposed building or structure.
- …"
29 The determination of non-complying applications is addressed in cl 40 of TPS 1. Clause 40(3) states:
"(3) The Council cannot grant planning approval for a non-complying application unless -
…
(b) the Council is satisfied by an absolute majority that -
(i) if approval were granted, the development would be consistent with -
(a) the orderly and proper planning of the locality;
(b) the conservation of the amenities of the locality; and
(c) the statement of intent set out in the relevant Scheme Map; and
(ii) the non-compliance would not have any undue adverse affect [sic] on -
(a) the occupiers or users of the development;
(b) the property in, or the inhabitants of, the locality, or
- (c) the likely future development of the locality."
30 The preparation of planning policies is covered under cl 47:
"…
(2) In preparing a draft planning policy, the Council is to have regard to -
(a) the purpose for which land is set aside under this Scheme;
(b) the orderly and proper planning of the locality;
(c) the conservation of the amenities of the locality;
(d) any strategies, studies or objectives adopted by the Council; and
(e) any other matters it considers to be relevant.
…
(9) A planning policy prepared under this part of the Scheme shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text shall prevail."
31 It is clear to the Tribunal that there is a strong emphasis in the Scheme on orderly and proper planning and the conservation of amenity, even in the case of a non-complying application. Also, that unless otherwise provided for, the development of land for residential purposes is to conform to the provisions of the Codes.
Planning Policy No 3.1.15 – Banks Precinct
32 Under the policy, all residential development is to comply with the relevant Scheme and Design Guidelines; including the WBDG.
33 The development standards advise:
"…
i) Height Buildings with two storeys (including loft) are strongly encouraged.
A third storey (including loft) can be considered, provided that the amenity of the adjacent residential area is protected in terms of privacy, scale and bulk.
ii) Buildings east of East Parade are to be setback [sic] 4.5 metres from the street …"
34 Under the policy, the desired future character is explained:
"…
New contemporary developments are encouraged provided the design responds to the established character …
Buildings are generally to be setback [sic] from all boundaries in landscaped gardens, although reduced street setbacks may be appropriate to maintain the existing streetscape in some locations and reduced side setbacks may be appropriate on narrow lots …"
35 The matter of "height" is addressed under cl 3(i) of the policy:
"A general height limit of two storeys (including loft) can be considered provided the second storey (including loft) is generally setback [sic] a minimum of 6 metres from the street and the amenity of the area is protected in terms of privacy, scale and bulk."
Walters Brook Design Guidelines
36 The subject land is encompassed by these guidelines, which explain:
"…
Where requirements are inconsistent, these Guidelines are to take precedence over other documents and Policies. These Guidelines set out the desired approach to those factors which will influence the built form, and subsequently, the character of the subdivision in order to promote efficient use of the land, energy-conscious design and achieve an attractive and harmonious living environment for the residents and the community at large."
(Page 12)
37 The matter of "built form" is addressed:
"i) General
Council encourages the use of contemporary and innovative design that accentuates the existing character of the area. The residences built in the subdivision should be respectful of the local context and existing building stock …
ii) Setbacks and Open Space
Primary street setbacks, secondary street setbacks … within the site are to be in accordance with setbacks of the existing streetscape … All other setbacks are to be in accordance with the Residential Planning Codes …
iii) Privacy
A high standard of acoustic and visual privacy is expected with particular attention to:
a) Construction materials and techniques to enhance acoustic privacy between dwellings.
b) Site and dwelling layout to separate potentially conflicting uses.
c) Balcony and window location and design to avoid overlooking neighbouring windows and private open space.
d) The building design should ensure that the possibility of both indoor and outdoor spaces overlooking and/or being overlooked is avoided …"
"i) General
The exploration of alternatives to standard brick and tiles as the primary material for residences is encouraged.
- In looking at alternatives, consider the materials used in adjoining houses, with a view to either complement or contrast with them to create visual interest within the streetscape …"
39 The matter of "building height" is addressed:
"The height of buildings is to be sympathetic to the adjacent properties and streetscape."
Planning Policy No 3.5.16 (Non-Variation of Specific Development Standards and Requirements)
40 The objective of the policy is to make it clear that in order to achieve a reasonable level of amenity, and provide consistency in the application of standards, the Town will not vary certain development standards and requirements.
41 The associated policy statement lists certain standards under the Codes, such as minimum total open space, maximum building height and a number of other requirements under planning policies that must be met.
Residential Design Codes of Western Australia (2002)
42 The aim of the Codes is dealt with under cl 1.1.2 where it explains:
"The Codes deal with fundamental aspects of the design of residential development, aimed at:
• encouraging the widest possible range of dwelling types, to meet community desires;
• encouraging innovative design solutions;
…
• ensuring that adverse impacts on neighbouring residents are minimised;
• ensuring that new developments contribute positively to the streetscape and locality of which they form a part …"
43 Clause 1.1.2 also explains how the Codes are designed to work in terms of the "objective" of a design element being stated, and the assessment of a proposal being by way of a set of "performance criteria" or a set of "acceptable development" provisions:
(Page 14)
- "The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed-to-comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
44 Under cl 1.5.2, it further explains:
"It is expected that most development will be assessed against the Acceptable Development provisions and that where a proposal is unable to meet one or more provision, discretion will be sought from the Council against the specific Performance Criteria associated with the area of non-compliance."
45 The Codes address the need for accompanying information to allow a proposal to be assessed by Council under cl 2.4.6.:
"…
• matters required to be assessed against Performance Citeria:
i. A written justification, where an Acceptable Development provision of the Codes has not been satisfied, or cannot be satisfied, and the proposal relies upon satisfying a Performance Criterion, or a submission that the Performance Criterion is irrelevant or cannot be met …"
46 In the officer's report to Council on 18 December 2007, the assessment of the development proposal was made in relation to building setbacks, open space, building height and privacy considerations.
47 All of these matters are addressed in the witness statement dated 27 February 2008 of Mr Simon Bain, a qualified town planner, for the respondent, and in the response to that witness statement dated 5 March 2008 by Mr Marcello Carbone for the applicant.
48 On the matter of "building height", Mr Bain advises:
(Page 15)
- "The proposed development is entirely three (3) storeys where the predominant pattern of development in the Getwetw
Locality is single and two storey development. The Bream Cove elevation to the top of the wall is 10.109 metres - 10.451 metres. All other development in the area is built in accordance with the Residential Design Codes default 2 storey standard of 6 m wall height, 7 m concealed roof height and a ridge height of 9 m. The wall heights are up to 4.451 m above this standard and the concealed roof height is up to 3.451 m above this standard, demonstrating how over-height and how imposing the proposed development is.
The extra height is considered unacceptable and is contrary to Council Policy 3.5.16 …"
49 The argument put by Mr Carbone on "building height" is that, in accordance with the WBDG, the proposal is sympathetic to the adjacent properties and the streetscape. He goes on to argue:
"In light of the minor variations sought from the Tribunal and the transparency of three storey developments along Joel Terrace, the application should be accepted. In addition, the subject property had an approval for a three storey residence with the Respondent. This expired in September 2007. The Applicant did not construct the approved three storey residence as the accommodation did not suit their [sic] requirements. The previous residence was designed for the previous owner. The applicant was lead [sic] to believe that they [sic] could have a three storey residence approved as long as the new design had wall heights as per the approved design. The applicants [sic] would not have purchased the property if they [sic] were unable to build a three storey residence. The most intriguing point is that the applicant could have built the APPROVED three storey residence."
50 In the view of the Tribunal, a prime matter in this review is that of "building height" and, in view of its "castle" design, the associated question of building "bulk".
51 On the matter of "open space", Mr Bain broadly advises:
(a) The open space provided is 42.8%; whereas a minimum of 50% is required under the acceptable development provisions of the Codes.
(Page 16)
- (b) The proposed development does not meet the performance criteria of the Codes (cl 3.4.1 P1) as the development does not achieve an attractive streetscape.
52 The argument put by Mr Carbone on "open space" is that 50% "open space" has been provided.
53 In the view of the Tribunal, if the application for review was upheld, then the amount of open space required could simply be specified in the conditions of approval.
54 On the matter of "building setbacks", Mr Bain advised of the requirements under the acceptable development provisions of the Codes and what has been provided for in the proposed development. These relative dimensions are shown below:
|
|
|
North-west |
|
|
East North-west |
4.1 metres |
1.2 - 3.2 metres |
East North-west |
5.7 metres |
1.386 - 3.9 metres |
55 Mr Bain argues that, even if the development was to be assessed under the performance criteria of the Codes (cl 3.3.1 P1), which include assisting to ameliorate the impact of building bulk on adjoining properties, the reduced setbacks all impact on the amenity of the neighbouring properties in terms of the over towering effects of building height.
56 Mr Bain summarises the position in this way:
"The reduced setbacks are considered to be unacceptable given the cumulative impacts of the length and height of the walls and the wider and larger building due to the height limit being exceeded. There are also streetscape impacts of the development …"
(Page 17)
57 On the matter of "privacy", Mr Bain argues that under the acceptable development provisions of the Codes (cl 3.8.1 A1(i)), the following setbacks are required (unless vertical or horizontal screening is proposed):
"…
• 4.5 metres in the case of bedrooms;
• 6.0 metres in the case [of] habitable rooms other than bedrooms; and
• 7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandahs and the like …"
58 He goes on to say that in the case of the first and second floor, there are examples on the eastern and north-west elevations that are in contravention of the acceptable development provisions of the Codes.
59 The arguments put by Mr Carbone in his 5 March 2008 response to Mr Bain's witness statement on the matter of "building setbacks" can be summarised:
(a) The ground floor north garage wall at 1 metre setback only (instead of 1.5 metres) needs to be assessed under the performance criteria of the Codes.
(b) That, subject to the eastern first floor balcony being screened, and having regard to Table 2a (setback) and Figure 2E (wall height) of the Codes, the setback required is 2 metres only. The 1.4 metre setback to the turret (an architectural feature) is covered under cl 3.2.2 A2(i) of the Codes.
(c) That, subject to the north-west first floor "activity" room being screened, and having regard to the provisions of Table 2a and Figure 2E of the Codes, a setback of 1.2 metres only is required. This provision has been met.
(d) That, subject to the eastern second floor balcony being screened (or approved under the relevant performance criteria), and having regard to Table 2a and Figure 2E of the Codes, a setback of 2.8
- metres is required. The setbacks vary from 1.4 metres to the turret on the south-east corner (covered under cl 3.2.2 A2(i)) through to 3.7 metres.
- (e) That, subject to the north-west "bedroom 3" being screened, and having regard to Table 2a and Figure 2E of the Codes, a setback of 1.4 metres only is required. Setbacks of 1.388 metres to 3.9 metres have been provided.
60 On the matter of "privacy", Mr Carbone argues that the first and second floor balconies to the eastern elevation overlook the front setback area of the neighbouring property and have no adverse effect. Also, that the first floor "activity" room and second floor "bedroom 3" to the northern boundary overlook the setback area and the garage of the neighbouring property and, if obscured and/or adequately screened, will have no adverse effect.
61 The difficulty encountered by the respondent in relation to the assessment of the proposal, as detailed in Mr Bain's witness statement, is that there was no justifying submission from the applicant in the original application to Council, or in the applicant's submission to the Tribunal of 18 February 2008. In other words, the requirements of cl 2.4.6 of the Codes have not been satisfied.
62 In the view of the Tribunal, the detailed arguments of the applicant in his 5 March 2008 submission do now represent his justification for the proposed development to proceed.
The proposed development - neighbour submissions
63 In the report to Council of 18 December 2007, the submissions from neighbours against the proposed development included:
(a) excessive building height;
(b) house is too large for the block of land;
(c) the bulk and size of the building will have an adverse impact on existing homes in Pakenham Street and the rear block;
(Page 19)
- (d) a three-storey house is not in keeping with the character of Bream Cove which is a predominantly two-storey streetscape;
(e) the building will result in a feeling of confinement on adjacent properties due to its excessive height and reduced setbacks;
(f) the building does not minimise overshadowing, overlooking or visual intrusion and is not in accordance with the Codes or the WBDG;
(g) the building contravenes development requirements;
(h) inadequate open space surrounding the dwelling; and
(i) other home owners were required to comply with development requirements.
64 The Tribunal also received submissions from the owners/residents from No 1, No 3 and No 4 Bream Cove, and from No 81 Joel Terrace against the proposed development. The submissions were broadly in line with the arguments presented in [64] above, but also included:
(a) The proposed development would set an undesirable precedent.
(b) The overshadowing drawings prepared by the applicant are inaccurate.
(c) A previous three-storey development approved on the subject land had a total height of 8.5 metres, and not 10.45 metres as now proposed.
65 A copy of a letter, dated 15 January 2008, to the applicant from the owner of No 5 Bream Cove was also made available to the Tribunal. The letter advised of no objection to the proposed development and that the application be determined by the Town on its merits.
66 It is clear to the Tribunal that the majority of owners/residents in Bream Cove oppose the proposed development.
The matter of streetscape
67 The overall "Objective" for streetscape requirements in the Codes is:
(Page 20)
- "To contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants, and provide an alternative setting for buildings."
68 Although there is some flexibility built into the acceptable development provisions of cl 3.2.1 A1, the overall intent is that buildings should be set back from the primary street in accordance with Table 1. This would require a minimum setback of 6 metres, and 1.5 metres from the secondary street.
69 Under the performance criteria set down in cl 3.2.1 P1, it states:
"Buildings set back an appropriate distance to ensure they;
• contribute to the desired streetscape;
• provide adequate privacy and open space for dwellings; and
• allow safety clearances for easements for essential service corridors."
70 Under the WBDG, the primary and secondary street setbacks are to be in accordance with setbacks of the existing streetscape, and as pointed out by Mr Bain in his submission at [24]:
"The proposed development will impact on the amenity of the Locality and have specific impacts on the streetscape. Inspection of the area shows all dwellings have complying setbacks, building height, open space and no overlooking issues. The proposed development does not conform with these standards and is clearly contrary to the pattern of development in the Locality."
71 However, in his submissions of 5 March 2008, Mr Carbone argues:
"The street setbacks are consistent with the streetscape. For example, No 1 Bream Cove has a setback to Joel Terrace of 4.0 metres and a setback to Bream Cove of 1.5 metres …"
72 From photographic evidence available to the Tribunal, and from an on-site inspection by Senior Sessional Member Graham, it is clear that Bream Cove is already intensively developed with two-storey dwellings occupying a relatively short cul-de-sac. It is also clear that No 1 Bream Cove on the south-west corner of Bream Cove and
(Page 21)
- Joel Terrace has been designed to address Joel Terrace. That is not the case with the subject land, where the proposed development is designed to address Bream Cove.
The matter of orderly and proper planning
73 This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy instruments.
74 As explained elsewhere in this review, at [29] and [30], there is a degree of flexibility available to the respondent in determining a development application on its merits under current policy. This same approach is also available to the decision-making authority under the Codes; particularly if an assessment is made within the context of the relevant performance criteria.
75 In making its decision under review, the Tribunal must also have regard to relevant planning considerations (such as the Codes), but is not constrained by them.
The matter of amenity
76 Under TPS 1, "amenity" is defined as:
"[meaning] all those factors which combine to form the character of an area and include the present and likely future amenity."
77 However, in Cipriano v City of Perth (unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) "amenity" is defined at page 5 as being:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of an area, its appearance and land uses."
78 The definition relies on the views of residents as to the quality of their environment and their individual expectations going forward.
79 In Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65, Mr Malcolm QC (as he was then) defined amenity from a different perspective:
(Page 22)
- "In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality."
80 This definition accepts the existing amenity as given, good or bad, and the likely consequences of a proposed development on that amenity as assessed by individuals within the locality.
81 In this particular case, the Tribunal does have the benefit of feedback from residents/owners, and the predominant view is that the proposed three-storey development on the subject land will have a detrimental effect on the quality of their residential environment.
The matter of the previous three-storey approval
82 On 13 September 2005, an approval was given by Council to a three-storey single house, including a basement and undercroft parking, being built on the subject land.
83 The proposed structure was, in concert with No 1 Bream Cove on the opposite corner, oriented towards Joel Terrace. The setback to Joel Terrace (primary street) was 6 metres and to Bream Cove (secondary street) was 1.5 metres in accordance with the Codes.
84 In a letter to the Tribunal dated 28 February 2008, Mr Bain advised in comparing the previous three-storey approval with the now proposed development:
"…
Please note the total height is lower, ranging from 8.3 [metres] to 9.8 [metres] above natural ground level. The subject development proposes heights of 10.1 [metres] to 10.54 [metres].
The previous development also was not as wide (or bulky) complying with setback and open space requirements. That development proposed additional open space (52% instead of 50%). The subject development proposed only 42%.
…"
85 It is clear to the Tribunal that the proposed development is a higher, larger and more bulky development than the three-storey structure approved by Council in 2005.
(Page 23)
Conclusions
86 The application for review was lodged against a decision of the Town to refuse an application for a three-storey single house.
87 In undertaking this review, the Tribunal has examined the respective position of the parties, the background to the application, the relevant legislative and policy provisions, the content of submissions regarding the proposed development and matters of streetscape, amenity, orderly and proper planning and the design of a three-storey development previously approved by Council in 2005.
88 The position taken by the respondent in this matter is that the proposed development contravenes the open space, building setback and privacy requirements of the Codes and WBDG, and would be inconsistent with the existing and future character of the locality. There is also the view that the objections lodged against the development are valid.
89 The position taken by the applicant is that the three-storey proposal is sympathetic to the Joel Terrace streetscape and that, once the matter of "building height" is determined, then various setback issues raised by the respondent can be addressed. The applicant also argues that the 50% open space requirement has been met, and that an approval for a three-storey residence was granted by Council in 2005.
90 In examining this matter, the point needs to be made that the applicant, in purchasing the subject land, has acquired a relatively small rectangular-shaped site of 352 square metres with dimensions some 23 metres long and 15.5 metres wide. The site area is 88 square metres smaller than the minimum site area (440 square metres) specified in the general site requirements of the Codes for R20.
91 This fact immediately poses a problem for both the applicant, and his building designer, to achieve such a large home on a 352 square metre site.
92 Of importance in assessing the proposal are the relevant provisions of the legislation, and to that extent, TPS 1 does provide Council with a wide discretion in determining planning applications, even if they are non-complying. However, the emphasis is very much on orderly and proper planning, the conservation of the amenity of the locality and the relationship of the proposed development to existing buildings and surroundings. It is this latter point that is very much the focus of the Tribunal.
(Page 24)
93 With respect to the applicable policies, it is the case that Policy No 3.1.15 (Banks Precinct) does allow for a three-storey residence:
"… provided that the amenity of the adjacent residential area is protected in terms of privacy, scale and bulk."
94 Under Policy No 3.3.30 (Riverside), it is also the case that new contemporary developments are encouraged, provided the design responds to the established character. However, there is an emphasis in the policy of a general height limit of two storeys only.
95 The WBDG, which encompass the properties in Bream Cove, also encourage innovative design, but in the context of accentuating the existing character of the area. The guidelines explain "… residences built in the subdivision should be respectful of the local context and existing building stock" and that "The height of buildings is to be sympathetic to the adjacent properties and streetscape".
96 In this respect, it must be said that a three-storey "castle" residence at the entrance to Bream Cove, and at the maximum height contemplated, is far from sympathetic to the adjacent two-storey residences within the Bream Cove cul-de-sac.
97 Regarding the Codes and their interpretation, it is the case that the parties are at odds on the matters of building height, open space, building setbacks and privacy requirements. However, in certain instances, such as the 1 metre setback of the ground floor north garage wall, the applicant seeks consideration under the relevant performance criteria rather than under the acceptable development provisions.
98 The difficulty expressed by the respondent in this matter is that, throughout its assessment process, there was no justifying submission from the applicant, as required under cl 2.4.6 (Special Information Requirements) of the Codes, where the acceptable development provisions could not be met. The justification was only provided to this Tribunal (and the respondent) in the applicant's final submission of 5 March 2008.
99 On the matter of the views of nearby neighbours to the proposed development, the objections were in relation to building height, its overall size and bulk relative to the lot size, and the consequential adverse effects on other residences in Bream Cove. Apart from one letter of support, the majority view was that the proposed development was not in keeping with the two-storey character and streetscape of Bream Cove.
(Page 25)
100 On this latter point, the applicant includes Joel Terrace in the interpretation of streetscape, and where there is the occasional three-storey development. However, the subject land falls within the area encompassed by the WBDG, which are planning guidelines specifically prepared for lots subdivided from the original Lots 229 - 232 Pakenham Street, Mount Lawley.
101 In the view of the Tribunal, the applicant has come forward with an interesting and innovative "castle" design. However, such a structure would be best located on a much larger lot with appropriate setbacks to allow for extensive landscaping surrounds. In that way, the development would not be constrained by a 352 square metre lot size.
102 What has to be kept in mind is that the subject land is positioned at the entrance to Bream Cove, and the height, size and bulk of the proposed three-storey development bears little or no relationship to the design and scale of the existing two-storey residences in the cul-de-sac.
103 Having said that, it is the case that the proposed development would relate more to the adjoining residence at the corner of Joel Terrace and Pakenham Street with respect to height and size, but that is of secondary consideration to the need to relate to the residences in Bream Cove covered by the WBDG.
104 On the matter of the previous three-storey development approval in 2005, it is the case that the now proposed development is significantly higher, larger and more bulky. It is oriented towards Bream Cove with a minimum front setback, rather than oriented towards Joel Terrace with a front setback of 6 metres, as was the case with the previous 2005 approval.
105 It is the considered view of the Tribunal that the proposed development is not consistent with the orderly and proper planning of the locality; particularly in respect to cl 38(5) of TPS 1 (sub-clauses (b), (f), (g), (h) and (i)) and that, if approved, the development would have a detrimental effect on the immediate residential environment of Bream Cove. Such being the case, the Tribunal also found that the proposed development would be contrary to the relevant provisions of both the WBDG and the Codes which aim to ensure that the amenity of neighbouring residents are protected in terms of privacy, scale and bulk.
(Page 26)
Orders
106 For the foregoing reasons, the Tribunal orders that:
The application for review is dismissed.
I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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