Mulcahy & Anor and City of Fremantle - [2006] WASAT 333

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MULCAHY & ANOR and CITY OF FREMANTLE [2006] WASAT 333

MEMBER: MS J SMITHSON (SESSIONAL MEMBER)

HEARD: 15 AUGUST 2006

DELIVERED : 14 NOVEMBER 2006

FILE NO/S: DR 117 of 2006

BETWEEN: ROD MULCAHY
ANITA BORDING
Applicants
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Extensions to existing residence Second storey – Height impacts Neighbour objections – Variations to Residential Design Codes Performance criteria – Loss of views – Urban design and streetscape issues – Noncompliance with council policy – Setback from ridgeline Orderly and proper planning Application upheld

Legislation:

City of Fremantle Town Planning Scheme No 3
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2002), cl 3.7.1, cl 3.7.1 P1

Town Planning and Development Act 1928 (WA)

Result:

The application for review is allowed
The application be approved subject to conditions

Category: B

Representation:

Counsel:

Applicants: Mr G Broad (Acting as Agent)
Respondent: Mr G Bowering (Acting as Agent)

Solicitors:

Applicants: Broad Planning Consultants
Respondent: City of Fremantle

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings concerned an application for review of the refusal by the City of Fremantle of proposed extensions (namely, a second storey) to an existing cottage at 3 Livingstone Street, Beaconsfield.
The second storey addition was proposed to be set back only 1.5 metres behind the ridgeline, with the City's policy requiring a minimum 4 metre setback. The City also argued that the upper floor wall and roof height exceeded the maximum permitted by the Residential Design Codes of Western Australia (2002) leading to considerable bulk, scale and mass dominating both the existing cottage and the streetscape.
The application was advertised and four objections were received. These were all from residents of a group housing development located opposite the property. The grounds for their objection essentially related to height and the consequent loss of views, with one resident also concerned about the impact on the character of the existing cottage.
The application was refused on the basis of non‑compliance with the Codes, with regard to wall and ridge heights, loss of views, non‑compliance with the City's Urban Design and Streetscape Policy in terms of the scale of the development and its impact on amenity, and the impact on the existing cottage.
The applicants argued that Livingstone Street was unique in being "two tiered" with the dwellings on the opposite side of the street being substantially higher than the subject site, thus ensuring a second storey addition would not result in substantial loss of views. Furthermore, the proposed development complied with the Codes in all respects other than the height which was required given the site constraints. Even in terms of height, the development complied with the performance criteria of the Codes. Furthermore, the form of development opposite the site dominated the streetscape and there were numerous examples of recent developments in the area of similar scale and form, which did not comply with the ridgeline setback or retain the character of the existing residence.
The Tribunal accepted the applicants' arguments. The application for review was upheld subject to certain conditions.

The site and its context

The subject site at 3 Livingstone Street, Beaconsfield (the site) is situated on the western side of Livingstone Street. It slopes from east to west by some 3 metres, has a total area of 581 square metres and contains a single storey three bedroom one bathroom limestone cottage. A strata subdivision in 1997 resulted in a two storey residence being recently developed to the rear.
The site is zoned "Residence" with an R25 coding under the City of Fremantle's Town Planning Scheme No 3 (TPS 3).
As a result of the topography of the area, Livingstone Street is effectively "split level" with the eastern side substantially higher than the western side. A group housing development presents as a row of two storey townhouses opposite the site at 4 Livingstone Street. Due to the change in levels of the street, the townhouses have potential for views at both ground and first floor level to the ocean across properties on the western side of Livingstone Street, including across the subject site.

The application

In November 2005, the City of Fremantle (City) refused an application for upper floor additions and a garage based on the following grounds: the height, ridgeline setback, lack of a truncation in the existing wall to provide sightlines for the garage, and overlooking and overshadowing of the southern neighbour.
Following meetings between the applicants and the City, a new application was lodged on 4 January 2006. This is the application the subject of this review.
In support of the application, the applicants submitted, inter alia, that: the height and mass of the proposed development was in keeping with two storey houses developed on both sides of the street; the maximum height of the extension was at the rear of the lot to minimise the impact on the streetscape; overshadowing of the southern neighbour was kept to a minimum and complied with requirements; the setback from the ridgeline was dictated by the size and functionality of the existing cottage and to minimise overlooking of the lower residence to the rear; and all of the required Residential Design Codes of Western Australia (2002) (Codes) setbacks were achieved.
The application was advertised in accordance with the City's policy which required neighbours immediately adjoining and opposite the site to be notified. In response, four submissions were received ‑ all from residents in the group housing development opposite the site.
On 15 March 2006 the application was refused by the City for the following reasons:
"1.The proposed development does not comply with the Residential Design Codes 2002 Acceptable Development Criteria or Performance Criteria with regard to the wall and ridge heights exceeding the maximum 6m and 9m respectively, and the loss of views from properties on the eastern side of Livingstone Street.
2.The proposal is contrary to Council policy DBH1 Urban Design and Streetscape in that the scale proposed would be detrimental to the residential amenities of the occupiers of the nearby residential properties.
3.The proposal is contrary to Council policy DBH1 Urban Design and Streetscape in that it has the potential to adversely impact upon the existing residence in terms of the mass, bulk and scale of the proposed addition."
Advisory notes were provided by the City to the applicants in support of each of the grounds of refusal.

Issues

Three key issues emerged during the review which comprised the core of the objections of the neighbours opposite and led to the City's refusal. These were agreed by the parties to be:
1.Whether the development would result in a loss of views and, if so, whether this was a relevant consideration or a reasonable outcome.
2.Whether the proposed development would adversely impact on the amenity of the locality (including streetscape) or on neighbours by virtue of the character and scale (including height) of the development proposed.
3.Whether the proposed development would adversely affect the character of the existing cottage.
The Tribunal heard expert evidence on these issues from Mr Palassis, architect for the City and Mr Adam, architect for the applicants and from two town planners, Mr Bowering for the City and Mr Broad for the applicants.

Loss of views as a consequence of height

The City argued that the development did not comply with either the acceptable development criteria or the performance criteria of the Codes with respect to the wall and ridge heights. The proposed wall height was 7.8 metres and the ridge height was 9.6 metres whereas the acceptable development criteria of the Codes stipulates 6 metres and 9 metres as maximum heights respectively. This increased height would contribute to the loss of views of the residents opposite.
The City's primary concern with the height was not with regard to the impact on dwellings at the rear or directly adjoining but rather on the grouped dwellings opposite whose occupants had lodged objections to the reduction in their views. It was thought that the applicants had not adequately addressed this loss of views in their submission. Accordingly, any variation was not justified.
The City also argued that the performance criteria of the Codes state that building height is to be consistent with the desired height of buildings in the locality. Whilst it was similar in height to the adjoining properties at 1/1 Livingstone Street and 5A Livingstone Street, the former had been approved under the former Codes without a requirement for height variation and the latter had been approved under appeal to the Minister (the appeals system then in place).
Finally it was the City's view that the current floor height of the existing cottage was insufficient justification to grant the height concession sought.
The applicants submitted that the pitch and profile of the roof had been designed to minimise the impact on the views from the properties opposite. Furthermore, variations to the height:
(a)were required as the existing cottage had an existing floor level 1.8 metres above natural ground level at the rear and the variation was required in order to accommodate the second storey. This already had low floor to ceiling heights to minimise the bulk, scale and height of the addition;
(b)could be supported under the performance criteria of the Codes which only required consideration of the impact on adjoining neighbours, not on neighbours opposite, and the City agreed that there were no adverse impact on these neighbours, nor had these neighbours objected to the height proposed;
(c)was similar to both the height of the adjoining residences and to numerous developments in the vicinity. In particular, there was two storey development on all adjoining properties including 1 and 1B and 5 and 5B Livingstone Street with a two storey house under construction at 3B Livingstone Street. The grouped housing development opposite was also two storey and dominated the streetscape;
(d)would not result in loss of any views from the second level of the townhouses opposite, and it was unreasonable for the occupants of these dwellings to expect to retain views at ground floor level. Many already did not have views from the ground floor due to fencing and landscaping;
(e)would not result in any overshadowing of adjoining properties; and
(f)would not be apparent from the street given the highest part of the building was at the rear of the property due to the slope of the site. At the front of the residence the wall height was 6 metres with a 7.9 metre roof height, which complied with the Codes.
In the joint expert evidence of the architects, it was agreed that:
(a)the height did not meet the acceptable development criteria and needed to be assessed under the performance criteria of the Codes and specifically Provision 3.7.1 P1;
(b)in terms of Provision 3.7.1, the three criterion therein "do not have any application to the amenity of properties on the east side of Livingstone Street as they are not 'adjoining properties' as defined in the R‑Codes";
(c)the amenity of residents of the immediately adjoining properties was not adversely impacted on by the proposed development;
(d)there were no provisions in the Codes, TPS 3 or the City's policies that the architects were aware of which provided for protection of views for the properties on the eastern side of the street, as distinct from the adjoining neighbours;
(e)there was no consistent pattern of architectural form or scale to the streetscape of Livingstone Street; and
(f)the proposed development did not comply with the Council's Urban Design and Streetscape Policy (Policy DBH1) in that the upper floor additions were not set back a minimum of 4 metres from the ridgeline.
Having viewed a montage of the height of the proposed development, the architects in their joint evidence stated that, whilst the development would have a degree of impact on views from the ground floor of the dwellings in the development opposite, given that two storey dwellings were permissible and increasingly the "norm" in the street, it was not reasonable for the height of the proposed development to be curtailed to protect views from ground floor levels of dwellings opposite. They concluded by stating: "it is our opinion that the form and height of the proposed development should not be modified or reduced in order to protect the existing views enjoyed by properties on the Eastern [sic] side of Livingstone Street".

Impact on amenity of neighbours and streetscape

The proposed upper storey complies with the setback requirements of the Codes but does not comply with the 4 metre setback from the ridgeline required under Policy DBH1, the intent of which is to, inter alia, minimise the dominance of extensions on the existing streetscape. As a consequence of not meeting this requirement, and given the height proposed, the City submitted that the development would dominate and adversely impact on the character and streetscape of Livingstone Street by reason of its bulk, size, scale and design.
The architects for both parties agreed that there is no consistent pattern of development in Livingstone Street. Whilst the few original cottages left suggest what the original pattern and form may have been, "this has been lost by the nature of the development with only one original cottage remaining in this particular block. Of more impact is the out of scale two storey townhouse development on the opposite side of the street".
The architects therefore advised that not only had there been a change of scale in the street but "the street now presents as a chaotic mixture of different architectural forms and style". Whilst generally agreeing with the principles of Policy DBH1 to have regard to the character of the street both architects were of the opinion that the proposed development "would not have an adverse effect on the area as a whole, the streetscape or the adjoining houses, in terms of the policy provisions". Further, the development would not appear excessive when viewed from the street because the excess height was at the rear which was 1.8 metres lower than the street.
In view of the form of development existing in Livingstone Street, the architects also formed the view that, in terms of Policy DBH1, the development was not inconsistent with the "desired height of buildings in the locality". Accordingly, in their opinion, given the extent and nature of redevelopment in the area and in particular in Livingstone Street, "the proposed development would not have a detrimental impact on the streetscape or amenity generally".

Impact on existing cottage

The third issue was the impact the proposed development would have on the existing cottage. Policy DBH1 requires a 4 metre setback for upper storeys from the ridgeline to minimise visual impact on an existing property and to ensure the primary form of the existing cottage is not compromised. The City's policy is premised on the assumption that a setback of 4 metres from the ridgeline for an upper storey provides a distinct separation between the original primary roof form and the new development.
It was agreed that, whilst the existing cottage had no particular heritage significance, it had architectural qualities that should be respected. The architects did not agree on the acceptability of the setback proposed in terms of the existing cottage. They did agree, however, that even a 4 metre setback would still have some impact on the integrity of the existing cottage.
Mr Palassis, the architect nominated by the City, believed the impact on the integrity of the existing cottage of not providing a 4 metre setback would be significant and should not be supported. He indicated that the setback proposed would compromise the existing building form. In Mr Palassis' view, there was ample space on the site to accommodate a 4 metre setback which could be developed without adversely affecting the function of the proposed additions.
Mr Adam, the architect nominated by the applicants, considered that, whilst the setback proposed behind the ridgeline was "not ideal" it was "not so severe as to warrant outright refusal of the application". His argument was based on the fact that the cottage was not of any cultural heritage significance; that there was common agreement that the development would not be inconsistent with other developments in the street; and that a complying development would only achieve a marginally better result in terms of the visual presentation of the cottage to the street.
Mr Broad, on behalf of the applicants, argued that if the additions were set back further to the rear of the existing dwelling, the height of the development would increase, given the slope of the property. This could increase the potential for overshadowing and overlooking of the property to the rear. It would also decrease the useability of the applicants' existing small rear yard and of the existing cottage with any change to the design requiring an internal staircase within the cottage. Mr Broad further argued that the original roofline would still be discernible on the southern elevation.
The applicants also argued that the bulk of the upper floor additions were behind the ridgeline, that they were modest in nature, and that the extensions were designed to complement and blend with the existing cottage, with similar facade materials, windows and roof design.
The applicants also alleged that there were numerous developments within the locality where the 4 metre setback had not been imposed and where the integrity of the existing cottage was no longer discernable. This included the adjoining property at 1 Livingstone Street.
Finally, Mr Broad argued that TPS 3 did not require mandatory compliance with Policy DBH1 but rather that the City only had to have regard to it. Accordingly, the provisions of Policy DBH1 should not be strictly applied where a street, such as Livingstone Street, "is an eclectic mix of housing type and size" and where "the street is no longer a typical Fremantle street with single storey cottages".

Findings and conclusion

The application was refused largely because of the impact of the increased height on the views of residents opposite the site and the objections that the City received from these residents. However, the Codes only require consideration of the impact on views of adjoining properties, which were not of concern to the City or these neighbours. There was no City policy or TPS 3 provision brought to the attention of the Tribunal which expressly or directly required protection of views in relation to properties opposite a development site.
The Tribunal agrees with the applicants that it is not reasonable to restrict the height of a second storey addition to protect views from the ground floor of two storey dwellings opposite the site notwithstanding there were objections to the development from occupants of these dwellings, principally due to the loss of their views. These dwellings are substantially higher than the subject site and it not unreasonable for the subject property to be developed with a two storey residence. Furthermore, the applicants had attempted in the roofline design to minimise the loss of views of dwellings opposite.

The character of the existing streetscape is neither homogenous nor reflective of the original form of development. Numerous examples were cited of two storey development which indicated it to be more the 'norm' than the exception. It was agreed by the architects that the proposed development would not be out of character with the streetscape. The Tribunal shares this view.
The slope of the site and the design of the existing cottage formed the basis for the variation to the height sought by the applicants. In considering the performance criteria of the Codes in terms of assessing the merits of this variation, it is the Tribunal's view that there would be no adverse impact on the amenity views of adjoining properties arising from the variations sought and that the performance criterion are met.
Whilst the extension will have an impact on the character of the existing cottage, the location of the cottage and the topography of the site would mean that complying with the 4 metre ridgeline setback could in itself have an adverse impact on adjoining properties, albeit improving the integrity of the retained cottage when viewed from the street. Given that few original cottages remain in the street, the extent of two storey development that has occurred, and the precedent arising from other developments where a 4 metre setback has not been complied with in the immediate vicinity, it is considered that the imposition of the 4 metre setback provided by Policy DBH1 should not be applied in this particular instance.
As the development in all other respects complies with the provisions of the Codes and the City's policies, the Tribunal approves the application subject to conditions.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the City of Fremantle is set aside.
3.In substitution of the decision set aside, there will be a decision that the application for review is approved subject to the following conditions:
1)     Crossovers are to be constructed and thereafter maintained, in accordance with the City of Fremantle's Crossover Specifications Policy after separate approval by Physical Services Department, prior to occupancy.
2)     All stormwater from roofed and paved areas shall be collected and disposed on site. A detailed drainage plan is to be submitted with an application for a building licence.
3)     The existing infrastructure located within the road reserve is to be protected during the construction process period with any damage to the infrastructure being repaired to the satisfaction of the City of Fremantle.
4)     The development shall be connected to the reticulated sewerage system prior to occupancy and thereafter.
5)     The external face of the boundary wall shall be finished with face brickwork or two coat sand render.
6)     Details of colours and external materials shall be submitted prior to any works taking place on site to the satisfaction of the Chief Executive Officer.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J SMITHSON, SESSIONAL MEMBER

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Citations

Mulcahy & Anor and City of Fremantle [2006] WASAT 333

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